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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO SECTIONS 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Mark One)
[X]ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1999
OR
[_]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from to
Commission File Number 1-9320
Wyndham International, Inc.
(Exact name of registrant as specified in its charter)
Delaware 94-2878485
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
(Address of principal executive (Zip Code)
offices)
(214) 863-1000
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Class A Common Stock, par value New York Stock Exchange
$0.01 per share
Preferred Stock Purchase Rights New York Stock Exchange
(Title of each class) (Name of each exchange on which
registered)
Securities registered pursuant to Section 12(g) of the Act:
Series A Convertible
Preferred Stock, par value
$0.01 per share
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment of this Form 10-K. [X]
The aggregate market value of the voting stock held by non-affiliates of
Wyndham International, Inc. as of March 22, 2000 was approximately $313
million, based upon a price of $2.0625 per share.
As of March 22, 2000, there were 167,721,297 shares of Wyndham class A
common stock issued and outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Certain information called for by Part III is incorporated by reference to
the definitive proxy statement for the annual meeting of the stockholders of
Wyndham to be held on May 16, 2000, which will be filed with the Securities
and Exchange Commission not later than 120 days after December 31, 1999.
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WYNDHAM INTERNATIONAL, INC.
Form 10-K Annual Report
Index
Item Form 10-K
No. Report Page
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PART I
1.Business................................................................ 3
2.Properties.............................................................. 3
3.Legal Proceedings ...................................................... 17
4.Submission of Matters to a Vote of Security Holders..................... 19
PART II
5.Market Price for Registrant's Common Equity and Related Stockholder 20
Matters..................................................................
6.Selected Financial Information.......................................... 21
7.Management's Discussion and Analysis of Financial Condition and Results 24
of Operations............................................................
7a.Qualitative and Quantitative Disclosures about Market Risks............ 35
8.Financial Statements and Supplementary Data............................. 36
9.Changes in and Disagreements with Accountants on Accounting and 36
Financial Disclosure.....................................................
PART III.................................................................. 37
PART IV
14.Exhibits, Financial Statements and Schedules, and Reports on Form 8-K.. 37
SIGNATURES.................................................................. 40
2
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PART I
ITEM 1 AND 2. BUSINESS AND PROPERTIES
General Development of Business
Wyndham International, Inc. (together with its consolidated subsidiaries,
"Wyndham" or the "Company") is a fully-integrated and multi-branded hotel
enterprise that operates primarily in the upscale and luxury segments. Through
a series of acquisitions, Wyndham has since 1995 grown from 20 hotels to
become one of the largest U.S. based hotel operators with a portfolio totaling
303 hotels and approximately 73,000 rooms.
Wyndham is a Delaware corporation and its principal executive offices are
located at 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207. As
discussed more fully below, effective June 30, 1999, Wyndham completed a
restructuring in which it acquired Patriot American Hospitality, Inc.
(together with its subsidiaries, "Patriot"). Unless the context otherwise
requires, references herein to "Old Wyndham" refer to Wyndham prior to the
June 30, 1999 restructuring and when the term Wyndham is used relating to a
period prior to June 30, 1999, such term refers to the combined entity of Old
Wyndham and Patriot.
Patriot was formed in April 1995 as a self-administered real estate
investment trust ("REIT") for the purpose of acquiring equity interests in
hotel properties. On October 2, 1995, Patriot completed an initial public
offering of shares of common stock and commenced operations. Between October
1995 and July 1997, Patriot acquired interests in 56 hotel properties which it
leased to various third parties.
On July 1, 1997, Patriot merged with and into California Jockey Club ("Cal
Jockey"), with Cal Jockey being the surviving legal entity. Cal Jockey's
shares of common stock were paired and traded together with the shares of
common stock of Bay Meadows Operating Company ("Bay Meadows") as a single unit
pursuant to a stock pairing agreement. In connection with the Cal Jockey
merger, Cal Jockey changed its name to "Patriot American Hospitality, Inc.,"
referred to herein as Patriot, and Bay Meadows changed its name to "Patriot
American Hospitality Operating Company". In January 1998, Patriot acquired
Wyndham Hotel Corporation through a merger (the "Wyndham merger"). In
connection with the Wyndham merger, Patriot American Hospitality Operating
Company changed its name to "Wyndham International, Inc." and is referred to
herein, collectively with its subsidiaries, as "Old Wyndham".
The Cal Jockey merger was accounted for as a reverse acquisition in which
Cal Jockey was considered to be acquired by Patriot. For accounting purposes,
Old Wyndham commenced its operations concurrent with the closing of the Cal
Jockey merger on July 1, 1997.
During 1998, Patriot and Wyndham grew rapidly, investing over $4.5 billion
in the acquisition of hotels and other related businesses. These acquisitions
were financed primarily with funds drawn on the companies' revolving credit
facility as well as through the issuance of paired shares and units of limited
partnership interests ("OP Units") in two operating partnerships owned
principally by Wyndham and Patriot (the "Operating Partnerships").
In the Wyndham merger, Patriot acquired ownership of 10 Wyndham hotels, 14
ClubHouse hotels, 52 management and franchise contracts, the Wyndham and
ClubHouse proprietary brand names and the Wyndham hotel management company.
Other major acquisitions during 1998 included (a) the acquisition of three
resort hotels in San Juan, Puerto Rico and a majority interest in a related
management company, (b) the acquisition of Arcadian International Limited,
which owned 10 hotels in England, one hotel in Jersey, five owned and managed
Malmaison Hotels, two European resorts under development, the Malmaison
proprietary brand name and a 50% interest in a property being redeveloped in
London, (c) the acquisition of Interstate Hotels Company, which owned or had
controlling interests in 42 hotels representing over 12,000 rooms, leases for
84 hotels representing over 10,100 rooms, and management or service agreements
for 82 hotels representing over 20,400 rooms, (d) the acquisition of SF Hotel
Company, L.P., which owned four Summerfield Suites(R) hotels, leasehold and
management interests in 24 Summerfield Suites(R), Sierra Suites(R) and Sunrise
Suites hotels and management contracts and franchise interests for 12
additional hotels, and (e) the acquisition of the hospitality related business
of CHC International, Inc., including 17 leases and 16 of the associated
management contracts related to Patriot hotels, eight third-party management
contracts, two third-party asset management contracts, the Grand Bay
proprietary brand name and certain other assets.
3
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Restructuring
Effective June 30, 1999, Wyndham completed a restructuring that included (1)
an organizational restructuring, (2) a $1 billion equity investment, (3) a new
$2.45 billion credit facility, and (4) the issuance of $581 million of
mortgage notes.
Organizational Restructuring
As discussed above, prior to the restructuring, Old Wyndham and Patriot
operated under a paired share REIT structure. Patriot principally owned and
leased hotel properties, and Old Wyndham principally served as an operating
company that managed hotel properties, including properties leased from
Patriot. The shares of common stock of Old Wyndham were paired and traded
together with the shares of common stock of Patriot pursuant to a stock
pairing arrangement and were referred to as paired shares.
On June 30, 1999, a subsidiary of Old Wyndham was merged with and into
Patriot and Patriot became a wholly-owned subsidiary of Wyndham. The pairing
arrangement was terminated and each outstanding paired share was converted
into a share of Wyndham class A common stock. In addition, Patriot's status as
a real estate investment trust was terminated effective January 1, 1999, and
Patriot became a taxable corporation as of that date.
Wyndham recorded a one-time charge of $675 million to establish a deferred
tax liability that resulted from Patriot's change in tax status from a REIT to
a C corporation, as required by Statement of Financial Accounting Standard No.
109. This charge is included in income tax expense in the accompanying 1999
consolidated statement of operations.
The restructuring was reflected as a reorganization of two companies under
common control and was accounted for in a manner similar to that used in
pooling of interest accounting. As such, there was no revaluation of the
assets and liabilities of Old Wyndham or Patriot. The financial statements
prior to the reorganization are presented on a combined basis and include the
combined accounts of Patriot and its subsidiaries with Old Wyndham and its
subsidiaries.
Equity Investment
Pursuant to the terms of the $1 billion equity investment, Wyndham issued
9.55 million shares of series B convertible preferred stock in exchange for
gross proceeds of $955 million representing an approximate 41% voting control
of Wyndham. The remaining $45 million of this investment was funded through
the transfer of one of the investor's loan receivable from PAH Realty Company
LLC, a subsidiary of Patriot, to Wyndham for the purchase of 450,000 shares of
series B convertible stock. Wyndham incurred approximately $77.6 million in
costs directly attributable to the equity investment. Among other terms, this
series B preferred stock pays quarterly dividends on a cumulative basis, at a
rate of 9.75% per year, and is convertible at the holders' option into Wyndham
class B common stock. Proceeds of the equity offering were used to pay down
existing indebtedness.
In the fall of 1999, Wyndham issued to the holders of its class A common
stock and to holders of OP units rights to subscribe for up to $300 million of
series A preferred stock, with the proceeds from the offering to be used to
redeem a portion of the series B preferred stock. The rights offering was
completed December 13, 1999 with the issuance by Wyndham of 55,992 shares of
series A preferred stock in exchange for gross proceeds of approximately $5.6
million. Wyndham incurred approximately $1.2 million in costs attributable to
the issuance of this stock. Wyndham used these proceeds to redeem 55,992
shares of series B preferred stock at a redemption price of $102.00 per share
and accrued dividends of $2.0583 per share, or an aggregate of $5.8 million in
cash. The series A preferred stock generally has the same economic terms as
the series B preferred stock, but has no voting rights, except as required by
law and except for a limited right to elect two directors if dividends are in
arrears for six quarterly periods.
4
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New Credit Facility and Term Loans
Concurrent with the closing of the $1 billion equity investment described
above, Wyndham closed on a new $2.45 billion credit facility which consists of
a $1.3 billion term loan with a seven-year term, a $500 million revolving
credit facility with a five-year term, and a $650 million increasing rate loan
facility with a five-year term. The proceeds, net of closing costs and fees of
approximately $41.1 million for the term loan and the revolving credit
facility, and approximately $17.9 million for the increasing rate loan
facility, were used to retire existing indebtedness. At December 31, 1999,
$270 million was drawn on the new revolving credit facility.
Interest rates are based upon LIBOR plus spreads varying from 2.75% to 3.50%
per annum for the term loan, and 1.25% to 2.75% per annum for the revolving
credit facility, based both on Wyndham's leverage ratio, as defined, and
whether any increasing rate loans are outstanding. If any of the increasing
rate loan facility remains outstanding, the applicable margins shall be
increased by 0.25%. The term loan and the revolving credit facility are
guaranteed by the domestic subsidiaries of Wyndham and are secured by pledges
of equity interests held by Wyndham and its subsidiaries. Wyndham's ability to
borrow under its revolving credit facility is subject to Wyndham's compliance
with a number of customary financial and other covenants, including total
leverage and interest coverage ratios.
Interest rates for the increasing rate loans are based on LIBOR rates (less
statutory reserves), plus 3.50% through September 30, 1999, and increasing
0.50% every three months, with a cap of LIBOR plus 4.75%. The lender under the
increasing rate loans receives the benefit of the same guarantees and pledges
of security provided under the new term loan and revolving credit facility.
New Mortgage Loans
Effective June 30, 1999, Wyndham also closed on a $346 million mortgage loan
with Bear, Stearns Funding, Inc., which is secured by twenty-five properties.
The loan matures on July 1, 2004 and bears interest at the LIBOR rate plus
3.25% per annum. Proceeds from the mortgage debt were used to retire existing
mortgage indebtedness. On November 5, 1999, the loan was modified to bear
interest at the LIBOR rate plus spreads of 0.82% through 4.50%.
Additionally, effective June 30, 1999, Wyndham closed on a $235 million
mortgage loan with Lehman Brothers Holdings Inc., which is secured by ten
properties. The mortgage loan has a three-year term, with a one-year extension
option, and bears interest at the LIBOR rate plus 3.50% per annum, plus an
additional 1.75% on the principal amount payable at maturity. Proceeds from
this mortgage loan were used to retire existing mortgage indebtedness.
Restructuring Charges
In addition to the one-time charge of $675 million to establish a deferred
tax liability resulting from Patriot's change in tax status from a REIT to a C
corporation, Wyndham incurred restructuring charges of $285.3 million during
1999. The restructuring charges include an $83.1 million charge resulting from
termination of the paired share structure and $202.1 million in charges
resulting from management's decision to streamline its organization and focus
on its core brands primarily by closing several divisional offices, exiting
the European market for its non-branded assets, exiting the limited hotel
sector and rebranding certain assets. See "Item 7. Management's Discussion and
Analysis of Financial Conditions and Results of Operations--Background--
Restructuring."
5
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Other 1999 Events
Sale of Arcadian International Limited
During 1999, as a part of management's strategy to exit from the European
market for their non-branded assets, Wyndham recorded a restructuring charge
of $97.9 million primarily for the write-down of assets to estimated fair
value, including goodwill of $28.4 million. The restructuring charge also
included $9.5 million associated with staffing reductions and other exit costs
necessary to reduce the Company's infrastructure in Arcadian International,
its management division in Europe. In 1999, the Company sold 11 hotels for a
purchase price of (Pounds)75 million (approximately $119.9 million based on
exchange rates at the time of closing). As a result of the sale, the Company
recorded a loss on the sale of $8.3 million, net of restructuring charges.
Spin-off of Interstate Hotels Company
On May 27, 1998, Patriot, Old Wyndham, and Interstate Hotels Company
("Interstate") entered into a settlement agreement, as amended, with Marriott
International, Inc. ("Marriott") which addressed certain claims asserted by
Marriott in connection with Patriot's then proposed merger with Interstate.
The settlement agreement provided for the dismissal of litigation brought by
Marriott, and allowed Patriot's merger with Interstate to close on June 2,
1998. In addition to dismissal of the Marriott litigation, the settlement
agreement provides for the re-branding of ten Marriott hotels under the
Wyndham name, the assumption by Marriott of the management of ten Marriott
hotels formerly managed by Interstate for the remaining term of the Marriott
franchise agreement, and the spin-off by Patriot of the third-party management
business that was operated by Interstate.
Effective June 18, 1999, Patriot distributed approximately 92% of the shares
of Interstate Hotel Corporation ("New Interstate") in the form of a dividend
to shareholders. Shareholders of record on June 7, 1999 received one share of
New Interstate stock for every thirty shares of Patriot common stock, Patriot
series A preferred stock, Old Wyndham series A and B preferred stock, Patriot
common and preferred OP units, and Old Wyndham Class A and C preferred OP
units. The remaining 8% is owned equally by Wyndham and Marriott.
As a result of the spin-off, the Company now owns an approximate 55% non-
controlling interest in the subsidiary of New Interstate, which operates the
third-party management business that Patriot acquired from Interstate.
SF Hotel Company, L.P.
In June 1998, Wyndham acquired all of the partnership interests in SF Hotel
Company, L.P. for approximately $298.9 million ("the Summerfield
acquisition"). The purchase agreement provided that the purchase price was
subject to further adjustment based on the market price of the paired shares
and achievement of certain performance criteria. Effective January 15, 1999,
the Operating Partnerships issued an additional 1,311,709 OP units valued at
approximately $9.0 million as additional consideration pursuant to the
purchase agreement. Effective February 8, 2000, the Company paid an additional
$32.8 million as additional consideration pursuant to the purchase agreement.
Other
During 1999, the Company acquired the remaining minority interests in 9
hotel assets. The acquisition of these interests was financed through cash of
approximately $4.2 million, additional mortgage indebtedness totaling $49.8
million and the sale of an additional 10% interest in another hotel.
During 1999, the Company sold a racecourse, land adjacent to the racecourse
and 21 hotel properties, including 11 hotels in London discussed above. The
Company received net cash proceeds of approximately $123.4 million, after the
repayment of mortgage debt of $62.9 million and a mortgage note receivable in
the amount of $6.0 million. The Company recorded a net loss of $10.7 million
in connection with these transactions.
6
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Recent Developments in 2000
In January 2000, Wyndham acquired the remaining interests in Wyndham Chicago
from Oxford Blackpoint Company II, LLC, for approximately $20.6 million.
In March 2000, Wyndham sold its Sierra Suites(R) hotel brand, properties and
related assets to Sierra Suites Hotel Company, L.P., an entity affiliated with
Mr. Rolf Ruhfus, a director of Wyndham, for approximately $53.0 million. The
transaction includes the sale by Wyndham of one owned and three leased
properties, seventeen franchise and management contracts for Sierra Suites(R)
and nine contracts for Summerfield Suites.
On March 27, 2000, the Company announced that its Board of Directors has
named president Fred J. Kleisner to the additional position of chief executive
officer. He succeeds James D. Carreker, who will remain as chairman.
Additionally, Wyndham accepted the resignations of two senior officers, Anne
L. Raymond, executive vice president and chief investment officer, and Stanley
M. Koonce, Jr. executive vice president and chief administrative officer.
David Johnson, president of the Wyndham hotel division, has been named
executive vice president, sales and marketing.
Description of Business
The Company is a fully-integrated hotel enterprise that operates primarily
in the upscale and luxury segments. The Company's portfolio consists of 303
owned, leased, managed or franchised hotels with approximately 73,000 rooms.
The Company classifies its business into proprietary and non-proprietary brand
hotel divisions under which it manages the business.
The Company's principal proprietary branded assets, Wyndham Hotel &
Resorts(R) consist of 171 owned, leased, managed or franchised hotels with
approximately 40,855 rooms. The Company offers upscale, full-service
accommodations to business and leisure travelers, providing a quality and
consistent product through its Wyndham Hotels & Resorts brand and its Wyndham
Garden Hotels(R) brand. The Company is positioned in the luxury segment under
the Wyndham Luxury Resorts brand. Wyndham Luxury Resorts include five-star
resort properties, such as the Boulders and Carmel Valley Ranch. Additionally,
the Company offers proprietary branded all-suite accommodations through its
upscale Summerfield Suites by Wyndham brand. Other proprietary hotel brands
owned and developed by the Company include Malmaison (a chain of unique,
lifestyle hotels located in the United Kingdom) and ClubHouse Inns (offering
mid-priced hotels focused on the individual corporate traveler).
The Company's primary growth strategy is to develop its proprietary hotel
brands through increasing distribution, generating greater customer awareness,
building brand loyalty, offering cutting-edge amenities and services, and
maintaining customer satisfaction. The Company intends to continue to expand
its Wyndham hotel portfolio through the rebranding of existing non-proprietary
branded hotels to one of its proprietary brands and through the selective
acquisition and development of hotels in major metropolitan areas and resort
destinations. In 1999, the Company converted 10 owned hotels to one of its
proprietary upscale or luxury hotel brands consistent with the Company's
strategy of increasing distribution in important urban and suburban markets.
Additionally, the Company has opened newly constructed Wyndham hotels in major
metropolitan markets including Boston, Chicago and Atlanta and acquired the
Canal Place Hotel in New Orleans (one of the leading hotels in that city)
which was converted to a Wyndham hotel in December. The Company also opened
Wyndham Hotels in Billerica (a suburb in Boston's high tech corridor) and
Denver Tech Center (the preeminent suburban market in Denver) which are
examples of its new suburban hotel prototype. This pattern of establishing
significant hotels in strategic urban centers and surrounding them with
additional locations in the important suburban sub-markets of the top 25
Metropolitan Statistical Areas ("MSA") are core to the Company's growth
strategy going forward.
On a parallel course, the Company converted a number of independent and non-
proprietary branded four-star resort assets in its portfolio to Wyndham
Resorts, including the Buena Vista Palace in Orlando and the Casa Marina and
Reach Hotels in Key West. The Company also refined the focus of its five-star
business strategy to concentrate on full-service resort properties, and folded
them into the Wyndham brand through the designation of Wyndham Luxury Resorts.
This is designed to strengthen the competitive position of these assets by
retaining the individuality of these landmark properties while adding the
sales and marketing clout of the Wyndham brand.
7
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The Company's 74 non-proprietary branded hotels consist of 72 full service
hotels and 2 resort hotels. All but 5 of these hotels are operated under
franchise or brand affiliations with nationally recognized hotel companies,
including Crowne Plaza(R), Hilton(R), Hyatt(R), Radisson(R), Holiday Inn(R),
Doubletree(R), Embassy Suites(R), Ramada(R), Four Points by Sheraton(R),
Marriott(R), and Courtyard by Marriott(R). The Company's non-proprietary
branded hotels are primarily operated by one of its management divisions,
Performance Hospitality Management ("PHM"). In addition to the Company's owned
assets, PHM manages 20 non-proprietary hotels for third parties. It is focused
on maximizing hotel profitability at the owned hotels or for third-party hotel
owners.
Consistent with the Company's strategy to grow its proprietary brands, the
Company has and will continue to review its portfolio to identify certain non-
proprietary hotels that can be converted into one of its Wyndham proprietary
brands. The balance of the Company's non-proprietary hotels will be
systematically disposed of through asset sales and exchanges to create a
source of capital for further expansion of the Wyndham proprietary brand.
Proprietary Brands
Wyndham is the brand umbrella under which all of its proprietary products
are marketed. It includes three four-star, upscale hotel brands that offer
full-service accommodations to business and leisure travelers, as well as the
five-star luxury resort brand. It has earned recognition as among the best
upscale hotel brands for overall
customer satisfaction by J.D. Powers and Associates in 1999. With hotels in
major urban, suburban and resort markets, the Wyndham brand offers products
geared to the specific needs of travelers based on their location, facilities
and trip purpose.
Wyndham Hotels & Resorts includes Wyndham Hotels which are upscale, full-
service hotels that contain an average of 400 hotel rooms, generally between
15,000 and 250,000 square feet of meeting space and a full range of guest
services and amenities, for business and leisure travelers, as well as
conferences and conventions. The hotels are located primarily in the central
business districts and dominant suburbs of major metropolitan markets and are
targeted to business groups, meetings, and individual business and leisure
travelers. These hotels offer elegantly appointed facilities and high levels
of guest service. In 1999, the Company identified new brand standards, which
are to be implemented throughout the Wyndham Hotels portfolio in 2000. These
brand standards are designed to further strengthen Wyndham's position as a
leader in product and service standards in the upscale segment. The upgraded
mattresses and bedding which are being introduced in all Wyndham Hotels over
the next 12 months are among the new brand product standards. New service
offerings include the "Wyndham By Request" guest recognition program which
focuses on rewarding repeat guests with on-site amenities and benefits during
their stay, as well as rewards for use during future travel. The Company has
targeted a number of technology initiatives designed to position Wyndham as a
dominant brand for the future. For example, all Wyndham Hotels will offer
wireless internet access to their guests. This initiative is a partnership
with Wayport, a leader in wireless internet technology. Wireless internet
access is expected to be available in all hotels by the third quarter of 2000.
Wyndham Resorts are distinctive properties and represent the largest hotel
chain in the Caribbean. The full-service and destination resorts average 300
rooms and service leisure and incentive travelers as well as business groups.
Primary destinations include Orlando, South Florida and the Caribbean.
Wyndham Luxury Resorts are five-star, luxury hotel properties featuring
between 150 and 300 rooms, numerous fine dining options, and other luxury and
recreational amenities. The resorts are distinguished by their focus on
incorporating the local environment into every aspect of the property, from
decor to cuisine to recreation. The luxury collection includes the Golden
Door(R), one of the world's preeminent spas based in Escondido, California.
Luxury Resorts are located in Arizona, Colorado, Florida, Puerto Rico, and
Mexico.
Wyndham Garden Hotels, which serve individual business travelers and small
business groups, are located principally near major airports and suburban
business districts. The full-service hotels feature between 150 and 225 guest
rooms, and include up to 5,000 square feet of meeting space. Amenities and
services generally include a three-meal restaurant, signature Wyndham
Garden(R) libraries and laundry and room service. Consistent with the
Company's strategy to grow the Wyndham Hotels & Resorts brand, the Company
plans to convert certain of the Wyndham Garden hotels into Wyndham Hotels,
which is consistent with the Company's primary focus on expanding the core
Wyndham Hotels & Resorts brand.
8
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Summerfield Suites by Wyndham(TM) hotel brand offers guests the highest
quality lodging in the upscale all suites segment. This brand received the
highest customer satisfaction score of any upscale all-suite brand in the J.
D. Powers and Associates 1999 survey. Each suite has a fully equipped kitchen,
a spacious living room and a private bedroom. Many of the suites feature two
bedroom, two bath units. The hotels also have a swimming pool, exercise room
and other amenities to serve business and leisure travelers. Each Summerfield
Suites hotel contains 86 to 150 suites in either interior or exterior corridor
design. The Company plans to lead its growth of this product through
franchising.
Malmaison, the Company's upscale brand in the United Kingdom, is a full-
service collection of contemporary hotels with traditional French brasseries
catering primarily to the business and corporate traveler. Significant
emphasis is placed on the quality of Malmaison's food and beverage options,
centered around the philosophy of "the simple things done well" and
characterized by the best of produce, great wines, fast service and affordable
prices. The recipient of five major industry awards, the Malmaison brand was
named the "Best Hotels in the World Under (Pounds)100 Per Night" by England's
Tatler magazine in 1998.
ClubHouse Inns are mid-priced, limited service hotels located principally in
secondary markets throughout the Midwest and the Southwest. ClubHouse Inns are
targeted at corporate individual travelers and feature an average of 135
rooms, two meeting rooms, full-service breakfast buffets and evening
reception. These assets are currently being held for disposition in a
portfolio transaction including the trademark rights as they are not
consistent with the Company's core strategy to concentrate the focus of future
growth in the upscale segment.
Non-Proprietary Brand
Among its non-proprietary branded hotels, the Company owns and operates 74
hotels aggregating over 21,800 rooms under franchise or brand affiliations
with nationally recognized hotel companies, including Crowne Plaza(R),
Hilton(R), Hyatt(R), Radisson(R), Holiday Inn(R), Doubletree(R), Embassy
Suites(R), Ramada(R), Four Points by Sheraton(R), Marriott(R), and Courtyard
by Marriott(R). The majority of the Company's non-proprietary branded hotels
are full-service and operate in the luxury and upscale price points. Full-
service hotels generally offer a range of conference facilities and banquet
space, food and beverage accommodations, gift shops, and recreational areas,
including swimming pools. These hotels target both business and leisure
travelers, including meetings, groups and individuals.
LODGING
The following table sets forth the number of hotels, number of rooms, total
revenue, average daily rate ("ADR"), average occupancy rate, and revenue per
available room ("REVPAR"), and capital expenditures (excluding corporate
capital expenditures) for the Company's owned and leased hotels by region and
worldwide as of December 31, 1999.
<TABLE>
<CAPTION>
Number Room Total Capital
Region of Hotels Count Revenue ADR Occupancy REVPAR Expenditures
------ --------- ------ ---------- ------- --------- ------- ------------
(dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
New England............. 8 1,913 $ 75,956 $121.35 76.1% $ 92.39 $ 6,870
East North Central...... 24 5,406 221,926 106.45 71.6 76.25 10,327
East South Central...... 7 1,473 37,955 84.81 57.2 48.54 3,715
Mid Atlantic............ 20 5,255 270,560 121.99 77.9 95.05 14,364
South Atlantic.......... 48 12,942 561,382 112.54 69.9 78.71 60,190
Mountain................ 15 3,118 183,575 121.93 69.1 84.28 10,654
West North Central...... 18 3,634 120,360 88.06 65.7 57.83 15,499
West South Central...... 24 6,506 214,977 98.41 68.3 67.18 17,160
Pacific................. 29 6,366 289,417 117.31 73.7 86.42 13,928
Canada.................. 1 287 13,429 85.65 78.4 67.17 955
Caribbean............... 5 2,319 266,215 180.76 75.9 137.27 14,031
Europe.................. 5 460 26,360 124.72 83.1 103.62 17,803
--- ------ ---------- ------- ---- ------- --------
Total................. 204 49,679 $2,282,112 $113.82 71.2% $ 81.00 $185,496
=== ====== ========== ======= ==== ======= ========
</TABLE>
9
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Total Portfolio
<TABLE>
<CAPTION>
(Number of Hotels as of December 31,
1999) Owned Leased Managed Franchised Total
- ------------------------------------ ----- ------ ------- ---------- -----
<S> <C> <C> <C> <C> <C>
Wyndham Brand Hotels & Resorts.......... 68 14 39 8 129
Wyndham Luxury Resorts.................. 3 -- 3 -- 6
Summerfield Suites and Sierra Suites.... 7 25 19 1 52
ClubHouse Inns.......................... 8 -- 2 1 11
Malmaison Hotels........................ 5 -- -- -- 5
Grand Heritage Hotels................... -- -- 1 1 2
--- --- --- --- ---
Proprietary Brand Hotels--Subtotal...... 91 39 64 11 205
Non-Proprietary Brand Hotels............ 74 -- 24 -- 98
--- --- --- --- ---
Total................................. 165 39 88 11 303
=== === === === ===
</TABLE>
Franchise and Brand Affiliations
As of December 31, 1999, all but five of the Company's owned hotels are
operated under franchise or brand affiliations with nationally recognized
hotel companies. Franchisors and brand operators provide a variety of benefits
for hotels which include national advertising, publicity and other marketing
programs designed to increase brand awareness, training of personnel,
continuous review of quality standards and centralized reservation systems.
The Company generally is the licensee under the franchise agreement related to
such hotel. The Company is responsible for making all payments under the
franchise agreements to the franchisors. Franchise royalties and fees
generally range up to approximately 10% of room revenue. The duration of the
franchise agreements are varied, but generally may be terminated upon prior
notice and/or upon payment of certain specified fees.
Management of the Hotels
As of December 31, 1999, the Company managed 88 hotels for third parties
pursuant to management contracts under which it is responsible for the day-to-
day operation of the hotels. Of the 88 managed hotels, 64 hotels were managed
under proprietary brands of the Company, while 24 hotels were managed under
non-proprietary brands of the Company. These operations include managing hotel
accommodations, meeting rooms and food and beverage services as well as hiring
and training each hotel's staff, planning and providing sales and marketing
services, purchasing operating supplies, inventories and furniture, fixtures
and equipment, providing routine repairs and maintenance and performing hotel
accounting functions, including the preparation of monthly financial
statements. The terms of the management contracts vary from hotel to hotel,
but range from 1 to 20 years. As of December 31, 1999, the average remaining
term for the management contracts was approximately 9.5 years.
Employees
As of December 31, 1999, Wyndham had approximately 32,000 employees, and
retains appropriate support personnel to manage its operations.
Pending Adoption of Authoritative Statement on Derivative Instruments and
Hedging Activities
In June 1999, FASB issued SFAS No. 137, "Accounting for Derivative
Instruments and Hedging Activities" which defers the effective date of SFAS
No. 133 to be adopted in years beginning after June 15, 2000. The Company
expects to adopt SFAS No. 133 effective January 1, 2001. Statement 133 will
require the Company to recognize all derivatives on the balance sheet at fair
value. Derivatives that are not hedges must be adjusted to fair value through
income. If the derivative is a hedge, depending on the nature of the hedge,
changes in the fair value of derivatives will either be offset against the
change in fair value of the hedged assets, liabilities, or firm commitments
through earnings, or recognized in other comprehensive income until the hedged
item is recognized in earnings. The ineffective portion of a derivative's
change in fair value will be immediately recognized in earnings. Management
has not yet determined what the effect of SFAS No. 133 will have on the
earnings and financial position of the Company.
10
<PAGE>
Certain Risk Factors
Set forth below are important risks and uncertainties that could cause
Wyndham's actual results to differ materially from those expressed in forward-
looking statements made by the management of Wyndham. In this section, the
words "we", "us", and "our" refer only to Wyndham and its subsidiaries and not
to any other person.
Hotel Industry Risks
Operating Risks. Our primary business is buying, selling, leasing and
managing hotels. This business is subject to operating risks common to the
hotel industry, including:
. competition for guests from other hotels, a number of which may have
greater marketing and financial resources and experience than us and our
hotel management companies;
. increases in operating costs due to inflation and other factors, which
may not be offset by increased room rates;
. dependence on business and commercial travelers and tourism, which may
fluctuate and be seasonal;
. increases in energy costs and other travel expenses, which may deter
travelers; and
. adverse effects of general and local economic conditions.
These factors could adversely affect our ability to generate revenues and
our financial condition and results of operations.
We may be unable to obtain or transfer necessary operating licenses in hotel
acquisitions. When we acquire hotels or hotel operating companies, we may be
unable to transfer certain operating licenses or obtain new licenses in a
timely manner, such as food and beverage licenses. Although hotels can sell
alcoholic beverages under interim licenses or licenses obtained before we
acquire them, there can be no assurance that these licenses will remain in
effect until we (or the hotel management company) obtain new licenses. If a
hotel fails to have a food and beverage license or other operating licenses,
this failure would adversely affect the hotel's ability to generate revenues
and could adversely affect our financial condition and results of operations.
Internet Reservation Channels. A percentage of our hotel rooms are booked
through internet travel intermediaries such as Expedia.com, Travelcity.com,
Priceline.com and Click-It weekends. As this percentage increases, these
intermediaries may be able to obtain higher commissions, reduced room rates or
other significant contract concessions from us. Moreover, some of these
internet travel intermediaries are attempting to commoditize hotel rooms, by
increasing the importance of price and general indicators of quality at the
expense of brand identification. These agencies hope that consumers will
eventually develop brand loyalties to their reservation systems rather than to
our lodging brands. If this occurs, it could adversely affect our financial
condition and results of operations.
Hotel Renovation Costs and Capital Expenditures. In general, hotels have an
ongoing need for renovations and other capital improvements, particularly in
older structures, including periodically replacing or refurbishing furniture,
fixtures and equipment. Under the terms of participating leases, we must
establish a reserve to pay for certain capital expenditures and for
periodically replacing or refurbishing furniture, fixtures and equipment. If
capital expenditures exceed our expectations, this excess would have an
adverse effect on our available cash. In addition, we may acquire hotels that
require significant renovation. When we renovate hotels, we incur risks,
including the risk of environmental problems, construction cost overruns and
delays, uncertainties as to market demand after we renovate, market demand
deterioration after we begin renovating, and unanticipated competition
emerging from other hotels.
Competition For Hotel Acquisition Opportunities. We may be competing for
hotel acquisition opportunities with entities that have substantially greater
financial resources. These entities may generally be able to accept more risk
than we can prudently manage, including risks of a hotel operator's
creditworthiness or a target hotel's geographic location. Competition may
generally reduce the number of hotel acquisition opportunities that we believe
suitable.
11
<PAGE>
Seasonality. The hotel industry is seasonal in nature. Revenues at certain
hotels are greater in the first and second quarters of a calendar year and at
other hotels in the second and third quarters of a calendar year. Seasonal
variations in hotel revenues may cause quarterly fluctuations in our operating
revenues.
Real Estate Risks
General Risks. Our ability to generate revenues from our hotels may be
adversely affected by risks common to the ownership, lease or operation of
real property, including:
. changes in national economic conditions;
. changes in local market conditions due to changes in general or local
economic conditions and neighborhood characteristics;
. changes in interest rates;
. changes in the availability, cost and terms of mortgage funds;
. the impact of present or future environmental legislation and compliance
with environmental laws;
. the ongoing need for capital improvements, particularly in older
structures;
. changes in real estate tax rates and other operating expenses;
. adverse changes in governmental rules and fiscal policies;
. adverse changes in zoning laws;
. civil unrest;
. acts of God, including earthquakes and other natural disasters (which
may result in uninsured losses); and
. other factors that are beyond our control.
Value and Illiquidity of Real Estate. Real estate is a relatively illiquid
asset. Therefore, our ability to respond to changes in economic and other
conditions will be limited. If we must sell a property, there can be no
assurance that we will be able to dispose of it in the time period we desire
or that the sales price of any property will equal or exceed the amount of our
initial investment in the property.
Property Taxes. Our properties are subject to real property taxes. The real
property taxes on our properties may increase or decrease as property tax
rates change and as the value of the properties are assessed or reassessed by
taxing authorities. Increases in property taxes may adversely affect our
financial condition and results of operations.
Consents of Ground Lessors Required For Sale of Certain Hotels. Some of our
properties are subject to ground leases with third party lessors. In addition,
we may acquire properties in the future that are subject to ground leases. If
we wish to sell a property that is subject to a ground lease or wish to assign
our leasehold interest in the ground lease, we may need the consent of third
party lessors. As a result, we may not be able to sell or assign our interest
in these properties without the consent of these lessors.
Environmental Matters. Our operating costs may be affected by the cost of
complying with existing and future environmental laws, ordinances and
regulations. Under various federal, state and local environmental laws,
ordinances and regulations, we may be liable for the costs of removing or
remediating hazardous or toxic substances on, under, or in real property
currently or previously owned or operated by us. These laws often impose
liability whether or not we knew of, or were responsible for, the presence of
hazardous or toxic substances. In addition, our ability to borrow by using
real property as collateral may be adversely affected by the presence of
hazardous or toxic substances, or the failure to remediate the property
properly. By arranging for the transportation, disposal or treatment of
hazardous or toxic substances, we may also be liable for the costs of removing
or remediating these substances at the disposal or treatment facility, even if
we never owned or operated the disposal or treatment facility. We could be
held liable under environmental laws used to impose liability for releases of
hazardous materials, including asbestos-containing materials, into the
environment. Third parties may seek recovery from us for personal injuries
associated with exposure to hazardous materials on real
12
<PAGE>
property owned or operated by us. Environmental laws may also impose
restrictions on the manner in which we may use or transfer a property or in
which we operate our business on a property. In connection with our hotels, we
may be potentially liable for any environmental costs. The cost of defending
against claims of liability or remediating contaminated property and the cost
of complying with environmental laws could materially adversely affect our
results of operations and financial condition. Qualified independent
environmental engineers have conducted Phase I environmental site assessments
on substantially all of our properties. The purpose of these environmental
assessments was to identify potential sources of contamination for which any
of our properties may be responsible and to assess the status of environmental
regulatory compliance. The environmental assessments have not revealed any
environmental liability or compliance concerns that we believe would have a
material adverse effect on our business, assets, results of operations or
liquidity, nor are we aware of any environmental liability or compliance
concerns. Nevertheless, these environmental assessments may not have revealed
all environmental liabilities or compliance concerns. Also, there may be
material environmental liabilities or compliance concerns of which we are
currently unaware. We have not been notified by any governmental authority,
and we have no other knowledge of, any material noncompliance, liability or
claim relating to hazardous or toxic substances or other environmental
substances in connection with any of our properties.
Uninsured and Underinsured Losses. Each of the leases with third parties
specifies comprehensive insurance to be maintained on each of the applicable
leased hotels, including liability, fire and extended coverage. We believe
this specified coverage is of the type and amount customarily obtained for
hotels. Leases for subsequently acquired hotels will contain similar
provisions. However, there are certain types of losses, generally of a
catastrophic nature such as earthquakes and floods, that may be uninsurable or
not economically insurable. Our Board of Directors and management will use
their discretion in determining amounts, coverage limits and deductibility
provisions of insurance, with a view to maintaining appropriate insurance
coverage on our investments at a reasonable cost and on suitable terms. This
may result in insurance coverage that, in the event of a substantial loss,
would not be sufficient to pay the full current market value or current
replacement cost of the lost investment. Inflation, changes in building codes
and ordinances, environmental considerations, and other factors also might
make it impractical to use insurance proceeds to replace the property after it
has been damaged or destroyed. Under these circumstances, the insurance
proceeds received might not be adequate to restore our economic position with
respect to the damaged property.
Acquisition and development risks. We currently intend to pursue
acquisitions of additional hotels and hotel operating companies and, under
appropriate circumstances, may pursue development opportunities. Acquisitions
entail risks that the acquired hotels or hotel operating companies will fail
to perform according to our expectations or that our cost estimates to market,
acquire and operate properties will prove inaccurate. In addition, hotel
development is subject to other risks, including risks of construction delays
or cost overruns that may increase project costs, new project commencement
risks such as receiving zoning, occupancy and other required governmental
approvals and permits, and incurring development costs for projects that are
not pursued to completion.
We depend on management contracts. We manage hotels for third party owners
pursuant to management contracts. These contracts may be acquired, terminated,
renegotiated or converted to franchise agreements in the ordinary course of
our business. However, the hotel property owner may terminate these management
contracts if we fail to meet certain performance standards, if the property is
sold to a third party, if the owner defaults on indebtedness encumbering the
property, upon a foreclosure of the property, closing of the property and
certain business combinations involving us in which our name or current
management team does not survive.
There can be no assurance that we will be able to replace terminated
management contracts, or that the terms of renegotiated or converted contracts
will be as favorable as the terms that existed before such renegotiation or
conversion. We also will be subject to the risk that a hotel property owner
will be unable to pay management fees to us. In addition, in certain
circumstances, we may be required to make loans to or capital investments in
hotel properties in connection with management contracts. If any of these
hotel properties suffers poor operating results or if we lose our management
contract, we may not recover our loan or capital investment.
13
<PAGE>
Risks of Operating Hotels under Franchise or Brand Affiliations
We operate some of our hotels under franchise or brand affiliations. In
addition, we may acquire hotels in the future which are operated under
franchise or brand affiliations. Each franchised hotel must meet specified
operating standards and other terms and conditions to continue its franchise
license. The continued use of a brand generally depends upon the continuation
of the management agreement related to that hotel with the hotel's management
entity. Franchisors typically inspect licensed properties periodically to
confirm adherence to operating standards. Actions by us, our affiliates or the
hotel management entities could cause a breach of these standards or other
terms and conditions of a franchise license or the loss or cancellation of a
franchise license. It is possible that a franchisor could condition the
continuation of a franchise license on the completion of capital improvements
which our Board of Directors determines are too expensive or otherwise
unwarranted in light of general economic conditions or the operating results
or prospects of the affected hotel. In that event, our Board of Directors may
elect to allow the franchise license to lapse which could result in our
incurring significant termination costs. If a franchise or brand affiliation
is terminated for any reason, we may try to obtain a suitable replacement
franchise or brand affiliation, or to operate the hotel independent of a
franchise or brand affiliation. If we lose a franchise or brand affiliation,
we will lose the associated name recognition, marketing support and
centralized reservation systems provided by the franchisor or brand owner.
This loss could adversely affect the value of the hotel and our results of
operations.
Risks Relating to Gaming Operations
Regulation of Gaming Operations. We own and operate several casino gaming
facilities at some of our hotels, including El San Juan, El Conquistador,
Condado Plaza and Old San Juan in Puerto Rico. Each of these gaming operations
is subject to extensive licensing, permitting and regulatory requirements
administered by various governmental entities.
Typically, gaming regulatory authorities have broad powers related to the
gaming operations licenses. They may revoke, suspend, condition or limit our
gaming approvals and licenses, impose substantial fines and take other
actions, any of which could have a material adverse effect on our business and
the value of our hotel/casinos. Our directors, officers and some key employees
are subject to licensing or suitability determinations by various gaming
authorities. If any of those gaming authorities were to find someone
unsuitable, we would have to sever our relationship with that person.
Risks Associated with High-End Gaming. The high-end gaming business is more
volatile than other forms of gaming. Fluctuations in customers' high-end
gaming activities could have an adverse impact on our financial condition and
results of operations. In addition, a significant portion of our table gaming
is attributable to a relatively small number of international customers. If
the most significant of these customers reduces or quits his or her gaming, it
could have an adverse effect on our financial condition and results of
operations.
Risks Relating to Our Indebtedness
As of December 31, 1999, our outstanding debt was approximately $3.6 billion
and our ratio of debt to total stockholders' equity was approximately 170%.
Our aggregate outstanding debt includes the following:
. Senior Credit Facility. We have a senior credit facility comprised of
(1) term loans in an aggregate principal amount of $1.3 billion expiring
on June 30, 2006, and (2) a revolving loan facility in an aggregate
principal amount of up to $500 million expiring on June 30, 2004. As of
December 31, 1999, we had borrowed $270 million under the revolving loan
facility. The senior credit facility is guaranteed by our domestic
subsidiaries and secured by pledges of our equity interests and the
equity interests of our subsidiaries.
. Increasing Rate Loans. We have an increasing rate loan facility in the
aggregate principal amount of $650 million which expires on June 30,
2004. The lenders under the increasing rate loans receive the benefit of
the same guarantees and pledges of security provided under the senior
credit facility.
14
<PAGE>
. New Mortgage Debt. On June 30, 1999, we closed on a $346 million
mortgage loan secured by first liens on 25 of our hotel properties
located throughout the United States and closed on a $235 million
mortgage loan secured by first liens on 10 other of our hotel properties
located throughout the United States. A separate special purpose entity
subsidiary of ours owns each of the hotel properties subject to the
liens.
. Other Mortgage Debt. As of December 31, 1999, we had outstanding $809.5
million of other mortgage and secured debt. The mortgage debt has a
weighted average interest rate of 7.92% and a weighted average remaining
life of 5.6 years. This mortgage debt is secured by 38 of our
properties.
We also may borrow additional amounts from the same or other lenders in the
future, may assume debt in connection with acquisitions, or may issue
corporate debt securities in public or private offerings. Our organizational
documents do not limit the amount of indebtedness we may incur. However, our
ability to borrow under the revolving credit facility is subject to our
compliance with a number of customary financial and other covenants, including
total leverage and interest coverage ratios. Our inability to borrow under the
revolving credit facility could adversely affect our ability to fund
operations or expand our business. Further, substantially all of our debt
bears interest at a variable rate. Economic conditions could result in higher
interest rates, which could increase debt service requirements on variable
rate debt. Our debt service requirements will require the use of a substantial
portion of our operating cash flow to pay interest on our debt instead of for
other corporate purposes.
There can be no assurance that we will be able to meet our debt service
obligations and, to the extent that we cannot, we may lose some or all of our
assets, including hotel properties. Adverse economic conditions could cause
the terms on which we borrow to worsen. Those circumstances, if we are in need
of funds to repay indebtedness, could force us to liquidate one or more
investments in properties at times that may not permit realization of the
maximum return on those investments.
The foregoing risks associated with our debt obligations may inhibit our
ability to raise capital in both the public and private markets and may have a
negative impact on our credit rating.
Risks Relating to Our Rapid Growth
We have recently experienced a period of rapid growth. We are responsible
for the management and operation of several new businesses, including direct
hotel management, and branding and franchising, which previously were not part
of our operations. In addition, we may acquire other new businesses in the
future. The integration of departments, systems and procedures presents a
significant management challenge, and the failure to integrate new
acquisitions into existing management and operating structures could have a
material adverse effect on our results of operations and financial condition.
Executive Officers of the Registrant
Set forth below are the names, ages and certain other information concerning
the executive officers of Wyndham:
James D. Carreker has served as Chairman of the Board of Directors since
January 1998 and Chief Executive Officer of Wyndham from January 1998 to March
2000. On March 27, 2000, the Company and Mr. Carreker agreed to amend the
terms of his employment agreement to provide among other things that he will
continue to serve solely as the Chairman of the Board of Directors. In
February 1999, Mr. Carreker was also named Chief Executive Officer of Patriot.
Prior to the merger of Wyndham Hotel Corporation with the companies in January
1998, Mr. Carreker had served as President and Chief Executive Officer of
Wyndham Hotel Corporation from May 1988 to January 1998 and as a director of
Wyndham Hotel Corporation from February 1996 to January 1998. He also served
as Chief Executive Officer of Trammell Crow Company, a national real estate
company, from August 1994 to December 1995. Prior to 1988, Mr. Carreker served
as President of Burdine's, the Miami based division of Federated Department
Stores. Mr. Carreker also serves as a director of Trammell Crow Company and of
Carreker-Antinori, Inc., a computer service company that completed its initial
public offering in May 1998. Mr. Carreker holds a B.S. and a Master of
Business Administration from Oklahoma State University. Mr. Carreker is 52
years old.
15
<PAGE>
Fred J. Kleisner became Chief Executive Officer on March 27, 2000. Prior to
this position he was President and Chief Operating Officer of Wyndham from
August 1999. He was previously President and Chief Operating Officer of The
Americas, for Starwood Hotels & Resorts Worldwide, Inc. Hotel Group from 1998
to 1999. His experience in the industry also include senior positions with
Westin Hotels and Resorts, where he was President and Chief Operating Officer
from 1995 to 1998; Interstate Hotels, where he was Executive Vice President
and Group President of Operations from 1990 to 1995; The Sheraton Corporation,
where he was Senior Vice President, Director of Operations, North America
Division-East from 1985 to 1990; and Hilton Hotels, where for 16 years he
served as General Manager of several landmark hotels, including The Waldorf
Astoria and The Waldorf Towers in New York, The Capital Hilton in Washington,
D.C., and The Hilton Hawaiian Village in Honolulu. Mr. Kleisner, who holds a
B.A. degree in Hotel Management from Michigan State University, completed
advanced studies at the University of Virginia and Catholic University of
America. Mr. Kleisner is 55 years old.
Richard Mahoney became Chief Financial Officer of Wyndham in May 1999.
Before joining Wyndham, Mr. Mahoney served as Executive Vice President and
Chief Operating Officer of Starwood Hotels & Resorts' gaming division. From
1995 to 1998, Mr. Mahoney served as Executive Vice President and Chief
Financial Officer of Westin Hotels & Resorts. From 1988 to 1993, he served as
Vice President and Controller of Carnival Hotels and Casinos. Mr. Mahoney
holds an M.S. in Finance from Boston College. Mr. Mahoney is 47 years old.
Leslie V. Bentley became an Executive Vice President of Wyndham in January
1998. He was employed by Wyndham Hotel Corporation since March 1985, served as
Executive Vice President and President of the Wyndham Garden Division since
May 1990 and was elected a director of Wyndham Hotel Corporation in January
1997. From January 1987 to June 1988, Mr. Bentley served as Regional Vice
President of Wyndham Hotel Corporation. From June 1988 to December 1988, Mr.
Bentley served as Vice President of Operations of Wyndham Hotel Corporation
and from December 1988 to May 1990, he served as Senior Vice President of
Operations of Wyndham Hotel Corporation. Prior to joining Wyndham Hotel
Corporation, Mr. Bentley was employed by Marriott International Hotels for
eight years. Mr. Bentley holds a B.S. in Hotel and Restaurant Administration
from Pennsylvania State University. Mr. Bentley is 47 years old.
Michael A. Grossman serves as Executive Vice President of Wyndham and
divisional president of the management services division of the Company. From
1977 to 1993, Mr. Grossman owned and operated Grossman and Associates, a hotel
management company. Mr. Grossman joined Patriot American in August 1993 as a
Senior Vice President heading up its hotel division. Mr. Grossman was
subsequently appointed Chief Operating Officer of Gencom American Hospitality,
which initially served as a third party manager for Patriot and was
subsequently acquired by Patriot. Mr. Grossman holds a B.B.A. from the
University of Texas and a J.D. from Southern Methodist University. Mr.
Grossman is 46 years old.
Dave Johnson became executive vice president, sales and marketing, in March
2000. He was previously president of the Wyndham hotel division from August
1999 to March 2000, and president of the Wyndham Garden division from January
1998 to August 1999, prior to these positions, Mr. Johnson was Senior Vice
President of Operations for the Eastern United States. His career with senior
management began in 1987 as Director of Sales & Marketing for Wyndham Hotels
and Resorts. Dave Johnson holds a BA and MA from Northeastern Illinois
University.
Carla S. Moreland was named Executive Vice President--General Counsel of
Wyndham in April 1999. She served as Senior Vice President--General Counsel of
Wyndham from January 1998 to April 1999. Ms. Moreland served as general
counsel of Wyndham Hotel Corporation from April 1994 until January 1998. From
1987 to 1994 she practiced law with the firm of Weil Gotshol and Manges. Ms.
Moreland holds a B.A. and J.D. from The College of William and Mary. Ms.
Moreland is 40 years old.
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ITEM 3. LEGAL PROCEEDINGS
On June 29, 1992, an action for trademark infringement was filed in the New
York Supreme Court, County of New York, Index No. 17474/92 titled Wyndham
Hotel Company, John Mados, and Suzanne Mados et al v. Wyndham Hotel Company.
Ltd. It is based upon the Madoses' alleged use of the mark WYNDHAM in
connection with the Wyndham Hotel located in Manhattan, New York City, and
operated by the Madoses since 1966 pursuant to a lease agreement entered into
by the Madoses on June 1, 1957. The case was tried in May 1996, and an order
and partial judgement was entered in March 1998. The order enjoins us from
using the name and mark "Wyndham" in connection with the advertising,
promoting, managing or operating a hotel in Manhattan, New York City, and
places restrictions on Wyndham's use of the name and mark "Wyndham" in all
other areas of New York outside of Manhattan. In November 1998, an order was
issued clarifying the original order and a final judgment was entered. In
December 1998, Wyndham appealed that judgment to the New York Supreme Court,
Appellate Division, First Department. In January 1999, Wyndham moved for a
stay of the injunction pending appeal which motion was granted by the
Appellate Division, First Department on February 4, 1999. On May 18, 1999 the
Appellate Division, First Department rendered a decision and order affirming
the final judgment. On May 24, 1999, Wyndham filed a motion for permission to
appeal that decision to the Court of Appeals of the State of New York. In July
1999, Wyndham received notice that the Court of Appeals of the State of New
York would not hear the appeal.
Patriot and Old Wyndham have disclosed various matters relating to Patriot
and Old Wyndham in their Form 8-K filed with the Securities and Exchange
Commission on November 9, 1998 including, without limitation, an assertion by
UBS AG, London Branch ("UBS") that Patriot and Old Wyndham are in default
under the terms of a forward contract by and among Patriot, Old Wyndham and
UBS. Patriot and Old Wyndham also have disclosed various matters in their
Joint Annual Report on Form 10-K, filed with the Securities and Exchange
Commission on March 26, 1999, and in registration statements on Form S-3
(filed on April 28, 1999) and Form S-4 (filed on April 14, 1999).
On or about January 12, 1999, a purported class action lawsuit was filed on
behalf of the shareholders of Patriot and Wyndham in the Delaware Chancery
Court. The lawsuit, captioned Fraschilla v. Paul A. Nussbaum, et al., No.
16895NC, named as defendants certain persons who then were directors of
Patriot, as well as certain other individuals and entities alleged to be
investors in the Company (the "Investors"). The lawsuit alleged that the
director defendants breached their fiduciary duties to Patriot's shareholders
with respect to Patriot's financial condition and breached their fiduciary
duties to Patriot's shareholders by "effectively selling control" of Patriot
to the Investors for inadequate consideration and without having adequately
considered or explored all other alternatives to this sale or having taken
steps to maximize stockholder value. The lawsuit also alleged that the
Investors aided and abetted the director defendants in their purported
breaches of fiduciary duty. The plaintiffs sought monetary damages from the
director defendants as well as an injunction preventing the consummation of
the proposed transaction with the Investors. On January 19, 1999, three nearly
identical purported class action lawsuits were filed in the same court on
behalf of different purported class representatives: (i) Sybil R. Meisel and
Steven Langsam, Trustees, No. 16905NC; (ii) Crandon Capital Partners, No.
16906NC; and (iii) Robert A. Staub, No. 16907NC. All of the actions were
consolidated into the Fraschilla action. In September 1999, the parties
entered into a Stipulation of Settlement to settle these lawsuits. Pursuant to
the Stipulation of Settlement, Wyndham agreed that it would make the rights
offering it previously announced it may make, no later than December 17, 1999,
and to hold this offering open for a period of not less than 30 days. On
November 1, 1999, the Delaware Chancery Court approved the amended Stipulation
of Settlement along with class counsels' fee request of $1,125,000 and entered
an order and final judgment dismissing all of these lawsuits (the "Order").
The Order became final on or about December 2, 1999. Currently, Wyndham is
seeking recovery for costs incurred in the defense and settlements of these
lawsuits from its directors and officers insurance carriers.
On February 3, 1999, McNeill Investment Company, Inc. filed a lawsuit
against Patriot in the United States District Court for the Western District
of Pennsylvania. In the lawsuit, captioned McNeill Investment Company, Inc. v.
Patriot American Hospitality, Inc., No. 99-165, the plaintiff alleges that
Patriot breached its obligations under a registration rights agreement that
Patriot became obligated under through its merger transaction with
17
<PAGE>
Interstate Hotels Corporation. The plaintiff claims approximately $9 million
in damages. The case presently is in the early discovery stage. Wyndham
intends to defend the suit vigorously.
On May 7, 1999, Doris Johnson and Charles Dougherty filed a lawsuit in the
Northern District of California against Patriot, Wyndham, their respective
operating partnerships and Paine Webber Group, Inc. This action, Johnson v.
Patriot American Hospitality, Inc., et al., No. C-99-2153, was commenced on
behalf of all former stockholders of Bay Meadows stock during a class period
from June 2, 1997 to the date of filing. The action asserts securities fraud
claims and alleges that the purported class members were wrongfully induced to
tender their shares as part of the Patriot/Bay Meadows merger based on a
fraudulent prospectus. The action further alleges that defendants continued to
defraud shareholders about their intentions to acquire numerous hotels and
saddle the company with massive debt during the class period. Three other
actions against the same defendants subsequently were filed in the Northern
District of California: (i) Ansell v. Patriot American Hospitality, Inc., et
al., No. C-99-2239 (filed May 14, 1999), (ii) Sola v. Paine Webber Group,
Inc., et al., No. C-99-2770 (filed June 11, 1999), and (iii) Gunderson v.
Patriot American Hospitality, Inc., et al., No. C-99-3040 (filed
June 23, 1999). Another action with substantially identical allegations,
Susnow v. Patriot American Hospitality, Inc., et al., No. 3-99-CV1354-T (filed
June 15, 1999) also subsequently was filed in the Northern District of Texas.
The complaints in these actions seek unspecified damages but assert that the
defendants are liable for the diminution in value of Patriot stock held by
class members during the class period. By order of the Judicial Panel on
Multidistrict Litigation, these actions along with certain actions identified
below have been consolidated in the Northern District of California for
consolidated pretrial purposes. To date, none of the defendants have been
required to answer, move or otherwise respond to the complaints, and no
discovery has been taken. Wyndham intends to defend the suits vigorously.
On or about June 22, 1999, a lawsuit captioned Levitch v. Patriot American
Hospitality, Inc., et al., No. 3-99-CV1416-D, was filed in the Northern
District of Texas against Patriot, Wyndham, James D. Carreker and
Paul A. Nussbaum. This action asserts securities fraud claims and alleges
that, during the period from January 5, 1998 to December 17, 1998, the
defendants defrauded stockholders by issuing false statements about the
company. The complaint was filed on behalf of all shareholders who purchased
Patriot and Wyndham stock during that period. Three other actions, Gallagher
v. Patriot American Hospitality, Inc., et al., No. 3-99-CV1429-L, filed on
June 23, 1999, David Lee Meisenburg, et al. v. Patriot American Hospitality,
Inc., Wyndham International, Inc., James D. Carreker, and Paul A. Nussbaum
Case No. 3-99-CV1686-X, filed July 27, 1999 and Deborah Szekely v. Patriot
American Hospitality, Inc., et al., No. 3-99-CV1866-D, filed on or about
August 27, 1999, allege substantially the same allegations. The complaints in
these actions seek unspecified damages but assert that the defendants are
liable for the diminution in value of Patriot stock held by class members
during the class period. By order of the Judicial Panel on Multidistrict
Litigation, these actions have been consolidated with certain other
stockholder actions and transferred to the Northern District of California for
consolidated pre-trial purposes. To date, none of the defendants have been
required to answer, move or otherwise respond to the complaints, and no
discovery has been taken. Wyndham intends to defend the suits vigorously.
Wyndham has received a draft complaint which threatens to assert claims on
behalf of Golden Door, LLC, Golden Springs, LLC, Golden Door, Inc., Deer
Springs Ranch, LLC, Deborah Szekely and Sarah Livia Brightwood. The potential
plaintiffs appear to be the same as the plaintiffs who filed the action
referenced above, Deborah Szekely v. Patriot American Hospitality, Inc., et
al., No. 3-99-CV1866-D, however the allegations of the complaints are not the
same. The draft complaint purports to assert claims against Patriot, Wyndham
and their respective operating partnerships for securities fraud under the
California securities code, common law fraud, breach of fiduciary duty and
deceit in connection with the purchase by Patriot of the Golden Door Spa in
February 1998. The draft complaint seeks compensatory damages for the alleged
lost value of the potential plaintiff's stock and other unspecified damages.
Although the Company has received a draft complaint, to date no complaint has
been filed.
Patriot and PAH Stanley Ranch ("PAH") are engaged in a dispute with Carneros
Valley Investors involving a contract which calls for a purchase price of $14
million with an additional $5 million to be paid if PAH gets approval for a
development in the Napa Valley. PAH did not get approval for this development.
In September, 1999, Carneros Valley Investors filed a complaint in the
Superior Court of California, San Francisco, which
18
<PAGE>
alleges that Patriot owes it $5 million and alleges that it acted negligently,
fraudulently and in bad faith in attempting to get the approval for the
development. The complaint has been amended to allege fraud, allegedly
entitling the plaintiff to rescission of the sale. Patriot has answered the
complaint, but to date, no discovery has been taken. Wyndham intends to defend
the suit vigorously.
Patriot American Hospitality, Inc., IHC/Jacksonville Corporation and IHC
Realty Partnership, are parties to a dispute with another limited partner of
the Partnership relating to a proposed hotel development in Jacksonville,
Florida. The case is captioned C&M Investors Limited v. Patriot American
Hospitality, Inc. et al., originally filed in the Florida Circuit Court,
Fourth Judicial Circuit, in and for Duval County, Florida, but later removed
and now pending in the United States District Court, Middle District of
Florida, Jacksonville Division, Civil Action No. 98-1236-Civ. J 20B. Wyndham
plans to vigorously defend this lawsuit.
On September 17, 1999, Starwood Hotels & Resorts Worldwide Inc. ("Starwood")
filed a lawsuit against Fred J. Kleisner, Richard Mahoney and Wyndham in the
United States District Court for the Southern District of New York. In the
lawsuit, captioned Starwood Hotels & Resorts Worldwide Inc. v. Fred J.
Kleisner et al, No. 99 Civ. 9811, the plaintiff alleged that Wyndham
tortiously interfered with alleged employment contracts between Starwood and
Kleisner and Mahoney, respectively, that the defendants misappropriated trade
secrets belonging to Starwood, that the defendants tortiously interfered with
Starwood's prospective business relationships and that the defendants are
unfairly competing with Starwood. The complaint sought injunctive relief and
other damages.
On November 12, 1999, Wyndham, Kleisner, Mahoney (the "Wyndham Defendants")
and Starwood entered into a Settlement Agreement and Mutual Release (the
"Settlement Agreement") under the terms of which all claims against the
Wyndham Defendants were dismissed with prejudice and the Wyndham Defendants
paid no damages. Under the Settlement Agreement, Wyndham agreed to
restrictions on its ability to hire and solicit for employment certain
Starwood employees until July 2000.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
19
<PAGE>
PART II
ITEM 5. MARKET PRICE FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
Market Information
The following table sets forth the quarterly high and low sale prices per
share as reported on the New York Stock Exchange ("NYSE") of the paired shares
as reported on the NYSE (symbol "PAH") through June 29, 1999. Effective June
30, 1999, Patriot and Old Wyndham completed a series of transactions, which
included a restructuring of their existing organizational structure. The stock
pairing agreement was terminated; Patriot became a wholly owned subsidiary of
Wyndham International Inc., and on June 30, 1999, the shares of Wyndham class
A common stock commenced trading on the NYSE under the symbol "WYN". The sale
prices and distributions in the table have been adjusted to reflect the stock
dividend of $0.44 declared on December 22, 1998 and distributed to
shareholders of record on December 30, 1998.
<TABLE>
<CAPTION>
Per Share
High(1) Low(1) Dividend(1)
------- ------- -----------
<S> <C> <C> <C>
1998:
First Quarter.................................... $29.50 $ 24.00 $0.2981
Second Quarter................................... $28.25 $ 19.75 $0.2981
Third Quarter.................................... $24.50 $ 11.50 $ -- (2)
Fourth Quarter................................... $13.25 $ 5.313 $0.4400(3)
1999:
First Quarter.................................... $ 7.00 $4.4375 $ --
Second Quarter................................... $ 5.50 $ 4.00 $ -- (4)
Third Quarter.................................... $4.875 $ 2.625 $ --
Fourth Quarter................................... $3.875 $2.4375 $ --
</TABLE>
- --------
(1) Represents paired shares for periods from January 1998 and through June
29, 1999, and Wyndham class A common stock subsequent to June 29, 1999.
Dividends have been paid only on shares of Patriot common stock for
periods after January 1, 1998. No dividends have been paid on Wyndham
common stock.
(2) On October 5, 1998, Patriot made a significant capital contribution to
Wyndham to facilitate an acquisition by Wyndham. This contribution
resulted in a "deemed distribution" for tax purposes to holders of Patriot
common stock of $0.7081 per share. No cash was actually distributed to the
shareholders. However, for tax purposes the distribution is treated by
shareholders as though cash was received and then contributed to Wyndham.
On November 20, 1998, Patriot announced that it would not declare a
dividend with respect to the third quarter of 1998.
(3) On December 22, 1998, Patriot declared a stock dividend of $0.44 cents per
share of common stock for the fourth quarter of 1998. The dividend was
paid on January 25, 1999 to shareholders of record on December 30, 1998.
(4) On June 18, 1999 there was a spin-off of Interstate Hotel Corporation.
Each record holder as of June 7, 1999 received one share of newly issued
Interstate stock for every 30 shares held of Patriot common stock, Patriot
series A preferred stock, Old Wyndham series A and B preferred stock,
Patriot American Hospitality Partnership L.P. common and preferred OP
units, and Wyndham International L.P. class A and class C preferred OP
units.
Holders
As of March 22, 2000, there were approximately 1,497 record holders of the
Company's shares of class A common stock, including shares held in "street
name" by nominees who are record holders, and approximately 22,200
shareholders.
20
<PAGE>
Dividends
Prior to the restructuring, the Board of Directors of Patriot determined the
actual distribution rate based on a number of factors, including the amount of
cash available for distribution, Patriot's financial condition, capital
expenditure requirements for Patriot's properties, the annual distribution
requirements under the REIT provisions of the Internal Revenue Code of 1986,
as amended (the "Code") and such other factors as the Board of Directors
deemed relevant. Patriot's status as a REIT was terminated as a result of the
restructuring and the Company is no longer required to pay dividends to its
common shareholders.
The Company does not anticipate paying a dividend to its common shareholders
and is prohibited under the terms of its new credit facility and term loans
from paying dividends on its common stock. However, for the first six years,
dividends on the series A and series B convertible preferred stock are
structured to ensure an aggregate fixed cash dividend payment of $29.25
million per year, so long as there is no redemption or conversion of the
preferred stock; therefore, for that period, dividends are payable partly in
cash and partly in additional shares of preferred stock. For the following
four years, dividends are payable in cash or additional shares of series A or
series B convertible preferred stock, as the case may be, as determined by the
Board of Directors. After year ten, dividends are payable solely in cash.
Recent Sales of Unregistered Securities
None
ITEM 6. SELECTED FINANCIAL INFORMATION
The following tables set forth selected consolidated historical financial
information for the Company. The following financial information should be
read in conjunction with, and is qualified in its entirety by, the historical
financial statements and notes thereto of the Company included elsewhere in
this Annual Report on Form 10-K. The selected financial and other data for the
Company for 1999 has been derived from the consolidated financial statements
of the Company audited by PricewaterhouseCoopers LLP, independent accountants.
21
<PAGE>
WYNDHAM INTERNATIONAL
Selected Condensed Consolidated Historical Financial Data
<TABLE>
<CAPTION>
Period
October 2, 1995
Year Ended December 31, (Inception of
------------------------------------------------ Operations) through
1999 1998 1997 1996 December 31, 1995
----------- ----------- ----------- --------- -------------------
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Operating Data:
Total revenue........... $ 2,495,335 $ 2,056,341 $ 335,035 $ 76,493 $ 11,095
(Loss) income before
income tax provision,
minority interest and
extraordinary item..... (491,335) (112,508) 4,142 44,813 7,064
(Loss) income before
extraordinary item..... (1,062,131) (126,406) 362 37,991 6,096
Net (loss) income....... $(1,071,969) $ (158,223) $ (2,172) $ 37,991 $ 5,359
Per Share Data (1):
Basic earnings per
share:
(Loss) income before
extraordinary item... $ (7.02) $ (1.13) $ 0.01 $ 0.84 $ 0.16
Extraordinary item,
net of minority
interest............. (0.06) (0.23) (0.04) -- (0.02)
----------- ----------- ----------- --------- ---------
Net (loss) income per
share................ $ (7.08) $ (1.36) $ (0.03) $ 0.84 $ 0.14
=========== =========== =========== ========= =========
Diluted earnings per
share(2)............. $ (7.20) $ (2.57) $ (0.03) $ 0.83 $ 0.14
=========== =========== =========== ========= =========
Dividends per
share(3)............. $ -- $ 1.0362 $ 1.0878 $ 0.9154 $ 0.2236
=========== =========== =========== ========= =========
Cash Flow Data:
Cash provided by
operating activities... $ 202,302 $ 244,493 $ 108,110 $ 61,196 $ 7,618
Cash used in investing
activities............. (289,953) (2,076,359) (1,202,124) (419,685) (306,948)
Cash provided by
financing activities... 175,510 1,943,384 1,134,846 360,324 304,099
</TABLE>
<TABLE>
<CAPTION>
As of December 31,
--------------------------------------------------
1999 1998 1997 1996 1995
---------- ---------- ---------- -------- --------
(in thousands)
<S> <C> <C> <C> <C> <C>
Balance Sheet Data:
Investment in real estate
and related improvements
and land held for
development, at cost, net.. $5,413,178 $5,585,616 $2,044,649 $641,825 $265,759
Total assets................ 7,003,490 7,415,670 2,507,853 760,931 324,224
Total debt.................. 3,643,556 3,857,521 1,112,709 214,339 9,500
Minority interest in
Operating Partnerships..... 22,435 253,970 220,177 68,562 41,522
Minority interest in
consolidated subsidiaries.. 166,483 229,537 49,694 11,711 --
Stockholders' equity........ 2,137,662 2,603,037 989,892 437,039 261,778
</TABLE>
22
<PAGE>
<TABLE>
<CAPTION>
Period
October 2, 1995
Year Ended December 31, (Inception of
----------------------------------- Operations) through
1999 1998 1997 1996 December 31, 1995
-------- -------- -------- ------- -------------------
(in thousands)
<S> <C> <C> <C> <C> <C>
Other Data:
EBITDA(4)............... $158,765 $369,401 $105,743 $69,558 $ 9,006
Weighted average number
of common shares
outstanding............ 161,255 137,764 64,260 45,997 39,407
Ratio of earnings to
fixed charges.......... (0.36) 0.59 1.08 7.00 80.37
Deficiency of earnings
to fixed charges....... 491,335 112,508 -- -- --
</TABLE>
Notes to Selected Financial Information
(1) On January 30, 1997, the Patriot Board of Directors declared a 2-for-1
stock split effected in the form of a stock dividend on March 18, 1997 to
stockholders of record on March 7, 1997. On July 1, 1997, by operation of
the Cal Jockey Merger, each issued and outstanding share of Patriot common
stock was converted into 0.51895 paired shares. In addition, on July 10,
1997, the respective Boards of Directors of Patriot and Wyndham declared a
1.927-for-1 stock split on their shares of common stock effected in the
form of a stock dividend distributed on July 25, 1997 to stockholders of
record on July 15, 1997. All references herein to the number of shares,
per share amounts and market prices of the paired shares and options to
purchase Paired shares have been restated to reflect the impact of the Cal
Jockey Merger and the above-described stock splits, as applicable.
In addition, in February 1997, the Financial Accounting Standards Board
issued Statement of Financial Accounting Standards No. 128 "Earnings Per
Share" ("Statement 128"). Statement 128 specifies the computation,
presentation and disclosure requirements for basic earnings per share and
diluted earnings per share. The earnings per share amounts presented
herein have been restated to reflect the impact of Statement 128.
On December 22, 1998, Patriot declared a stock dividend of $0.44 cents per
share of common stock for the fourth quarter of 1998. The dividend was
paid on January 25, 1999 to shareholders of record on December 30, 1998.
Each shareholder received the option to receive the dividend in the form
of additional paired shares or shares of Series B Cumulative Perpetual
Preferred Stock, par value $0.01 per share, of Patriot.
Earnings per common share, weighted average shares outstanding and all
stock option activity have been restated to reflect the stock dividend.
On June 30, 1999, a subsidiary of Old Wyndham was merged with and into
Patriot and Patriot became a wholly-owned subsidiary of Wyndham. The
pairing arrangement was terminated and each outstanding paired share was
converted into a share of Wyndham class A common stock.
(2) For 1999, the dilutive effect of unvested stock grants of 803,000; the
option to purchase common stock of 59,000 and preferred stock of
64,367,000 were not included in the computation of earnings per share
because they are anti-dilutive. For 1998, the dilutive effect of unvested
stock grants of 880,000 shares, the option to purchase common stock of
753,000 shares of common stock; 2,507,000 shares issued in connection with
forward equity contracts; and 6,613,000 preferred shares, were not
included in the computation of earnings per share because they are anti-
dilutive. For 1997, the effect of unvested stock grants of 804,000 and the
option to purchase common stock of 1,017,000 were excluded in the
computation of diluted earnings per share because they are anti-dilutive.
(3) Dividends for the year ended 1998 include a $0.44 stock dividend.
Dividends paid for the year ended December 31, 1997 include a special
dividend of $0.06 per share paid by Patriot's predecessor on June 30,
1997. To maintain its qualification as a REIT prior to consummation of the
Cal Jockey Merger, Patriot was required to distribute to its stockholders
any undistributed "real estate investment trust taxable income" for its
short taxable year ending with the consummation of the Cal Jockey Merger.
Old Wyndham did not pay any dividends for the six months ended December
31, 1997.
23
<PAGE>
(4) EBITDA represents earnings of the Company before interest, taxes,
depreciation and amortization expense. The Company believes that EBITDA is
a widely accepted financial indicator used by investors and analysts to
analyze and compare companies on the basis of operating performance.
EBITDA is not intended to represent cash flows for the periods presented,
nor has it been presented as an alternative to operating income or as an
indicator of operating performance. Readers should not consider EBITDA in
isolation or as a substitute for measures of performance prepared in
accordance with generally accepted accounting principles. While EBITDA is
frequently used by securities analysts in the evaluation of companies,
EBITDA is not necessarily comparable to other similarly titled measures of
other companies due to potential inconsistencies in the methods of
calculation. A reconciliation from net income to EBITDA for the years
ended December 31, 1999, 1998, 1997, 1996 and for the period from October
2, 1995 (inception of operation) through December 31, 1995 is as follows:
<TABLE>
<CAPTION>
Period
October 2, 1995
Year Ended December 31, (Inception of
----------------------------------------- Operations) through
1999(a) 1998(b) 1997(c) 1996 December 31, 1995
----------- --------- -------- ------- -------------------
(dollars in thousands)
<S> <C> <C> <C> <C> <C>
Net (loss) income....... $(1,071,969) $(158,223) $ (2,172) $37,991 $5,359
Extraordinary loss...... 9,838 31,817 2,534 -- --
Minority interest in
operating
partnerships........... (6,642) (12,651) 1,684 6,767 968
Income taxes............ 571,421 17,122 481 -- --
Depreciation and
amortization........... 302,890 231,233 52,685 17,420 2,590
Interest expense........ 353,227 260,103 50,531 7,380 89
----------- --------- -------- ------- ------
EBITDA.................. $ 158,765 $ 369,401 $105,743 $69,558 $9,006
=========== ========= ======== ======= ======
</TABLE>
- --------
(a) For the year ended December 31, 1999, EBITDA would be $622,061 after
adjusting for the following unusual or non-recurring items: restructuring
expenses and strategic reorganization costs of $316,886, Interstate spin-
off costs of $5,435, abandoned transaction costs of $13,530, Y2K costs
and preopening expenses of $21,131, impairment loss on assets held for
sale of $70,912, loss on the sale of assets of $10,702, allocable
percentage of EBITDA from unconsolidated subsidiaries and third party
minority interest of $13,068, and other non-recurring charges of $11,632.
(b) For the year ended December 31, 1998, EBITDA would be $568,200 after
adjusting for the following unusual or non-recurring items: cost of
acquiring leaseholds and license agreements of $64,407, treasury lock
settlement of $49,334, loss on sale of assets of $9,453 and impairment
loss on assets held for sale of $51,081, abandoned transaction costs of
$14,813, amortization of unearned compensation of $9,670, and other costs
of $41.
(c) For the year ended December 31, 1997, EBITDA would be $160,242 after
adjusting for the cost of acquiring leaseholds of $54,499.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Certain statements this Form 10-K constitute "forward-looking statements" as
that term is defined under (S)21E of the Securities Exchange Act of 1934, as
amended, and the Private Securities Litigation Reform Act of 1995. The words
"believe", "expect", "anticipate", "intend", "estimate", and other expressions
which are predictions of or indicate future events and trends and which do not
relate to historical matters identify forward-looking statements. Readers are
cautioned not to place undue reliance on these forward-looking statements.
Although forward-looking statements reflect management's good faith beliefs,
reliance should not be placed on forward-looking statements because they
involve known and unknown risks, uncertainties and other factors, which may
cause the actual results, performance or achievement of the Company to differ
materially from anticipated future results, performance or achievements
expressed or implied by such forward-looking statements. The Company
undertakes no obligation to publicly update or revise any forward-looking
statement,
24
<PAGE>
whether as a result of new information, future events or otherwise. Certain
factors that might cause a difference include, but are not limited to, risks
associated with the availability of equity or debt financing at terms and
conditions favorable to the Company, the Company's ability to effect sales of
assets on favorable terms and conditions, risks associated with the hotel
industry and real estate markets in general; risks associated with debt
financing and the risks discussed above in Part I--Business and Properties--
Certain Risk Factors.
Background
Organization
Patriot was formed April 17, 1995 as a self-administered real estate
investment trust ("REIT") for the purpose of acquiring equity interests in
hotel properties. On October 2, 1995, Patriot completed an initial public
offering of shares of common stock and commenced operations. Between October
2, 1995 and July 1, 1997, Patriot acquired interests in 56 hotel properties.
These hotels were leased to various third party lessees.
On July 1, 1997, Patriot merged with and into California Jockey Club, with
Cal Jockey being the surviving legal entity, hereinafter referred to as the
"Cal Jockey merger". Cal Jockey's shares of common stock were paired and
traded together with the shares of common stock of Bay Meadows Operating
Company ("Bay Meadows") as a single unit pursuant to a stock pairing
agreement. In connection with the Cal Jockey merger, Cal Jockey changed its
name to "Patriot American Hospitality, Inc." ("Patriot") and Bay Meadows
changed its name to "Patriot American Hospitality Operating Company".
Subsequent to December 31, 1997, as a result of the merger of Wyndham Hotel
Corporation with and into Patriot as discussed below (the "Wyndham merger"),
Patriot American Hospitality Operating Company changed its name to "Wyndham
International, Inc." and is referred to herein, collectively with its
subsidiaries, as "Old Wyndham".
Subsequent to the Cal Jockey merger through December 31, 1998, the Company
went through a series of mergers and acquisitions including the Wyndham
merger, the merger with WHG Casinos & Resorts Inc. ("WHG") and acquisition of
partners' interests, the merger with Arcadian International ("Arcadian"), the
Summerfield acquisition, the merger with CHCI International Inc. ("CHCI") and
the merger with Interstate.
Effective June 30, 1999, a subsidiary of Old Wyndham merged with and into
Patriot with Patriot being the surviving entity and becoming a subsidiary of
Old Wyndham. In connection with this restructuring, the pairing agreement
between Patriot and Old Wyndham was terminated, Patriot's status as a real
estate investment trust terminated effective January 1, 1999, and Patriot
became a taxable corporation as of that date. This merger converted each
previously outstanding paired share into one share of Wyndham class A common
stock. Old Wyndham and its subsidiaries, which now include Patriot, is
hereafter referred to as Wyndham or the Company.
The restructuring was reflected as a reorganization of two companies under
common control and was accounted for in a manner similar to that used in
pooling of interest accounting. As such, there was no revaluation of the
assets and liabilities of Old Wyndham or Patriot. The financial statements
prior to the reorganization are presented on a combined basis and include the
combined accounts of Patriot and its subsidiaries with Old Wyndham and its
subsidiaries.
Restructuring
During 1999, the Company recorded $285.3 million of costs associated with
the restructuring of the organization. As a condition of the $1 billion equity
investment, Old Wyndham was required to terminate the pairing agreement with
Patriot. As a result, the Company recorded a charge of approximately $83.1
million for the write-off of the unamortized intangible asset associated with
the paired share structure which was abandoned June 30, 1999. In addition, the
Company incurred approximately $4.7 million in severance and employee related
costs for seven employees in the New York corporate office and two employees
in the Dallas corporate office, and $0.7 million in legal costs. The New York
office was closed on June 30, 1999 and its employees were terminated at that
time.
25
<PAGE>
The Company recorded a charge of $97.9 million for the write-down of assets
to estimated fair value, including goodwill of $28.4 million as a result of
management's strategy to exit from the European market for its non-branded
assets which will be sold. In addition, the Company recorded costs of $9.5
million associated with severance costs for 67 employees and other exit costs
necessary to reduce the Company's infrastructure in Arcadian International,
the Company's management division in Europe.
On August 11, 1999, the Company announced its plan to realign its luxury
division, in its continuing efforts to streamline its organization. As a
result, the Phoenix division office was closed on September 10, 1999. The
Company recorded costs of $2.5 million associated with severance payments for
staffing reductions of 19 employees, and other exit costs. In addition,
management has decided to focus on the Company's core brands, and has
rebranded many of the Grand Bay Resorts (formerly Carefree Resorts) to Wyndham
Luxury Resorts, to signal a more apparent relationship to Wyndham. As such, a
charge of $12.8 million for the tradename intangibles attributable to the
Grand Bay and Carefree brands was recorded.
The Company also announced it would close its Wichita divisional office and
as a result, recorded $1.9 million in severance payments for 82 employees.
In addition, Wyndham recorded a charge of $72.2 million including a write-
down of assets to estimated fair value. The write-down included $8.8 million
of intangible assets as a result of management's strategy to exit from the
limited service hotel sector. The following table details the restructuring
charges incurred by the Company during 1999.
<TABLE>
<CAPTION>
Cash/Non- Restructuring Accrued Balance at
Description Cash Charge 12/31/99
----------- ------------- ------------- ------------------
(in thousands)
<S> <C> <C> <C>
Organizational Restructuring
Write-down of intangible
assets........................ Non-cash $ (83,094) $ --
Severance packages............. Cash/non-cash (4,675) (500)
Downsizing European division
Write-down of assets held for
sale.......................... Non-cash (69,491) --
Write-down of intangible
assets........................ Non-cash (28,394) --
Severance packages............. Cash (3,578) (2,458)
Lease cancellations and
commitments................... Cash (1,907) (1,907)
Other exit costs............... Cash (4,062) (2,408)
Exiting limited service market
sector
Write-down of assets held for
sale.......................... Non-cash (63,328) --
Write-down of intangible
assets........................ Non-cash (8,834) --
Closing the Phoenix division
office
Severance packages............. Cash (2,006) (312)
Lease cancellations and
commitments................... Cash (492) (321)
Closing of the Wichita division
office
Severance packages............. Cash (1,872) (1,872)
Elimination of certain hotel
brands
Write-down of intangible
assets........................ Non-cash (12,821) --
Other
Other exit costs............... Cash (713) --
Effect of foreign currency
translation................... -- 8
--------- -------
Total........................ $(285,267) $(9,770)
========= =======
</TABLE>
As of December 31, 1999, the Company owned interests in 165 hotels with an
aggregate of over 43,900 guestrooms and leased 39 hotels from third parties
with over 5,700 rooms. In addition, Wyndham manages 88 hotels for third party
owners with over 20,800 guestrooms and franchises 11 hotels with over 2,600
guestrooms.
Results of Operations: Year Ended December 31, 1999 Compared with Year Ended
December 31, 1998
For the year ended December 31, 1999 hotel revenues were $2,409,046,000 as
compared to $1,842,682,000 during 1998. Of the approximate $566,364,000
increase, approximately $337,377,000 was attributable to the
26
<PAGE>
1998 acquisitions including Interstate, Summerfield, Arcadian and WHG, net of
leases which were included in the Interstate spin-off. In addition, the
purchase of the remaining third party leasehold interests, primarily CHC Lease
Partners, NorthCoast Hotels L.L.C. ("NorthCoast"), and the DTR North Canton
Inc (the "Doubletree Lessee"), in June 1998, December 1998 and January 1999
led to increases in hotel revenue of $124,712,000 as the operations of the
hotels during 1999 were consolidated in the statement of operations, whereas
in 1998, the Company was receiving a participating rent payment. Additionally,
$25,072,000 can be attributed to the consolidation of two hotels which were
previously accounted as an equity investment.
Hotel expenses increased from $1,351,872,000 in 1998 to $1,759,993,000 in
1999. As with revenues, the vast majority of this increase is a result of
acquisitions and the acquisition of third party leaseholds.
The contributing factor in the decline in participating revenue from
$58,440,000 during the year ended December 31, 1998 to $1,194,000 for the same
period in 1999 was the acquisition of the third party leaseholds discussed
above.
Management fee and service fee income was $69,278,000 in 1999 compared to
$89,067,000 in 1998. The decrease is primarily the result of a decrease in
incentive fee income associated with seventeen management contracts which were
renewed in 1998 with no provision to earn incentives fees, and management
contracts lost during the period. This was partially offset by the acquisition
of third party management contracts acquired in June 1998 and the Interstate
management contracts also acquired in June 1998, but were included in the
Interstate spin-off on June 18, 1999.
Interest and other income was $11,256,000 in 1999 as compared to $14,893,000
in 1998. The decrease resulted from a management termination fee of $2,950,000
in 1998.
Total revenues from the racecourse facility operations (including interest
and other income) were $4,561,000 for 1999 compared to $51,259,000 in 1998.
Total costs and expenses associated with the racecourse operations (included
marketing costs, and general and administrative expenses) were $3,867,000 for
1999 compared to $43,198,000 for 1998. These decreases are due to the sale of
Bay Meadows racecourse effective February 1999.
General and administrative expenses were $190,770,000 for 1999 compared to
$117,666,000 for 1998. In part, the increase is due to the overhead required
due to the growth in the portfolio of owned, managed and leased hotels during
1998. However, the significant portion of the increase was due to the
following factors:
As a result of the $1 billion equity investment, the Company incurred
$13,047,000 of strategic reorganization costs, including fees to settle the
forward equity contracts, and the acceleration of vesting of certain
employees' stock awards. The reorganization resulted in work associated
with a high yield bond offering and a bond offering in Puerto Rico to
cease, resulting in a write-off of costs associated with the offerings
totaling $3,917,000 and $13,530,000 in other abandoned transaction costs.
The Company also incurred $5,435,000 of costs associated with the spin-off
of Interstate's third-party management business, $21,131,000 with costs
associated with becoming Year 2000 compliant and conversion costs, and
$4,695,000 in bad debt expense for the write-off of receivables from a
hotel that Wyndham no longer intends to manage and has terminated the
management contract.
Interest expense for 1999 was $353,227,000 as compared to $260,103,000 for
1998. The increase is due in part to the closing of $1.45 billion in debt in
June of 1998 for the merger with Old Interstate. Secondly, as a result of
extending certain maturities of the credit facilities, Wyndham paid
$11,700,000 in fees, which were amortized and included in interest expense.
Finally, Wyndham assumed and incurred additional debt in order to finance the
Summerfield, Interstate and Arcadian transactions during 1998.
Cost of acquiring license agreements and leaseholds was $1,296,000 for 1999
as compared to $64,407,000 for 1998. This decrease is primarily due to the
prior year amount including the purchase of 17 leasehold interest acquired in
connection with the CHCI merger.
27
<PAGE>
The Company recognized a loss on the sale of assets of $10,702,000 based on
the excess book value over the cash proceeds received in the sale as compared
to $9,453,000 in the prior year.
For the year ended December 31, 1999, the Company recognized approximately
$70,912,000 of impairment losses related to assets held for sale. In 1998, the
Company recognized approximately $51,081,000 of impairment losses. In
accordance with SFAS No. 121, when management identifies an asset held for
sale a fair value is estimated. If the fair value of the asset is less than
the carrying value amount, a reserve for impairment is established.
As discussed in Note 6 to the financial statements, the Company recorded
$285,267,000 of costs associated with the restructuring. These costs primarily
relate to the non-cash write down of assets of approximately $265,962,000 as
the Company exits from certain business sectors, and focuses on its core
brands and products. In management's attempt to streamline its organization,
it has closed offices in New York, London, Phoenix, and Wichita. Severance,
lease cancellation costs, legal costs and other costs to exit to close these
offices resulted in the Company recording costs of $19,305,000.
Depreciation and amortization expense was $302,890,000 for the year ended
December 31, 1999 compared to $231,233,000 for the year ended December 31,
1998. A significant number of assets were acquired in 1998 as a result of the
mergers and acquisition as discussed, and therefore twelve months of
depreciation is not reflected in 1998 as compared to 1999. Of the $71,657,000
increase, $34,817,000 of depreciation was attributable to the significant
transactions which occurred during 1998, which included Arcadian in April
1998, and Summerfield, CHCI and Interstate in June 1998. The remaining
increase is due to depreciation on renovations at the hotels which were under
construction in 1998, but in service in 1999 as well as full year amortization
of goodwill and other intangible assets in 1999 for those intangibles acquired
in the mergers during 1998.
The Company's share of losses from unconsolidated subsidiaries was
$7,746,000 for the year ended December 31, 1999 as compared to income of
$9,498,000 for the year ended December 31, 1998. The decrease is primarily a
result of two hotels, no longer being accounted for as equity investments. In
June 1999, Wyndham acquired the 1% controlling interest in these hotels, and
they are now being accounted for on a consolidated basis. In addition, the
decrease is due to the allocation of losses from the Company's approximate 55%
investment in Interstate.
The provision for income taxes increased from $17,122,000 for 1998 to
$571,421,000 for 1999. The increase is primarily due to the $675,000,000
charge recorded during June 1999 due to Patriot converting from a REIT to a C
corporation, and the operations of certain special purpose controlled
subsidiaries which separately report and pay taxes on their taxable income.
For federal income tax purposes, the taxable income from these subsidiaries
cannot be consolidated with Wyndham's taxable income or loss and hence cannot
be offset by operating losses created at the Wyndham Partnership.
Additionally, the provision was decreased by benefits recorded in conjunction
with certain restructuring changes taken during 1999.
Minority interest's share of loss associated with the Operating Partnerships
was $6,642,000 for the year ended December 31, 1999 as compared to $12,651,000
for 1998 due to increased losses in the Operating Partnerships prior to the
amendments in the partnership agreements on June 30, 1999.
Minority interest's share of income in other consolidated subsidiaries were
$6,017,000 in 1999 as compared to $9,427,000 in 1998. This reduction in
minority interest's share of income is due primarily to the acquisition of the
outside interests in nine hotels.
For the year ended 1998, certain debt obligations of Old Wyndham, Interstate
and Summerfield were repaid upon the merger and acquisition of these entities.
In addition, certain debt of WHG was refinanced in 1998. As a result, Wyndham
incurred certain prepayment penalties and wrote off the remaining balance of
unamortized deferred financing costs associated with such debt, resulting in
an extraordinary loss of $31,817,000, net of minority interest and income
taxes. In connection with the new debt financing in 1999, Wyndham wrote off
the
28
<PAGE>
remaining balance of unamortized deferred financing costs associated with the
old credit facility, resulting in an extraordinary loss of $9,838,000, net of
minority interest and income taxes.
As a result, the net loss was $1,071,969,000 for 1999 and $158,223,000 for
1998.
Results of Operations: Year Ended December 31, 1998 Compared with Year Ended
December 31, 1997
Concurrent with the closing of the Cal Jockey merger, the Company began
operating four hotels and commenced its hotel management operations on July 1,
1997. At December 31, 1997, the Company owned 91 hotels of which it operated
55 of those hotels, leased 34 hotels to third party lessees, and two hotels
were owned through special purpose entities. At December 31, 1997, it managed
12 hotels for third parties. In 1998, the Company underwent a series of
mergers and acquisitions, including Wyndham, WHG, Summerfield, Interstate and
CHCI. As a result of the mergers and acquisitions, at December 31, 1998 the
Company owned interests in 178 hotels, leased 121 hotels from third parties,
and managed 161 hotels for third party owners. This significant increase in
the number of hotels operated by the Company is the primary cause of the
increases in revenues and expenses between 1997 and 1998.
Hotel revenues were $1,842,682,000 for the year ended December 31, 1998 as
compared to $167,727,000 for the same period December 31, 1997. The increase
in revenues is due not only to the increase in the number of hotels operated,
but also due in increases in REVPAR experienced by the hotel portfolio as a
whole.
Hotel expenses increased to $1,351,872,000 for 1998 as compared to
$140,392,000 for 1997. The increases are due to the full year's results in
1998 for hotels leased to third parties during 1997 and the additional hotels
acquired during 1998.
Racecourse facility revenue increased from $26,511,000 for 1997 to
$51,259,000 for 1998. Racecourse facility expenses increased from $21,620,000
for 1997 to $43,198,000 for 1998. The increase is due to the number of racing
days in 1998 of 106 as opposed to the number of race days in 1997 of 63.
Management fee and service fee income increased from $7,088,000 for 1997 to
$89,067,000 for 1998. This increase is primarily the result of a net increase
of 149 management contracts during the year primarily from the mergers and
acquisitions that occurred during 1998, as discussed above.
Interest and other income increased from $6,676,000 in 1997 to $14,893,000
in 1998. The increase is primarily attributable to the mergers and
acquisitions of the hotel management and related business of Interstate,
Summerfield, Wyndham and Arcadian during 1998, and interest and dividend
income earned on cash investments, and notes receivables assumed during those
transactions.
General and administrative expenses increased from $17,181,000 in 1997 to
$117,666,000 in 1998. Of this increase, salaries and wages is the major
component. This increase is due primarily to the overhead required due to the
growth in portfolio and managed and leased hotels during 1998. Also, the
Company recorded $14,813,000 costs associated with evaluating properties and
companies which were ultimately not acquired in 1998.
Interest expense for 1998 was $260,103,000 compared to $50,531,000 for 1997.
The increase is a result of the increase in the Company's outstanding debt
obligations from $1,112,709,000 to $3,857,521,000. The increase in the
Company's debt outstanding is the result of borrowings to fund the cash
purchase prices of acquisition of hotel properties and companies during 1998
and the assumption of debt in connection with various mergers executed during
1998.
In 1998, the Company recognized $64,407,000 in costs of acquiring
leaseholds, as compared to $54,499,000 in 1997. The primary component of the
expense in both years was the acquisition of leaseholds from CHC lease
partners, eight leasehold interest in 1997 and 17 in 1998.
During 1998, the Company recorded a $49,334,000 one-time charge to earnings
as a result of the settlement of three treasury interest rate lock agreements.
These agreements were executed to protect the Company against
29
<PAGE>
the possibility of rising interest rates in anticipation of closing mortgage
loans in the near future. Under the rate lock agreements, the Company received
or made payments based on the difference between specified interest rates,
6.06%, 6.07%, and 5.62%, and the actual 10-year U.S. Treasury interest rate on
a principal amount of $525,000,000. Due to the substantial downward movement
in the underlying treasury security market and the Company's liquidity
situation, the agreements were settled and the settlement cost was recorded as
a charge against earnings.
In the connection with the assets in 1998, the Company recognized a loss on
the sale of assets of $9,453,000 based on the excess book value over the cash
proceeds received in the sale.
For the year ended December 31, 1998, the Company recognized approximately
$51,081,000 of impairment losses related to assets held for sale. In
accordance with SFAS No. 121, when management identifies an asset held for
sale a fair value is estimated. If the fair value of the asset is less than
the carrying value amount, a reserve for impairment is established.
Depreciation and amortization expense was $231,233,000 for 1998, compared to
$52,685,000 in 1997. The increase is primarily due to the net increase in
owned and leased hotel properties to 299 at December 31, 1998 from 91 in 1997.
Minority interest share of loss was $12,651,000 in 1998 as compared to
income of $1,684,000 as a result of certain non-recurring expenses recognized
by the operating partnerships in 1998.
Minority interest in other consolidated subsidiaries increased from
$1,615,000 to $9,427,000 as a result of an increase in unconsolidated
subsidiaries acquired through various mergers and acquisitions during 1998.
In connection with the Wyndham merger, the Interstate merger, the
Summerfield acquisition, and the WHG acquisition, the Company repaid certain
debt obligations of Old Wyndham, Interstate, Summerfield and WHG. As a result,
the Company incurred prepayment penalties and wrote-off the remaining balance
of unamortized deferred financing costs associated with such debt in the
amount of $31,817,000, net of minority interest share of the net loss. This
has been reported as an extraordinary item. Concurrent with the repayment of
the old line of credit, Patriot wrote off the remaining balance of unamortized
deferred financing costs associated with the old line of credit in the amount
of $2,534,000 of minority interest share of the net loss, has been reported as
an extraordinary item.
As a result, net loss was $158,223,000 for 1998, compared to net loss of
$2,172,000 for 1997.
Results of reporting segments
For the year ended December 31, 1999 compared with the year ended December
31, 1998
Wyndham hotel properties include Wyndham Hotels, Wyndham Gardens and Wyndham
Grand Heritage and represent approximately 22.8% and 29.7% of total revenue
for the years ended December 31, 1999 and 1998, respectively. Total revenue
was $568,584,000 in 1999 as compared to $610,523,000 in 1998 for a decrease of
6.9%. Operating income was $149,688,000 in 1999 as compared to $153,723,000 in
1998, or a decrease of 2.6%. This decrease was a result of the repositioning
of three Wyndham hotels to Wyndham resorts in 1999. The total revenue included
in 1998 for those three properties was $97,755,000 and operating income of
$22,817,000. Excluding those three hotels, Wyndham hotel revenue actually
increased by 10.9% with operating income increasing 14.3%. The increase in
both revenues and operating income is primarily a result of the rebranding of
certain hotels acquired in 1998 from non-proprietary brands to Wyndham Hotels,
as well as the opening of several Wyndham hotels which were under development
in 1998 and opened in 1999.
Resort properties including Wyndham Luxury Resorts and Wyndham Resort hotel
properties represent approximately 20.9% and 15.4% of total revenue for the
years ended December 31, 1999 and 1998, respectively. Total revenue increased
from $315,674,000 in 1998 to $520,813,000 in 1999 while operating income
increased from $76,349,000 in 1998 to $120,254,000 in 1999. The increase is
primarily due to the repositioning of the
30
<PAGE>
above mentioned hotels and the acquisition of the remaining partners' interest
in certain resorts in March 1998. Prior to the acquisition, Wyndham accounted
for its investment in these resorts, on the equity basis of accounting.
Subsequent to the purchase of the partners' interest, the operations were
consolidated into the statement of operations. In addition, Hurricane Georges
adversely affected 1998's third and fourth quarter revenues and earnings at
several Wyndham resort properties.
All suite properties including Summerfield and Sierra represent
approximately 5.6% and 3.6% of total revenue for the year ended December 31,
1999 as compared to 1998. Total revenue increased from $74,333,000 to
$138,900,000 and operating income increased from $14,690,000 to $27,059,000
from 1998 to 1999, respectively. Summerfield was not acquired until June of
1998; and therefore only reflect seven months of operations. In addition, 1999
results reflected the opening of additional Summerfield and Sierra Suites
which were under development in 1998 but operational in 1999.
Other proprietary branded properties, including Malmaison, Grand Heritage,
ClubHouse and hotels acquired in the Arcadian acquisition, represent
approximately 3.8% of total revenue for the year ended December 31 1999, as
compared to 3.9% for 1998. Total revenue increased from $80,998,000 to
$95,669,000 and operating income increased from $26,492,000 to $27,405,000 for
the years ended 1998 to 1999, respectively. The hotels acquired in the
Arcadian acquisition were not acquired until April of 1998, accounting
primarily for the increase of both revenues and operating income. In addition,
1999 results reflected the opening of an additional hotel which was under
development in 1998 and the addition of the controlling interest in a third
hotel in September of 1999. However, these increases were partially offset by
the sale of the 11 hotels from Arcadian in December of 1999 and the decreases
in revenues and operating income for the ClubHouse branded hotels.
Non-proprietary branded properties, including Hilton(R), Holiday Inn(R),
Marriott(R), Doubletree(R), Radisson(R) and other major hotel franchises,
represent approximately 43.4% and 37.0% of total revenue for the year ended
December 31, 1999 as compared to 1998. Total revenue increased from
$761,154,000 to $1,085,080,000 and operating income increased from
$183,703,000 to $259,616,000 for the years ended 1998 and 1999, respectively.
The increase is due primarily to the acquisition of the owned and leased
Interstate properties, and the leasehold interest in CHC Lease Partners,
NorthCoast and the Doubletree Lessees. The increases were partially offset by
asset sales during the year, as well as the loss of certain leaseholds in the
Interstate spin-off.
Other represents revenue from various operating businesses including
management and other service companies, and participating lease revenue for
one hotel and a parcel of land. Total revenue for the other segment was
$86,289,000 and $213,659,000 for 1999 and 1998, respectively. The overall
$127,370,000 decrease in this segment's revenue was caused by several factors.
The sale of Bay Meadows Race Track operations and leasehold effective February
1, 1999 reduced revenue by $46,698,000. The purchase of the third party
leasehold interests, primarily CHC Lease Partners and NorthCoast Hotels,
reduced participating lease revenue by $57,246,000. Operating losses for the
segment were $1,067,611,000 and $576,963,000 for the years ended December 31,
1999 and 1998, respectively. In addition to the decrease in revenues, the
increase in the segment's operating loss is a result of increased expenses
resulting from the mergers and acquisitions in 1998. Interest expense
increased $93,124,000, depreciation and amortization increased $71,657,000 and
corporate and general and administrative expenses increased $73,104,000. The
sale of the Bay Meadows Racetrack accounted for an approximate $39,331,000
decrease in expenses and the cost of acquiring the third party leaseholds in
1998 decreased expenses by an additional $63,111,000.
For the year ended December 31, 1998 compared with the year ended December
31, 1997
Wyndham hotels properties represent approximately 29.7% and 3.2% of total
revenue for 1998 and 1997, respectively. Total revenue was $610,523,000 for
the year ended December 31, 1998 compared to $10,711,000 in 1997. The increase
is primarily due to the additional hotels acquired as a result of the
acquisition of hotels and mergers in 1998. Operating income for the Wyndham
hotels was $153,723,000 for the year ended December 31, 1998 compared to
$2,388,000 for 1997.
Resort properties represent approximately 15.4% and 9.1% of total revenue
for 1998 and 1997, respectively. Total revenue was $315,674,000 for the year
ended December 31, 1998 compared to $30,334,000 in 1997. The
31
<PAGE>
increase is primarily due to the additional hotels acquired as a result of the
acquisition of hotels and mergers in 1998. Operating income for the resort
properties was $76,349,000 for the year ended December 31, 1998 compared to
$6,628,000 for 1997.
All suite properties represent approximately 3.6% of total revenue for 1998.
Patriot purchased 4 properties and Patriot and Wyndham acquired 26 leaseholds
in 1998 and leased them to Wyndham. Total revenue was $74,333,000 for the year
ended December 31, 1998 and operating income was $14,690,000 in 1998.
Other proprietary branded properties represent approximately 3.9% and 2.9%
of total revenue for 1998 and 1997, respectively. Total revenue was
$80,998,000 for the year ended December 31, 1998 compared to $9,595,000 in
1997. The increase is primarily due to the additional hotels acquired as a
result of the acquisition of hotels and mergers in 1998. Operating income for
these properties was $26,492,000 for the year ended December 31, 1998 compared
to $1,436,000 for 1997.
Non-proprietary branded properties represent approximately 37.0% and 34.4%
of total revenue for 1998 and 1997, respectively. Total revenue was
$761,154,000 for the year ended December 31, 1998 compared to $115,223,000 in
1997. The increase is primarily due to the additional hotels acquired as a
result of the acquisition of hotels and mergers in 1998. Operating income for
these properties was $183,703,000 for the year ended December 31, 1998
compared to $29,947,000 for 1997.
Other represents revenue from various operating businesses including Bay
Meadows racetrack, management and other service companies as well as
participating lease revenue for those hotels leased to third parties. Total
revenue for the other segment was $213,659,000 and $169,172,000 for the years
ended December 31, 1998 and 1997, respectively. The increase in total revenue
is a result of a full year of operations reflected in 1998 compared to six
months of operations in 1997. Operating loss of the other segment was
$576,963,000 for 1998 compared to $42,272,000 in 1997. The increase in
operating loss is a result of the following items: the treasury lock
settlement of $49,334,000; the loss on the sale of the North Coast Transaction
assets of $9,453,000; the impairment loss on assets held for sale (including
the Bay Meadows racetrack) of $51,081,000; the increase in the costs of
acquiring leaseholds in 1998 over 1997 of $9,908,000; the increase in interest
expense of $209,572,000 as a result of the increased borrowings to fund the
1998 mergers and acquisitions; and the increase in depreciation and
amortization of $178,548,000 as a result of the 1998 mergers and acquisitions.
Statistical Information
During 1999, the Company's portfolio of 204 owned and leased hotels
experienced moderate growth in both average daily rate ("ADR") and revenue per
available room ("REVPAR") of approximately 2.8% and 1.3%, respectively, while
occupancy decreased slightly by 1.4%. Management attributes this growth to
continued marketing efforts throughout the portfolio on hotels that have been
repositioned and converted, as well as to the current market conditions in the
U.S. lodging industry. The following table sets forth certain statistical
information for the Company's 204 owned and leased hotels for 1999 and 1998 as
if the hotels were owned or leased for the entire periods presented.
<TABLE>
<CAPTION>
Occupancy ADR REVPAR
---------- --------------- ---------------
1999 1998 1999 1998 1999 1998
---- ---- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Wyndham Hotels.................... 69.3% 70.7% $109.81 $107.57 $ 76.07 $ 76.08
Wyndham Resorts................... 73.4 70.9 160.09 153.06 117.55 108.58
Wyndham Luxury Resort (formerly
Grand Bay Hotels & Resorts)...... 72.0 68.6 300.97 312.52 216.63 214.41
Summerfield Suites & Sierra
Suites........................... 80.2 81.2 116.65 116.08 93.56 94.26
Malmaison......................... 83.1 79.0 124.72 123.13 103.62 97.27
ClubHouse......................... 58.3 66.4 66.20 68.06 38.62 45.21
Non-proprietary brands............ 70.9 72.3 102.22 99.78 72.44 72.16
---- ---- ------- ------- ------- -------
Weighted average................ 71.2% 72.2% $113.82 $110.68 $ 81.00 $ 79.92
==== ==== ======= ======= ======= =======
</TABLE>
32
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents as of December 31, 1999 were $246.8 million,
including restricted cash of $102.5 million. Cash and cash equivalents as of
December 31, 1998 were $158.9 million, including restricted cash of $35.9
million.
Cash Flow Provided by Operating Activities
The Company's principal source of cash flow is from the operations of the
hotels that it owns, leases and manages. Cash flows from operating activities
were $202.3 million for 1999. Cash flows from operating activities of the
Company were $244.5 million 1998, which represent a combination of collection
of rents under participating leases with third party lessees and cash flows
generated by the hotels operated by the Company. Cash flows from operating
activities were $108.1 million for 1997, which primarily represent collection
of rents under participating leases.
As a result of the reorganization, the Company will pay significantly more
in federal income taxes, but will have the ability to retain significantly
more earnings than was previously the case because the Company is not required
to distribute at least 95% or more of its taxable income to its shareholders.
The Company anticipates that its enhanced ability to retain earnings will
allow it to utilize cash flow from operating activities to fund maintenance,
capital expenditures and acquisitions. The Company does not anticipate paying
a dividend to its common shareholders. However, for the first six years,
dividends on the series A and series B convertible preferred stock are
structured to ensure an aggregate fixed cash dividend payment of $29.25
million per year, so long as there is no redemption or conversion of the
preferred stock; therefore, for that period, dividends are payable partly in
cash and partly in additional shares of preferred stock. For the following
four years, dividends are payable in cash or additional shares of series A or
series B convertible preferred stock, as the case may be, as determined by the
Board of Directors. After year ten, dividends are payable solely in cash.
Cash Flows from Investing and Financing Activities
Cash flows used in investing activities of the Company were approximately
$290.0 million for 1999, resulting primarily from the acquisition of hotel
properties, property renovations and improvements, and cash deposited as
escrows and property improvement reserves.
Cash flows provided by financing activities of approximately $175.5 million
for 1999 were primarily related to the net proceeds from the sale of the
series B preferred stock, the net proceeds from the new credit facility and
the net proceeds from the new mortgage debt, partially offset by the repayment
of the old credit facility, term loans, and the settlement of the forward
equity contracts.
During 1998, the Company continued to experience rapid growth through the
merger and acquisition of hotel properties and management companies. These
transactions were funded with a combination of issuance and or assumption of
debt as well as sale of registered securities, issuance of OP units and
proceeds from the forward equity transactions. The proceeds from the forward
equity transactions were used to repay borrowings under the credit facility.
The credit facility was then used to fund the cash portion of the Company's
mergers and acquisitions.
Cash flows used in investing activities of the Company were approximately
$2.1 billion for 1998, resulting primarily from the merger and acquisition of
various hotel properties and management companies and the renovation
expenditures at certain hotels. Cash flows used in investing activities of the
Company were approximately $1.2 billion for the year ended December 31, 1997,
resulting primarily from the Cal Jockey merger, the acquisition of various
hotel properties and management companies, and the renovation of certain
hotels.
Cash flows from financing activities of $1.9 billion for 1998 were primarily
related to the borrowings on the credit facility, the term loans and mortgage
notes and net proceeds from public and private placement of equity securities,
net of payments of dividends and distributions. Cash flows from financing
activities of
33
<PAGE>
approximately $1.1 billion for 1997 were primarily related to borrowings under
the credit facility, the term loans and mortgage notes and net proceeds from
public and private equity securities, net of payments of dividends and
distributions.
Concurrent with the closing of the $1 billion equity investment, Wyndham
closed on a new $2.45 billion credit facility which consists of a $1.3 billion
term loan with a seven-year term, a $500 million revolving credit facility
with a five-year term, and a $650 million increasing rate loan facility with a
five-year term. The proceeds, net of closing costs and fees of approximately
$41.1 million, for the term loan and the revolving credit facility, and
approximately $17.9 million, for the increasing rate loan facility, were used
to retire existing indebtedness. At December 31, 1999, $270 million was drawn
on the new revolving credit facility.
Interest rates are based upon LIBOR plus spreads varying from 2.75% to 3.50%
per annum for the term loan, and 1.25% to 2.75% per annum for the revolving
credit facility, based both on Wyndham's leverage ratio, as defined, and
whether any increasing rate loans are outstanding. If any of the increasing
rate loan facility remains outstanding, the applicable margins shall be
increased by 0.25%. The term loan and the revolving credit facility are
guaranteed by the domestic subsidiaries of Wyndham and are secured by pledges
of equity interests held by Wyndham and its subsidiaries. Wyndham's ability to
borrow under its revolving credit facility is subject to Wyndham's compliance
with a number of customary financial and other covenants, including total
leverage and interest coverage ratios.
Interest rates for the increasing rate loans are based on LIBOR rates (less
statutory reserves), plus 3.50% through September 30, 1999, and increasing
0.50% every three months, with a cap of LIBOR plus 4.75%. The lender under the
increasing rate loans receives the benefit of the same guarantees and pledges
of security provided under the new term loan and revolving credit facility.
As of March 22, 2000, the Company had approximately $315 million outstanding
under the revolving credit facility and $1.3 billion outstanding on the term
loans, and $650 million outstanding under the increasing rate loans.
Additionally, the Company had outstanding letters of credit totaling $21.2
million. As of such date, the Company also had over $1.4 billion of mortgage
debt outstanding that encumbered 74 hotels, resulting in total indebtedness of
approximately $3.7 billion. As of March 22, 2000, the Company had $163.8
additional availability under the Revolving Credit Facility.
In March 2000, the Company entered into three additional interest rate
hedges for a total notional amount of $1.5 billion. The hedges are structured
such that each hedge has a series of trigger levels in which the hedge can
become ineffective for any reset period that the 1-month LIBOR rises above the
trigger level. If LIBOR resets below the trigger level, the hedge becomes
effective again. The Company paid approximately $34.3 million in premiums,
which will be amortized over the terms of the contracts, to enter into these
transactions. The hedges are as follows:
<TABLE>
<CAPTION>
Notional Trigger
Hedge Amount Terms Rate Level
----- ------------ -------- ---------- ---------
<S> <C> <C> <C> <C>
Interest Rate Swap................ $700 million 5 years 6.1%-6.75% 7.0%-8.5%
Interest Cap...................... $250 million 3 years 4.75% 7.5%
Interest Corridor................. $550 million 3 years 5.25% 7.5%
In addition, the Company shortened the terms of three existing hedges and
received net proceeds of approximately $6.8 million. The hedges were as
follows:
<CAPTION>
Notional Original Revised
Hedge Amount Maturity Maturity Rate
----- ------------ -------- ---------- ---------
<S> <C> <C> <C> <C>
Interest Rate Swap................ $375 million 11/01/02 3/01/02 6.26%
Interest Rate Swap................ $125 million 11/01/02 3/01/02 5.56%
Interest Rate Swap................ $250 million 06/01/03 3/01/02 5.84%
</TABLE>
34
<PAGE>
Forward Equity Transactions
The Company was party to transactions with three counterparties involving
the sale of an aggregate of 13.3 million paired shares, with related purchase
price adjustment mechanisms. The Company's aggregate obligation under the
forward equity transactions was approximately $335.8 million at June 30, 1999.
Effective June 30, 1999, the Company settled in full all of the forward equity
transactions in cash with part of the proceeds of the $1 billion equity
investment. The 100.7 million shares owned or held by the counterparties were
retired effective June 30, 1999.
Renovations and Capital Improvements
During 1999, the Company completed approximately $230.7 million in total
capital improvements and renovations on various hotel properties. These major
renovations included upgrading the quality of the furniture and fixtures in
guest rooms, public meeting space and lobby areas as well as adding additional
rooms to certain of the hotels. During 2000, the Company anticipates spending
approximately $198.8 million in capital expenditures, including (i) costs
related to converting hotels to one of the Company's proprietary brands, (ii)
costs related to converting certain Wyndham Garden hotels to Wyndham hotels,
(iii) costs related to enhancing the revenue-producing capabilities of its
hotels, and (iv) costs related to recurring maintenance capital expenditures.
The Company attempts to schedule renovations and improvements during
traditionally lower occupancy periods in an effort to minimize disruption to
the hotel's operations. Therefore, management does not believe such
renovations and capital improvements will have a material effect on the
results of operations of the hotels. However, no assurance can be made that
such renovations and capital improvements will not impact the results of
operations. Capital expenditures will be financed through the capital
expenditure reserves, the credit facility, other financing sources, or with
working capital.
ITEM 7A. QUALITATIVE AND QUANTITATIVE DISCLOSURES ABOUT MARKET RISKS
The Company's primary market risk exposure is to future changes in interest
rates related to the Company's derivative financial instruments and other
financial instruments including debt obligations, interest rate swaps,
interest rate caps, and future debt commitments.
The Company manages its debt portfolio by periodically entering into
interest rate swaps and caps to achieve an overall desired position of fixed
and floating rates or to limit its exposure to rising interest rates.
35
<PAGE>
The following table provides information about the Company's derivative and
other financial instruments that are sensitive to changes in interest rates.
. For fixed rate debt obligations, the table presents principal cash flows
and related weighted-average interest rates by expected maturity date and
contracted interest rates at December 31, 1999. For variable rate debt
obligations, the table presents principal cash flows by expected maturity
date and contracted interest rates at December 31, 1999.
. For interest rate swaps and caps, the table presents notional amounts and
weighted-average interest rates or strike rates by expected (contractual)
maturity dates. Notional amounts are used to calculate the contractual cash
flows to be exchanged under the contract. Weighted average variable rates
are based on implied forward rates in the yield curve at December 31, 1999.
<TABLE>
<CAPTION>
2000 2001 2002 2003 2004 Thereafter Face Value Fair Value
---------- -------- -------- -------- ---------- ---------- ---------- ----------
(dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Debt
Long-term debt
obligations
Including Current
Portion Fixed Rate.... $ 23,896 $ 17,915 $ 46,092 $ 6,726 $ 52,467 $ 282,731 $ 429,827 $ 429,827
Average Interest Rate.. 8.95% 7.92% 8.89% 8.55% 8.21% 8.17%
Variable Rate.......... $ 106,281 $144,804 $278,853 $ 37,853 $1,326,589 $1,319,349 $3,213,729 $3,213,729
Average Interest Rate.. 8.51% 7.88% 8.67% 8.29% 9.13% 8.68%
Interest Rate Derivative
Financial Instruments
Related to Debt
Interest Rate Swaps
Pay Fixed/Receive
Variable.............. $ 491,988 $ 31,000 $500,000 $250,000 $ -- $ -- $1,272,988 $ 16,440
Average Pay Rate....... 5.93% 5.98% 6.00% 5.84% -- --
Average Receive Rate... 7.20% 7.57% 7.56% 7.56% -- --
Interest Rate Caps
Notional Amount........ $1,500,000 $ 57,475 $ -- $ -- $ 340,615 -- $1,898,090 $ (1,887)
Strike Rate............ 7.08% 7.38% 7.37% 7.37% 7.37% --
Forward Rate........... 7.20% 7.57% 7.56% 7.56% 7.58% --
</TABLE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The independent auditors' reports, financial statements and financial
statement schedules listed in the accompanying index are filed as part of this
report. See Index to Financial Statements and Financial Statement Schedules on
page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
On August 19, 1999, the Company dismissed Ernst & Young LLP as its
independent accountants. The reports of Ernst & Young LLP on the financial
statements of the Company for the past two fiscal years contain no adverse
opinion or disclaimer of opinion and were not qualified or modified as to
uncertainty, audit scope or accounting principles. The audit committee of the
Board of Directors of the Company participated in and approved the decision to
change independent accountants. In connection with Ernst & Young LLP's audits
for Wyndham's two most recent fiscal years ended December 31, 1998 and in the
subsequent interim period, there have been no disagreements with Ernst & Young
LLP on any matter of accounting principles or financial statement disclosure,
or auditing scope or procedure which if not resolved to the satisfaction of
Ernst & Young LLP would have caused them to make reference to the subject
matter in their report. There were no reportable events as defined in
Regulation S-K Item 304(a) (1) (v).
36
<PAGE>
PART III
The information called for by this Part III (other than the information
required by Item 10 with respect to executive officers of Wyndham, which
information appears under the heading "Executive Officers of the Registrant"
in Part I hereof) is, in accordance with General Instruction G(3) to Form 10-
K, incorporated herein by reference to the information contained in the
Company's definitive proxy statement for the annual meeting of stockholders of
Wyndham to be held May 16, 2000, which will be filed with the Securities and
Exchange Commission not later than 120 days after December 31, 1999.
PART IV
ITEM 14. Exhibits, Financial Statements and Schedules, and Reports on Form 8K
(a) The index to the audited financial statements and financial statement
schedules is included on page F-1 of this report. The financial statements
are included herein at pages F-1 through F-49. The following financial
statement schedule is included herein at pages F-50 through F-61:
Schedule III--Real Estate and Accumulated Depreciation for Wyndham
International, Inc.
All other schedules for which provision is made in Regulation S-X are
either not required to be included herein under the related instructions or
are inapplicable or the related information is included in the footnotes to
the applicable financial statement and, therefore, have been omitted.
(b) Reports on Form 8-K for the quarter ended December 31, 1999:
Current Report on Form 8-K of Wyndham International, Inc. dated November 8,
1999 (001-9320) reporting under Item 5, announcing its earnings for the
quarter and the nine months ended September 30, 1999.
(c) Exhibits:
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
2.1 Securities Purchase Agreement dated as of February 18, 1999 by and
among Patriot American Hospitality, Inc. ("Patriot"), Wyndham
International, Inc. ("Wyndham"), Patriot American Hospitality
Partnership, L.P., Wyndham International Operating Partnership, L.P.
and the Investors named therein, incorporated by reference to Exhibit
2.1 to Wyndham's Registration Statement on Form S-4/A (SEC file no.
33379527) filed June 1, 1999.
2.2 Amendment to Securities Purchase Agreement, dated as of June 28, 1999,
by and among Patriot, Wyndham, Patriot American Hospitality
Partnership, L.P., Wyndham International Operating Partnership, L.P.
and the parties identified on the signature page as the Original
Investors, incorporated by reference to Exhibit 2.2 to Wyndham's
Current Report on Form 8-K filed July 13, 1999.
2.3 Restructuring Plan, incorporated by reference to Exhibit 2.2 to
Wyndham's Registration Statement on Form S-4/A (SEC file no. 33379527)
filed June 1, 1999.
2.4 Agreement and Plan of Merger, dated as of March 26, 1999, by and among
Wyndham, Wyndham International Acquisition Subsidiary, Inc. and
Patriot, incorporated by reference to Exhibit 2.3 to Wyndham's
Registration Statement on Form S-4/A (SEC file no. 33379527) filed
June 1, 1999.
3.1 Amended and Restated Certificate of Incorporation of Wyndham,
incorporated by reference to Exhibit 3.1 to Wyndham's Registration
Statement on Form S-8 filed July 2, 1999.
3.2 Amended and Restated Bylaws of Wyndham, incorporated by reference to
Exhibit 3.2 to Wyndham's Registration Statement on Form S-8 filed July
2, 1999.
</TABLE>
37
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
4.1 Certificate of Designation of Series A Convertible Stock of Wyndham,
incorporated by reference to Exhibit 99.5 to Wyndham's and Patriot's
Current Report on Form 8-K dated March 2, 1999 (filed March 2, 1999).
4.2 Certificate of Designation of Series B Convertible Preferred Stock of
Wyndham, incorporated by reference to Exhibit 4.2 to Wyndham's
Registration Statement on Form S-4/A (SEC file no. 33379527) filed
June 1, 1999.
4.3 Certificate of Designation of Series C Junior Participating Cumulative
Preferred Stock of Wyndham, incorporated by reference to Exhibit 3.1
to the Company's Current Report on Form 8-K (filed July 12, 1999).
4.4 Registration Rights Agreement, dated as of February 18, 1999, by and
among Wyndham and the holders of Series B Convertible Preferred Stock
of Wyndham party thereto, incorporated by reference to Exhibit 4.1 to
Wyndham's Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1999.
4.5 Registration Rights Agreement, dated as of June 30, 1999, by and among
Wyndham and former Operating Partnership unit holders party thereto,
incorporated by reference to Exhibit 10.1 to Wyndham's Registration
Statement on Form S-3 (SEC file no. 33386189) filed August 30, 1999.
4.6 Shareholder Rights Agreement, dated as of June 29, 1999, between
Wyndham and American Stock Transfer and Trust Company, as Rights
Agent, incorporated by reference to Exhibit 4.1 to Wyndham's Current
Report on Form 8-K, filed July 12, 1999.
*10.1 Credit Agreement, dated as of June 30, 1999, by and among Wyndham and
the Lenders named therein.
*10.2 Increasing Rate Note Purchase and Loan Agreement, dated as of June 30,
1999, by and among Wyndham and the Lenders named therein.
10.3 Letter Agreement, dated February 26, 1999, by and among Wyndham,
Patriot and Paul A. Nussbaum, incorporated by reference to Exhibit
99.1 to Wyndham's and Patriot's Current Report on Form 8-K dated
February 26, 1999 (filed March 3, 1999).
*10.4 Executive Employment Agreement As Amended and Restated, dated as of
April 19, 1999, between Wyndham and Leslie V. Bentley.
*10.5 Executive Employment Agreement As Amended and Restated, dated as of
April 19, 1999, between Wyndham and Michael A. Grossman.
*10.6 Executive Employment Agreement As Amended and Restated, dated as of
April 19, 1999, between Wyndham and Stanley M. Koonce, Jr.
*10.7 Executive Employment Agreement As Amended and Restated, dated as of
April 19, 1999, between Wyndham and Carla S. Moreland.
10.8 Executive Employment Agreement As Amended and Restated, dated as of
May 26, 1999 between Wyndham and Richard Mahoney, incorporated by
reference to Exhibit 10.5 to Wyndham's Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 1999.
*10.9 Non-qualified Stock Option Agreement dated as of May 7, 1999 between
Wyndham and Richard Mahoney.
10.10 Letter agreement dated July 12, 1999 between Lawrence S. Jones and
Wyndham incorporated by reference to Exhibit 10.6 to Wyndham's
Quarterly Report on Form 10-Q for the quarterly period ended June 30,
1999.
</TABLE>
38
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
10.11 Letter agreement dated July 12, 1999 between William W. Evans III and
Patriot incorporated by reference to Exhibit 10.7 to Wyndham's
Quarterly Report on Form 10-Q for the quarterly period ended June 30,
1999.
*10.12 Executive Employment Agreement As Amended and Restated, dated as of
April 19, 1999, between Wyndham and Anne L. Raymond.
*10.13 Executive Employment Agreement, dated as of August 12, 1999, between
Wyndham and Fred J. Kleisner.
*10.14 Executive Employment Agreement, dated as of August 18, 1999, between
Wyndham and James D. Carreker.
*10.15 Amendment No. 1 to Executive Employment Agreement, dated as of March
27, 2000 between Wyndham and James D. Carreker.
10.16 Letter agreement dated July 7, 1999 between Wyndham and Karim Alibhai,
incorporated by reference to Exhibit 10.4 to Wyndham's Quarterly
Report on Form 10-Q for the quarterly period ended September 30, 1999.
*10.17 Letter Agreement dated November 3, 1999 between Richard A. Holtzman
and Wyndham.
*10.18 Letter Agreement dated November 3, 1999 between Thomas W. Lattin and
Wyndham.
*10.19 Letter Agreement dated March 22, 2000 between Stanely M. Koonce, Jr.
and Wyndham.
*10.20 Amended and Restated Wyndham International, Inc. 1997 Incentive Plan.
*12.1 Statement Regarding Computation of Ratios.
*21.1 Significant Subsidiaries of Wyndham.
*23.1 Consent of Ernst & Young LLP.
*23.2 Consent of PricewaterhouseCoopers LLP.
*27.1 Financial Date Schedule.
</TABLE>
- --------
* Filed herewith.
39
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities and
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
Dated: March 29, 2000
Wyndham International, Inc.
/s/ Fred J. Kleisner
By: _________________________________
Fred J. Kleisner
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacities in which signed Date
--------- -------------------------- ----
<S> <C> <C>
/s/ James D. Carreker Chairman of the Board of March 29, 2000
______________________________________ Directors
James D. Carreker
/s/ Fred J. Kleisner President and Chief March 29, 2000
______________________________________ Executive Officer
Fred J. Kleisner
/s/ Richard Mahoney Executive Vice President March 29, 2000
______________________________________ and Chief Financial
Richard Mahoney Officer
/s/ Karim Alibhai Director March 29, 2000
______________________________________
Karim Alibhai
/s/ Leonard Boxer Director March 29, 2000
______________________________________
Leonard Boxer
/s/ Milton Fine Director March 29, 2000
______________________________________
Milton Fine
Director March , 2000
______________________________________
Susan Groenteman
/s/ Paul Nussbaum Director March 29, 2000
______________________________________
Paul Nussbaum
</TABLE>
40
<PAGE>
<TABLE>
<CAPTION>
Signature Capacities in which signed Date
--------- -------------------------- ----
<S> <C> <C>
/s/ Rolf Ruhfus Director March 29, 2000
______________________________________
Rolf Ruhfus
Director March , 2000
______________________________________
Leon D. Black
/s/ Norman Brownstein Director March 29, 2000
______________________________________
Norman Brownstein
/s/ Stephen T. Clark Director March 29, 2000
______________________________________
Stephen T. Clark
Director March , 2000
______________________________________
Paul Fribourg
/s/ Thomas H. Lee Director March 29, 2000
______________________________________
Thomas H. Lee
/s/ Alan M. Leventhal Director March 29, 2000
______________________________________
Alan M. Leventhal
/s/ William Mack Director March 29, 2000
______________________________________
William Mack
/s/ Lee Neibert Director March 29, 2000
______________________________________
Lee Neibert
/s/ Marc Rowan Director March 29, 2000
______________________________________
Marc Rowan
/s/ Scott Schoen Director March 29, 2000
______________________________________
Scott Schoen
/s/ Scott Sperling Director March 29, 2000
______________________________________
Scott Sperling
</TABLE>
41
<PAGE>
WYNDHAM INTERNATIONAL, INC.
INDEX TO FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES
HISTORICAL FINANCIAL INFORMATION
<TABLE>
<CAPTION>
Page
----
<S> <C>
Wyndham International, Inc.:
Report of Independent Accountants--PricewaterhouseCoopers LLP........... F-2
Report of Independent Auditors--Ernst & Young LLP....................... F-3
Consolidated Balance Sheets as of December 31, 1999 and 1998............ F-4
Consolidated Statements of Operations for the years ended December 31,
1999, 1998 and 1997.................................................... F-5
Consolidated Statements of Shareholders' Equity for the years ended
December 31, 1999, 1998 and 1997....................................... F-6
Consolidated Statements of Cash Flows for the years ended December 31,
1999, 1998 and 1997.................................................... F-8
Notes to Financial Statements........................................... F-10
Report of Independent Accountants on Financial Statement Schedule....... F-50
Financial Statement Schedule:
Schedule III--Real Estate and Accumulated Depreciation.................. F-51
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
Board of Directors and Shareholders
Wyndham International, Inc.
In our opinion, the accompanying consolidated balance sheet as of December
31, 1999 and the related consolidated statements of operations, shareholders'
equity and cash flows present fairly in all material respects the financial
position of Wyndham International, Inc. and its subsidiaries (the "Company")
at December 31, 1999, and the results of their operations and their cash flows
for the year then ended in conformity with accounting principles generally
accepted in the United States. These consolidated financial statements are the
responsibility of the Company's management; our responsibility is to express
an opinion on these financial statements based on our audit. We conducted our
audit in accordance with auditing standards generally accepted auditing in the
United States, which require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements, assessing
the accounting principles used and significant estimates made by management,
and evaluating the overall financial statement presentation. We believe that
our audits provide a reasonable basis for our opinion expressed above. The
financial statements of the Company as of December 31, 1998 and 1997 and for
the years then ended were audited by other independent accountants whose
report dated March 1, 1999 expressed an unqualified opinion.
/s/ PricewaterhouseCoopers LLP
Dallas, Texas
February 15, 2000, except as to the
information in Note 21 for which
the date is March 27, 2000
F-2
<PAGE>
Report of Independent Auditors
Board of Directors and Shareholders
Wyndham International, Inc.
We have audited the accompanying consolidated balance sheet of Wyndham
International, Inc. as of December 31, 1998, and the related consolidated
statements of operations, shareholders' equity, and cash flows for each of the
two years in the period ended December 31, 1998. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on
a test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used
and significant estimates made by management, as well as evaluating the
overall financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Wyndham
International, Inc. at December 31, 1998, and the consolidated results of its
operations and its cash flows for each of the two years in the period ended
December 31, 1998, in conformity with accounting principles generally accepted
in the United States.
/s/ Ernst & Young LLP
Dallas, Texas
March 1, 1999
F-3
<PAGE>
WYNDHAM INTERNATIONAL, INC.
CONSOLIDATED BALANCE SHEETS
PART I: FINANCIAL INFORMATION
Item 1. Financial Statements
<TABLE>
<CAPTION>
December 31, December 31,
1999 1998
------------ ------------
(in thousands,
except share amounts)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents.......................... $ 144,333 $ 123,085
Restricted cash.................................... 102,480 35,869
Accounts and lease revenue receivable.............. 186,321 194,583
Inventories........................................ 23,304 23,583
Prepaid expenses and other assets.................. 21,197 35,346
---------- ----------
Total current assets............................... 477,635 412,466
---------- ----------
Investment in real estate and related improvements
net of accumulated depreciation of $478,494 in 1999
and $252,580 in 1998............................... 5,413,178 5,585,616
Investment in unconsolidated subsidiaries........... 165,663 146,912
Mortgage notes and other receivables from
unconsolidated subsidiaries........................ 2,168 78,403
Notes and other receivables......................... 40,485 41,334
Management contract costs, net of accumulated
amortization $26,359 in 1999 and $11,258 in 1998... 129,362 194,014
Leasehold costs, net of accumulated amortization of
$15,305 in 1999 and $5,989 in 1998................. 133,102 179,922
Trade names and franchise costs, net of accumulated
amortization of $11,328 in 1999 and $6,670 in
1998............................................... 116,521 125,974
Deferred acquisition costs.......................... 2,584 16,144
Goodwill and intangibles, net of accumulated
amortization of $30,141 in 1999 and $20,895 in
1998... 378,916 553,889
Deferred expenses, net of accumulated amortization
of $46,614 in 1999 and $29,136 in 1998............. 97,767 37,998
Other assets........................................ 46,109 42,998
---------- ----------
Total assets....................................... $7,003,490 $7,415,670
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued expenses.............. $ 322,195 $ 313,657
Deposits........................................... 39,452 26,392
Current portion of borrowings under credit
facility, term loans, mortgage notes and capital
lease obligations................................. 130,177 1,274,918
---------- ----------
Total current liabilities.......................... 491,824 1,614,967
---------- ----------
Borrowings under credit facility, term loans,
mortgage notes and capital lease obligations....... 3,513,379 2,582,603
Deferred income taxes............................... 656,164 123,463
Due to unconsolidated subsidiaries.................. -- 7,919
Deferred income..................................... 15,543 174
Minority interest in the Operating Partnerships..... 22,435 253,970
Minority interest in other consolidated
subsidiaries....................................... 166,483 229,537
Commitments and contingencies
Shareholders' equity:
Preferred stock, $0.01 par value; authorized:
150,000,000 shares; shares issued and outstanding:
10,344,662 in 1999................................ 103 --
Preferred stock, $0.01 par value; authorized:
100,000,000 shares; shares issued and outstanding:
8,981,886 in 1998................................. -- 90
Excess stock, $0.01 par value; authorized:
750,000,000 shares; no shares issued and
outstanding....................................... -- --
Common stock, $0.01 par value; authorized:
750,000,000 shares; shares issued and outstanding:
167,193,696 in 1999 and 213,521,647 in 1998....... 1,672 4,270
Additional paid in capital......................... 3,753,235 3,024,540
Receivable from shareholders and affiliates........ (17,210) (16,364)
Unearned stock compensation, net of accumulated
amortization of $19,297 in 1999 and $13,447 in
1998.............................................. (255) (5,494)
Unrealized loss on securities available for sale... (1,000) (1,245)
Unrealized foreign exchange (loss) gain............ (7,576) 2,749
Accumulated deficit................................ (1,591,307) (405,509)
---------- ----------
Total shareholders' equity......................... 2,137,662 2,603,037
---------- ----------
Total liabilities and shareholders' equity........ $7,003,490 $7,415,670
========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-4
<PAGE>
WYNDHAM INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
1999 1998 1997
----------- ---------- --------
(in thousands, except per share
amounts)
<S> <C> <C> <C>
Revenue:
Hotel revenue.............................. $ 2,409,046 $1,842,682 $167,727
Participating lease revenue................ 1,194 58,440 127,033
Racecourse facility and land lease
revenue................................... 4,561 51,259 26,511
Management fee and service fee income...... 69,278 89,067 7,088
Interest and other income.................. 11,256 14,893 6,676
----------- ---------- --------
Total revenue.............................. 2,495,335 2,056,341 335,035
----------- ---------- --------
Expenses:
Hotel expenses............................. 1,759,993 1,351,872 140,392
Racing facility operations................. 3,867 43,198 21,620
General and administrative................. 190,770 117,666 17,181
Interest expense........................... 353,227 260,103 50,531
Cost of acquiring leaseholds and license
agreements................................ 1,296 64,407 54,499
Treasury lock settlement................... -- 49,334 --
Loss on sale of assets..................... 10,702 9,453 --
Impairment loss on assets held for sale.... 70,912 51,081 --
Restructuring charge....................... 285,267 -- --
Depreciation and amortization.............. 302,890 231,233 52,685
----------- ---------- --------
Total expenses............................. 2,978,924 2,178,347 336,908
----------- ---------- --------
Operating loss.............................. (483,589) (122,006) (1,873)
Equity in (losses) earnings of
unconsolidated subsidiaries............... (7,746) 9,498 6,015
----------- ---------- --------
(Loss) income before income tax provision,
minority interests and extraordinary item.. (491,335) (112,508) 4,142
Income tax provision....................... (571,421) (17,122) (481)
----------- ---------- --------
(Loss) income before minority interests and
extraordinary item......................... (1,062,756) (129,630) 3,661
Minority interest in the Operating
Partnerships.............................. 6,642 12,651 (1,684)
Minority interest in consolidated
subsidiaries.............................. (6,017) (9,427) (1,615)
----------- ---------- --------
(Loss) income before extraordinary item..... (1,062,131) (126,406) 362
Extraordinary loss from early
extinguishment of debt, net of minority
interest and income taxes................. (9,838) (31,817) (2,534)
----------- ---------- --------
Net loss.................................... $(1,071,969) $ (158,223) $ (2,172)
=========== ========== ========
Basic loss attributable to common
shareholders:
Net loss................................... $(1,071,969) $ (158,223) $ (2,172)
Adjustment for equity forwards............. (19,372) (21,151) --
Preferred stock dividends.................. (50,190) (7,956) --
Excess of fair value of consideration to
redeem preferred stock.................... (115) -- --
----------- ---------- --------
Basic net loss............................. $(1,141,646) $ (187,330) $ (2,172)
=========== ========== ========
Basic (loss) earnings per common share:
(Loss) income before extraordinary item.... $ (7.02) $ (1.13) $ 0.01
Extraordinary loss......................... (0.06) (0.23) (0.04)
----------- ---------- --------
Net loss per common share.................. $ (7.08) $ (1.36) $ (0.03)
=========== ========== ========
Diluted loss attributable to common
shareholders:
Net loss................................... $(1,071,969) $ (158,223) $ (2,172)
Adjustment for equity forwards............. (39,322) (188,392) --
Preferred stock dividends.................. (50,190) (7,956) --
Excess of fair value of consideration to
redeem preferred stock.................... (115) -- --
----------- ---------- --------
Diluted net loss........................... $(1,161,596) $ (354,571) $ (2,172)
=========== ========== ========
Diluted (loss) earnings per common share:
(Loss) income before extraordinary item.... $ (7.14) $ (2.34) $ 0.01
Extraordinary loss......................... (0.06) (0.23) (0.04)
----------- ---------- --------
Net loss per common share.................. $ (7.20) $ (2.57) $ (0.03)
=========== ========== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-5
<PAGE>
WYNDHAM INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
Preferred Stock Common Stock
--------------- -------------------------------- Notes
Receivable Accumulated
Patriot Wyndham Additional From Unearned Deficit and
Number Par Number Number Par Paid in Shareholders Stock Dividend
of Shares Value of Shares of Shares Value Capital and affiliates Compensation Distributions
--------- ----- ----------- ----------- ------ ---------- -------------- ------------ -------------
(in thousands, except share amounts)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance,
December 31,
1996............ -- $ -- 43,613,496 -- $ 436 $ 442,104 $ -- $(5,427) $ (74)
Issuance of
shares for
mergers and
acquisition of
properties...... -- -- 12,824,433 57,135,658 699 231,247 -- -- --
Issuance of
shares, net of
offering
expenses........ -- -- 15,830,033 15,830,033 318 386,417 -- -- --
Issuance of
shares to
employees and
directors....... -- -- 547,867 4,167 5 12,896 -- (12,839) --
Forfeiture of
unvested
employee stock
grants.......... -- -- (42,900) (42,900) -- (464) -- 464 --
Issuance of
shares for
exercise of
options......... -- -- 314,967 310,938 6 2,301 -- -- --
Issuance of
shares to redeem
OP units........ -- -- 188,820 38,820 2 2,554 -- -- --
Redemption price
of OP units in
excess of book
value........... -- -- -- -- -- (6,082) -- -- --
Net loss........ -- -- -- -- -- -- -- -- (2,172)
Amortization of
unearned stock
compensation.... -- -- -- -- -- -- -- 4,686 --
Cash dividends.. -- -- -- -- -- -- -- -- (67,185)
--------- ----- ----------- ----------- ------ ---------- -------- ------- ---------
Balance,
December 31,
1997............ -- -- 73,276,716 73,276,716 1,466 1,070,973 -- (13,116) (69,431)
Issuance of
shares for
mergers and
acquisitions of
properties...... 8,423,230 85 59,491,863 59,491,863 1,190 1,607,050 -- -- --
Issuance of
shares, net of
offering
expenses........ -- -- 64,084,627 64,084,627 1,282 257,439 -- -- --
Return of
capital......... -- -- -- -- -- (52,873) -- -- --
Issuance of
shares to
employees and
directors....... -- -- 39,790 39,790 -- 928 -- -- --
Issuance of
shares for
exercise of
options......... -- -- 1,210,737 1,210,737 24 15,250 -- -- --
Issuance of
shares to redeem
OP units........ -- -- 1,362,316 1,362,316 28 27,868 -- -- --
Issuance of
notes receivable
from
shareholders and
affiliates for
mergers and
acquisitions.... -- -- -- -- -- -- (18,617) -- --
Accrued interest
on notes
receivable from
shareholders and
affiliates...... -- -- -- -- -- -- (863) -- 863
Collections on
notes receivable
from
shareholders and
affiliates...... -- -- -- -- -- -- 3,116 -- --
Amortization of
unearned stock
compensation.... -- -- -- -- -- -- -- 7,622 --
Net loss........ -- -- -- -- -- -- -- -- (158,223)
Foreign currency
translation
adjustment...... -- -- -- -- -- -- -- -- --
Unrealized loss
on securities
held for sale... -- -- -- -- -- -- -- -- --
--------- ----- ----------- ----------- ------ ---------- -------- ------- ---------
Comprehensive
loss............
--------- ----- ----------- ----------- ------ ---------- -------- ------- ---------
Cash dividends.. -- -- -- -- -- -- -- -- (87,390)
Stock dividends
declared........ 558,656 5 14,055,598 14,055,598 280 97,905 -- -- (91,328)
--------- ----- ----------- ----------- ------ ---------- -------- ------- ---------
Balance,
December 31,
1998............ 8,981,886 $ 90 213,521,647 213,521,647 $4,270 $3,024,540 $(16,364) $(5,494) $(405,509)
<CAPTION>
Accumulated Other
Comprehensive Income
----------------------
Unrealized
Foreign Loss on
Currency Securities
Exchange Held for Sale Total
-------- ------------- -----------
<S> <C> <C> <C>
Balance,
December 31,
1996............ $ -- $ -- $ 437,039
Issuance of
shares for
mergers and
acquisition of
properties...... -- -- 231,946
Issuance of
shares, net of
offering
expenses........ -- -- 386,735
Issuance of
shares to
employees and
directors....... -- -- 62
Forfeiture of
unvested
employee stock
grants.......... -- -- --
Issuance of
shares for
exercise of
options......... -- -- 2,307
Issuance of
shares to redeem
OP units........ -- -- 2,556
Redemption price
of OP units in
excess of book
value........... -- -- (6,082)
Net loss........ -- -- (2,172)
Amortization of
unearned stock
compensation.... -- -- 4,686
Cash dividends.. -- -- (67,185)
-------- ------------- -----------
Balance,
December 31,
1997............ -- -- 989,892
Issuance of
shares for
mergers and
acquisitions of
properties...... -- -- 1,608,325
Issuance of
shares, net of
offering
expenses........ -- -- 258,721
Return of
capital......... -- -- (52,873)
Issuance of
shares to
employees and
directors....... -- -- 928
Issuance of
shares for
exercise of
options......... -- -- 15,274
Issuance of
shares to redeem
OP units........ -- -- 27,896
Issuance of
notes receivable
from
shareholders and
affiliates for
mergers and
acquisitions.... -- -- (18,617)
Accrued interest
on notes
receivable from
shareholders and
affiliates...... -- -- --
Collections on
notes receivable
from
shareholders and
affiliates...... -- -- 3,116
Amortization of
unearned stock
compensation.... -- -- 7,622
Net loss........ -- -- (158,223)
Foreign currency
translation
adjustment...... 2,749 -- 2,749
Unrealized loss
on securities
held for sale... -- (1,245) (1,245)
-------- ------------- -----------
Comprehensive
loss............ (156,719)
-------- ------------- -----------
Cash dividends.. -- -- (87,390)
Stock dividends
declared........ -- -- 6,862
-------- ------------- -----------
Balance,
December 31,
1998............ $2,749 $(1,245) $2,603,037
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-6
<PAGE>
WYNDHAM INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
Preferred Stock Common Stock
----------------- ----------------------------------- Notes
Receivable Accumulated
Patriot Wyndham Additional From Unearned Deficit and
Number Par Number Number Par Paid in Shareholders Stock Dividend
of Shares Value of Shares of Shares Value Capital and affiliates Compensation Distributions
---------- ----- ------------ ------------ ------- ---------- -------------- ------------ -------------
(in thousands, except share amounts)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Settlement of
forward equity
contracts....... -- -- (100,701,863) (100,701,863) (2,014) (327,466) -- -- --
Merger of PAH
Inc. into
Wyndham
International
Inc............. (4,860,876) (50) (142,865,949) 4,860,876 (1,380) 1,430 -- -- --
Exchange of Old
Wyndham
preferred stock
to common
stock........... (3,562,354) (36) -- 3,562,354 36 -- -- -- --
Redemption of
PAH Inc.
Preferred B
Stock........... (558,656) (5) -- -- -- (13,961) -- -- (896)
Issuance of
shares net of
offering
expenses........ 10,000,000 100 29,239,336 29,239,336 585 917,306 -- -- --
Issues of shares
to employees and
directors....... -- -- 538,496 955,757 14 11,820 -- (611) --
Issuance of
shares to redeem
OP units........ -- -- 268,333 15,390,452 156 114,381 -- -- --
Issuance of
shares for
mergers and
acquisition of
properties...... -- -- -- 1,336,276 13 6,030 -- -- --
Accrued interest
on notes
receivable from
shareholders and
affiliates...... -- -- -- -- -- -- (846) -- 846
Amortization of
unearned stock
compensation.... -- -- -- -- -- -- -- 5,850 --
Retirement of
stock........... -- -- -- (971,139) (8) (15,307) -- -- --
Net loss........ -- -- -- -- -- -- -- -- (1,071,969)
Foreign currency
translation
adjustment...... -- -- -- -- -- -- -- -- --
Unrealized gain
on securities
held for sale... -- -- -- -- -- -- -- -- --
---------- ---- ------------ ------------ ------- ---------- -------- ------ -----------
Comprehensive
loss............
---------- ---- ------------ ------------ ------- ---------- -------- ------ -----------
Interstate Spin-
off Dividend.... -- -- -- -- -- -- -- -- (64,602)
Cash Dividends.. -- -- -- -- -- -- -- -- (14,711)
Stock
Dividends....... 344,662 4 -- -- -- 34,462 -- -- (34,466)
---------- ---- ------------ ------------ ------- ---------- -------- ------ -----------
Balance as of
December 31,
1999............ 10,344,662 $103 -- 167,193,696 $ 1,672 $3,753,235 $(17,210) $ (255) $(1,591,307)
========== ==== ============ ============ ======= ========== ======== ====== ===========
<CAPTION>
Accumulated Other
Comprehensive Income
-----------------------
Unrealized
Foreign Loss on
Currency Securities
Exchange Held for Sale Total
--------- ------------- ------------
<S> <C> <C> <C>
Settlement of
forward equity
contracts....... -- -- (329,480)
Merger of PAH
Inc. into
Wyndham
International
Inc............. -- -- --
Exchange of Old
Wyndham
preferred stock
to common
stock........... -- -- --
Redemption of
PAH Inc.
Preferred B
Stock........... -- -- (14,862)
Issuance of
shares net of
offering
expenses........ -- -- 917,991
Issues of shares
to employees and
directors....... -- -- 11,223
Issuance of
shares to redeem
OP units........ -- -- 114,537
Issuance of
shares for
mergers and
acquisition of
properties...... -- -- 6,043
Accrued interest
on notes
receivable from
shareholders and
affiliates...... -- -- --
Amortization of
unearned stock
compensation.... -- -- 5,850
Retirement of
stock........... -- -- (15,315)
Net loss........ -- -- (1,071,969)
Foreign currency
translation
adjustment...... (10,325) -- (10,325)
Unrealized gain
on securities
held for sale... -- 245 245
--------- ------------- ------------
Comprehensive
loss............ (1,082,049)
--------- ------------- ------------
Interstate Spin-
off Dividend.... -- -- (64,602)
Cash Dividends.. -- -- (14,711)
Stock
Dividends....... -- -- --
--------- ------------- ------------
Balance as of
December 31,
1999............ $(7,576) $(1,000) $ 2,137,662
========= ============= ============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-7
<PAGE>
WYNDHAM INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Years Ended December 31,
-------------------------------------
1999 1998 1997
----------- ----------- -----------
(in thousands)
<S> <C> <C> <C>
Cash flows from operating activities:
Net loss................................ $(1,071,969) $ (158,223) $ (2,172)
Adjustments to reconcile net loss to net
cash provided by operating activities:
Depreciation and amortization......... 302,890 231,233 52,787
Amortization of unearned stock
compensation......................... 5,850 7,622 4,686
Amortization of deferred loan costs... 34,946 26,914 2,630
Net loss on sale of assets............ 10,702 9,453 --
Impairment loss on assets held for
sale................................. 203,731 51,081 --
Write-off of intangible assets........ 133,143 -- --
Write-off of deferred acquisition
costs................................ 8,349 -- --
Forgiveness of debt................... 7,898 -- --
Cost of acquiring leaseholds.......... -- 64,407 54,499
Payment of interest on notes
receivable from unconsolidated
subsidiaries......................... -- -- 5,001
Treasury lock settlement.............. -- 49,225 --
Award of unearned stock compensation
and other............................ -- 928 61
Equity in losses (earnings) of
unconsolidated subsidiaries.......... 7,746 (9,498) (6,015)
Minority interest in income of
Operating partnerships............... (6,642) (12,652) 1,684
Minority interest in consolidated
subsidiaries......................... 6,017 9,427 1,615
Deferred income taxes................. 539,313 (14,665) --
Extraordinary items................... 9,838 31,817 2,534
Changes in assets and liabilities:
Accounts receivable................. (6,168) (65,927) (19,494)
Prepaid expenses and other assets... 6,552 47,020 (5,965)
Lease revenue receivable............ 3,440 924 (4,359)
Due to/from affiliates.............. -- -- (421)
Accounts payable and other accrued
expenses........................... 6,666 (24,593) 21,039
----------- ----------- -----------
Net cash provided by operating
activities....................... 202,302 244,493 108,110
----------- ----------- -----------
Cash flows from investing activities:
Acquisition of hotel properties and
related working capital assets, net of
cash acquired.......................... (264,086) (1,946,227) (933,948)
Improvements and additions to hotel
properties............................. (230,653) (189,885) (82,269)
Proceeds from sale of assets............ 205,553 77,325 --
Termination of management contracts..... 16,086 -- --
Change in other assets.................. (772) 880 --
Collection on other notes receivable.... 2,681 12,009 --
Deferred acquisition costs.............. (613) (19,926) (67,743)
Investment in unconsolidated
subsidiaries........................... (10,077) (24,557) (1,574)
Principal payments received on mortgage
and other notes receivable............. 2,357 -- (500)
Investment in other mortgage and other
notes receivable....................... (10,429) 14,022 (116,090)
----------- ----------- -----------
Net cash used in investing
activities....................... (289,953) (2,076,359) (1,202,124)
----------- ----------- -----------
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-8
<PAGE>
WYNDHAM INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS--(Continued)
<TABLE>
<CAPTION>
Years Ended December 31,
------------------------------------
1999 1998 1997
----------- ---------- -----------
(in thousands)
<S> <C> <C> <C>
Cash flows from financing activities:
Borrowings under line of credit facility
and mortgage notes..................... $ 2,930,205 $2,883,719 $ 1,865,634
Repayments of borrowings under credit
facility and other debt................ (3,153,525) (997,436) (1,001,236)
Payment of deferred loan costs.......... (110,655) (39,923) (24,471)
Proceeds from issuance of common stock.. -- 273,995 388,621
Net proceeds from issuance of preferred
stock.................................. 921,702 -- --
Cost to retire Patriot series B
preferred stock........................ (13,966) -- --
Cash settlement with Interstate upon
spin-off............................... (17,102) -- --
Contributions received from minority
interest in consolidated subsidiaries.. 180 5,952 35,829
Distribution made to minority interest
in other partnerships.................. (29,907) (11,081) --
Collections on notes receivables from
shareholders........................... -- 3,116 --
Payments to redeem OP units............. -- -- (63,826)
Dividends and distributions paid........ (15,607) (124,834) (65,705)
Forward equity settlements.............. (329,480) (52,873) --
Foreign currency translation
adjustment............................. (6,379) 2,749 --
Other................................... 44 -- --
----------- ---------- -----------
Net cash provided by financing
activities........................... 175,510 1,943,384 1,134,846
----------- ---------- -----------
Net increase in cash and cash
equivalents............................ 87,859 111,518 40,832
Cash and cash equivalents at beginning
of period.............................. 158,954 47,436 6,604
----------- ---------- -----------
Cash and cash equivalents at end of
period................................. $ 246,813 $ 158,954 $ 47,436
=========== ========== ===========
Supplemental disclosure of cash flow
information:
Cash paid during the period for
interest............................. $ 338,675 $ 224,444 $ 48,254
=========== ========== ===========
Cash paid during the period for income
taxes................................ $ 31,978 $ 26,729 $ 325
=========== ========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
F-9
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS
(dollars in thousands, except share amounts)
1. Organization:
Patriot American Hospitality, Inc. (collectively with its subsidiaries,
"Patriot"), was formed April 17, 1995 as a self-administered real estate
investment trust ("REIT") for the purpose of acquiring equity interests in
hotel properties. Wyndham International, Inc. (collectively with its
subsidiaries, "Old Wyndham") was formed in connection with Patriot's merger
with and into California Jockey Club and Bay Meadows Operating Company on July
1, 1997 (the "Cal Jockey Merger"). Patriot and Old Wyndham are both Delaware
corporations.
Wyndham International Inc., as currently constituted, was formed through the
June 30, 1999 restructuring and reorganization of Patriot and Old Wyndham.
Prior to June 30, 1999, the shares of common stock of Patriot were paired and
traded together with the shares of Old Wyndham, on a one for one basis, as a
single unit pursuant to a stock pairing arrangement, and were referred to as a
paired share.
Effective June 30, 1999, a subsidiary of Old Wyndham merged with and into
Patriot with Patriot being the surviving entity and becoming a subsidiary of
Old Wyndham. In connection with this restructuring, the pairing agreement
between Patriot and Old Wyndham was terminated, Patriot's status as a real
estate investment trust terminated effective January 1, 1999, and Patriot
became a taxable corporation as of that date. This merger converted each
previously outstanding paired share into one share of Wyndham class A common
stock. Old Wyndham and its subsidiaries, which now include Patriot, is
hereafter referred to as Wyndham or the Company. Unless otherwise stated
herein, all information with respect to shares refers to Wyndham class A
common stock since June 30, 1999 and to paired shares for periods before June
30, 1999.
Wyndham primarily operates through Patriot and the Wyndham International
Operating Partnership, L.P. (the "Wyndham Partnership") in which it owns a 1%
general partnership interest and an approximate 98% limited partnership
interest. Patriot primarily operates through Patriot American Hospitality
Operating Partnership, L.P. (the "Patriot Partnership") in which it owns a 1%
general partnership interest and an approximate 98% partnership interest. The
Patriot Partnership primarily owns interests in hotel properties and third
party leaseholds. The Wyndham Partnership primarily leases hotel properties
from the Patriot Partnership, owns interests in hotel properties, and manages
and franchises hotels for third parties. The Patriot Partnership and the
Wyndham Partnership are collectively referred to as the Operating
Partnerships.
The restructuring was reflected as a reorganization of two companies under
common control and was accounted for in a manner similar to that used in
pooling of interest accounting. As such, there was no revaluation of the
assets and liabilities of Old Wyndham or Patriot. The financial statements
prior to the reorganization are presented on a combined basis and include the
combined accounts of Patriot and its subsidiaries with Old Wyndham and its
subsidiaries.
As of December 31, 1999, Wyndham owned interests in 165 hotels with an
aggregate of over 43,900 guest rooms and leased 39 hotels from third parties
with over 5,700 rooms. In addition, Wyndham managed 88 hotels for third party
owners with over 20,800 guest rooms and franchises 11 hotels with over 2,600
guest rooms.
2. Summary of Significant Accounting Policies:
Principles of Consolidation
The consolidated financial statements for 1999 include the accounts of
Wyndham, its wholly-owned subsidiaries, and the partnerships, corporations,
and limited liability companies in which Wyndham owns a controlling interest.
Partnerships--The condition for control is the ownership of a majority
voting interest and the ownership of the general partnership interest.
F-10
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
Corporations and Limited Liability Companies--The condition for control is
the ownership of a majority voting interest.
The financial statements prior to the reorganization are presented on a
combined basis and include the combined accounts of Patriot and its
subsidiaries with Old Wyndham and its subsidiaries.
Investment in Real Estate and Related Improvements
The hotel properties are stated at lower of cost or fair market value.
Depreciation is computed using the straight-line method based upon estimated
useful lives of the assets of 35 to 40 years for the hotel buildings and
improvements, 7 years for the racecourse facility and 3 to 10 years for
furniture, fixtures and equipment. These estimated useful lives are based on
management's knowledge of the properties and the industry in general.
Maintenance and repairs are charged to operations as incurred; major
renewals and betterments are capitalized. Upon the sale or disposition of a
fixed asset, the asset and the related accumulated depreciation are removed
from the accounts and the gain or loss is included in operations.
Interest associated with borrowings used to finance substantial hotel
renovations is capitalized and amortized over the estimated useful life of the
assets. Interest of $6,910, $12,112 and $2,562 was capitalized in 1999, 1998
and 1997, respectively.
In accordance with Statement of Financial Accounting Standards ("SFAS") No.
121, Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of, the Company would record impairment losses on long-
lived assets used in operations when events and circumstances indicate that
the assets might be impaired and the undiscounted cash flows estimated to be
generated by those assets are less than the carrying amounts of those assets.
When management identifies an asset as held for sale, the Company estimates
the fair value of such assets. If in management's opinion, the fair value of
the asset is less than the carrying amount of the asset, a reserve for losses
is established. Fair value is estimated as the amount at which the asset could
be bought or sold less costs to sell. Impairment is evaluated based on
undiscounted cash flows to be generated by the assets held for sale, as well
as prevailing market conditions, appraisals or current estimated net sales
proceeds from pending offers, if appropriate. The Company recognized
approximately $70,912 and $30,578 of impairment losses for the years ended
December 31, 1999 and 1998, respectively. During 1999, the Company also
recorded a restructuring charge of $132,819 associated with write-down of
assets to estimated fair market value, as the Company will exit from these
business sectors. The Company also recognized approximately $10,702, net of
impairment, and $9,453 of losses related to other assets sold during 1999 and
1998, respectively.
Cash and Cash Equivalents
All highly liquid investments with an original maturity date of three months
or less when purchased are considered to be cash equivalents.
Investment in Unconsolidated Subsidiaries
The Company's investments in unconsolidated subsidiaries include investments
in 18 entities ranging from approximately 5% to 55%. Investments in
partnerships and joint ventures are accounted for using the equity method of
accounting when the Company has a 20% or more ownership interest or exercises
significant influence over the venture. If the Company owns less than 20% and
does not exercise significant influence, the investment is accounted under the
cost method.
F-11
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
Management contracts, trade names and franchise costs
The costs associated with the acquisition of management contracts, trade
names and franchises have been recorded as deferred costs. Amortization of
management contracts is computed using the straight-line method over the term
of the related management agreements. Amortization of trade names and
franchise costs is computed using the straight-line method over estimated
useful lives ranging from 12 to 20 years.
Leaseholds
The costs associated with the acquisition of leaseholds for hotel properties
leased from third party owners have been recorded as deferred costs. Leasehold
costs are amortized using the straight-line method over the terms of the
related leasehold agreement.
Goodwill and intangibles
Goodwill and intangibles recognized in connection with the acquisition of
certain businesses are amortized utilizing the straight-line method over a
period of 10 to 40 years. The carrying value of goodwill is reviewed based on
undiscounted cash flows over the remaining amortization period. Should this
review indicate that the goodwill will not be recoverable, a reserve for
impairment is established. During 1999, the Company recorded a write-down of
goodwill and intangibles of $112,702, as a result of the Company's
restructuring plan. During 1998, Wyndham recognized approximately $20,503
impairment loss on goodwill, related to assets and business held for sale at
December 31, 1998.
Deferred Expenses
Deferred expenses consist of the following:
<TABLE>
<CAPTION>
December 31,
------------------
1999 1998
-------- --------
<S> <C> <C>
Deferred loan costs...................................... $140,038 $ 61,708
Costs of non-compete agreements.......................... 1,479 1,479
Franchise fees........................................... 1,147 616
Other.................................................... 1,717 3,331
-------- --------
144,381 67,134
Less: accumulated amortization........................... (46,614) (29,136)
-------- --------
$ 97,767 $ 37,998
======== ========
</TABLE>
Deferred loan costs are amortized to interest expense on a straight-line
basis (which approximates the interest method) over the terms of the related
loans, which range from one to ten years. Deferred loan costs include $32,503
of fully-amortized costs associated with Patriot's old credit facility and
other debt which was repaid on June 30, 1999. Costs of non-compete agreements
are amortized using the straight-line method over the terms of the related
agreement. Franchise costs are amortized using the straight-line method over
the terms of the related franchise agreements.
Inventories
Inventories consist of food, beverages, china, linen, glassware and
silverware and are stated at cost, which approximates market.
F-12
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
Other Assets
Leasehold improvements and furniture, fixtures and equipment related to the
corporate offices are carried at cost and amortized over estimated useful
lives of 5 to 7 years. Insurance premiums included in other assets are
expensed on a pro-rata basis over the life of the related policies. Security
deposits paid in connection with certain leasehold agreements of approximately
$46,109 are included in other assets.
Dividends
Patriot paid sufficient dividends in order to maintain its status as a REIT
under the Internal Revenue Code in 1998 and 1997. At June 30, 1999, as a
result of the reorganization, Patriot's status as a real estate investment
trust terminated effective January 1, 1999, and Patriot became a taxable
corporation as of that date. The Company does not anticipate paying a dividend
to its common shareholders.
Deposits
Deposits represent cash received from guests for future hotel reservations
at the hotels that Wyndham manages.
Income Taxes
Wyndham records its provision for income taxes in accordance with SFAS No.
109, Accounting for Income Taxes. Under the liability method of Statement 109,
deferred taxes are determined based on the difference between the financial
statements and tax bases of assets and liabilities using enacted tax rates in
effect in the years the differences are expected to reverse (see Note 14).
Wyndham recorded a one-time charge of $675,000 to establish a deferred tax
liability that resulted from Patriot's change in tax status from a REIT to a C
corporation, as required by SFAS No. 109. This charge is included in income
tax expense in the accompanying 1999 consolidated statement of operations.
Minority Interest in the Operating Partnerships
Minority interest in the Operating Partnerships includes adjustments for the
minority partners' share of the current period net income and certain other
adjustments for the issuance or redemption of OP units.
Minority Interest in Consolidated Subsidiaries
The Company has entered into a number of joint ventures in which a third
party owns a minority interest. For financial reporting purposes, the
financial position and results of operations for each joint venture is
included in the consolidated financial statements of the Company.
Forward Equity Transactions Subject to Price Adjustments
The Company was party to transactions with three cournterparties involving
the sale of paired shares, with the related price adjustment mechanisms. The
original agreements and subsequent amendments provided for a settlement
mechanism in either cash or additional paired shares. At each settlement date,
the Company recorded an adjustment to equity for the change in fair market
value of the Company's paired shares until the forward equity contracts were
settled in full. See Note (10) for additional details on the forward equity
transactions.
F-13
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
Stock Splits
On January 30, 1997, the Board of Directors declared a 2-for-1 stock split
on Patriot common stock effected in the form of a stock dividend distributed
on March 18, 1997 to shareholders of record on March 7, 1997.
In addition, on July 10, 1997, the respective Boards of Directors of Patriot
and Old Wyndham declared a 1.927-for-1 stock split on its shares of common
stock effected in the form of a stock dividend distributed on July 25, 1997 to
shareholders of record on July 15, 1997.
Unless otherwise indicated, all references in the consolidated financial
statements to the number of shares, per share amounts, and market prices of
the common stock and options to purchase common stock have been restated to
reflect the impact of the conversion of each share of Patriot common stock
into 0.51895 paired shares issued in the Cal Jockey merger and the 1.927-for-1
stock split. In addition, all references in the consolidated financial
statements to the number of shares, per share amounts, and market prices of
the common stock and options to purchase common stock related to periods prior
to the 2-for-1 stock split distributed in March 1997 have been restated to
reflect the impact of such stock split.
As a result of the 2-for-1 stock split in March 1997, the Cal Jockey merger
and the 1.927-for-1 stock split in July 1997, the number of OP units
outstanding and the OP unit conversion factor has been adjusted to re-
establish a 1-for-1 exchange ratio of OP units to common shares.
Stock Dividend
On December 22, 1998, Patriot declared a stock dividend of $0.44 cents per
share of common stock for the fourth quarter of 1998. The dividend was paid on
January 25, 1999 to shareholders of record on December 30, 1998. Each
shareholder received the option to receive the dividend in the form of
additional paired shares or shares of Series B Cumulative Perpetual Preferred
Stock, par value $0.01 per share, of Patriot.
Per share data (including dividends), weighted average shares outstanding
and all stock option activity have been restated to reflect the stock
dividend.
Earnings per Share
The Company has adopted SFAS No. 128 "Earnings Per Share" which specifies
the computation, presentation and disclosure requirements for basic earnings
per share and diluted earnings per share. Earnings per share disclosures for
all periods presented have been calculated in accordance with requirements of
SFAS No. 128. Basic earnings per share is computed based upon the weighted
average number of shares of common stock outstanding during the period
presented. Shares of common stock granted to officers and employees of the
Company are included in the computation only after the shares become fully
vested. Diluted earnings per share is computed based upon the weighted average
number of shares of common stock and dilutive common stock equivalents
outstanding during the periods presented. The diluted earnings per share
computations also include the dilutive impact of options to purchase common
stock which were outstanding during the period calculated by the "treasury
stock" method, unvested stock grants and other restricted awards to officers
and employees, convertible preferred shares and collateral shares issued in
conjunction with certain forward equity transactions (see Note 9).
Stock Compensation
The Company accounts for its stock compensation arrangements under the
provisions of Accounting Principles Board Opinion No. 25, "Accounting for
Stock Issued to Employees" ("APB 25"), and intends to
F-14
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
continue to do so. See Note 13 for a discussion of the Company's stock
compensation arrangements and pro forma disclosure of the effect on income
from operations and earnings per share of such arrangements pursuant to the
requirements of SFAS No. 123, "Accounting for Stock-Based Compensation."
Revenue Recognition
The Company primarily owns, operates and manages hotel properties. Hotel
revenue, management fees, service and other fees, are recognized when earned.
Foreign Currency Translation
Financial statements of foreign subsidiaries not maintained using U.S.
dollars are remeasured into the U.S. dollar functional currency for
consolidation and reporting purposes. Assets and liabilities of non-U.S.
operations are translated into U.S. dollars at the exchange rate in effect at
the balance sheet date. Revenues and expenses of non-U.S. operations are
translated at the weighted average exchange rate during the year. Resulting
translation adjustments are reflected in shareholders' equity. Realized
foreign currency gains and losses are included in results of operations.
Advertising Costs
The Company participates in various advertising and marketing programs. All
costs are expensed in the period incurred. The Company has recognized
advertising expenses of $68,834 and $61,468 for 1999 and 1998 respectively.
Self Insurance
The Company is self insured for various levels of general liability,
workers' compensation and employee medical coverage. Accrued expenses include
the estimated cost from unpaid incurred claims.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
Concentrations
The Company currently invests primarily in hotel properties. The hotel
industry is highly competitive and the Company's hotel investments are subject
to competition from other hotels for guests. Each of the Company's hotels
competes for guests primarily with other similar hotels in its immediate
vicinity and other similar hotels in its geographic market. The Company
believes that brand recognition, location, quality of the hotel, services
provided and price are the principal competitive factors affecting its hotel
investments.
Derivative Instruments and Hedging Activities
In June 1999, FASB issued SFAS No. 137, "Accounting for Derivative
Instruments and Hedging Activities" which defers the effective date of SFAS
No. 133 to be adopted in years beginning after June 15, 2000. The Company
expects to adopt SFAS No. 133 effective January 1, 2001. Statement 133 will
require the Company to recognize all derivatives on the balance sheet at fair
value. Derivatives that are not hedges must be
F-15
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
adjusted to fair value through income. If the derivative is a hedge, depending
on the nature of the hedge, changes in the fair value of derivatives will
either be offset against the change in fair value of the hedged assets,
liabilities, or firm commitments through earnings, or recognized in other
comprehensive income until the hedged item is recognized in earnings. The
ineffective portion of a derivative's change in fair value will be immediately
recognized in earnings. Management has not yet determined what the effect of
SFAS No. 133 will have on the earnings and financial position of the Company.
Seasonality
The hotel industry is seasonal in nature. Revenues at certain hotels are
greater in the first and second quarters of a calendar year and at other
hotels in the second and third quarters of a calendar year.
Reclassification
Certain prior year balances have been reclassified to conform to the current
year presentation with no effect on previously reported amounts of income or
retained earnings.
3. Investments in Real Estate and Related Improvements and Land Held for
Development:
Investments in real estate and related improvements and land held for
development consists of the following:
<TABLE>
<CAPTION>
As of December 31, 1999
---------------------------------
Hotel Racecourse
Properties Facility Total
---------- ---------- ----------
<S> <C> <C> <C>
Land......................................... $ 466,573 $ -- $ 466,573
Land held for development.................... 68,266 -- 68,266
Buildings and improvements................... 4,640,150 -- 4,640,150
Furniture, fixtures and equipment............ 810,743 -- 810,743
Renovations in progress...................... 44,729 -- 44,729
---------- -------- ----------
6,030,461 -- 6,030,461
Less: impairment reserve..................... (138,789) -- (138,789)
Less: accumulated depreciation............... (478,494) -- (478,494)
---------- -------- ----------
$5,413,178 $ -- $5,413,178
========== ======== ==========
<CAPTION>
As of December 31, 1998
---------------------------------
Hotel Racecourse
Properties Facility Total
---------- ---------- ----------
<S> <C> <C> <C>
Land......................................... $ 491,458 $ 2,340 $ 493,798
Land held for development.................... 81,314 -- 81,314
Buildings and improvements................... 4,480,174 21,865 4,502,039
Furniture, fixtures and equipment............ 636,598 837 637,435
Renovations in progress...................... 153,652 536 154,188
---------- -------- ----------
5,843,196 25,578 5,868,774
Less: impairment reserve..................... (11,484) (19,094) (30,578)
Less: accumulated depreciation............... (248,832) (3,748) (252,580)
---------- -------- ----------
$5,582,880 $ 2,736 $5,585,616
========== ======== ==========
</TABLE>
F-16
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
The Company has approximately $423,870 of assets held for sale which are
included in investments in real estate and related improvements and land held
for development in the accompanying financial statements which are expected to
be sold during 2000. The assets held for sale include approximately $343,994
of non-proprietary branded segment assets, $26,368 of Wyndham segment assets
and $53,508 of other segment assets. See Note 17 for Segment Reporting. The
Company has recorded an impairment reserve of approximately $138,789 related
to these assets held for sale. The impairment relates to 29 hotels, which had
a combined net operating income of $12,440 for the year ended December 31,
1999. At December 31, 1998, the Company had approximately $550,315 of assets
held for sale which are included in investments in real estate and related
improvements and land held for development in the accompanying financial
statements which were expected to be sold during 1999. The assets held for
sale include approximately $435,906 of non-proprietary branded segment assets,
$93,337 of resort segment assets and $21,072 of other segment assets.
Additionally, the Company has recorded an impairment reserve of approximately
$30,578 related to these assets held for sale. The impairment relates in part
to six hotels which had a combined net income of $1,323 for the year ended
December 31, 1998. Additionally, the impairment relates to the Bay Meadows
Racecourse which had operating income of $969 for the year ended December 31,
1998 and was sold in February of 1999.
Investments in Hotel Properties
During 1998, Patriot, through the Patriot Partnership and its subsidiaries,
invested approximately $234,116 in the acquisition of four hotels with a total
of over 1,700 guest rooms and the Golden Door Spa. These acquisitions were
financed primarily with funds drawn on Patriot's revolving credit facility,
the issuance of 53,989 OP units valued at approximately $1,496, the issuance
of 390,335 paired shares valued at approximately $10,000 and the assumption of
mortgage debt in the amount of approximately $80,074. In addition, Patriot
acquired an office building that was converted into a hotel for approximately
$33,900.
During 1999, the Company invested approximately $210,123 in the acquisition
of four hotels with over 900 guest rooms. These acquisitions were financed
primarily with funds drawn on the credit facility and the assumption of
mortgage debt in the amount of approximately $24,593.
Asset Sales
During 1998, Patriot sold its interest in four hotel assets: Orange
Courtyard Hotel in Orange, Connecticut; St. Louis Courtyard Hotel in St.
Louis, Missouri; Pittsburgh Residence in Pittsburgh, Pennsylvania; and the
Westborough Courtyard in Westborough, Massachusetts, collectively hereinafter
referred to as the Fine Transaction, for a net purchase price of approximately
$32,500. The assets were sold to an affiliate of an independent member of the
board of directors. No gain or loss on sale was recognized as a result of this
transaction.
Additionally in December 1998, Patriot sold its interest in three hotel
assets previously leased to NorthCoast Hotels LLC (a third party lessee of
Patriot); the WestCoast Roosevelt Hotel, the WestCoast Gateway Hotel located
in Seattle, Washington and the WestCoast Wenatchee Hotel located in Wenatchee,
Washington to an affiliate of NorthCoast. Patriot received net cash proceeds
of approximately $23,700 plus a mortgage note receivable in the amount of
$2,000. Patriot also contracted with an affiliate of NorthCoast to sell a
fourth hotel, the WestCoast Long Beach Hotel and Marina located in Long Beach,
California, for a total purchase price of approximately $7,000, which was sold
in 1999. Patriot recognized a loss on sale of approximately $9,453 as a result
of the sale of these three assets.
During 1999, the Company sold 21 hotel properties, including 11 hotels in
London. See Note (4). The Company received net cash proceeds of approximately
$116,424, after the repayment of mortgage debt of $62,865, and a mortgage note
receivable in the amount of $6,000. The Company recorded a net loss of $10,740
as a result of these transactions.
F-17
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
4. Other Businesses Acquired and Disposed:
Cal Jockey Club and Bay Meadows Operating Company
On July 1, 1997 Patriot consummated its merger with California Jockey Club
("Cal Jockey") and Bay Meadows Operating Company for total purchase
consideration for the transaction of approximately $190,188. In this merger,
Patriot acquired the paired share structure utilized by Patriot and Old
Wyndham, the Bay Meadows Racecourse facility in San Mateo, California, and
land adjacent to the racecourse.
In February 1999, Patriot and Old Wyndham sold their interest in the Bay
Meadows Racecourse. Patriot and Old Wyndham received cash proceeds of
approximately $3,446 after payment of legal costs and other closing costs.
Patriot and Old Wyndham recognized an estimated impairment loss on assets held
for sale of $42,278 related to the racecourse facility in 1998. In addition,
on September 3, 1999, Wyndham sold certain land located in San Mateo,
California and received cash proceeds of $3,480. These funds were placed in a
restricted trust account in order to facilitate a tax-deferred, like-kind
exchange through the acquisition of a suitable hotel property. The net gain on
the sale of the racecourse and land was approximately $38, net of impairment.
Wyndham Hotel Corporation
On January 5, 1998, Patriot consummated its merger with Wyndham Hotel
Corporation for total consideration of $982,000. The consideration consisted
of: 21,954,137 paired shares; 4,860,876 shares of Series A Convertible
Preferred Stock of Patriot; cash of approximately $339,000; and the assumption
of $59,063 in debt. In connection with the merger, which was accounted for
using the purchase method of accounting, goodwill of $323,959 was recognized.
In this merger, Patriot acquired ownership of ten Wyndham hotels, fourteen
ClubHouse hotels, 52 management and franchise contracts, the Wyndham and
ClubHouse proprietary brand names, and the Wyndham hotel management company.
WHG Casinos & Resorts, Inc. and related transactions
On January 16, 1998, a subsidiary of Wyndham merged with and into WHG
Casinos & Resorts Inc., with WHG being the surviving corporation ("WHG
merger"). As a result of the WHG merger, Wyndham acquired the 570-room Condado
Plaza Hotel & Casino, a 50% interest in the partnership that owns the 389-room
El San Juan Hotel & Casino and a 23.3% interest in the partnership that owns
the 751-room El Conquistador Resort & Country Club, all of which are located
in Puerto Rico. In addition, Wyndham acquired a 62% interest in Williams
Hospitality Group, Inc., the management company for the three hotels and the
Las Casitas Village at the El Conquistador. A total of 5,004,690 paired shares
were issued in connection with the WHG merger and approximately $21,300 of
debt was assumed, resulting in total purchase consideration of approximately
$159,400.
In connection with the WHG merger, which was accounted for using the
purchase method of accounting, goodwill of $22,578 was recognized.
Effective March 1, 1998, Patriot acquired from unaffiliated third parties a
40% interest in the El San Juan Hotel & Casino, an aggregate 68.62% equity
interest in the El Conquistador and a 38% interest in Williams Hospitality
Group, Inc. for approximately $31,000 in cash, issuance of 1,818,182 paired
shares valued at approximately $49,227 and the assumption of approximately
$169,572 of debt.
F-18
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
On July 13, 1998, Patriot acquired the remaining minority interests held by
a third party in entities that own the El Conquistador and the El San Juan
Hotel & Casino for a total purchase price of approximately $3,890. Wyndham
owns the controlling general partner interest in the partnerships that own the
El San Juan Hotel & Casino and the El Conquistador. Wyndham also holds voting
control of Williams Hospitality Group, Inc. Therefore, the operating results
of these entities have been consolidated with those of Wyndham for financial
reporting purposes.
Arcadian International Limited
In April 1998, Patriot announced the completion of its acquisition of
Arcadian International. The total transaction cost was approximately
(Pounds)185,900 (approximately $308,700 U.S. based on exchange rates at the
time of closing). As a result of the transaction, Patriot acquired ten owned
hotels located throughout England; one owned hotel in Jersey; five owned and
managed Malmaison Hotels; two resorts under development in Tuscany, Italy and
Paris, France; and the proprietary Malmaison brand name. Patriot also acquired
Arcadian's 50% partnership interest in the redevelopment of the luxury Great
Eastern Hotel in London, to be branded as a flagship Wyndham Hotel and
operated by Wyndham once the development has been completed. The Arcadian
acquisition was financed through a short term financing agreement and the
assumption of debt.
In connection with the Arcadian acquisition which was accounted for using
the purchase method of accounting, goodwill of $54,405 was recognized.
During 1999, as a part of management's strategy to exit from the European
market for its non-branded assets, the Company recorded a restructuring charge
of $97,885 primarily for the write-down of assets to estimated fair value,
including goodwill of $28,394. The restructuring charge also included $9,547
associated with staffing reductions and other exit costs necessary to reduce
the Company's infrastructure in Arcadian International, its management
division in Europe. In 1999, the Company sold 11 hotels for a purchase price
of (Pounds)75,000 (approximately $119,940 based on exchange rates at the time
of closing). As a result of the sale, the Company recorded a loss on the sale
of $8,320, net of restructuring charges.
Interstate Hotels Company
On June 2, 1998, Interstate Hotels Company merged with and into Patriot with
Patriot being the surviving company ("Interstate merger") for total
consideration of approximately $2,068,812 which consisted of 28,825,875 paired
shares, cash of approximately $525,385, approximately $787,117 in debt assumed
or refinanced by Patriot and approximately $73,351 to pay other transaction-
related costs. In connection with the repayment of debt assumed in the
Interstate merger, Patriot incurred certain prepayment penalties and wrote off
the remaining balance of unamortized deferred financing costs associated with
such debt of approximately $11,553, net of minority interest. Such amount has
been reported as an extraordinary item in the consolidated financial
statements.
In connection with the Interstate merger, which was accounted for using the
purchase method of accounting, goodwill of $254 was recognized.
As a result of the Interstate merger, Patriot acquired controlling interest
in, or ownership of, 42 hotels representing over 12,000 rooms; leases for 84
hotels representing over 10,100 rooms and management or service agreements for
82 hotels representing over 20,400 rooms located throughout the United States
and in Canada, the Caribbean and Russia.
F-19
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
On May 27, 1998, Patriot, Old Wyndham and Interstate entered into a
settlement agreement, as amended, with Marriott International, Inc.
("Marriott") which addressed certain claims asserted by Marriott in connection
with Patriot's then proposed merger with Interstate. The settlement agreement
provided for the dismissal of litigation brought by Marriott, and allowed
Patriot's merger with Interstate to close. In addition to dismissal of the
Marriott litigation, the settlement agreement provides for the re-branding of
ten Marriott hotels under the Wyndham name, the assumption by Marriott of the
management of ten Marriott hotels formerly managed by Interstate for the
remaining term of the Marriott franchise agreement, and the spin-off by
Patriot of the third-party management business.
Effective June 18, 1999, Patriot distributed approximately 92% of the shares
of Interstate Hotel Corporation ("New Interstate") in the form of a dividend
to shareholders. Shareholders of record on June 7, 1999 received one share of
New Interstate stock for every thirty shares of Patriot common stock, Patriot
series A preferred stock, Old Wyndham series A and B preferred stock, Patriot
common and preferred OP units, and Old Wyndham class A and C preferred OP
units. The remaining 8% is owned equally by Wyndham and Marriott.
As a result of the spin-off, the Company now an approximate 55% non-
controlling interest in the subsidiary of New Interstate which now operates
the third-party management business that Patriot acquired from Interstate.
SF Hotel Company, L.P.
On June 5, 1998, Patriot acquired all of the partnership interests in SF
Hotel Company, L.P. for approximately $298,915 ("Summerfield acquisition").
The total purchase consideration for the Summerfield acquisition consisted of
approximately 3,223,795 OP units, 1,397,281 paired shares, cash of
approximately $165,514 and the assumption of debt in the amount of $17,083. In
addition, the purchase price is subject to future adjustment based on (i) the
market price of the paired shares through the end of 1998 and (ii) achievement
of certain performance criteria through 2000 for managed hotels which were not
open for business (or had recently opened) as of the date of acquisition,
(iii) fulfillment of the Company's obligation to develop seven hotels. As a
result of the Summerfield acquisition, Patriot acquired four Summerfield
Suites(R) hotels, leasehold and management interests in 24 Summerfield
Suites(R), Sierra Suites(R) and Sunrise Suites hotels and management contracts
and franchise interests for 12 additional Summerfield Suites(R) and Sierra
Suites(R) hotels. In addition, Patriot acquired the development contracts for
several additional hotels. Estimated obligations related to these future
purchase price adjustments are approximately $61,000, part of which is payable
in 2000 and part in 2001.
In connection with the Summerfield acquisition which was accounted for using
the purchase method of accounting, goodwill of $45,207 was recognized. In
connection with the repayment of debt assumed in the Summerfield acquisition,
Patriot incurred certain repayment penalties and wrote off the remaining
balance of unamortized deferred financing costs associated with such debt of
approximately $291, net of minority interest. Such amount has been reported as
an extraordinary item in consolidated financial statement.
Effective January 15, 1999, an additional 1,311,709 OP units valued at
approximately $8,969 were issued in connection with the Summerfield
transaction as additional consideration pursuant to the purchase agreement in
satisfaction of the 1998 Summerfield adjustment.
Effective February 8, 2000, the Company paid an additional $32,825 as
additional consideration pursuant to the purchase agreement with SF Hotel
Company L.P.
Gencom American Hospitality and CHC International Inc.
On June 30, 1998, the hospitality-related business of CHC International,
Inc. ("CHCI") merged with and into Wyndham with Wyndham being the surviving
company. As a result of the CHCI merger, Wyndham acquired
F-20
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
the remaining 50% investment in GAH-II, L.P., seventeen leases, sixteen
management contracts related to the Patriot hotels leased by CHC Lease
Partners, eight third party management contracts, two third-party asset
management contracts, the Grand Bay proprietary brand name and certain other
hospitality management assets. The aggregate purchase price of the 17
leasehold interests was approximately $52,721, which is reflected as a cost of
acquiring leaseholds in the accompanying financial statements for the year
ended December 31, 1998. The merger was funded through a combination of
preferred shares and the assumption of debt.
On July 30, 1999, a wholly-owned subsidiary of Wyndham merged with Gencom
Interest, Inc. As a result of the merger, Wyndham acquired the remaining
34.52% interest in the Omni Baltimore hotel, and 421,161 shares of Wyndham
class A common stock owned by Gencom Interest, Inc. The total purchase
consideration for the merger was approximately $6,043 which consisted of
1,336,276 shares of Wyndham class A common stock.
In addition, on September 30, 2000 and September 30, 2002, the Company may
be obligated to pay the CHCI stockholders and a subsidiary of the Company may
be obligated to pay a Gencom-related entity additional consideration, in each
case based upon the performance of certain specified assets.
Other
In July 1998, Old Wyndham acquired an approximate 49% limited partnership
interest in a partnership with affiliates of Don Shula's Steakhouse, Inc. for
$1,500 in cash and 156,272 of Preferred OP units of the Wyndham Partnership
which were valued at approximately $3,500.
During 1998, Patriot also re-acquired the leasehold interests for nine of
its hotels from the lessees and purchased certain license agreements for an
aggregate purchase price of approximately $11,686, which is reflected as a
cost of acquiring leaseholds in the accompanying statements of operations. The
Company issued 118,812 paired shares valued at $3,000 and paid cash of $8,686.
During 1999, the Company acquired the remaining minority interests in 9
hotel assets. The acquisition of these interests was financed through cash of
approximately $4,230, additional mortgage indebtedness totaling $49,800, and
the sale of an additional 10% interest in another hotel.
5. Investments in and Mortgage Notes Receivable and Other Receivables from
Unconsolidated Subsidiaries:
In 1995 and 1996, Patriot acquired an approximate 99% non-controlling
interest in PAH Ravina, and PAH Windwatch, respectively.
As part of the financing for the acquisition of the Crowne Plaza Ravinia
Hotel, Patriot advanced $40,500 to PAH Ravinia, which is evidenced by two
mortgage notes consisting of a $36,000 first mortgage note and a $4,500 second
mortgage note. The principal amount of both notes is due December 31, 2002.
Interest at an annual rate equal to 10.25% and 12.5% on the first and second
mortgage notes, respectively, is payable monthly. The mortgage notes are
collateralized by deeds of trust on the Crowne Plaza Ravinia Hotel. On June
30, 1999, Wyndham obtained a secured mortgage note with Bear Stearns (See Note
7). As a result, $22,934 in net proceeds were used to pay-down the first
mortgage. As part of the financing for the acquisition of the Wyndham
Windwatch Hotel, Patriot advanced PAH Windwatch $31,400 which is evidenced by
a first lien mortgage note. The principal amount of the note is due on
December 31, 2002. Interest at an annual rate equal to 9% is payable monthly.
The mortgage note is collateralized by a deed of trust on the Wyndham
Windwatch Hotel.
F-21
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
On June 15, 1999, the Company acquired the 1% controlling interest in both
hotels for approximately $156. As such, the hotels are now consolidated in the
accompanying financial statements, and the mortgage notes have been eliminated
upon consolidation.
6. Restructuring charges:
During 1999, the Company recorded a restructuring charge of $285,267 as a
result of the termination of the paired share structure (See Note 13) and
management's decision to streamline its organization and focus on its core
brands and strategic assets. The restructuring activities (shown below in
tabular format) primarily relate to: (1) the termination of the paired share
structure, resulting in the write-down of the unamortized intangible asset,
and elimination of job responsibilities, resulting in the costs to sever
employees in New York and Dallas, (2) the exiting of the European market for
its non-branded assets, resulting in the write-down of assets held for sale to
estimated fair value, the write-down of goodwill, the reduction in the
European workforce, lease abandonments, and other costs necessary to reduce
the infrastructure in Arcadian International, (3) the exiting of the limited
service hotel sector, resulting in a write-down of those assets held for sale
and the write-off of management contracts, (4) the closure of the Phoenix
division office, resulting in the costs to sever employees and lease
abandonments, (5) the closure of the Wichita division office, resulting in the
costs to sever employees, and (6) the elimination of certain brands, resulting
in the write-down of those tradename intangible assets.
The Company expects the plans associated with these costs to be
substantially completed during the first half of 2000 with many of the costs
associated with the reduction in workforce being incurred and paid in 1999.
The total number of employees terminated was 177.
<TABLE>
<CAPTION>
Cash/Non- Restructuring Accrued Balance at
Description Cash Charge 12/31/99
----------- ------------- ------------- ------------------
<S> <C> <C> <C>
Organizational Restructuring
Write-down of intangible
assets........................ Non-cash $ (83,094) $ --
Severance packages............. Cash/non-cash (4,675) (500)
Downsizing European division
Write-down of assets held for
sale.......................... Non-cash (69,491) --
Write-down of intangible
assets........................ Non-cash (28,394) --
Severance packages............. Cash (3,578) (2,458)
Lease cancellations and
commitments................... Cash (1,907) (1,907)
Other exit costs............... Cash (4,062) (2,408)
Exiting limited service market
sector
Write-down of assets held for
sale.......................... Non-cash (63,328) --
Write-down of intangible
assets........................ Non-cash (8,834) --
Closing the Phoenix division
office
Severance packages............. Cash (2,006) (312)
Lease cancellations and other
commitments................... Cash (492) (321)
Closing of the Wichita division
office
Severance packages............. Cash (1,872) (1,872)
Elimination on certain hotel
brand
Write-down of intangible
assets........................ Non-cash (12,821) --
Other
Other exit costs............... Cash (713) --
Effect of foreign currency
translation................... -- 8
--------- -------
Total........................ $(285,267) $(9,770)
========= =======
</TABLE>
F-22
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
7. Line of Credit Facility, Term Loans, Mortgage and Other Notes and Capital
Lease Obligations:
Outstanding borrowings under the line of credit facilities, term loans,
various mortgage and other notes and capital lease obligations consist of the
following:
<TABLE>
<CAPTION>
December 31,
----------------------
1999 1998
---------- ----------
<S> <C> <C>
Line of credit facilities.......................... $ 270,000 $ 875,587
Term Loans......................................... 1,300,000 1,799,500
Increasing Rate Loans.............................. 650,000 --
Mortgage notes payable to Bears Stearns and Lehman
Brothers.......................................... 581,000 --
Paine Webber Mortgage Financing.................... -- 298,000
El Conquistador and Condado Financing.............. 168,167 170,000
Royal Bank of Scotland and Coutts Consortium Fi-
nancing........................................... 31,670 97,140
Other mortgage debt................................ 609,690 520,836
Unsecured financing................................ 5,633 66,753
Capital lease obligations.......................... 27,396 29,705
---------- ----------
$3,643,556 $3,857,521
---------- ----------
Less current portion of debt....................... (130,177) (1,274,918)
---------- ----------
Long term debt..................................... $3,513,379 $2,582,603
========== ==========
</TABLE>
Credit Facility and Term Loans
In connection with the Interstate merger, the Company closed on the
commitment from The Chase Manhattan Bank and Chase Securities, Inc. and Paine
Webber Real Estate Securities, Inc. to increase Patriot's existing credit
facilities to an aggregate of $2,700,000 (an increase of $1,450,000 from the
prior $1,250,000 credit package). The increased credit facilities included the
$900,000 revolving credit facility ("Credit Facility") and a series of
unsecured term loans in the aggregate amount of up to $1,800,000 (the "Term
Loans"). Proceeds from the Credit Facility were used to fund certain mergers,
as well as to refinance certain outstanding indebtedness. Interest rates were
based on the Company's leverage ratio and varied from 1.5% to 2.5% over LIBOR.
The Term Loans and the Credit Facility, along with accrued interest and
fees, were repaid in full on June 30, 1999 with proceeds from the new credit
facility and the $1 billion equity investment. As a result of this repayment,
the Company incurred an extraordinary loss on early extinguishment of debt of
$9,838, net of minority interest and income tax effects.
New Credit Facility and Term Loans
Concurrent with the closing of the $1 billion equity investment, Wyndham
closed on a new $2,450,000 credit facility which consists of a $1,300,000 term
loan with a seven-year term, a $500,000 revolving credit facility with a five-
year term, and a $650,000 increasing rate loan facility with a five-year term.
The proceeds, net of closing costs and fees of approximately $41,125 for the
term loan and the revolving credit facility, and approximately $17,875 for the
increasing rate loan facility, were used to retire existing indebtedness. At
December 31, 1999, $270,000 was drawn on the new revolving credit facility.
Additionally, the Company had outstanding letters of credit totaling $27,039
as of December 31, 1999.
Interest rates are based upon LIBOR plus spreads varying from 2.75% to 3.50%
per annum for the term loan, and 1.25% to 2.75% per annum for the revolving
credit facility, based both on Wyndham's leverage ratio, as defined, and
whether any increasing rate loans are outstanding. If any of the increasing
rate loan facility remains outstanding, the applicable margins shall be
increased by 0.25%. The term loan and the revolving credit
F-23
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
facility are guaranteed by the domestic subsidiaries of Wyndham and are
secured by pledges of equity interests held by Wyndham and its subsidiaries.
Wyndham's ability to borrow under its revolving credit facility is subject to
Wyndham's compliance with a number of customary financial and other covenants,
including total leverage and interest coverage ratios.
Interest rates for the increasing rate loans are based on LIBOR rates (less
statutory reserves), plus 3.50% through September 30, 1999, and increasing
0.50% every three months, with a cap of LIBOR plus 4.75%. The lender under the
increasing rate loans receives the benefit of the same guarantees and pledges
of security provided under the new term loan and revolving credit facility.
The weighted average interest rate incurred under these borrowings was 9.33%
for the period ended December 31, 1999.
Bear Stearns & Lehman Brothers
Effective June 30, 1999, Wyndham also closed on a $346 million mortgage loan
with Bear, Stearns Funding, Inc., which is secured by twenty-five properties
having an aggregate net book value of $703,343 as of December 31, 1999. The
loan matures on July 1, 2004 and bears interest at the LIBOR rate plus 3.25%
per annum. Proceeds from the mortgage debt were used to retire existing
mortgage indebtedness. On November 5, 1999, the loan was modified to bear
interest at the LIBOR rate plus spreads of 0.82% through 4.50%.
Additionally, effective June 30, 1999, Wyndham closed on a $235 million
mortgage loan with Lehman Brothers Holdings Inc., which is secured by ten
properties having an aggregate net book value of $324,429 as of December 31,
1999. The mortgage loan has a three-year term, with a one-year extension
option, and bears interest at the LIBOR rate plus 3.50% per annum, plus an
additional 1.75% on the principal amount payable at maturity. Proceeds from
this mortgage loan were used to retire existing mortgage indebtedness.
At December 31, 1999, the LIBOR rate was 5.82% and averaged 5.25% during the
twelve-month period ended December 31, 1999.
Paine Webber Mortgage Financing
Patriot entered into a short-term financing arrangements with an affiliate
of Paine Webber Real Estate Securities, Inc. ("Paine Webber Real Estate")
whereby such affiliate loaned under three separate agreements a total of
$298,000. The loans bear interest at a rate equal to or greater than 30-day
LIBOR plus spreads of 1.75% through 2.75% and were to mature April 15, 1999.
The loans were amended February 15, 1999, to increase spreads to 2.75% through
5.0% and extend the loans through June 30, 1999. The proceeds of the Paine
Webber mortgage financing were used by Patriot to fund or acquire four
mortgage loans to certain partnerships affiliated with members of CHC Lease
Partners, the acquisition of the Wyndham Emerald Plaza located in San Diego
California and the Arcadian acquisition.
Effective June 30, 1999, the loans, including accrued interest, were repaid
in full with proceeds from the new credit facility and the $1 billion equity
investment.
El Conquistador and Condado Hotel and Casino Financing
In August 1998, the Company refinanced certain debt related to the El
Conquistador and the Condado Hotel & Casino. Proceeds of $145,000 from the
refinancing were used to repay outstanding indebtedness of approximately
$139,350, to pay legal and closing costs and to establish certain reserves,
including interest
F-24
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
reserves, required by the loan agreements. The loans are secured by mortgages
on the properties which have an aggregate net book value of $318,467 as of
December 31, 1999. The loans bear interest at a rate of LIBOR plus 2.25% and
were extended to June 30, 1999.
On June 25, 1999, Wyndham entered into an agreement with Citicorp Real
Estate, Inc. to extend $90,000 of mortgage debt related to the El Conquistador
Partnership, L.P., which was set to mature on June 30, 1999. Per the terms of
the extension agreement, the interest rate was amended such that the loan
bears interest at the LIBOR rate plus 2.75% through December 31, 1999 and then
LIBOR plus 3.25% through maturity on June 30, 2000.
Additionally, on June 29, 1999, Wyndham refinanced $55,000 of debt on the
Condado Hotel & Casino with The Bank of Nova Scotia. Principal payments on the
loan are due in monthly amounts of $306 beginning on July 22, 1999 through
maturity on July 22, 2004 at which time a balloon payment of $36,972 is due.
The interest rate on the first $50,000 is based upon LIBOR spreads varying
from 2.50% to 3.25% per annum, and on amounts over $50,000 is based upon LIBOR
spreads varying from 3.00% to 3.75% per annum, based on a ratio of earnings to
total debt service, as defined.
Additionally, the Company has a term loan agreement with the Government
Development Board for Puerto Rico (GDB). As of December 31, 1999, the loan had
an outstanding balance of $25,000. The loan bears interest at a rate of LIBOR
plus 0.09% and matures February 2006. The Company is required to deposit 50%
of available cash flow, as defined per the loan agreement with GDB, to a
maximum of $1,667 plus any prior year requirements. The loan is secured
through a second lien mortgage on the property.
The weighted average interest rate incurred under these borrowings was 7.73%
for the period ended December 31, 1999.
Royal Bank of Scotland and Coutts Consortium Debt Obligations
In connection with the Arcadian transaction, the Company assumed debt
obligations to the Royal Bank of Scotland and Coutts Consortium. On August 12,
1999, Wyndham renegotiated its debt obligations to both the Royal Bank of
Scotland and Coutts & Company. In connection with the sale of the 11 hotels,
the debt with the Royal Bank of Scotland of $62,865 as of December 1, 1999 was
repaid in full with the sales proceeds of the hotels. See Note (4).
The Company has debt obligations of approximately $31,670 as of December 31,
1999 to the Coutts Consortium, which bears interest at Sterling Libor plus
2.0% and matures December 31, 2003. The debt is secured by first lien
mortgages encumbering 5 Malmaison hotels, which have an aggregate net book
value of $85,382 as of December 31, 1999.
Unsecured financing
The Company, through the Operating Partnerships and other subsidiaries, is
obligated under notes with various banks and financial institutions that as of
December 31, 1999, had an outstanding balance of $5,633. These notes are
unsecured and bear interest at rates ranging from 5.5% to 10.5% per annum. The
notes mature from 2000 through 2006. The weighted average interest rate
incurred under these borrowings was 6.68% for the period ended December 31,
1999.
F-25
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
Other Mortgage Debt
The Company, through the Operating Partnerships and other subsidiaries, is
obligated under other mortgage notes with various banks and financial
institutions that, as of December 31, 1999, had outstanding balances totaling
$609,690. These notes are collateralized by mortgage liens on the property and
equipment of 27 hotels which have an aggregate net book value of $1,219,904 as
of December 31, 1999. The notes bear interest at rates ranging from Italian
Ribor to Libor plus 3.5% per annum and maturity dates in 2000 through 2023.
The weighted average interest rate incurred under these borrowings was 8.05%
during the year ended December 31, 1999.
Under the terms of the related loan agreements and capital lease
obligations, principal amortization and balloon payment requirements at
December 31, 1999 are as follows for each of the next five years:
<TABLE>
<CAPTION>
Year Amount
---- ----------
<S> <C>
2000............................................................ $ 130,177
2001............................................................ 162,719
2002............................................................ 324,945
2003............................................................ 44,579
2004............................................................ 1,379,056
2005 and thereafter............................................. 1,602,080
----------
$3,643,556
==========
</TABLE>
8. Derivatives:
The Company enters into interest rate swap and cap agreements to modify the
interest characteristics of its outstanding debt. These agreements involve the
exchange of amounts based on a variable interest rate for amounts based on
fixed interest rates over the life of the agreement without an exchange of the
notional amount upon which the payments are based. The differential to be paid
or received as interest rates change, is accrued and recognized as an
adjustment to interest expense related to the debt using a method which
approximates the effective interest method (the accrual accounting method).
The related amount payable to or receivable from counterparties is included in
accrued expenses or other assets.
The Company also enters into interest rate cap agreements that are designed
to limit its exposure to increasing interest rates and are designated as
hedges of its outstanding debt. An interest rate cap entitles the Company to
receive a payment from the counterparty equal to the excess if any, of the
hypothetical interest expense (strike price) on a specified notional amount at
a current market interest rate over an amount specified in the agreement. The
only amount the Company is obligated to pay the counterparty is the initial
premium. The cost of the agreements (the initial premium) is included in other
assets and amortized to interest expense ratably during the life of the
agreement.
The fair value of interest rate swap and cap agreements and changes in the
fair value as a result of changes in market interest rates are not recognized
in the financial statements. The unrealized gain on these derivative
instruments was approximately $14,553 at December 31, 1999, which represents
the net proceeds Wyndham would receive if the derivatives were sold.
The Company paid $6,514, $2,331, and $587 of net incremental interest
expense related to the interest rate swap arrangements in 1999, 1998, and
1997, respectively.
F-26
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
The following tables represent the derivatives in place as of December 31,
1999:
Interest Rate Swaps
<TABLE>
<CAPTION>
Notional
Amount Rate Maturity
-------- ----- --------
<S> <C> <C>
$19,988 5.31% 01/03/00
$400,000 5.91% 02/07/00
$72,000 5.80% 12/15/00
$31,000 5.42% 03/30/01
$375,000 6.26% 11/01/02
$125,000 5.56% 11/01/02
$250,000 5.84% 06/01/03
Interest Rate Caps
<CAPTION>
Notional
Amount Rate Maturity
-------- ----- --------
<S> <C> <C>
$1,500,000 7.00% 04/03/00
$19,475 6.75% 03/30/01
$38,000 7.83% 10/11/01
$27,680 7.10% 07/03/04
$42,760 8.10% 07/03/04
$42,760 9.70% 07/03/04
$18,990 6.50% 07/03/04
$28,425 8.50% 08/01/04
$180,000 6.60%(1) 11/04/04
</TABLE>
- --------
(1) If on a reset date LIBOR is equal to or less than 5.1%, then the floor
rate is 5.65%
Treasury Rate Lock Agreements
Patriot previously entered into three treasury interest rate lock agreements
to protect against the possibility of rising interest rates. Under the rate
lock agreements, Patriot receives or makes payments based on the difference
between specified interest rates, 6.06%, 6.07% and 5.62%, and the actual 10-
year U.S. Treasury interest rate on a principal amount of $525,000. Patriot
settled the entire $525,000 in treasury interest rate locks resulting in a
$49,334 one-time charge to earnings in 1998.
F-27
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
9. Computation of Earnings Per Share:
Basic and diluted earnings per share have been computed as follows:
Basic and Diluted Earnings per Share
<TABLE>
<CAPTION>
Year Ended Year Ended Year Ended
December 31, 1999 December 31, 1998 December 31, 1997
------------------------ --------------------- -------------------
Basic Diluted(2) Basic Diluted(2) Basic Diluted(2)
----------- ----------- --------- ---------- ------- ----------
(in thousands, except per share amounts)
<S> <C> <C> <C> <C> <C> <C>
(Loss) income before
extraordinary item..... $(1,062,131) $(1,062,131) $(126,406) $(126,406) $ 362 $ 362
Adjustment for equity
forwards(1)............ (19,372) (39,322) (21,151) (188,392) -- --
Preferred stock
dividends.............. (50,190) (50,190) (7,956) (7,956) -- --
Excess consideration
paid to redeem
preferred stock........ (115) (115) -- -- -- --
----------- ----------- --------- --------- ------- -------
(Loss) income
(attributable)
available to common
shareholders before
extraordinary item..... (1,131,808) (1,151,758) (155,513) (322,754) 362 362
Extraordinary loss...... (9,838) (9,838) (31,817) (31,817) (2,534) (2,534)
----------- ----------- --------- --------- ------- -------
Net loss................ $(1,141,646) $(1,161,596) $(187,330) $(354,571) $(2,172) $(2,172)
=========== =========== ========= ========= ======= =======
Weighted average number
of shares outstanding.. 161,255 161,255 137,764 137,764 64,260 64,260
=========== =========== ========= ========= ======= =======
Loss per share:
Loss before
extraordinary item... $ (7.02) $ (7.14) $ (1.13) $ (2.34) $ 0.01 $ 0.01
Extraordinary loss.... (0.06) (0.06) (0.23) (0.23) (0.04) (0.04)
----------- ----------- --------- --------- ------- -------
Net loss income......... $ (7.08) $ (7.20) $ (1.36) $ (2.57) $ (0.03) $ (0.03)
=========== =========== ========= ========= ======= =======
</TABLE>
- --------
(1) The adjustment relates to the mark-to-market adjustment for the UBS
Transaction and the Nations Transaction (see Note 10), which can be
settled in cash or stock, at the Company's option. At December 31, 1998,
the PaineWebber Transaction could be settled only in stock, therefore only
the guaranteed return portion is adjusted in the earnings per share
calculation. There was no mark-to-market adjustment for the PaineWebber
Transaction, which was accounted for by the Reverse Treasury Method in
1998.
(2) For 1999, the dilutive effect of unvested stock grants of 803, the option
to purchase common stock of 59 and preferred stock of 64,367 were not
included in the computation of diluted earnings per share for the year
ended December 31, 1999 because they are anti-dilutive. For 1998 the
dilutive effect of unvested stock grants of 880, the option to purchase
common stock of 753, shares issued in connection with forward equity
contracts of 2,507 and 6,613 of preferred shares were not included in the
computation of diluted earnings per share for the year ended December 31,
1998 because they are anti-dilutive. For 1997, the dilutive effect of
unvested stock grants of 804 and the option to purchase common stock of
1,017 were not included in the computation of diluted earnings per share
for the year ended December 31, 1997 because they are anti-dilutive. See
Note 13 for a discussion of the impact of SFAS No. 123 ("Accounting for
Stock-Based Compensation") on earnings per share.
F-28
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
10. Commitments and Contingencies:
Office Lease
The Company has entered into agreements to lease office space for its
corporate headquarters and other regional offices. In general, the agreements
provide for monthly payments of rent plus reimbursement for certain other
costs as specified per each agreement and are accounted for as operating
leases for financial reporting purposes. The leases have terms from 5 to 10
years and expire between 2003 and 2007. Annual rental payments of $3,484,
$3,125 and $127 for 1999, 1998 and 1997, respectively, are reflected in
general and administrative expense in the accompanying financial statements.
Future five-year minimum lease payments under these lease agreements are as
follows:
<TABLE>
<CAPTION>
Year Rent Amount
---- -----------
<S> <C>
2000.......................................................... $ 1,875
2001.......................................................... 1,875
2002.......................................................... 1,875
2003.......................................................... 1,763
2004.......................................................... 1,725
2005 and thereafter........................................... 4,744
----------
$ 13,857
==========
Hotel and Ground Leases
The Company leases both land and hotels under agreements with terms ranging
from one to 100 years. The Company has incurred rent expense totaling
$117,420, $110,108, and $4,117 for 1999, 1998 and 1997, respectively. Future
five year minimum lease payments under these lease agreements are as follows:
<CAPTION>
Year Rent Amount
---- -----------
<S> <C>
2000.......................................................... $ 60,197
2001.......................................................... 60,206
2002.......................................................... 60,169
2003.......................................................... 60,216
2004.......................................................... 59,637
2005 and thereafter........................................... 742,728
----------
$1,043,153
==========
</TABLE>
Employment Agreements
The Company has entered into employment agreements with each of its
executive officers. Generally, the agreements provide for annual base
compensation with any increases during the terms of the agreements to be
approved by the Compensation Committee of the Board of Directors, as
applicable.
Future Earnout Obligations
In connection with the CHCI Merger and the Gencom Acquisition, Wyndham and a
subsidiary of Wyndham may be obligated to pay CHCI shareholders and a Gencom
related entity additional purchase consideration, in each case based on the
performance of certain specified assets.
F-29
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
In connection with the Wyndham merger, certain descendants of Mr. and Mrs.
Trammell Crow, and various corporations, partnerships, trusts, and other
entities beneficially owned or controlled by such person, (collectively, the
"Crow Family Members") and certain Wyndham senior executives retained the
right to receive additional consideration on April 30, 2000 based on a formula
pertaining to the performance of Wyndham Riverfront New Orleans and Wyndham
Garden LaGuardia as set forth in the Omnibus Purchase and Sale Agreement dated
April 14, 1997. Based on the performance of such properties as of December 31,
1999, the additional consideration would be $10,758 and $8,677 respectively.
In connection with the Summerfield transaction, Patriot may be obligated to
pay in cash or OP units additional purchase consideration if certain
performance criteria are met based on (i) the average market price of the
paired shares through December 31, 1998 and (ii) the achievement of certain
performance criteria through the year 2000 for managed hotels which were not
open for business (or had recently opened) as of the date of acquisition,
(iii) fulfillment of the Company's obligation to develop seven hotels.
Payments under these obligations have been made in 1999 and 2000 of $8,969 and
$32,825 respectively.
Pursuant to the joint venture agreement related to the Wyndham Chicago
Hotel, the agreement provides for an earn-out payment payable based on the net
operating income from the hotel for the year ended December 31, 2001, as
calculated per the agreement.
Forward Equity Transactions
The Company was party to transactions with three counterparties involving
the sale of an aggregate of 13.3 million paired shares with related purchase
price adjustment mechanisms. The Company's aggregate obligation under the
forward equity transactions was approximately $335,800 million at June 30,
1999. Effective June 30, 1999, the Company settled in full all of the forward
equity transactions in cash with part of the proceeds of the $1 billion equity
investment. The 100.7 million shares owned or held by the counterparties were
retired effective June 30, 1999.
Contingencies
On June 29, 1992, an action for trademark infringement was filed in the New
York Supreme Court, County of New York, Index No. 17474/92 titled Wyndham
Hotel Company, John Mados, and Suzanne Mados et al v. Wyndham Hotel Company.
Ltd. It is based upon the Madoses' alleged use of the mark WYNDHAM in
connection with the Wyndham Hotel located in Manhattan, New York City, and
operated by the Madoses since 1966 pursuant to a lease agreement entered into
by the Madoses on June 1, 1957. The case was tried in May 1996, and an order
and partial judgement was entered in March 1998. The order enjoins us from
using the name and mark "Wyndham" in connection with the advertising,
promoting, managing or operating a hotel in Manhattan, New York City, and
places restrictions on Wyndham's use of the name and mark "Wyndham" in all
other areas of New York outside of Manhattan. In November 1998, an order was
issued clarifying the original order and a final judgment was entered. In
December 1998, Wyndham appealed that judgment to the New York Supreme Court,
Appellate Division, First Department. In January 1999, Wyndham moved for a
stay of the injunction pending appeal which motion was granted by the
Appellate Division, First Department on February 4, 1999. On May 18, 1999 the
Appellate Division, First Department rendered a decision and order affirming
the
final judgment. On May 24, 1999, Wyndham filed a motion for permission to
appeal that decision to the Court of Appeals of the State of New York. In July
1999, Wyndham received notice that the Court of Appeals of the State of New
York would not hear the appeal.
F-30
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
Patriot and Old Wyndham have disclosed various matters relating to Patriot
and Old Wyndham in their Form 8-K filed with the Securities and Exchange
Commission on November 9, 1998, including, without limitation, an assertion by
UBS AG, London Branch ("UBS") that Patriot and Old Wyndham are in default
under the terms of a forward contract by and among Patriot, Old Wyndham and
UBS. Patriot and Old Wyndham also have disclosed various matters in their
Joint Annual Report on Form 10-K, filed with the Securities and Exchange
Commission on March 26, 1999, and in registration statements on Form S-3
(filed on April 28, 1999) and Form S-4 (filed on April 14, 1999).
On or about January 12, 1999, a purported class action lawsuit was filed on
behalf of the shareholders of Patriot and Wyndham in the Delaware Chancery
Court. The lawsuit, captioned Fraschilla v. Paul A. Nussbaum, et al., No.
16895NC, named as defendants certain persons who then were directors of
Patriot, as well as certain other individuals and entities alleged to be
investors in the Company (the "Investors"). The lawsuit alleged that the
director defendants breached their fiduciary duties to Patriot's shareholders
with respect to Patriot's financial condition and breached their fiduciary
duties to Patriot's shareholders by "effectively selling control" of Patriot
to the Investors for inadequate consideration and without having adequately
considered or explored all other alternatives to this sale or having taken
steps to maximize stockholder value. The lawsuit also alleged that the
Investors aided and abetted the director defendants in their purported
breaches of fiduciary duty. The plaintiffs sought monetary damages from the
director defendants as well as an injunction preventing the consummation of
the proposed transaction with the Investors. On January 19, 1999, three nearly
identical purported class action lawsuits were filed in the same court on
behalf of different purported class representatives: (i) Sybil R. Meisel and
Steven Langsam, Trustees, No. 16905NC; (ii) Crandon Capital Partners, No.
16906NC; and (iii) Robert A. Staub, No. 16907NC. All of the actions were
consolidated into the Fraschilla action. In September 1999, the parties
entered into a Stipulation of Settlement to settle these lawsuits. Pursuant to
the Stipulation of Settlement, Wyndham agreed that it would make the rights
offering it previously announced it may make, no later than December 17, 1999,
and to hold this offering open for a period of not less than 30 days. On
November 1, 1999, the Delaware Chancery Court approved the amended Stipulation
of Settlement along with class counsels' fee request of $1,125,000 and entered
an order and final judgment dismissing all of these lawsuits (the "Order").
The Order became final on or about December 2, 1999. Currently, Wyndham is
seeking recovery for costs incurred in the defense and settlements of these
lawsuits from its directors and officers insurance carriers.
On February 3, 1999, McNeill Investment Company, Inc. filed a lawsuit
against Patriot in the United States District Court for the Western District
of Pennsylvania. In the lawsuit, captioned McNeill Investment Company, Inc. v.
Patriot American Hospitality, Inc., No. 99-165, the plaintiff alleges that
Patriot breached its obligations under a registration rights agreement that
Patriot became obligated under through its merger transaction with Interstate
Hotels Corporation. The plaintiff claims approximately $9 million in damages.
The case presently is in the early discovery stage. Wyndham intends to defend
the suit vigorously.
F-31
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
On May 7, 1999, Doris Johnson and Charles Dougherty filed a lawsuit in the
Northern District of California against Patriot, Wyndham, their respective
operating partnerships and Paine Webber Group, Inc. This action, Johnson v.
Patriot American Hospitality, Inc., et al., No. C-99-2153, was commenced on
behalf of all former holders of Bay Meadows stock during a class period from
June 2, 1997 to the date of filing. The action asserts securities fraud claims
and alleges that the purported class members were wrongfully induced to tender
their shares as part of the Patriot/Bay Meadows merger based on a fraudulent
prospectus. The action further alleges that defendants continued to defraud
stockholders about their intentions to acquire numerous hotels and saddle the
Company with massive debt during the class period. Three other actions against
the same defendants subsequently were filed in the Northern District of
California: (i) Ansell v. Patriot American Hospitality, Inc., et al., No. C-
99-2239 (filed May 14, 1999), (ii) Sola v. Paine Webber Group, Inc., et al.,
No. C-99-2770 (filed June 11, 1999), and (iii) Gunderson v. Patriot American
Hospitality, Inc., et al., No. C-99-3040 (filed June 23, 1999). Another action
with substantially identical allegations, Susnow v. Patriot American
Hospitality, Inc., et al., No. 3-99-CV1354-T (filed June 15, 1999) also
subsequently was filed in the Northern District of Texas. The complaints in
these actions seek unspecified damages but assert that the defendants are
liable for the diminution in value of Patriot stock held by class members
during the class period. By order of the Judicial Panel on Multidistrict
Litigation, these actions along with certain actions identified below have
been consolidated in the Northern District of California for consolidated
pretrial purposes. To date, none of the defendants have been required to
answer, move or otherwise respond to the complaints, and no discovery has been
taken. Wyndham intends to defend the suits vigorously.
On or about June 22, 1999, a lawsuit captioned Levitch v. Patriot American
Hospitality, Inc., et al., No. 3-99-CV1416-D, was filed in the Northern
District of Texas against Patriot, Wyndham, James D. Carreker and
Paul A. Nussbaum. This action asserts securities fraud claims and alleges
that, during the period from January 5, 1998 to December 17, 1998, the
defendants defrauded shareholders by issuing false statements about the
Company. The complaint was filed on behalf of all shareholders who purchased
Patriot Wyndham stock during that period. Three other actions, Gallagher v.
Patriot American Hospitality, Inc., et al., No. 3-99-CV1429-L, filed on
June 23, 1999, David Lee Meisenburg, et al. v. Patriot American Hospitality,
Inc., Wyndham International, Inc., James D. Carreker, and Paul A. Nussbaum
Case No. 3-99-CV1686-X, filed July 27, 1999 and Deborah Szekely v. Patriot
American Hospitality, Inc., et al., No. 3-99-CV1866-D, filed on or about
August 27, 1999, allege substantially the same allegations. The complaints in
these actions seek unspecified damages but assert that the defendants are
liable for the diminution in value of Patriot stock held by class members
during the class period. By order of the Judicial Panel on Multidistrict
Litigation, these actions have been consolidated with certain other
stockholder actions and transferred to the Northern District of California for
consolidated pre-trial purposes. To date, none of the defendants have been
required to answer, move or otherwise respond to the complaints, and no
discovery has been taken. Wyndham intends to defend the suits vigorously.
Wyndham has received a draft complaint which threatens to assert claims on
behalf of Golden Door, LLC, Golden Springs, LLC, Golden Door, Inc., Deer
Springs Ranch, LLC, Deborah Szekely and Sarah Livia Brightwood. The potential
plaintiffs appear to be the same as the plaintiffs who filed the action
referenced above, Deborah Szekely v. Patriot American Hospitality, Inc., et
al., No. 3-99-CV1866-D, however the allegations of the complaints are not the
same. The draft complaint purports to assert claims against Patriot, Wyndham
and their respective operating partnerships for securities fraud under the
California securities code, common law fraud, breach of fiduciary duty and
deceit in connection with the purchase by Patriot of the Golden Door Spa in
February 1998. The draft complaint seeks compensatory damages for the alleged
lost value of the potential plaintiff's stock and other unspecified damages.
Although the Company has received a draft complaint, to date no complaint has
been filed.
F-32
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
Patriot American and PAH Stanley Ranch ("PAH") are engaged in a dispute with
Carneros Valley Investors involving a contract which calls for a purchase
price of $14 million with an additional $5 million to be paid if PAH gets
approval for a development in the Napa Valley. PAH did not get approval for
this development. In September, 1999, Carneros Valley Investors filed a
complaint in the Superior Court of California, San Francisco, which alleges
that Patriot owes it $5 million and alleges that it acted negligently,
fraudulently and in bad faith in attempting to get the approval for the
development. The complaint has been amended to allege fraud, allegedly
entitling the plaintiff to rescission of the sale. Patriot has answered the
complaint, but to date, no discovery has been taken. Wyndham intends to defend
the suit vigorously.
Patriot, IHC/Jacksonville Corporation and IHC Realty Partnership are parties
to a dispute with another limited partner of the Partnership relating to a
proposed hotel development in Jacksonville, Florida. The case is captioned C&M
Investors Limited v. Patriot American Hospitality, Inc. et al., originally
filed in the Florida Circuit Court, Fourth Judicial Circuit, in and for Duval
County, Florida, but later removed and now pending in the United States
District Court, Middle District of Florida, Jacksonville Division, Civil
Action No. 98-1236-Civ. J 20B. Wyndham plans to vigorously defend this
lawsuit.
On September 17, 1999, Starwood Hotels & Resorts Worldwide Inc. ("Starwood")
filed a lawsuit against Fred J. Kleisner, Richard Mahoney and Wyndham in the
United States District Court for the Southern District of New York. In the
lawsuit, captioned Starwood Hotels & Resorts Worldwide Inc. v. Fred J.
Kleisner et al, No. 99 Civ. 9811, the plaintiff alleged that Wyndham
tortiously interfered with alleged employment contracts between Starwood and
Kleisner and Mahoney, respectively, that the defendants misappropriated trade
secrets belonging to Starwood, that the defendants tortiously interfered with
Starwood's prospective business relationships and that the defendants are
unfairly competing with Starwood. The complaint sought injunctive relief and
other damages.
On November 12, 1999, Wyndham, Kleisner, Mahoney (the "Wyndham Defendants")
and Starwood entered into a Settlement Agreement and Mutual Release (the
"Settlement Agreement") under the terms of which all claims against the
Wyndham Defendants were dismissed with prejudice and the Wyndham Defendants
paid no damages. Under the Settlement Agreement, Wyndham agreed to
restrictions on its ability to hire and solicit for employment certain
Starwood employees until July 2000.
11. Related Party Transactions:
Acquisition and sale of interests from and to officers and affiliates
In connection with the CHCI Merger, Mr. Karim Alibhai, an executive officer
at the time, and current independent director, received 156,863 OP units of
the Operating Partnerships valued at approximately $5,000 and entities
affiliated with Mr. Alibhai received 85,600 shares of Old Wyndham Series A
Preferred Stock and 85,600 shares of Old Wyndham Series B Preferred Stock with
an aggregate value of approximately $3,946. These units and shares were issued
in consideration of Mr. Alibhai's ownership interests in CHCI and its
affiliates. In
addition, Mr. Sherwood M. Weiser, a director of Old Wyndham received 394,397
shares of Old Wyndham Series A Preferred Stock and 394,398 shares of Old
Wyndham Series B Preferred Stock valued at $18,182 in connection with the CHCI
Merger as consideration for his ownership interest in CHCI and its affiliates.
Additionally 65,485 paired shares were issued as part of the consideration for
the transaction of which Mr. Weiser received 43,403 Paired Shares with an
approximate value of $994.
During 1998, Patriot sold its interest in four hotel assets; Orange
Courtyard Hotel in Orange, Connecticut, California, St. Louis Courtyard Hotel
in St. Louis, Missouri, Pittsburgh Residence in Pittsburgh, Pennsylvania and
the Westborough Courtyard in Westborough, Massachusetts, collectively
hereinafter referred to as the Fine Transaction, for a net purchase price of
approximately $32,500. The assets were sold to an affiliate of Mr. Milton
Fine, an independent director of the Company. No gain or loss was recognized
as a result of this transaction.
F-33
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
Effective January 15, 1999, in connection with the Summerfield transaction
an additional 1,311,709 OP units valued at approximately $8,969 were issued as
additional consideration pursuant to the purchase agreement. Of the OP units
issued, Mr. Rolf E. Ruhfus, a director of the Company received 327,993 of the
OP units issued with an approximate value of $2,243.
On June 15, 1999, the Company acquired the controlling 1% interest in Crowne
Plaza Ravinia and Wyndham Windwatch for $156, from former senior executive
officers of the Company, and Mr. Paul Nussbaum, a current director of the
Company.
In connection with the merger with Gencom Interests Inc., on July 30, 1999,
Mr. Alibhai, a director of the Company, received 400,883 shares of Wyndham
class A common stock. These shares were issued in consideration of Mr.
Alibhai's ownership interests in Gencom Interests Inc. and valued at
approximately $1,813 at the date of merger.
Notes receivable from affiliates, officers and employees
The Company has provided funding to certain affiliated hotels as working
capital and has made advances to certain officers. As of December 31, 1999,
notes receivable from affiliated hotels totaled $22,530 and notes receivable
from officers, directors and employees totaled $11,753. As of December 31,
1998, notes receivable from affiliated hotels totaled $35,766 and notes
receivable from officers and employees totaled $3,554. These amounts are
included in notes and other receivables in the accompanying financial
statements.
Additionally, in connection with the Wyndham merger, Patriot assumed notes
receivable from Senior Executive Officers of the merged company. As of
December 31, 1999, these promissory notes had an outstanding balance of
$16,167, including accrued interest. The notes bear interest at 6% per annum
and are secured by the pledge of shares of the Company held by the note
obligators. The balance of the notes including principal and accrued interest
are due and payable in one payment in April 2002 for three of the notes. The
fourth note is payable in April 2004. These notes are classified in
shareholders' equity for financial accounting purposes.
Other
During 1998, the Company made payments totaling $3,423 to Wyndham Travel
Management Ltd, an entity owned by Lucy Billingsley (the daughter of Mr.
Trammell Crow), for travel services provided to Wyndham. During 1999, only
$371 was paid to such entity as Wyndham changed its travel agency during 1999.
The Company made rent payments totaling $1,417 and $1,492 related to an
agreement with an affiliate of Mr. Harlan Crow to lease office space for the
Company's corporate headquarters in Dallas, Texas in 1999 and
1998 respectively. During 1999, the affiliate of Mr. Crow sold its interest in
the building. In addition, the Company made rent payments totaling $153 and
$81 for office space in the Company's Wichita divisional office to an entity
affiliated with Mr. Ruhfus, in 1999 and 1998, respectively.
The Company, in connection with the Wyndham merger, assumed a service
agreement with ISIS 2000, an entity affiliated with members of the Crow family
and senior executive officers of the Company, to provide centralized
reservations and property management services to all Wyndham branded hotels as
well as other hotels owned by the Company. On May 7, 1999, Patriot exercised
its option to purchase ISIS 2000, for a cash payment of $3,073. The service
fees incurred by the Company in 1999, prior to the acquisition, were $1,985.
Fees for the year ended December 31, 1998 totaled $4,368; no such fees were
incurred in 1997.
In addition, the Company has a service contract with the Kinetic Group, an
entity affiliated with a member of the Crow Family, and senior executive
officers of the Company, to provide the Company with management information
services. Fees paid for the year ended December 31, 1999 and 1998 totaled
$6,134 and $5,467, respectively.
F-34
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
In 1999 and 1998, the Company incurred lease expenses in the aggregate
amount of $3,150 and $455, respectively, for lease obligations to entities
owned in whole or in part by Mr. Ruhfus.
In 1999 and 1998, the Company paid $88 and $598, respectively, as a
consulting fee to Mr. Ruhfus.
The Company has made insurance premium payments to Wynright Insurance
("Wynright"), an entity owned by Crow Family Members and senior executive
officers of the Company, with respect to certain insurance policies maintained
for the benefit of the Company. Such payments totaled $730,000 in 1998. No
such payments were made in 1999.
Certain directors have an ownership interest in several hotels managed by
the Company. As of December 31, 1999, the Company is owed approximately $5,930
for management fees, services fees, and reimbursements from 15 hotels in which
Mr. Alibhai has an ownership interest and approximately $1,406 for management
fees for 2 hotels in which Mr. Weiser has an ownership interest.
On February 26, 1999, the Company and Paul A. Nussbaum entered into a
Separation Agreement (the "Separation Agreement") whereby Mr. Nussbaum
resigned his position as Chairman of the Board of Directors and Chief
Executive Officer of Patriot. Pursuant to the Separation Agreement, Mr.
Nussbaum will remain as a Director of Wyndham.
In accordance with terms of the Separation Agreement, the Company will pay
severance of $3,200 reduced by interest payments made by the Company on a loan
to Mr. Nussbaum from NationsBank through June 30, 1999. The severance amount
was to be paid as follows: $2,000 payable on the earlier of the consummation
of the $1 billion equity investment or January 1, 2000 and the remaining
$1,200 payable in twelve monthly installments commencing with the first day of
the month next following the date of the $2,000 payment. On June 30, 1999, the
Company paid Mr. Nussbaum $1,750, net of $250 of interest payments made by the
Company on the loan. In addition, on June 30, 1999, the Company made the first
monthly installment of $100. As of December 31, 1999, Mr. Nussbaum is owed
$500 of severance under the terms of the agreement.
Additionally, Mr. Nussbaum's outstanding unvested options to purchase shares
vested and will remain fully exercisable for the period of their respective
terms. Mr. Nussbaum elected to exchange his options on a Black Scholes neutral
basis for new options with an exercise price equal to the fair market value of
a share on the election date. On June 1, 1999, Mr. Nussbaum exchanged
3,078,406 options at varying prices from $11.18 to $33.58 for 1,154,448
options at $5.1875. Mr. Nussbaum will also receive 250,000 shares equally over
a three-year period, of which 83,334 have vested as of December 31, 1999.
Additionally any restrictions were lifted from existing shares held by Mr.
Nussbaum.
As a condition to receiving the second and third installments of the shares,
Mr. Nussbaum has agreed to provide non-exclusive consulting services to
Wyndham for a period of two years following the resignation date.
Additionally, Mr. Nussbaum will receive other amounts as provided for in the
Separation Agreement.
In 1999, Wyndham amended its management contract for the Wyndham Anatole
Hotel to provide that the owners of the hotel may terminate the management
contract following the first annual meeting of Wyndham stockholders after the
completion of the $1 billion equity investment if Mr. Nussbaum continues on
the Board of Directors of Wyndham. Mr. Nussbaum has delivered a letter to
Wyndham stating that he would not stand for re-election to the Board of
Directors if it would result in a termination of the management contract.
Additionally, the owners of the Wyndham Anatole Hotel may terminate the
management contract if James D. Carreker ceases to be an executive officer of
Wyndham.
F-35
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
12. Minority Interest in the Operating Partnerships:
Pursuant to the Operating Partnerships' respective limited partnership
agreements, the common limited partners of the Operating Partnerships,
including certain affiliates of Patriot, received rights (the "Redemption
Rights") that enable them to cause the Operating Partnerships to redeem each
pair of OP units (consisting of one OP unit of the Patriot Partnership and the
one OP unit of the Wyndham Partnership) in exchange for cash equal to the
value of a paired share (or, at the Company's election, the Company may
purchase each pair of OP units offered for redemption for one share of common
stock). In the case of the Wyndham Partnership's Class A preferred OP units
and Class C preferred OP units described below, each of these preferred OP
units may be redeemed for cash equal to the value of a share (or, at Wyndham's
election, Wyndham may purchase each preferred OP unit offered for redemption
for one share of common stock). The Redemption Rights generally may be
exercised at any time after one year following the issuance of the OP units.
The number of shares of common stock issuable upon exercise of the Redemption
Rights will be adjusted for share splits, mergers, consolidations or similar
pro rata transactions which would have the effect of diluting the ownership
interests of the limited partners of the Operating Partnerships or the
shareholders of the Company.
On June 30, 1999, the third party limited partners in both the Patriot
Partnership and the Wyndham Partnership were offered an opportunity to
exchange their limited partnership interests for Wyndham class A common stock.
As a result, an additional 15,097,354 shares of Wyndham class A common stock
were issued in exchange for limited partnership units in the Operating
Partnerships. The effect of the exchange of certain limited partners interest
for Wyndham class A common stock, resulted in an adjustment to the basis of
certain assets in accordance with Emerging Issues Task Force ("EITF") 95-7.
This adjustment in reflected in the accompanying balance sheet as a reduction
in the basis of the Company's investment in real estate and related
improvements of $37,150, investment in unconsolidated subsidiaries of $2,562
and goodwill and intangibles of $78,433.
As of December 31, 1999, the Patriot Partnership had a total of 179,317,058
OP Units outstanding of which 178,147,092 OP Units were held by Patriot and
1,169,966 OP Units were held by minority partners, which represent the
minority interest in the Patriot Partnership. The Wyndham Partnership had a
total of 176,996,594 OP Units outstanding as of December 31, 1999, of which
175,826,628 OP Units were held by Wyndham International and 1,169,966 OP Units
were held by minority partners which represent the minority interest in the
Wyndham Partnership.
13. Shareholders' Equity:
Capital Stock
On June 30, 1999, Wyndham and Patriot completed a $1 billion equity
investment and related restructuring (the "Restructuring") of the two
companies in accordance with the terms of the Securities Purchase Agreement
and related Restructuring Plan between the Wyndham and Patriot and the
investors.
As required by the Restructuring Plan, Wyndham and Patriot each effectuated
a one-for-twenty reverse stock split (the "Reverse Stock Splits") of their
respective common stock. In addition, the Amended and Restated Certificate of
Incorporation of Wyndham was also further amended and restated (the "Wyndham
Charter Amendment") so that each share of Wyndham common stock, par value
$0.01 per share, issued and outstanding immediately prior to the effectiveness
of the Wyndham Charter Amendment was automatically converted into one share of
Wyndham class A common stock, par value $0.01 per share.
F-36
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
Under the terms of the Agreement and Plan of Merger (the "Merger
Agreement"), dated as of March 26, 1999, by and among Patriot, Wyndham and
Wyndham International Acquisition Subsidiary, Inc. ("Acquisition Sub"),
Acquisition Sub was merged with and into Patriot (the "Merger"). As a result
of the Merger, Patriot became a wholly-owned subsidiary of Wyndham. Each
outstanding share of common stock of Acquisition Sub was converted into one
share of the common stock of Patriot, $0.01 par value per share ("Patriot
Common Stock"). Pursuant to the Merger Agreement each share of Patriot common
stock was then converted into 19 shares of Wyndham common stock.
Prior to the Restructuring, the shares of common stock of Wyndham and shares
of common stock of Patriot were "paired" pursuant to a pairing agreement and
traded together as a single unit. The pairing agreement between the companies
was terminated as part of the Restructuring. The end result of the Reverse
Stock Splits, the Wyndham Charter Amendment and the Merger was to convert each
previously outstanding paired share into one share of Wyndham class A common
stock.
The Company has the authority to issue 750,000,000 shares of class A common
stock, 750,000,000 shares of class B common stock, par value $0.01 per share,
and 150,000,000 shares of preferred stock, par value $0.01.
Effective June 30, 1999, Wyndham completed a $1 billion equity investment
with a group of investors. Pursuant to the terms of this investment, Wyndham
issued 9.55 million shares of series B preferred stock in exchange for gross
proceeds of $955,000. On July 1, 1999, the remaining $45,000 was funded
through the transfer of one of the investor's loan receivable from PAH Realty
Company, LLC, a subsidiary of Patriot, which is secured by a mortgage on the
Battery March Hotel, to Wyndham for the purchase of 450,000 shares of series B
preferred stock. Wyndham has incurred approximately $77,571 in costs
attributable to the equity investment. This series B preferred stock has the
following terms, among others:
. dividends payable quarterly, on a cumulative basis, at a rate of 9.75%
per year;
. for the first six years, the dividends are structured to ensure an
aggregate fixed cash dividend payment of $29,250 per year, so long as
there is no redemption or conversion of the series B preferred stock;
therefore, for that period, dividends are payable partly in cash and
partly in additional shares of series B preferred stock, with the cash
component initially equal to 30% for the first dividend and declining
over the period to approximately 19.8% for the final dividend in year
six;
. for the next four years, dividends are payable in cash or additional
shares of series B preferred stock as determined by the Board of
Directors; and, after year 10, dividends are payable solely in cash;
. if any dividends are paid on the Wyndham class A common stock,
additional dividends will be paid in the amount that would have been
paid on the shares of Wyndham class A common stock into which the series
B preferred stock is then convertible;
. if a change in control or a liquidation of Wyndham occurs within six
years following the investment, any dividends remaining for the six
years will be accelerated and paid;
. not redeemable by Wyndham for six years, except that up to $300 million
of the series B preferred stock may be redeemed during the 170 day
period following the closing of the investment;
. voting with the Wyndham common stock on an as-converted basis on matters
submitted to the common stockholders and voting as a separate class on
specified matters, with special rules applying to the election of
directors; and
. convertible, at the holder's option, into a number of shares of Wyndham
class B common stock equal to $100.00 divided by the conversion price,
initially equal to $8.59 but subject to potential downward adjustments.
F-37
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
The investors will also have preemptive rights for the first five years
following their investment as long as they own more than 15% of the Wyndham
common stock.
As noted above, for a period of 170 days following the completion of the
investment, Wyndham may redeem up to $300 million of the series B preferred
stock at a redemption price of $102.00 per share (102% of the stated amount)
plus all accrued dividends.
In the fall of 1999, Wyndham issued to the holders of its class A common
stock and holders of OP units in the Operating Partnerships rights to
subscribe for up to $300 million of series A preferred stock, with the
proceeds from the offering to be used to redeem a portion of the series B
preferred stock. The rights offering was completed December 13, 1999 with the
issuance by Wyndham of 55,992 shares of series A preferred stock in exchange
for gross proceeds of $5,599. Wyndham has incurred approximately $1,151 in
costs attributable to the issuance of this stock. Wyndham used these proceeds
to redeem 55,992 shares of series B preferred stock at a redemption price of
$102.00 per share and accrued dividends of $2.0583 per share, or an aggregate
of $5,826 in cash. The series A preferred stock, generally has the same
economic terms as the series B preferred stock but has no voting rights,
except as required by law and except for a limited right to elect two
directors if dividends are in arrears for six quarterly periods.
Shareholders Rights Agreement
Wyndham is party to a Shareholder Rights Agreement dated as of June 29, 1999
(the "Rights Agreement"). Pursuant to the Rights Agreement, the Board of
Directors of Wyndham declared (a) for each outstanding share of common stock
of Wyndham outstanding on July 9, 1999 (the "Record Date"), a dividend
distribution of one preferred stock purchase right (a "Right"), and (b) for
each outstanding share of Wyndham series A or series B preferred stock
outstanding on the Record Date, a dividend distribution of a number of Rights
equal to the number of shares of common stock into which each such share is
convertible. In addition, Rights will automatically attach to each share of
common stock, series A preferred stock and series B preferred issued between
the Record Date and the Distribution Date (as defined in the Rights
Agreement). Each Right entitles the registered holder thereof to purchase from
Wyndham one one-thousandth of a share of series C participating preferred
stock, par value $0.01 per share, at a cash exercise price of $35.00, subject
to adjustment. The Rights may only become exercisable under certain
circumstances involving actual or potential acquisitions of beneficial
ownership of 15% or more of the class A common stock, subject to certain
exceptions. The Rights will expire in June 2009 unless earlier exercised or
redeemed.
Dividends and Stock Splits
On December 23, 1997, Patriot declared a $0.2981 per common share dividend
to holders of record on January 5, 1998. Patriot paid dividends of $0.2446 per
common share for each of the first three quarters of 1997. In addition, in
connection with the Cal Jockey Merger, Patriot also declared a special
dividend of $0.0559 per common share payable to holders of record on June 27,
1997, which was paid on June 30, 1997. Concurrent with each of the dividend
declarations, the Operating Partnerships authorized distributions in the same
amount on outstanding OP units.
On October 5, 1998, Patriot made a significant capital contribution to Old
Wyndham to facilitate an acquisition by Old Wyndham. This contribution
resulted in a "deemed distribution" for tax purposes to Patriot's
shareholders of common stock of $0.7081 per share. No cash was actually
distributed to the shareholders. However, for tax purposes the distribution is
treated by shareholders as though cash was received and then contributed to
Wyndham.
F-38
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
On May 4, 1998, Patriot declared a $0.2981 per common share dividend to
holders of record on May 20, 1998 and on July 28, 1998, Patriot declared a
$0.2981 per common share dividend to holders of record on August 10, 1998.
On December 22, 1998, Patriot declared a stock dividend of $0.44 cents per
share of share common stock for the fourth quarter of 1998. The dividend was
paid on January 25, 1999 to shareholders of record on December 30, 1998. Each
shareholder received the option to receive the dividend in the form of
additional paired shares or shares of Series B Cumulative Perpetual Preferred
Stock, par value $.01 per share, of Patriot. Pursuant to the merger of a
wholly-owned subsidiary of Old Wyndham with Patriot on June 30, 1999, each
outstanding share of Patriot series B preferred stock was converted into $25
per share and $1.61 of accrued dividends, or an aggregate of $14,862 in cash.
Stock Incentive Plans
The Company has adopted certain employee incentive programs for the purpose
(i) attracting and retaining employees, directors and others, (ii) providing
incentives to those deemed important to the success of the Company and (iii)
associating the interests of these individuals with the interests of the
Company and its shareholders through opportunities for increased stock
ownership. Certain of the stock options and restricted stock grants issued
under the incentive stock programs vested and became non-forfeitable with
consummation of the $1 billion equity investment.
The 1997 Incentive Plans. Prior to their amendment in 1999, the 1997
Incentive Plans provided for the award of stock options, stock awards or
performance shares to each eligible employee and director of Patriot and Old
Wyndham. Under each 1997 Incentive Plan, the aggregate number of paired shares
available for grants of awards was the sum of (i) 3,000,000 paired shares plus
(ii) 10% of any future net increase in the total number of shares of paired
common stock.
Under the 1997 Incentive Plans, each independent director could elect to
take all or a portion of his/her fees in the form of deferred paired share
units. Prior to the amendment in 1999, the independent directors of Patriot
and Old Wyndham were automatically granted a non-qualified stock option,
immediately exercisable in full, to acquire 10,000 paired shares at an
exercise price per paired share equal to the fair market value of a paired
share on the date of grant. Option terms were fixed by the Compensation
Committees of Patriot and Old Wyndham and may not exceed ten years from the
date of grant.
On June 29, 1999, the 1997 Incentive Plans were amended, as a result of
Patriot's merger into Wyndham. As part of the merger, Wyndham assumed
Patriot's obligations under each existing option to purchase shares of Patriot
common stock that was outstanding immediately prior to the merger. The assumed
options did not terminate in connection with the merger and continue to have,
and be subject to, the same terms and conditions set forth in the stock option
plans and agreements in effect immediately prior to the merger. All references
to Patriot in the assumed options are now deemed to be references to Wyndham
and each option is exercisable for one share of Wyndham class A common stock.
Stock Grant Awards
During 1997, pursuant to the Incentive Plans, the Board of Directors awarded
547,867 paired shares of common stock to certain officers of Patriot and Old
Wyndham. In 1999, an additional 121,053 shares were
awarded to an officer of the Company. The Company recorded a total of $611 and
$12,897 (the aggregate value of the common stock based on the market price at
the date of the award) as unearned stock compensation in
F-39
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
1999 and 1997, respectively, which is being amortized over the vesting periods
of one to five years. For 1999, 1998 and 1997, $5,850, $7,622 and $4,686,
respectively, of amortization of stock compensation related to stock grants
and is included in general and administrative expense in the accompanying
consolidated financial statements.
During 1999 and 1998, pursuant to the 1997 Incentive Plans, the Board of
Directors awarded 1,036,332 and 331,755 restricted awards, respectively, to
certain officers of the Company. The Company has recorded and $10,004 and
$1,613 in 1999 and 1998, respectively, related to the restricted awards and
such amount is included in general and administrative expense in the
accompanying consolidated financial statements.
Upon the consummation of the $1 billion equity investment, certain of the
stock grants and restricted awards issued under the incentive stock programs
fully vested. The deferred compensation expense of $6,987 has been fully
recognized in general and administrative expense in 1999, as a result of the
accelerated vesting of these certain awards.
Stock Option Awards
As of December 31, 1999, pursuant to the incentive plans of the Company has
authorized the grant of options for up to 15,796,404 shares with exercise
prices of $2.6875 to $30.40 per share. As of December 31, 1999, 2,928,904
options were vested. During 1999, no options were exercised. During 1998, a
total of 1,299,250 shares were issued pursuant to exercise of options (at
exercises prices ranging from $11.18 to 17.82) resulting in net proceeds of
$15,274. During 1997, a total of 338,604 shares were issued pursuant to
exercise of options (at prices ranging from $5.13 to $13.28) resulting in net
proceeds of $2,307.
Wyndham Stock Option Exchange Program
In connection with the stock option exchange program in 1998, all optionees,
other than the directors and the top two executive officers, were given the
opportunity to exchange certain options for new options which have a Black-
Scholes value equal to the old options, but were for fewer shares, at the then
current stock price with the same term as the remaining term of the old
options.
SFAS No. 123 "Accounting for Stock-Based Compensation"
Pro forma information regarding net income and earnings per share is
required by SFAS No. 123, which also requires that the information be
determined as if the Company had accounted for their compensatory employee
stock options under the fair value method of that Statement. The fair value
for these options was estimated at the date of grant using a Black-Scholes
option pricing model with the following weight-average assumptions for 1999,
1998 and 1997, respectively: risk-free interest rates of 5.78%, 5.31% and
6.61%; and dividend yields of 0%, 6%, 6% for 1999, 1998 and 1997; volatility
factors of the expected market price of the Company's common stock of 0.596,
0.735 and 0.389 and a weighted average expected life of the options of 4
years, 4 years and 4 years.
The Black-Scholes option valuation model was developed for use in estimating
the fair market value of traded options which have no vesting restrictions and
are fully transferable. In addition, option valuation models require the input
of highly subjective assumptions including the expected stock price
volatility. Because the Company's employee stock options have characteristics
significantly different from those of traded options, and because changes in
the subjective input assumptions can materially affect the air value estimate,
in management's
F-40
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
opinion, the existing models do not necessarily provide a reliable single
measure of the fair value of its employee stock options that have vesting
periods and are non-transferable.
For purposes of pro forma disclosures, the estimated fair value of the
options is amortized to expense over the options' vesting period. The
Company's pro forma information is as follows:
<TABLE>
<CAPTION>
1999 1998 1997
----------- --------- -------
<S> <C> <C> <C>
Basic
Pro forma net loss attributable to common
shareholders............................. $(1,146,361) $(185,566) $(4,949)
Pro forma loss per share:................. $ (7.11) $ (1.35) $ (0.08)
Diluted
Pro forma net loss attributable to common
shareholders............................. $(1,166,311) $(352,807) $(4,949)
Pro forma loss per share:................. $ (7.23) $ (2.56) $ (0.09)
</TABLE>
A summary of the Company's stock option activity, and related information
for the years ended December 31 is as follows:
<TABLE>
<CAPTION>
1999 1998 1997
------------------- ------------------- -------------------
# of Weighted # of Weighted # of Weighted
Underlying Average Underlying Average Underlying Average
Options Exercise Options Exercise Options Exercise
(000's) Price (000's) Price (000's) Price
---------- -------- ---------- -------- ---------- --------
<S> <C> <C> <C> <C> <C> <C>
Outstanding, beginning
of year................ 7,717 $19.28 6,241 $20.82 1,584 $11.54
Granted................. 11,450 4.69 3,997 17.50 4,692 24.51
Exercised............... -- -- (578) 11.38 (6) 12.89
Forfeited............... (4,757) 22.04 (1,943) 23.48 (29) 12.85
------ ------ ------ ------ ----- ------
Outstanding, end of
year................... 14,410 6.57 7,717 19.28 6,241 20.82
====== ====== =====
Exercisable at end of
year................... 3,996 $10.77 3,746 $10.75 972 $14.89
Weighted average fair
value of options
granted during year.... $ 0.95 $ 7.70 $ 4.28
</TABLE>
Exercise prices for options outstanding as of December 31, 1999 ranged from
$2.6875 to $30.40. The weighted average remaining contractual life of those
options was 8.5 years. Exercise prices for options outstanding as of December
31, 1998 ranged from $7.55 to $33.58. The weighted average remaining
contractual life of those options was eight years. Exercise prices for options
as of December 31, 1997 ranged from $11.18 to $33.58. The weighted average
remaining contractual life of those options was nine years.
F-41
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
14. Income Taxes:
The income tax provision of Wyndham for the years ended December 31, 1999,
1998 and 1997 respectively consists of the following:
<TABLE>
<CAPTION>
1999 1998 1997
-------- -------- ----
<S> <C> <C> <C>
Current:
Federal.......................................... $ 15,500 $ 25,272 $199
State............................................ 3,475 4,948 130
-------- -------- ----
Total current...................................... 18,975 30,220 329
-------- -------- ----
Deferred:
Federal.......................................... 546,983 (11,982) 136
State............................................ (1,447) (1,535) 16
-------- -------- ----
Total deferred..................................... 545,536 (13,517) 152
-------- -------- ----
Total income tax expense....................... $564,511 $ 16,703 $481
======== ======== ====
</TABLE>
The reason for the difference between total tax expense and the amount
computed by applying the statutory Federal income tax rate of 35% to income
before income taxes is as follows:
<TABLE>
<CAPTION>
1999 1998 1997
--------- -------- ----
<S> <C> <C> <C>
Tax at statutory rate............................. $(171,967) $(50,661) $127
State income taxes................................ 2,028 3,413 118
Valuation allowance............................... 7,625 17,866 --
Assets held for sale.............................. -- 7,573 --
Goodwill.......................................... 34,387 5,330 --
Lease buyout costs................................ -- 20,033 --
REIT Income not taxed............................. -- 22,835 --
One time Charge C-Corp Conversion................. 675,000 -- --
Minority interest and other....................... 17,438 (9,686) 236
--------- -------- ----
Total income tax expense...................... $ 564,511 $ 16,703 $481
========= ======== ====
</TABLE>
F-42
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. On January 1, 1999,
Patriot, previously a REIT (non-taxable entity), converted to a C-corporation
and is now a subsidiary of Wyndham. Upon the conversion of the REIT to a C-
corporation, Wyndham recognized a deferred tax liability of $675,000 which was
recognized in continuing operations as a tax provision. Significant components
of Wyndham's deferred tax assets and liabilities for the year ended December
31, 1999 and 1998, respectively are as follows:
<TABLE>
<CAPTION>
1999 1998
--------- ---------
<S> <C> <C>
Deferred tax assets:
Net operating losses................................ $ 67,292 $ 21,221
Disposition of assets............................... 1,641 887
Other non-current assets............................ 31,224 8,569
--------- ---------
Total deferred tax assets......................... 100,157 30,677
Valuation allowance................................. (25,491) (17,866)
--------- ---------
Net deferred asset.............................. 74,666 $ 12,811
========= =========
Deferred tax liabilities:
Depreciation........................................ (662,482) (64,666)
Management contracts and tradenames................. (65,277) (70,319)
Other non-current liabilities....................... (3,071) (1,289)
--------- ---------
Total deferred tax liabilities.................... (730,830) (136,274)
--------- ---------
Net deferred income tax liability............... $(656,164) $(123,463)
========= =========
</TABLE>
As of December 31, 1999, Wyndham and certain affiliated subsidiaries have
net operating loss carryforwards for federal income tax purposes of
approximately $107,053 from 1999 and $85,324 from 1998 which are available to
offset future taxable income, if any, through 2018 and 2019, respectively.
15. Employee Benefit Plans:
The Company sponsors 401(K) retirement savings plans. Employees who are over
21 years of age and have completed one year of service are eligible to
participate in the plans. The Company matches 50% of employee contributions up
to 4% of an employee's salary. The aggregate expense under the plans totaled
$506 and $511 for 1999 and 1998 respectively. No plans were in effect prior to
1998.
The Company maintains a self-insured group health plan through a Voluntary
Employee Benefit Association referred to hereinafter as VEBA. The plan is
funded to the limits provided by the Internal Revenue Service, and liabilities
have been recorded for estimated incurred but unreported claims. Aggregate and
stop loss insurance exists at amounts which limit exposure to the Company. The
Company has recognized expense related to the plan of $2,415 and $2,313 for
1999 and 1998, respectively. No plan such as this was in effect prior to 1998.
16. Fair Value of Financial Instruments:
SFAS No. 107 requires disclosures about the fair value for all financial
instruments, whether or not recognized, for financial statement purposes.
Disclosures about fair value of financial instruments are based on pertinent
information available to management as of December 31, 1999. Considerable
judgment is necessary to interpret market data and develop estimated fair
value. Accordingly, the estimates presented herein are not necessarily
indicative of the amounts that could be realized on disposition of the
financial instruments. The use of different market assumptions and/or
estimation methodologies may have a material effect on the estimated fair
value amounts.
F-43
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
Management estimates the fair value of (i) accounts receivable, accounts
payable and accrued expenses approximate carrying value due to the relatively
short maturity of these instruments; (ii) the notes receivable approximate
carrying value based upon effective borrowing rates for issuance of debt with
similar terms and remaining maturities; and (iii) the borrowings under the
Credit Facility, Term Loan and various other mortgage notes approximate
carrying value because these borrowings accrue interest at floating interest
rates based on market or accrue interest at fixed rates which approximate
market rates.
The Company manages its debt portfolio by using interest rate caps and swaps
to achieve an overall desired position of fixed and floating rates. The fair
value of interest rate hedge contracts is estimated based on quotes from the
market makers of these instruments and represents the estimated amounts the
Company would expect to receive or pay to terminate the contracts. Credit and
market risk exposures are limited to the net interest differentials. The
estimated unrealized net gain on the these instruments was approximately
$14,553 at December 31, 1999, which represents the amount the Company would
receive to terminate the agreements based on current market rates.
17. Segment Reporting:
The Company classifies its business into proprietary owned brands and non-
proprietary brand hotel divisions, under which it manages the business.
Among its proprietary branded hotels, the Company is positioned in the
luxury segment under the Wyndham Luxury Resorts brand; in the upscale segment
under Wyndham(TM); and in mid-priced segment under the ClubHouse brand.
Additionally, the Company offers proprietary branded all-suite accommodations
through its upscale Summerfield Suites(R) brand and its mid-priced Sierra
Suites(R) brand. Other proprietary hotel brands owned and developed by the
Company include Malmaison and Grand Heritage(R).
Description of reportable segments
The Company has six reportable segments: Wyndham hotel properties, resort
properties, all suite properties, non-proprietary branded properties and other
proprietary branded hotel properties and other.
. Wyndham hotel properties include Wyndham Hotels, Wyndham Gardens and
Wyndham Grand Heritage. The Wyndham hotel properties are full-service
properties that generally offer a full range of meeting and conference
facilities and banquet space. Facilities generally include restaurants
and lounge areas, gift shops and recreational facilities, including
swimming pools. Full-service hotels generally provide a significant
array of guest services, including room service, valet services and
laundry.
. Resort properties include Wyndham Resorts, Wyndham Luxury Resort
properties and other resort properties. Resorts are designed to offer
unique destinations which appeal to today's sophisticated vacation
traveler and to blend with their environment, enhancing the natural
surroundings with design that fits the locale. Each resort's
recreational activities are of the highest caliber and are designed to
capitalize on the natural attractions of the location. Many offer a
combination of golf, tennis, skiing, health spa, hiking and other
sports.
. All suite properties include the Summerfield and Sierra Suite
properties. The Summerfield and Sierra Suite properties generally target
the business travelers who usually anticipate a one to two week stay.
The suites generally have limited public space and offer limited food
and beverage service. However, the suites provide guests with larger
rooms and workspace.
F-44
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
. Non-proprietary branded properties include all properties which are not
Wyndham hotel properties, resort properties, all suite properties or
other proprietary branded properties. The properties consist of non
Wyndham branded assets such as: Crowne Plaza(R), Radisson(R), Hilton(R),
Hyatt(R), Four Points by Sheraton(R), Holiday Inn(R), DoubleTree(R),
Embassy Suites(R), Marriott(R), Courtyard by Marriott(R), and
independents.
. Other proprietary branded hotel properties include Malmaison, Grand
Heritage, ClubHouse and hotels acquired in the Arcadian Acquisition.
. Other includes participating lease revenues, racecourse facility revenue
and expenses, management fee and service fee income, interest and other
income, general and administrative costs, interest expense, depreciation
and amortization and other one-time charges. General and administrative
costs, interest expenses and depreciation and amortization are not
allocated to each reportable segment; therefore, they are reported in
the aggregate within this segment.
Measurement of segment profit or loss and segment assets
The Company evaluates performance based on the operating income or loss from
each business segment. The accounting policies of the reportable segments are
the same as those described in the summary of significant accounting policies.
The following tables represent summarized financial data by reportable
segments.
Factors management used to identify the reportable segments
The Company's reportable segments are determined by brand affiliation and
type of property. The reportable segments are each managed separately due to
the specific characteristics of each segment.
<TABLE>
<CAPTION>
Non- Other
Year ended Wyndham Suite proprietary proprietary
December 31, 1999 Hotels Resorts properties branded branded Other(1) Total
----------------- ---------- ---------- ---------- ----------- ----------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Total revenue........... $ 568,584 $ 520,813 $138,900 $1,085,080 $ 95,669 $ 86,289 $2,495,335
Operating income
(loss)................. 149,688 120,254 27,059 259,616 27,405 (1,067,611) (483,589)
Segment assets.......... 1,522,041 1,022,187 262,595 2,858,620 190,789 1,147,258 7,003,490
Capital additions....... 56,618 19,089 73,065 20,270 18,778 46,896 234,716
- --------
(1) Operating income (loss) for 1999 includes $285,267 of restructuring
charges and $70,912 of impairment loss on assets held for sale.
<CAPTION>
Non- Other
Year ended Wyndham Suite proprietary proprietary
December 31, 1998 Hotels Resorts properties branded branded Other(2) Total
----------------- ---------- ---------- ---------- ----------- ----------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Total revenue........... $ 610,523 $ 315,674 $ 74,333 $ 761,154 $ 80,998 $ 213,659 $2,056,341
Operating income
(loss)................. 153,723 76,349 14,690 183,703 26,492 (576,963) (122,006)
Segment assets.......... 1,461,037 900,431 245,578 2,906,527 297,609 1,604,488 7,415,670
Capital additions....... 635,853 544,060 204,292 1,930,121 296,769 16,264 3,627,359
</TABLE>
- --------
(2) Operating income (loss) for 1998 includes unusual items related to the
treasury rate lock settlement of $49,334 and the cost of reacquiring
leaseholds of $64,407.
F-45
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
<TABLE>
<CAPTION>
Non- Other
Year ended Wyndham Suite proprietary proprietary
December 31, 1997(3) Hotels Resorts properties branded branded Other(4) Total
-------------------- -------- -------- ---------- ----------- ----------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Total revenue........... $ 10,711 $ 30,334 $-- $115,223 $ 9,595 $169,172 $ 335,035
Operating income
(loss)................. 2,388 6,628 -- 29,947 1,436 (42,272) (1,873)
Segment assets.......... 435,452 348,013 -- 795,679 47,999 880,710 2,507,853
Capital additions....... 366,280 311,378 -- 577,788 25,287 125,946 1,406,679
</TABLE>
- --------
(3) Total revenue and operating income (loss) for the reportable segments is
reported for the six months ended December 31, 1997. Prior to July 1,
1997, revenue and operating income (loss) related to the operations of the
hotel properties was reported by the third party lessees who operated the
properties pursuant to participating leases.
(4) Operating income (loss) for 1997 includes unusual items related to the
cost of reacquiring leaseholds of $54,499.
The following table represents revenue and long-lived asset information by
geographic area as of and for the period ending December 31, 1999 and 1998.
Revenues are attributed to the United States and its territories and Europe
based on the location of hotel properties. The hotel properties in Europe were
acquired on April 6, 1998 with the Arcadian acquisition. Prior to this date,
all of the Company's business was attributed to hotel properties located in
the United States and its territories.
<TABLE>
<CAPTION>
1999 United States Europe Total
---- ------------- -------- ----------
<S> <C> <C> <C>
Revenues................................. $2,419,318 $ 76,017 $2,495,335
Segment assets........................... 6,778,228 225,262 7,003,490
</TABLE>
<TABLE>
<CAPTION>
1998 United States Europe Total
---- ------------- -------- ----------
<S> <C> <C> <C>
Revenues................................. $2,034,949 $ 21,392 $2,056,341
Segment assets........................... 7,157,617 258,053 7,415,670
</TABLE>
18. Non-cash Investing and Financing Activities:
In connection with the Cal Jockey Merger, the acquisition of management
companies, hotel properties and other operations assets, the Company issued
common stock, preferred stock, options and OP units in exchange for net assets
as follows:
<TABLE>
<CAPTION>
1999 1998 1997
------- ---------- --------
<S> <C> <C> <C>
Wyndham International......................... $99,338 $1,698,542 $449,415
</TABLE>
F-46
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
19. Quarterly Financial Information (unaudited):
<TABLE>
<CAPTION>
1999 1998 1997
--------- -------- --------
<S> <C> <C> <C>
First Quarter:
Total revenue.................................... $ 673,850 $349,807 $ 35,388
Income before extraordinary item................. $ 572 $ 37,128 $ 11,348
Net income....................................... $ 572 $ 18,412 $ 11,348
Net income per share:
Basic.......................................... $ (0.05) $ 0.17 $ 0.21
Diluted........................................ $ (0.13) $ 0.16 $ 0.21
Weighted average number of shares:
Basic.......................................... 154,990 109,549 53,248
Diluted........................................ 154,990 117,090 54,613
Second Quarter:
Total revenue(4)................................. $ 651,153 $465,463 $ 37,730
(Loss) income before extraordinary item(3)....... $(867,392) $(14,411) $ 11,818
Net (loss) income................................ $(877,230) $(26,254) $ 11,818
Net (loss) income per share:
Basic.......................................... $ (5.71) $ (0.21) $ 0.22
Diluted........................................ $ (5.76) $ (0.21) $ 0.21
Weighted average number of shares:
Basic.......................................... 155,687 132,804 53,382
Diluted........................................ 155,687 132,804 55,029
Third Quarter:
Total revenue.................................... $ 579,281 $603,850 $ 81,638
(Loss) income before extraordinary item(1)........$.(44,565).$(58,158) $(24,470)
Net (loss) income................................ $ (44,565) $(59,415) $(27,004)
Net (loss) income per share:
Basic.......................................... $ (0.41) $ (0.40) $ (0.38)
Diluted........................................ $ (0.41) $ (1.02) $ (0.38)
Weighted average number of shares:
Basic.......................................... 166,954 154,510 71,706
Diluted........................................ 166,954 154,510 71,706
Fourth Quarter:
Total revenue.................................... $ 593,826 $630,259 $180,279
(Loss) income before extraordinary item (2),
(4)............................................. $(150,746) $(90,968) $ 1,666
Net (loss) income................................ $(150,746) $(90,968) $ 1,666
Net (loss) income per share:.....................
Basic.......................................... $ (1.05) $ (0.65) $ 0.02
Diluted........................................ $ (1.05) $ (1.01) $ 0.02
Weighted average number of shares:
Basic.......................................... 167,192 154,139 78,346
Diluted........................................ 167,192 154,139 80,915
</TABLE>
- --------
(1) Loss (income) before extraordinary item for the third quarter includes the
cost the Treasury Lock Settlement, a non-recurring expense of $49,225.
(2) Loss (income) before extraordinary item for the fourth quarter of 1998
includes impairment in value of assets held for sale of $51,081.
(3) Loss (income) before extraordinary item for the second quarter of 1999
includes a restructuring charge of $185,382 and income tax provision
includes a reorganization charge of $675,000.
(4) In the second quarter of 1999, $2,775 of gains on the sale of assets were
reclassified from revenue, and netted against expense for financial
statement presentation.
(5) Loss (income) before extraordinary item for the fourth quarter of 1999
includes the following:
A restructuring charge of $95,979
Impairment in value of assets held for sale of $70,912
F-47
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
20. Pro Forma Results of Operations (unaudited):
The following unaudited pro forma results of operations of Wyndham are
presented as if (i) the merger and acquisition of the WHG Casinos and Resorts
and related third party minority interests consummated in January 1998 and the
acquisition of the remaining minority interests completed in March and July
1998, the acquisition included the Condado Plaza Hotel & Casino, El San Juan
Hotel and Casino and the El Conquistador Hotel and Casino and the management
company for the three resorts, located in San Juan, Puerto Rico, the
acquisition of the Buena Vista Hotel located in Orlando, Florida in January
1998, and the acquisition of the Golden Door Spa located in Escondido,
California in June 1998; (ii) the acquisition of Arcadian International
Limited and the Malmaison Group including 10 hotels, land held for
developments and the proprietary Malmaison brand in April 1998; (iii) the
merger of Interstate Hotels Company with and into Patriot and the related
financing in June 1998; (iv) the acquisition of the partnership interests in
SF Hotel Company, L.P. in June 1998, which included four hotels, 24 management
and leasehold interests, 12 management contracts and the proprietary brand
names Summerfield Suites, Sierra Suites and Sunrise Sierra Suites; (v) the
merger of the hospitality related businesses of CHC International with and
into Wyndham in June 1998 including the remaining 50% interest in GAH-II,
L.P., the remaining 17 leases and 16 management contracts related to Patriot
Hotels leased by CHC Lease Partners, 10 management and asset management
contracts and the Grand Bay proprietary brand name (vi) the $1 billion equity
investment, (vii) the restructuring of Patriot and Old Wyndham (viii) the new
debt financing, and (ix) the Interstate spin-off which occurred in 1999 and
1998 had occurred on January 1, 1998. The 1999 historical financial statements
represent in all material respects the effect of the above transactions as if
they had occurred as of the beginning of the period. As such no pro forma
financial statements have been presented.
The following unaudited pro forma financial information is not necessarily
indicative of what actual results of operations of Wyndham would have been
assuming such transactions had been completed as of January 1, 1998, nor do
they purport to represent the results of operations for future periods.
<TABLE>
<CAPTION>
1998
----------
<S> <C>
Total revenue................................................. $2,317,759
Net loss: .................................................... $ (108,812)
Basic loss per share: ........................................ $ (1.26)
==========
Diluted loss per share........................................ $ (1.26)
==========
Weighted average number of shares............................. $ 165,663
==========
</TABLE>
21. Subsequent Events:
In January 2000, Wyndham acquired the remaining interests in Wyndham Chicago
from Oxford Blackpoint Company II, LLC, for approximately $20,626.
In March 2000, Wyndham sold its Sierra Suites(R) hotel brand, properties and
related assets to Sierra Suites Hotel Company, L.P., an entity affiliated with
Mr. Rolf Ruhfus, a director of Wyndham, for approximately $53,000. The
transaction includes the sale by Wyndham of one owned and three leased
properties, seventeen franchise and management contracts for Sierra Suites(R)
and nine contracts for Summerfield Suites.
F-48
<PAGE>
WYNDHAM INTERNATIONAL, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(dollars in thousands, except share amounts)
In March 2000, the Company entered into three additional interest rate
hedges for a total notional amount of $1.5 billion. The hedges are structured
such that each hedge has a series of trigger levels in which the hedge can
become ineffective for any reset period that the 1-month LIBOR rises above the
trigger level. If LIBOR resets below the trigger level, the hedge becomes
effective again. The Company paid approximately $34.3 million in premiums,
which will be amortized over the terms of the contracts, to enter into these
transactions. The hedges are as follows:
<TABLE>
<CAPTION>
Hedge Notional Amount Terms Rate Trigger Level
----- --------------- -------- ---------- -------------
<S> <C> <C> <C> <C>
Interest Rate Swap......... $700 million 5 years 6.1%-6.75% 7.0%-8.5%
Interest Cap............... $250 million 3 years 4.75% 7.5%
Interest Corridor.......... $550 million 3 years 5.25% 7.5%
In addition, the Company shortened the terms of three existing hedges and
received net proceeds of approximately $6.8 million. The hedges were as
follows:
<CAPTION>
Original Revised
Hedge Notional Amount Maturity Maturity Rate
----- --------------- -------- ---------- -------------
<S> <C> <C> <C> <C>
Interest Rate Swap......... $375 million 11/01/02 3/01/02 6.26%
Interest Rate Swap......... $125 million 11/01/02 3/01/02 5.56%
Interest Rate Swap......... $250 million 06/01/03 3/01/02 5.84%
</TABLE>
On March 27, 2000, the Company announced that its Board of Directors has
named president Fred J. Kleisner to the additional position of chief executive
officer. He succeeds James D. Carreker, who will remain as chairman.
Additionally, Wyndham accepted the resignations of two senior officers, Anne
L. Raymond, executive vice president and chief investment officer, and Stanley
M. Koonce, Jr. executive vice president and chief administrative officer.
David Johnson, president of the Wyndham hotel division, has been named
executive vice president, sales and marketing.
F-49
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
Board of Directors and Shareholders
Wyndham International, Inc.
Our audit of the consolidated financial statements referred to in our report
dated February 15, 2000 appearing in the 1999 Annual Report to Shareholders of
Wyndham International Inc. (which report and consolidated financial statements
are included in this Annual Report on Form 10-K) also included an audit of the
financial statement schedules listed in Item 14(a) of this Form 10-K. In our
opinion, this financial statement schedule presents fairly, in all material
respects, the information set forth therein when read in conjunction with the
related consolidated financial statements.
/s/ PricewaterhouseCoopers LLP
Dallas, Texas
February 15, 2000
F-50
<PAGE>
WYNDHAM INTERNATIONAL, INC.
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION
As of December 31, 1999
<TABLE>
<CAPTION>
Costs Capitalized Gross Amounts
Subsequent at Which Carried at
Initial Cost to Acquisition Close of Period(a)
--------------------- ------------------- ---------------------------------
Buildings
and Buildings and
Description Encumbrances Land Improvements Land Improvements Land Improvements Total
----------- ------------ -------- ------------ ------ ------------ -------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Wyndham Brand
Properties:
Wyndham Atlanta
Downtown
Atlanta,
Georgia......... $ 24,241 $ 3,500 $ 12,712 $ -- $ 19,838 $ 3,500 $ 32,550 $ 36,050
Wyndham
Arlington
Arlington,
Texas........... -- -- 63,045 -- 91 -- 63,136 63,136
Wyndham Bel Age
Hotel
Los Angeles,
California...... (d) 5,653 32,212 -- 107 5,653 32,319 37,972
Wyndham Bristol
Palace Hotel
Toronto,
Canada.......... -- 3,048 15,503 -- -- 3,048 15,503 18,551
Wyndham Boston
Boston,
Massachusetts... -- -- 33,900 7,458 42,178 7,458 76,078 83,536
Wyndham Boston
Andover
Andover,
Massachusetts... -- 2,318 33,245 -- 3,305 2,318 36,550 38,868
Wyndham Boston
Westborough
Westborough,
Massachusetts... -- 1,500 41,968 -- 129 1,500 42,097 43,597
Wyndham Buena
Vista Palace
Resort & Spa
Orlando,
Florida......... 48,205 -- 144,264 -- 1,556 -- 145,820 145,820
Wyndham Buttes
Resort
Tempe, Arizona.. (d) -- 55,297 -- 165 -- 55,462 55,462
Wyndham Canal
Place
New Orleans,
Louisiana....... -- 12,750 86,141 -- 847 12,750 86,988 99,738
Wyndham City
Centre
Washington
District of
Columbia........ -- 3,675 30,569 -- 91 3,675 30,660 34,335
Wyndham Colorado
Springs
Colorado
Springs,
Colorado........ -- 1,783 53,252 -- (5) 1,783 53,247 55,030
Wyndham Emerald
Plaza
San Diego,
California...... (d) 5,551 60,462 17 195 5,568 60,657 66,225
Wyndham Resort &
Spa
Fort Lauderdale,
Florida......... -- 2,134 16,448 23 9,192 2,157 25,640 27,797
Wyndham Franklin
Plaza
Philadelphia,
Pennsylvania.... (d) 4,878 62,793 -- 242 4,878 63,035 67,913
Wyndham
Greenspoint
Houston, Texas.. 39,697 1,930 39,815 20 1,976 1,950 41,791 43,741
Wyndham Harbour
Island
Tampa, Florida.. (f) -- 22,836 -- 3,120 -- 25,956 25,956
<CAPTION>
Accumulated Year Date of
Description Depreciation(c) Built Acquisition
----------- --------------- ----- -----------
<S> <C> <C> <C>
Wyndham Brand
Properties:
Wyndham Atlanta
Downtown
Atlanta,
Georgia......... $ (495) 1999 1998
Wyndham
Arlington
Arlington,
Texas........... (2,738) 1985 1998
Wyndham Bel Age
Hotel
Los Angeles,
California...... (1,884) 1984 1997
Wyndham Bristol
Palace Hotel
Toronto,
Canada.......... (867) 1974 1998
Wyndham Boston
Boston,
Massachusetts... (775) 1999 1998
Wyndham Boston
Andover
Andover,
Massachusetts... (1,542) 1985 1998
Wyndham Boston
Westborough
Westborough,
Massachusetts... (1,827) 1985 1998
Wyndham Buena
Vista Palace
Resort & Spa
Orlando,
Florida......... (7,680) 1977 1998
Wyndham Buttes
Resort
Tempe, Arizona.. (3,513) 1986 1997
Wyndham Canal
Place
New Orleans,
Louisiana....... -- 1984 1999
Wyndham City
Centre
Washington
District of
Columbia........ (2,019) 1969 1997
Wyndham Colorado
Springs
Colorado
Springs,
Colorado........ (2,331) 1989 1998
Wyndham Emerald
Plaza
San Diego,
California...... (3,462) 1991 1997
Wyndham Resort &
Spa
Fort Lauderdale,
Florida......... (2,179) 1961 1996
Wyndham Franklin
Plaza
Philadelphia,
Pennsylvania.... (3,813) 1979 1997
Wyndham
Greenspoint
Houston, Texas.. (4,031) 1985 1996
Wyndham Harbour
Island
Tampa, Florida.. (2,698) 1986 1998
</TABLE>
F-51
<PAGE>
WYNDHAM INTERNATIONAL, INC.
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION--(Continued)
As of December 31, 1999
<TABLE>
<CAPTION>
Costs Capitalized Gross Amounts
Subsequent at Which Carried at
Initial Cost to Acquisitions Close of Period(a)
--------------------- ------------------- ---------------------------------
Buildings
and Buildings and
Description Encumbrances Land Improvements Land Improvements Land Improvements Total
----------- ------------ -------- ------------ ------ ------------ -------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Wyndham Miami
Beach Resort
Miami, Florida.. -- 13,000 54,875 -- 248 13,000 55,123 68,123
Wyndham Gateway-
Miami Airport
Miami, Florida.. -- 2,561 23,009 -- (85) 2,561 22,924 25,485
Wyndham Myrtle
Beach Resort &
Golf Club
Myrtle Beach,
South Carolina.. -- 5,644 26,470 61 5,411 5,705 31,881 37,586
Wyndham
Northwest
Chicago
Chicago,
Illinois........ (e) 1,212 52,025 -- 76 1,212 52,101 53,313
Wyndham
Peachtree
Conference
Center
Peachtree City
(Atlanta),
Georgia......... 36,353 3,059 21,915 33 4,848 3,092 26,763 29,855
Wyndham Richmond
Airport
Richmond,
Virginia........ (g) -- 4,262 -- 2,800 -- 7,062 7,062
Wyndham Toledo
Toledo, Ohio.... -- -- 16,082 -- (8,124) -- 7,958 7,958
Wyndham
Riverfront Hotel
New Orleans,
Louisiana....... -- 2,774 28,023 -- 6 2,774 28,029 30,803
Wyndham Roanoke
Airport
Roanoke,
Virginia........ -- 1,653 27,693 -- 20 1,653 27,713 29,366
Wyndham Syracuse
East Syracuse,
New York........ 10,214 1,150 29,236 -- 570 1,150 29,806 30,956
Wyndham At
Valley Forge
Valley Forge,
Pennsylvania ... -- 2,619 41,997 -- 3,709 2,619 45,706 48,325
Wyndham
Washington D.C.
Washington
District of
Columbia........ -- 4,750 40,439 -- 148 4,750 40,587 45,337
Wyndham
Westshore Hotel
Tampa, Florida.. -- 1,448 31,565 -- (217) 1,448 31,348 32,796
Wyndham
Windwatch
Haupauge, New
York............ -- 6,471 21,831 270 (258) 6,741 21,573 28,314
Wyndham Rose
Hall Resort &
Country Club
Montego Bay,
Jamaica......... -- 5,610 55,467 -- 99 5,610 55,566 61,176
Wyndham El San
Juan Hotel &
Casino
San Juan, Puerto
Rico............ 42,000 22,337 34,244 -- 16,717 22,337 50,961 73,298
Wyndham El
Conquistador
Resort & Club
Fajardo, Puerto
Rico............ 115,000 20,256 190,607 -- 10,697 20,256 201,304 221,560
<CAPTION>
Accumulated Year Date of
Description Depreciation(c) Built Acquisition
----------- --------------- ----- -----------
<S> <C> <C> <C>
Wyndham Miami
Beach Resort
Miami, Florida.. (2,423) 1962 1998
Wyndham Gateway-
Miami Airport
Miami, Florida.. (1,478) 1976 1997
Wyndham Myrtle
Beach Resort &
Golf Club
Myrtle Beach,
South Carolina.. (2,156) 1974 1997
Wyndham
Northwest
Chicago
Chicago,
Illinois........ (3,038) 1983 1997
Wyndham
Peachtree
Conference
Center
Peachtree City
(Atlanta),
Georgia......... (2,937) 1984 1995
Wyndham Richmond
Airport
Richmond,
Virginia........ (1,234) 1997 1998
Wyndham Toledo
Toledo, Ohio.... (933) 1985 1997
Wyndham
Riverfront Hotel
New Orleans,
Louisiana....... (1,635) 1996 1997
Wyndham Roanoke
Airport
Roanoke,
Virginia........ (1,209) 1983 1998
Wyndham Syracuse
East Syracuse,
New York........ (1,272) 1977 1998
Wyndham At
Valley Forge
Valley Forge,
Pennsylvania ... (1,929) 1985 1998
Wyndham
Washington D.C.
Washington
District of
Columbia........ (1,785) 1983 1998
Wyndham
Westshore Hotel
Tampa, Florida.. (2,026) 1984 1997
Wyndham
Windwatch
Haupauge, New
York............ (1,983) 1989 1996
Wyndham Rose
Hall Resort &
Country Club
Montego Bay,
Jamaica......... (3,106) 1972 1998
Wyndham El San
Juan Hotel &
Casino
San Juan, Puerto
Rico............ (2,818) 1983 1998
Wyndham El
Conquistador
Resort & Club
Fajardo, Puerto
Rico............ (10,886) 1993 1998
</TABLE>
F-52
<PAGE>
WYNDHAM INTERNATIONAL, INC.
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION--(Continued)
As of December 31, 1999
<TABLE>
<CAPTION>
Costs Capitalized Gross Amounts
Subsequent at Which Carried at
Initial Cost to Acquisition Close of Period(a)
--------------------- ------------------- ---------------------------------
Buildings
and Buildings and
Description Encumbrances Land Improvements Land Improvements Land Improvements Total
----------- ------------ -------- ------------ ------ ------------ -------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Wyndham Casa
Marina Resort &
Beach House
Key West,
Florida......... 30,270 15,158 85,078 -- 1,022 15,158 86,100 101,258
Wyndham Reach
Resort
Key West,
Florida......... 24,754 10,029 24,947 -- 1,127 10,029 26,074 36,103
Wyndham Garden
Hotel--Billerica
Boston,
Massachusetts... 16,411 3,333 17,779 -- -- 3,333 17,779 21,112
Wyndham Garden
Hotel-Brookfield
Brookfield,
Illinois........ (e) 1,787 17,564 -- -- 1,787 17,564 19,351
Wyndham Garden
Hotel-Charlotte
Charlotte, North
Carolina........ (e) 792 17,535 -- -- 792 17,535 18,327
Wyndham Garden
Hotel-Commerce
Los Angeles,
California...... -- 2,116 26,497 -- -- 2,116 26,497 28,613
Wyndham Garden--
Denver Tech
Denver,
Colorado........ -- 3,663 12,713 -- (36) 3,663 12,677 16,340
Wyndham Garden
Hotel-Market
Center
Dallas, Texas... -- 967 12,796 -- 11 967 12,807 13,774
Wyndham Garden
Hotel-Park
Central
Dallas, Texas... -- 4,523 -- -- 9,845 4,523 9,845 14,368
Wyndham Garden
Hotel-
Indianapolis
Indianapolis,
Indiana......... (d) 513 15,497 -- -- 513 15,497 16,010
Wyndham Garden
Hotel-KC.
Airport
Kansas City,
Missouri........ -- 970 7,993 -- 937 970 8,930 9,900
Wyndham Garden
Hotel-Knoxville
Knoxville,
Tennessee....... 4,414 825 6,467 -- 848 825 7,315 8,140
Wyndham Garden
Hotel-LaGuardia
Airport
New York, New
York............ -- 1,800 16,443 -- 7 1,800 16,450 18,250
Wyndham Garden
Hotel-Las
Colinas
Las Colinas,
Texas........... (d) 1,884 16,963 -- 6 1,884 16,969 18,853
Wyndham Garden-
Midtown
Atlanta, Georgia.. (e) 2,322 13,785 26 781 2,348 14,566 16,914
Wyndham Garden
Hotel-Novi
Detroit,
Michigan........ (d) 555 10,401 -- 6 555 10,407 10,962
Wyndham Garden
Hotel-Omaha
Omaha,
Nebraska........ 5,463 710 10,086 -- 839 710 10,925 11,635
Wyndham Garden
Hotel-Overland
Park
Overland Park,
Kansas.......... -- 769 3,532 -- 5 769 3,537 4,306
<CAPTION>
Accumulated Year Date of
Description Depreciation(c) Built Acquisition
----------- --------------- ----- -----------
<S> <C> <C> <C>
Wyndham Casa
Marina Resort &
Beach House
Key West,
Florida......... (3,748) 1980 1998
Wyndham Reach
Resort
Key West,
Florida......... (1,127) 1978 1998
Wyndham Garden
Hotel--Billerica
Boston,
Massachusetts... (296) 1999 1999
Wyndham Garden
Hotel-Brookfield
Brookfield,
Illinois........ (983) 1990 1998
Wyndham Garden
Hotel-Charlotte
Charlotte, North
Carolina........ (981) 1989 1998
Wyndham Garden
Hotel-Commerce
Los Angeles,
California...... (1,483) 1991 1998
Wyndham Garden--
Denver Tech
Denver,
Colorado........ (85) 1999 1999
Wyndham Garden
Hotel-Market
Center
Dallas, Texas... (716) 1968 1998
Wyndham Garden
Hotel-Park
Central
Dallas, Texas... (317) 1998 1998
Wyndham Garden
Hotel-
Indianapolis
Indianapolis,
Indiana......... (867) 1990 1998
Wyndham Garden
Hotel-KC.
Airport
Kansas City,
Missouri........ (469) 1992 1998
Wyndham Garden
Hotel-Knoxville
Knoxville,
Tennessee....... (381) 1989 1998
Wyndham Garden
Hotel-LaGuardia
Airport
New York, New
York............ (959) 1988 1997
Wyndham Garden
Hotel-Las
Colinas
Las Colinas,
Texas........... (990) 1986 1997
Wyndham Garden-
Midtown
Atlanta, Georgia.. (1,424) 1987 1996
Wyndham Garden
Hotel-Novi
Detroit,
Michigan........ (607) 1988 1997
Wyndham Garden
Hotel-Omaha
Omaha,
Nebraska........ (584) 1991 1998
Wyndham Garden
Hotel-Overland
Park
Overland Park,
Kansas.......... (198) 1971 1998
</TABLE>
F-53
<PAGE>
WYNDHAM INTERNATIONAL, INC.
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION--(Continued)
As of December 31, 1999
<TABLE>
<CAPTION>
Costs Capitalized Gross Amounts
Subsequent at Which Carried at
Initial Cost to Acquisition Close of Period(a)
--------------------- -------------------- ---------------------------------
Buildings
and Buildings and
Description Encumbrances Land Improvements Land Improvements Land Improvements Total
----------- ------------ -------- ------------ ------ ------------ -------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Wyndham Garden
Hotel-Pleasanton
Pleasonton,
California...... (d) 1,568 12,845 -- 6 1,568 12,851 14,419
Wyndham Garden
Hotel-Richardson
Richardson,
Texas........... (d) 530 8,048 -- 664 530 8,712 9,242
Wyndham Garden
Hotel-Schaumburg
Schaumburg,
Illinois........ (d) 1,613 14,464 -- -- 1,613 14,464 16,077
Wyndham Garden
Hotel-West Port
St. Louis,
Missouri........ -- 862 9,273 -- 734 862 10,007 10,869
Wyndham Garden
Hotel-Vinnings
Atlanta,
Georgia......... 9,675 1,700 22,853 -- -- 1,700 22,853 24,553
Wyndham Garden
Hotel-Wichita
Wichita,
Kansas.......... 3,049 960 5,978 -- 839 960 6,817 7,777
Wyndham Garden
Hotel-Wood Dale
Chicago,
Illinois........ (d) 2,266 12,939 -- 7 2,266 12,946 15,212
Wyndham Grand
Heritage-
AmbassadorWest
Chicago,
Illinois........ -- 2,059 11,856 -- 1,663 2,059 13,519 15,578
Wyndham Grand
Heritage-Bourbon
Orleans
New Orleans,
Louisiana....... 13,007 1,942 14,209 171 1,280 2,113 15,489 17,602
Wyndham Grand
Heritage-
Fairmount
San Antonio,
Texas........... -- -- 2,957 -- 139 -- 3,096 3,096
Wyndham Grand
Heritage-Mayfair
St. Louis,
Missouri........ -- 250 7,559 3 954 253 8,513 8,766
Wyndham Grand
Heritage-
Pickwick Hotel
San Francisco,
California...... -- 2,000 11,922 22 5,297 2,022 17,219 19,241
Wyndham Grand
Heritage-
Tutwiler
Birmingham,
Alabama......... -- 1,444 8,124 (26) (582) 1,418 7,542 8,960
Wyndham Grand
Heritage-Tremont
House
Boston,
Massachusetts... -- 1,776 14,066 18 9,959 1,794 24,025 25,819
Wyndham Grand
Heritage-Union
Station
Nashville,
Tennessee....... -- -- 7,512 -- 720 -- 8,232 8,232
Wyndham Luxury
Resorts:
Carmel Valley
Ranch
Carmel,
California...... -- 4,430 14,704 334 10,888 4,764 25,592 30,356
Grand Bay Hotel
Coconut Grove
Miami, Florida.. -- 3,066 28,442 1,237 (4,571) 4,303 23,871 28,174
<CAPTION>
Accumulated Year Date of
Description Depreciation(c) Built Acquisition
----------- --------------- ----- -----------
<S> <C> <C> <C>
Wyndham Garden
Hotel-Pleasanton
Pleasonton,
California...... (736) 1985 1997
Wyndham Garden
Hotel-Richardson
Richardson,
Texas........... (466) 1996 1998
Wyndham Garden
Hotel-Schaumburg
Schaumburg,
Illinois........ (809) 1985 1998
Wyndham Garden
Hotel-West Port
St. Louis,
Missouri........ (536) 1997 1998
Wyndham Garden
Hotel-Vinnings
Atlanta,
Georgia......... (1,279) 1985 1998
Wyndham Garden
Hotel-Wichita
Wichita,
Kansas.......... (354) 1985 1998
Wyndham Garden
Hotel-Wood Dale
Chicago,
Illinois........ (816) 1986 1997
Wyndham Grand
Heritage-
AmbassadorWest
Chicago,
Illinois........ (885) 1924 1997
Wyndham Grand
Heritage-Bourbon
Orleans
New Orleans,
Louisiana....... (1,828) 1800s 1995
Wyndham Grand
Heritage-
Fairmount
San Antonio,
Texas........... (365) 1906 1995
Wyndham Grand
Heritage-Mayfair
St. Louis,
Missouri........ (773) 1925 1996
Wyndham Grand
Heritage-
Pickwick Hotel
San Francisco,
California...... (1,306) 1928 1996
Wyndham Grand
Heritage-
Tutwiler
Birmingham,
Alabama......... (738) 1913 1996
Wyndham Grand
Heritage-Tremont
House
Boston,
Massachusetts... (2,038) 1925 1996
Wyndham Grand
Heritage-Union
Station
Nashville,
Tennessee....... (561) 1986 1997
Wyndham Luxury
Resorts:
Carmel Valley
Ranch
Carmel,
California...... (1,718) 1987 1997
Grand Bay Hotel
Coconut Grove
Miami, Florida.. (1,739) 1983 1997
</TABLE>
F-54
<PAGE>
WYNDHAM INTERNATIONAL, INC.
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION--(Continued)
As of December 31, 1999
<TABLE>
<CAPTION>
Costs Capitalized Gross Amounts
Subsequent at Which Carried at
Initial Cost to Acquisition Close of Period(a)
--------------------- -------------------- ---------------------------------
Buildings
and Buildings and
Description Encumbrances Land Improvements Land Improvements Land Improvements Total
----------- ------------ -------- ------------ ------ ------------ -------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
The Boulders
Scottsdale,
Arizona......... -- 13,188 121,700 -- 74 13,188 121,774 134,962
The Lodge at
Ventana Canyon
Tucson,
Arizona......... 28,489 13,287 23,332 -- (211) 13,287 23,121 36,408
The Peaks Resort
& Spa
Telluride,
Colorado........ -- 5,141 13,997 (200) 673 4,941 14,670 19,611
Summerfield and
Sierra Suites:
Summerfield-
Denver South
Denver,
Colorado........ -- 1,072 8,183 18 28 1,090 8,211 9,301
Summerfield-
Hanover
Whippany, New
Jersey.......... -- 2,223 18,585 -- 36 2,223 18,621 20,844
Summerfield-
Morristown
Morristown, New
Jersey.......... -- 3,050 20,920 -- 47 3,050 20,967 24,017
Summerfield-
Seattle Downtown
Seattle,
Washington...... -- 1,515 24,276 16 487 1,531 24,763 26,294
Summerfield-
Waltham
Waltham,
Massachusetts... -- 2,639 16,351 -- 34 2,639 16,385 19,024
Summerfield-
Miami
Miami, Florida.. -- 3,327 10,913 -- 17 3,327 10,930 14,257
Sierra Fair Oaks
Fairfax,
Virginia........ -- 758 3,982 -- -- 758 3,982 4,740
Malmaison:
Malmaison
Edinburgh
Edinburgh,
United Kingdom.. (h) 2,674 7,747 (78) 1,163 2,596 8,910 11,506
Malmaison
Glasgow
Glasgow, United
Kingdom......... (h) 2,859 8,056 (84) 682 2,775 8,738 11,513
Malmaison
Manchester
Manchester,
United Kingdom.. (h) 5,332 9,859 (156) 7,208 5,176 17,067 22,243
Malmaison
Newcastle
Newcastle,
United Kingdom.. (h) 3,672 12,183 (108) 1,971 3,564 14,154 17,718
Malmaison Leeds
Leeds, United
Kingdom......... (h) -- 10,315 564 7,697 564 18,012 18,576
ClubHouse Inns:
ClubHouse-
Nashville
Airport
Nashville,
Tennessee....... -- 907 5,526 -- -- 907 5,526 6,433
<CAPTION>
Accumulated Year Date of
Description Depreciation(c) Built Acquisition
----------- --------------- ----- -----------
<S> <C> <C> <C>
The Boulders
Scottsdale,
Arizona......... (10,323) 1985 1997
The Lodge at
Ventana Canyon
Tucson,
Arizona......... (1,970) 1985 1997
The Peaks Resort
& Spa
Telluride,
Colorado........ (1,286) 1992 1997
Summerfield and
Sierra Suites:
Summerfield-
Denver South
Denver,
Colorado........ (437) 1997 1998
Summerfield-
Hanover
Whippany, New
Jersey.......... (799) 1997 1998
Summerfield-
Morristown
Morristown, New
Jersey.......... (869) 1997 1998
Summerfield-
Seattle Downtown
Seattle,
Washington...... (2,645) 1985 1996
Summerfield-
Waltham
Waltham,
Massachusetts... (752) 1997 1998
Summerfield-
Miami
Miami, Florida.. (64) 1999 1999
Sierra Fair Oaks
Fairfax,
Virginia........ (55) 1999 1999
Malmaison:
Malmaison
Edinburgh
Edinburgh,
United Kingdom.. (444) 1994 1998
Malmaison
Glasgow
Glasgow, United
Kingdom......... (430) 1997 1998
Malmaison
Manchester
Manchester,
United Kingdom.. (621) 1998 1998
Malmaison
Newcastle
Newcastle,
United Kingdom.. (680) 1997 1998
Malmaison Leeds
Leeds, United
Kingdom......... (213) 1998 1998
ClubHouse Inns:
ClubHouse-
Nashville
Airport
Nashville,
Tennessee....... (309) 1988 1998
</TABLE>
F-55
<PAGE>
WYNDHAM INTERNATIONAL, INC.
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION--(Continued)
As of December 31, 1999
<TABLE>
<CAPTION>
Costs Capitalized Gross Amounts
Subsequent at Which Carried at
Initial Cost to Acquisition Close of Period(a)
--------------------- -------------------- ---------------------------------
Buildings
and Buildings and
Description Encumbrances Land Improvements Land Improvements Land Improvements Total
----------- ------------ -------- ------------ ------ ------------ -------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
ClubHouse Inn-
Albuquerque
Albuquerque, New
Mexico.......... -- 990 5,793 -- -- 990 5,793 6,783
ClubHouse Inn-
Atlanta
(Norcross)
Atlanta,
Georgia......... 4,405 785 9,691 -- -- 785 9,691 10,476
ClubHouse-
Overland Park
Overland Park,
Kansas.......... 4,713 830 7,397 -- -- 830 7,397 8,227
ClubHouse Inn
Savannah
Savannah,
Georgia......... -- 925 4,555 -- 105 925 4,660 5,585
ClubHouse Inn -
Topeka
Topeka, Kansas.. -- 390 5,312 -- -- 390 5,312 5,702
ClubHouse Inn-
Valadosta
Valadosta,
Georgia......... -- 825 5,588 -- -- 825 5,588 6,413
ClubHouse Inn &
Conference
Center
Nashville,
Tennessee....... -- 1,582 12,337 -- -- 1,582 12,337 13,919
Non-Proprietary
Branded
Properties:
Marriott Albany
Albany, New
York............ -- 4,000 68,856 -- 40 4,000 68,896 72,896
Marriott Atlanta
North Central
Atlanta,
Georgia......... -- -- 36,462 -- 240 -- 36,702 36,702
Marriott Houston
Greenspoint
North
Houston, Texas.. -- 3,600 44,211 -- 110 3,600 44,321 47,921
Marriott
Minneapolis
Southwest
Minnetonka,
Minnesota....... -- 2,968 36,933 -- 182 2,968 37,115 40,083
Marriott
Harrisburg
Harrisburg, Pennsylvania.. 19,475 3,400 38,304 -- 273 3,400 38,577 41,977
Marriott Indian
River Plantation
Stuart,
Florida......... -- 6,800 48,606 (480) (97) 6,320 48,509 54,829
Marriott Troy
Troy, Michigan.. (d) 1,790 29,220 19 2,114 1,809 31,334 33,143
Marriott
Philadelphia
West
West
Conshohocken,
Pennsylvania.... -- 2,500 67,279 -- 93 2,500 67,372 69,872
Marriott
Pittsburgh
Airport
Pittsburgh,
Pennsylvania.... 14,534 3,000 54,780 -- 63 3,000 54,843 57,843
Marriott San
Diego Mission
Valley
San Diego,
California...... -- 8,000 40,743 -- 68 8,000 40,811 48,811
<CAPTION>
Accumulated Year Date of
Description Depreciation(c) Built Acquisition
----------- --------------- ----- -----------
<S> <C> <C> <C>
ClubHouse Inn-
Albuquerque
Albuquerque, New
Mexico.......... (324) 1987 1998
ClubHouse Inn-
Atlanta
(Norcross)
Atlanta,
Georgia......... (542) 1988 1998
ClubHouse-
Overland Park
Overland Park,
Kansas.......... (414) 1988 1998
ClubHouse Inn
Savannah
Savannah,
Georgia......... (260) 1989 1998
ClubHouse Inn -
Topeka
Topeka, Kansas.. (297) 1986 1998
ClubHouse Inn-
Valadosta
Valadosta,
Georgia......... (313) 1988 1998
ClubHouse Inn &
Conference
Center
Nashville,
Tennessee....... (690) 1991 1998
Non-Proprietary
Branded
Properties:
Marriott Albany
Albany, New
York............ (3,048) 1985 1998
Marriott Atlanta
North Central
Atlanta,
Georgia......... (1,583) 1975 1998
Marriott Houston
Greenspoint
North
Houston, Texas.. (1,918) 1981 1998
Marriott
Minneapolis
Southwest
Minnetonka,
Minnesota....... (1,601) 1988 1998
Marriott
Harrisburg
Harrisburg, Pennsylvania.. (1,631) 1980 1998
Marriott Indian
River Plantation
Stuart,
Florida......... (2,187) 1987 1998
Marriott Troy
Troy, Michigan.. (3,710) 1990 1995
Marriott
Philadelphia
West
West
Conshohocken,
Pennsylvania.... (2,916) 1991 1998
Marriott
Pittsburgh
Airport
Pittsburgh,
Pennsylvania.... (2,412) 1987 1998
Marriott San
Diego Mission
Valley
San Diego,
California...... (1,755) 1988 1998
</TABLE>
F-56
<PAGE>
WYNDHAM INTERNATIONAL, INC.
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION--(Continued)
As of December 31, 1999
<TABLE>
<CAPTION>
Costs Capitalized Gross Amounts
Subsequent at Which Carried at
Initial Cost to Acquisition Close of Period(a)
--------------------- ------------------- ---------------------------------
Buildings
and Buildings and
Description Encumbrances Land Improvements Land Improvements Land Improvements Total
----------- ------------ -------- ------------ ------ ------------ -------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Marriott St.
Louis West
St.
Louis, Missouri.. 16,314 1,800 48,251 -- 188 1,800 48,439 50,239
Marriott Tyson's
Corner
Tyson's Corner,
Virginia........ -- 3,650 64,333 -- 5,668 3,650 70,001 73,651
Marriott Warner
Center
Woodland Hills,
California...... 49,163 6,250 100,063 -- 45 6,250 100,108 106,358
Courtyard by
Marriott
Beachwood, Ohio.. -- 1,510 7,553 -- (859) 1,510 6,694 8,204
Crowne Plaza
Ravinia
Atlanta, Georgia.. -- 2,996 34,798 -- 3,328 2,996 38,126 41,122
Doubletree Hotel
Anaheim
Orange, California.. 13,419 2,464 23,297 -- 470 2,464 23,767 26,231
Doubletree Hotel
Corporate Woods
Overland Park,
Kansas.......... 21,831 3,317 38,088 -- 363 3,317 38,451 41,768
Doubletree Hotel
Post Oak
Houston, Texas.. 29,642 4,441 43,672 -- 982 4,441 44,654 49,095
Doubletree Hotel
St. Louis
St. Louis,
Missouri........ 13,319 2,160 18,300 -- 469 2,160 18,769 20,929
Doubletree Hotel
Allen Center
Houston, Texas.. 11,115 2,280 24,707 -- 2,053 2,280 26,760 29,040
Doubletree Guest
Suites
Glenview, Illinois.. (e) 3,237 19,709 -- (2,336) 3,237 17,373 20,610
Doubletree Hotel
Westminster
Westminster
(Denver),
Colorado........ (d) 1,454 9,973 15 1,125 1,469 11,098 12,567
Doubletree Hotel
Tallahassee
Tallahassee,
Florida......... (d) 2,127 7,779 -- 2,999 2,127 10,778 12,905
Doubletree Hotel
Des Plaines
Des Plaines
(Chicago),
Illinois........ (d) 1,903 5,555 -- 3,323 1,903 8,878 10,781
Doubletree Hotel
Minneapolis,
Minnesota....... -- 1,650 15,895 -- 1,338 1,650 17,233 18,883
Doubletree Hotel
Tulsa,
Oklahoma........ 9,203 1,428 18,596 -- 55 1,428 18,651 20,079
Doubletree Park
Place
Minneapolis,
Minnesota....... -- 2,188 13,531 -- 3,660 2,188 17,191 19,379
Doubletree Miami
Airport
Miami, Florida.. (d) 3,808 7,052 -- 2,696 3,808 9,748 13,556
<CAPTION>
Accumulated Year Date of
Description Depreciation(c) Built Acquisition
----------- --------------- ----- -----------
<S> <C> <C> <C>
Marriott St.
Louis West
St.
Louis, Missouri.. (2,100) 1990 1998
Marriott Tyson's
Corner
Tyson's Corner,
Virginia........ (2,971) 1981 1998
Marriott Warner
Center
Woodland Hills,
California...... (4,346) 1986 1998
Courtyard by
Marriott
Beachwood, Ohio.. (533) 1986 1997
Crowne Plaza
Ravinia
Atlanta, Georgia.. (4,217) 1986 1995
Doubletree Hotel
Anaheim
Orange, California.. (1,568) 1984 1997
Doubletree Hotel
Corporate Woods
Overland Park,
Kansas.......... (2,554) 1982 1997
Doubletree Hotel
Post Oak
Houston, Texas.. (2,963) 1982 1997
Doubletree Hotel
St. Louis
St. Louis,
Missouri........ (1,238) 1984 1997
Doubletree Hotel
Allen Center
Houston, Texas.. (2,289) 1978 1996
Doubletree Guest
Suites
Glenview, Illinois.. (1,287) 1988 1997
Doubletree Hotel
Westminster
Westminster
(Denver),
Colorado........ (1,082) 1980 1996
Doubletree Hotel
Tallahassee
Tallahassee,
Florida......... (914) 1977 1996
Doubletree Hotel
Des Plaines
Des Plaines
(Chicago),
Illinois........ (748) 1969 1996
Doubletree Hotel
Minneapolis,
Minnesota....... (1,350) 1986 1997
Doubletree Hotel
Tulsa,
Oklahoma........ (1,604) 1982 1996
Doubletree Park
Place
Minneapolis,
Minnesota....... (1,229) 1981 1997
Doubletree Miami
Airport
Miami, Florida.. (831) 1975 1996
</TABLE>
F-57
<PAGE>
WYNDHAM INTERNATIONAL, INC.
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION--(Continued)
As of December 31, 1999
<TABLE>
<CAPTION>
Costs Capitalized Gross Amounts
Subsequent at Which Carried at
Initial Cost to Acquisition Close of Period(a)
--------------------- ------------------- ---------------------------------
Buildings
and Buildings and
Description Encumbrances Land Improvements Land Improvements Land Improvements Total
----------- ------------ -------- ------------ ------ ------------ -------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Embassy Suites
Chicago,
Illinois........ 40,853 -- 82,017 -- -- -- 82,017 82,017
Embassy Suites
Schaumburg,
Illinois........ (d) 2,001 29,350 -- 2,691 2,001 32,041 34,042
Embassy Suites
Hunt Valley,
Maryland........ -- 529 13,872 6 314 535 14,186 14,721
Embassy Suites
Phoenix North
Phoenix,
Arizona......... (d) 2,028 40,160 -- 41 2,028 40,201 42,229
Hyatt Newporter
Newport Beach,
California...... -- -- 15,611 -- 296 -- 15,907 15,907
Hyatt Regency
Lexington,
Kentucky........ -- -- 11,958 -- 1,224 -- 13,182 13,182
Hilton Cleveland
South
Independence,
Ohio............ (d) 2,760 12,264 29 1,277 2,789 13,541 16,330
Hilton Gateway
Newark
Newark, New
Jersey.......... (d) 1,740 31,262 -- 50 1,740 31,312 33,052
Hilton Columbus
Columbus,
Georgia......... (d) 570 13,132 -- -- 570 13,132 13,702
Hilton Del Mar
Del Mar (San
Diego),
California...... (d) 1,900 11,435 20 537 1,920 11,972 13,892
Hilton Greenwood
Village (Denver
South)
Greenwood
Village,
Colorado........ -- 1,800 42,003 -- -- 1,800 42,003 43,803
Hilton Dania
Dania, Florida.. -- 2,651 24,748 -- 2,108 2,651 26,856 29,507
Hilton
Huntington
Melville, New
York............ (d) 3,000 49,435 -- 10 3,000 49,445 52,445
Hilton
Parsipanny
Parsipanny, New
Jersey.......... (e) 5,350 87,775 -- 36 5,350 87,811 93,161
Hilton Melbourne
Airport
Melbourne,
Florida......... (e) 1,502 6,391 -- (5,734) 1,502 657 2,159
Holiday Inn San
Angelo
San Angelo,
Texas........... -- 428 3,982 11 197 439 4,179 4,618
Holiday Inn
Aristocrat
Dallas, Texas... -- 144 7,806 2 244 146 8,050 8,196
Holiday Inn
Lennox
Atlanta,
Georgia......... -- -- 10,090 -- (477) -- 9,613 9,613
<CAPTION>
Accumulated Year Date of
Description Depreciation(c) Built Acquisition
----------- --------------- ----- -----------
<S> <C> <C> <C>
Embassy Suites
Chicago,
Illinois........ (3,613) 1991 1998
Embassy Suites
Schaumburg,
Illinois........ (1,354) 1984 1998
Embassy Suites
Hunt Valley,
Maryland........ (1,661) 1985 1995
Embassy Suites
Phoenix North
Phoenix,
Arizona......... (1,771) 1985 1998
Hyatt Newporter
Newport Beach,
California...... (1,762) 1962 1996
Hyatt Regency
Lexington,
Kentucky........ (1,338) 1977 1996
Hilton Cleveland
South
Independence,
Ohio............ (1,591) 1980 1995
Hilton Gateway
Newark
Newark, New
Jersey.......... (1,378) 1971 1998
Hilton Columbus
Columbus,
Georgia......... (578) 1982 1998
Hilton Del Mar
Del Mar (San
Diego),
California...... (1,270) 1989 1996
Hilton Greenwood
Village (Denver
South)
Greenwood
Village,
Colorado........ (1,850) 1982 1998
Hilton Dania
Dania, Florida.. (1,134) 1988 1998
Hilton
Huntington
Melville, New
York............ (2,178) 1988 1998
Hilton
Parsipanny
Parsipanny, New
Jersey.......... (3,868) 1981 1998
Hilton Melbourne
Airport
Melbourne,
Florida......... (329) 1986 1997
Holiday Inn San
Angelo
San Angelo,
Texas........... (501) 1984 1995
Holiday Inn
Aristocrat
Dallas, Texas... (964) 1925 1995
Holiday Inn
Lennox
Atlanta,
Georgia......... (1,117) 1987 1996
</TABLE>
F-58
<PAGE>
WYNDHAM INTERNATIONAL, INC.
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION--(Continued)
As of December 31, 1999
<TABLE>
<CAPTION>
Costs Capitalized Gross Amounts
Subsequent at Which Carried at
Initial Cost to Acquisition Close of Period(a)
--------------------- -------------------- ---------------------------------
Buildings
and Buildings and
Description Encumbrances Land Improvements Land Improvements Land Improvements Total
----------- ------------ -------- ------------ ------ ------------ -------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Holiday Inn
Northwest
Houston, Texas.. -- 333 2,324 4 378 337 2,702 3,039
Holiday Inn
Northwest Plaza
Austin, Texas... -- 1,424 9,323 15 213 1,439 9,536 10,975
Holiday Inn
Select--Farmers
Branch
Farmers Branch
(Dallas),
Texas........... -- 3,045 15,786 33 1,955 3,078 17,741 20,819
Holiday Inn
Westlake
Beachwood,
Ohio............ -- 2,843 14,218 -- (1,811) 2,843 12,407 15,250
Holiday Inn
Brentwood
Brentwood,
Tennessee....... -- 1,080 22,342 -- 4 1,080 22,346 23,426
Holiday Inn
San Francisco,
California...... -- -- 18,807 -- 113 -- 18,920 18,920
Omni Inner
Harbour Hotel
Baltimore,
Maryland........ -- 1,129 49,491 -- (14,771) 1,129 34,720 35,849
Radisson
Burlington
Burlington,
Vermont......... (e) 935 28,453 -- 11 935 28,464 29,399
Radisson Hotel &
Suites
Dallas, Texas... -- 1,011 8,276 10 308 1,021 8,584 9,605
Radisson
Englewood
Englewood, New
Jersey.......... -- -- 26,320 -- -- -- 26,320 26,320
Radisson Suite
Hotel
Kansas City,
Kansas.......... -- 914 10,341 -- (8,249) 914 2,092 3,006
Radisson Hotel
Lisle,
Illinois........ (e) 1,995 24,726 -- -- 1,995 24,726 26,721
Radisson New
Orleans
New Orleans,
Louisiana....... -- 2,463 23,630 43 1,096 2,506 24,726 27,232
Radisson
Northbrook
Northbrook,
Illinois........ -- 1,437 10,968 16 312 1,453 11,280 12,733
Radisson
Overland Park
Overland Park,
Kansas.......... -- 1,296 5,377 14 578 1,310 5,955 7,265
Radisson
Riverwalk
Jacksonville,
Florida......... -- 2,400 16,965 (388) 486 2,012 17,451 19,463
Radisson Plaza
Hotel
San Jose Airport
San Jose,
California...... (e) 1,438 40,474 -- -- 1,438 40,474 41,912
<CAPTION>
Accumulated Year Date of
Description Depreciation(c) Built Acquisition
----------- --------------- ----- -----------
<S> <C> <C> <C>
Holiday Inn
Northwest
Houston, Texas.. (311) 1982 1995
Holiday Inn
Northwest Plaza
Austin, Texas... (1,148) 1984 1995
Holiday Inn
Select--Farmers
Branch
Farmers Branch
(Dallas),
Texas........... (2,051) 1979 1995
Holiday Inn
Westlake
Beachwood,
Ohio............ (1,010) 1980 1997
Holiday Inn
Brentwood
Brentwood,
Tennessee....... (984) 1989 1998
Holiday Inn
San Francisco,
California...... (1,302) 1964 1997
Omni Inner
Harbour Hotel
Baltimore,
Maryland........ (3,387) 1968 1997
Radisson
Burlington
Burlington,
Vermont......... (1,254) 1975 1998
Radisson Hotel &
Suites
Dallas, Texas... (1,027) 1986 1995
Radisson
Englewood
Englewood, New
Jersey.......... (1,159) 1989 1998
Radisson Suite
Hotel
Kansas City,
Kansas.......... (564) 1931 1995
Radisson Hotel
Lisle,
Illinois........ (1,089) 1987 1998
Radisson New
Orleans
New Orleans,
Louisiana....... (2,900) 1924 1995
Radisson
Northbrook
Northbrook,
Illinois........ (948) 1976 1997
Radisson
Overland Park
Overland Park,
Kansas.......... (481) 1974 1997
Radisson
Riverwalk
Jacksonville,
Florida......... (1,158) 1979 1997
Radisson Plaza
Hotel
San Jose Airport
San Jose,
California...... (1,783) 1985 1998
</TABLE>
F-59
<PAGE>
WYNDHAM INTERNATIONAL, INC.
SCHEDULE III--REAL ESTATE AND ACCUMULATED DEPRECIATION--(Continued)
As of December 31, 1999
<TABLE>
<CAPTION>
Costs Capitalized Gross Amounts
Subsequent at Which Carried at
Initial Cost to Acquisition Close of Period(a)
--------------------- ------------------- ---------------------------------
Buildings
and Buildings and
Description Encumbrances Land Improvements Land Improvements Land Improvements Total
----------- ------------ -------- ------------ ------ ------------ -------- ------------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Radisson Suites
Town & Country
Houston, Texas.. (d) 655 9,725 7 198 662 9,923 10,585
Radisson Hotel
Beachwood,
Ohio............ 5,437 2,226 11,129 -- (1,146) 2,226 9,983 12,209
Radisson Hotel
Akron, Ohio..... -- 1,136 5,678 -- (820) 1,136 4,858 5,994
Ramada Hotel
San Francisco,
California...... -- -- 15,853 -- 133 -- 15,986 15,986
Sheraton Four
Points
Blacksburg,
Virginia........ -- 470 16,651 -- 10 470 16,661 17,131
Sheraton Four
Points
Saginaw,
Michigan........ 73 ,451 11 81 ,762 ,543
WestCoast Valley
River Inn
Eugene, Oregon.. -- 1,754 15,839 19 1,005 1,773 16,844 18,617
Fort Magruder
Inn and
Conference
Center
Williamsburg,
Virginia........ -- 2,192 22,499 -- 4 2,192 22,503 24,695
Park Shore
Honolulu
Honolulu,
Hawaii.......... -- -- 24,339 -- 560 -- 24,899 24,899
Santa Maria
Key West,
Florida......... 4,000 5,341 -- 81 -- 5,422 -- 5,422
Le Mannoir de
Gressey
Seine et Maine
Near Paris...... 7,793 1,209 7,181 -- -- 1,209 7,181 8,390
Regency
San Juan, Puerto
Rico............ -- 4,910 4,208 -- 805 4,910 5,013 9,923
Condado
San Juan, Puerto
Rico............ 53,167 5,700 72,982 -- 7,578 5,700 80,560 86,260
Other:
Golden Door Spa
Escondido,
California...... 4,000 5,800 3,000 -- -- 5,800 3,000 8,800
Canal Place
Retail Mall and
Garage
New Orleans,
Louisiana....... -- -- 38,129 -- 375 -- 38,504 38,504
-------- -------- ---------- ------ -------- -------- ---------- ----------
$773,625 $457,450 $4,435,949 $9,123 $204,201 $466,573 $4,640,150 $5,106,723
======== ======== ========== ====== ======== ======== ========== ==========
<CAPTION>
Accumulated Year Date of
Description Depreciation(c) Built Acquisition
----------- --------------- ----- -----------
<S> <C> <C> <C>
Radisson Suites
Town & Country
Houston, Texas.. (1,200) 1986 1995
Radisson Hotel
Beachwood,
Ohio............ (789) 1968 1997
Radisson Hotel
Akron, Ohio..... (399) 1989 1997
Ramada Hotel
San Francisco,
California...... (1,103) 1962 1997
Sheraton Four
Points
Blacksburg,
Virginia........ (734) 1971 1998
Sheraton Four
Points
Saginaw,
Michigan........ 808) 1984 1995
WestCoast Valley
River Inn
Eugene, Oregon.. (1,577) 1973 1996
Fort Magruder
Inn and
Conference
Center
Williamsburg,
Virginia........ (991) 1975 1998
Park Shore
Honolulu
Honolulu,
Hawaii.......... (1,652) 1968 1997
Santa Maria
Key West,
Florida......... -- 1951 1998
Le Mannoir de
Gressey
Seine et Maine
Near Paris...... (8,452) 1993 1999
Regency
San Juan, Puerto
Rico............ (220) 1963 1998
Condado
San Juan, Puerto
Rico............ (5,216) 1959 1998
Other:
Golden Door Spa
Escondido,
California...... (132) 1954 1998
Canal Place
Retail Mall and
Garage
New Orleans,
Louisiana....... -- 1984 1999
---------------
$(273,272)
===============
</TABLE>
F-60
<PAGE>
WYNDHAM INTERNATIONAL INC.
NOTES TO SCHEDULE III
(in thousands)
<TABLE>
<CAPTION>
Year Ended Year Ended Year Ended
December 31, December 31, December 31,
1999 1998 1997
------------ ------------ ------------
<S> <C> <C> <C>
(a)Reconciliation of Real Estate
Balance at beginning of period........ $4,995,837 $1,863,568 $ 597,494
Additions during period:
Acquisitions........................ 267,975 2,967,790 1,209,052
Improvements........................ 166,574 164,479 57,022
Deductions during period
Sale of properties.................. (269,493) -- --
Basis adjustments in accordance with
the purchase method of accounting
due to the exchange of OP
units and acquisition of third
party's minority interest.......... (54,170) -- --
---------- ---------- ----------
Balance at end of period.............. $5,106,723 $4,995,837 $1,863,568
========== ========== ==========
(b)Reconciliation of Accumulated Depre-
ciation:
Balance at beginning of period...... $ 132,809 $ 41,041 $ 12,048
Additions during period
Depreciation for the period......... 151,184 91,768 28,993
Deductions during period
Sale of properties.................. (10,721) -- --
---------- ---------- ----------
Balance at the end of period ......... $ 273,272 $ 132,809 $ 41,041
========== ========== ==========
</TABLE>
(c) Depreciation is computed on buildings and improvements based upon a useful
life of 35 years.
(d) Hotel secures mortgage indebtedness of $346,000
(e) Hotel secures mortgage indebtedness of $235,000
(f) Hotel is encumbered by a capital lease obligation of $19,233
(g) Hotel is encumbered by a capital lease obligation of $4,238
(h) Hotel secures mortgage indebtedness of $31,670
F-61
<PAGE>
EXHIBIT 10.1
[CONFORMED COPY with
EXHIBIT C AND ANNEX D THERETO
CONFORMED AS EXECUTED]
================================================================================
CHASE
CREDIT AGREEMENT
dated as of
JUNE 30, 1999
among
WYNDHAM INTERNATIONAL, INC.,
The Lenders Party Hereto,
NATIONSBANK, N.A.,
as Syndication Agent,
BANKERS TRUST COMPANY,
as Syndication Agent,
CREDIT LYONNAIS NEW YORK BRANCH,
as Documentation Agent,
BEAR STEARNS CORPORATE LENDING INC.,
as Co-Documentation Agent,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$1,800,000,000
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
================================================================================
<PAGE>
TABLE OF CONTENTS
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ARTICLE I Definitions...................................................................... 1
SECTION 1.01 Defined Terms............................................................... 1
SECTION 1.02 Classification of Loans and Borrowings...................................... 29
SECTION 1.03 Terms Generally............................................................. 29
ARTICLE II The Credits...................................................................... 30
SECTION 2.01 Commitments................................................................. 30
SECTION 2.02 Loans and Borrowings........................................................ 30
SECTION 2.03 Requests for Borrowings..................................................... 31
SECTION 2.04 Swingline Loans............................................................. 31
SECTION 2.05 Letters of Credit........................................................... 33
SECTION 2.06 Funding of Borrowings....................................................... 37
SECTION 2.07 Interest Elections.......................................................... 37
SECTION 2.08 Repayment of Loans; Evidence of Debt........................................ 39
SECTION 2.09 Termination, Reduction and Increase of Commitments.......................... 39
SECTION 2.10 Prepayment of Loans......................................................... 42
SECTION 2.11 Mandatory Applications and Prepayments; Scheduled Commitment Reductions..... 42
SECTION 2.12 Fees........................................................................ 45
SECTION 2.13 Interest.................................................................... 46
SECTION 2.14 Alternate Interest.......................................................... 46
SECTION 2.15 Increased Costs............................................................. 47
SECTION 2.16 Break Funding Payments...................................................... 48
SECTION 2.17 Taxes....................................................................... 49
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-offs................. 50
SECTION 2.19 Mitigation Obligations, Replacement of Lenders.............................. 52
ARTICLE III Representations and Warranties................................................... 53
SECTION 3.01 Financial Condition......................................................... 53
SECTION 3.02 No Change................................................................... 54
SECTION 3.03 Company Existence; Compliance with Law...................................... 54
SECTION 3.04 Company Power; Authorization; Enforceable Obligations....................... 54
SECTION 3.05 No Violation................................................................ 54
SECTION 3.06 Litigation.................................................................. 55
SECTION 3.07 No Default.................................................................. 55
SECTION 3.08 Intellectual Property....................................................... 55
SECTION 3.09 Taxes....................................................................... 55
SECTION 3.10 Federal Regulations......................................................... 56
SECTION 3.11 Labor Matters............................................................... 56
SECTION 3.12 ERISA....................................................................... 56
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SECTION 3.13 Investment Company Act; Other Regulations................................... 56
SECTION 3.14 Public Utility Holding Company Act.......................................... 56
SECTION 3.15 Subsidiaries; Joint Ventures................................................ 57
SECTION 3.16 Use of Proceeds; Margin Regulations......................................... 57
SECTION 3.17 Hotels...................................................................... 57
SECTION 3.18 Environmental Matters....................................................... 58
SECTION 3.19 Accuracy of Information, etc................................................ 59
SECTION 3.20 Security Documents.......................................................... 59
SECTION 3.21 Solvency.................................................................... 60
SECTION 3.22 Existing Indebtedness....................................................... 60
SECTION 3.23 Year 2000 Matters........................................................... 60
SECTION 3.24 Transaction................................................................. 60
ARTICLE IV Conditions Precedent............................................................. 61
SECTION 4.01 Conditions to Initial Extension of Credit................................... 61
SECTION 4.02 Conditions to Each Extension of Credit...................................... 63
ARTICLE V Affirmative Covenants............................................................ 64
SECTION 5.01 Financial Statements........................................................ 64
SECTION 5.02 Certificates; Other Information............................................. 64
SECTION 5.03 Payment of Obligations...................................................... 66
SECTION 5.04 Maintenance of Existence; Compliance........................................ 66
SECTION 5.05 Maintenance of Property; Insurance.......................................... 66
SECTION 5.06 Inspection of Property; Books and Records; Discussions...................... 66
SECTION 5.07 Notices..................................................................... 67
SECTION 5.08 Environmental Laws.......................................................... 67
SECTION 5.09 Interest Rate Protection.................................................... 68
SECTION 5.10 Additional Collateral; New Subsidiaries, etc................................ 68
SECTION 5.11 Year 2000 Compliance........................................................ 69
SECTION 5.12 Maintenance of Separateness................................................. 69
ARTICLE VI Negative Covenants............................................................... 70
SECTION 6.01 Financial Covenants......................................................... 70
SECTION 6.02 Indebtedness................................................................ 73
SECTION 6.03 Liens....................................................................... 75
SECTION 6.04 Fundamental Changes......................................................... 77
SECTION 6.05 Disposition of Assets or Equity Ownership Interests......................... 78
SECTION 6.06 Investments................................................................. 79
SECTION 6.07 Dividends................................................................... 80
SECTION 6.08 Payments and Modifications of Certain Debt Instruments and Preferred Stock.. 81
SECTION 6.09 Transactions with Affiliates................................................ 81
SECTION 6.10 Clauses Restricting Subsidiary Distributions................................ 82
SECTION 6.11 Changes in Fiscal Periods................................................... 82
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(ii)
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<S> <C>
SECTION 6.12 Negative Pledge Clauses..................................................... 82
SECTION 6.13 Lines of Business........................................................... 83
SECTION 6.14 Subsidiary Stock............................................................ 83
SECTION 6.15 Derivatives Obligations..................................................... 83
ARTICLE VII Events of Default................................................................ 84
SECTION 7.01 Payments.................................................................... 84
SECTION 7.02 Representations, etc........................................................ 84
SECTION 7.03 Covenants................................................................... 84
SECTION 7.04 Default Under Other Agreements.............................................. 84
SECTION 7.05 Bankruptcy, etc............................................................. 85
SECTION 7.06 ERISA....................................................................... 85
SECTION 7.07 Judgments................................................................... 85
SECTION 7.08 Security Documents.......................................................... 86
SECTION 7.09 Change of Control........................................................... 86
ARTICLE VIII The Administrative Agent......................................................... 87
SECTION 8.01 Appointment................................................................. 87
SECTION 8.02 The Administrative Agent in its Individual Capacity......................... 87
SECTION 8.03 Nature of Duties............................................................ 87
SECTION 8.04 Reliance.................................................................... 88
SECTION 8.05 Resignation or Removal of the Administrative Agent.......................... 88
SECTION 8.06 Lack of Reliance on the Administrative Agent................................ 88
SECTION 8.07 Certain Rights of the Administrative Agent.................................. 89
SECTION 8.08 Indemnification............................................................. 89
SECTION 8.09 Other Agents................................................................ 89
ARTICLE IX Miscellaneous.................................................................... 89
SECTION 9.01 Notices..................................................................... 89
SECTION 9.02 Waivers; Amendments......................................................... 90
SECTION 9.03 Expenses; Indemnity; Damage Waiver.......................................... 91
SECTION 9.04 Successors and Assigns...................................................... 92
SECTION 9.05 Survival.................................................................... 94
SECTION 9.06 Counterparts................................................................ 95
SECTION 9.07 Severability................................................................ 95
SECTION 9.08 Right of Setoff............................................................. 95
SECTION 9.09 Governing Law, Jurisdiction; Consent to Service of Process.................. 95
SECTION 9.10 WAIVER OF JURY TRIAL........................................................ 96
SECTION 9.11 Headings.................................................................... 96
SECTION 9.12 Confidentiality............................................................. 96
SECTION 9.13 Effectiveness............................................................... 97
SECTION 9.14 Domicile of Loans........................................................... 97
SECTION 9.15 Calculations; Computations.................................................. 97
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ANNEXES
Annex A - Pricing Grid
SCHEDULES
Schedule I - Approved Procurement Savings
Schedule II - Certain Non-Core Assets
Schedule III - Commitments
Schedule IV - Sponsors
Schedule V - Subsidiaries; Joint Ventures and Equity Ownership Interests
Schedule VI - Unrestricted Assets and Unrestricted Subsidiaries
Schedule VII - Existing Letters of Credit
Schedule VIII - Consents
Schedule IX - Litigation
Schedule X - Real Property; Hotels
Schedule XI - Existing Indebtedness
Schedule XII - Investments
Schedule XIII - Existing Restrictions on Subsidiaries
EXHIBITS
Exhibit A - Assignment and Acceptance
Exhibit B - Compliance Certificate
Exhibit C - Guaranty and Collateral Agreement
Exhibit D - Prepayment Option Notice
Exhibit E - Closing Certificates
Exhibit F - Opinion of Goodwin, Procter & Hoar
Exhibit G - Solvency Certificate
(iv)
<PAGE>
CREDIT AGREEMENT dated as of June 30, 1999 among WYNDHAM
INTERNATIONAL, INC., a Delaware corporation (the "Borrower"), the LENDERS party
hereto from time to time, CHASE SECURITIES INC. ("CSI"), as Lead Arranger and
Book Manager, NATIONSBANK, N.A. and BANKERS TRUST COMPANY as Syndication Agents
(each a "Syndication Agent," together the "Syndication Agents"), CREDIT LYONNAIS
NEW YORK BRANCH as Documentation Agent, BEAR STEARNS CORPORATE LENDING INC. as
Co-Documentation Agent (each a "Documentation Agent," together the
"Documentation Agents") and THE CHASE MANHATTAN BANK ("Chase"), as
Administrative Agent (all capitalized terms used herein and defined in Section 1
are used herein as therein defined.)
The parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01 Defined Terms. As used in this Agreement, the following
-------------
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
---
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Accepting Lenders" has the meaning provided in Section 2.18(c).
-----------------
"Acquired Business" has the meaning as provided in the term "Permitted
-----------------
Acquisitions."
"Additional Basket Amount" has the meaning provided in Section
------------------------
6.02(i).
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
------------------
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Adjustment Date" has the meaning provided in Annex A.
---------------
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
--------------------
as administrative agent for the Lenders hereunder, and shall include any
successor to the Administrative Agent appointed pursuant to Section 8.01.
"Administrative Questionnaire" means an Administrative Questionnaire
----------------------------
in a form supplied by the Administrative Agent.
"Affected Eurodollar Loans" has the meaning provided in Section 2.16.
-------------------------
<PAGE>
"Affiliate" means, with respect to any Person, any other Person that,
---------
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, either to (a) vote 10% or more
of the securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agreement" means this Credit Agreement, as amended, modified or
---------
supplemented from time to time.
"Allocation Percentage" means (i) with respect to the Borrower or
---------------------
any Wholly-Owned Subsidiary of any Borrower, 100% and (ii) for any other Person,
with respect to such Person's Subsidiaries and Joint Ventures, the percentage
that the Equity Ownership Interest held by such Person in such Subsidiary or
Joint Venture represents of the entire Equity Ownership Interest of such
Subsidiary or Joint Venture, respectively.
"Alternate Base Rate" means, for any day, a rate per annum equal to
-------------------
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" means with respect to Term Loans, Revolving Loans
-----------------
and Commitment Fees, the applicable percentage per annum set forth on the
Pricing Grid attached hereto as Annex A.
"Applicable Percentage" means, with respect to any Lender, the
---------------------
percentage of the Revolving Commitments represented by such Lender's Revolving
Commitment. If the Total Revolving Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Revolving Commitments
most recently in effect, giving effect to any assignments.
"Approved Procurement Savings" means savings reasonably anticipated to
----------------------------
be reflected through procurements which have been approved by the Administrative
Agent prior to the Effective Date in the amounts reflected in Schedule I.
"Asset Disposition" means any sale, conveyance, transfer, assignment,
-----------------
lease or other disposition (including, without limitation, by merger or
consolidation, and dispositions or transfers arising out of, or in connection
with, a Recovery Event and excluding Exchanges and Dispositions of Unrestricted
Assets) by the Borrower, or any of its Subsidiaries or Joint Ventures to any
Person (other than to the Borrower, or any of its Subsidiaries or Joint
Ventures) of any Equity Ownership Interest (other than new issuances of Equity
Ownership Interests) of any of its Subsidiaries or Joint Ventures or any Hotel
or any other properties and assets, or group of related properties and assets,
in each case other than (i) sales, dispositions leases, and transfers of
inventory, obsolete personal property and fixtures, furniture and equipment,
time share units and residential lots, terminations of franchise and management
agreements, licensing of intellectual
2
<PAGE>
property, sales of inventory and (ii) other sales, dispositions leases, and
transfers which generate net proceeds and/or other consideration the fair market
value of which is less than $7,500,000 in the aggregate in any fiscal year of
the Borrower.
"Assignment and Acceptance" means an assignment and acceptance entered
-------------------------
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Assumed Indebtedness" means Indebtedness assumed in connection with a
--------------------
Permitted Acquisition or assumed in connection with an Exchange of the type
defined in Sections 6.05(c)(i) and (ii), provided that (a) such Indebtedness is
--------
outstanding at the time of such acquisition and was not incurred in connection
therewith or in contemplation thereof and (b) in the event that such Permitted
Acquisition constitutes an acquisition of assets other than Equity Ownership
Interest, such Indebtedness was incurred in order to acquire or improve such
asset (or refinancing of such Indebtedness whether in connection with the
original acquisition or improvement or the Permitted Acquisition).
"Augmenting Lender" has the meaning as provided in Section 2.09(d).
-----------------
"Board" means the Board of Governors of the Federal Reserve System of
-----
the United States of America (or any successor).
"Borrower" means Wyndham International, Inc., a Delaware corporation.
--------
"Borrowing" means (a) Revolving Loans or Term Loans of the same Type,
---------
made, converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect and (b) Swingline
Loans.
"Borrowing Request" means a request by the Borrower for a Borrowing of
-----------------
Revolving Loans or Term Loans in accordance with Section 2.03.
"Business" has the meaning provided in Section 3.18(b).
--------
"Business Day" means any day that is not a Saturday, Sunday or other
------------
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, with respect to notices and determinations in
--------
connection with and payments of principal and interest on, Eurodollar Loans,
such day is also a day for trading by and between banks in dollar deposits in
the interbank London Eurodollar market.
"Buy/Sell Arrangement" means an agreement among owners of Equity
--------------------
Ownership Interests in another Person pursuant to which an owner has the option
to sell his Equity Ownership Interest or to buy the Equity Ownership Interests
of other owners, and in response to which offer, the offerees in turn have the
option to accept such offer, or to require the initial offeror in the case of an
initial offer to sell, to instead buy the Equity Ownership Interests of the
offerees, or in the case of an initial offer to buy, to instead sell the Equity
Ownership Interest of the offeror to the offerees.
3
<PAGE>
"Calculation Period" means the period of four consecutive Fiscal
------------------
Quarters last ended before the date of the respective event or incurrence which
requires calculations to be made on a Pro Forma Basis.
"Capital Expenditures" means for any period, with respect to any
--------------------
Person, the aggregate of all expenditures (other than those made pursuant to
Permitted Acquisitions or in connection with a Reinvestment Event) by such
Person and its Subsidiaries for the acquisition or leasing (pursuant to a lease
giving rise to Capital Lease Obligations) of fixed or capital assets or
additions to equipment (including replacements, capitalized repairs and
improvements during such period but excluding merchandise inventory acquired
during such period) that should be capitalized under GAAP on a consolidated
balance sheet of such Person and its Subsidiaries.
"Capital Lease Obligations" of any Person means the obligations of
-------------------------
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and for the purposes of this Agreement, the amount of such obligations, shall be
the capitalized amount thereof, at such time determined in accordance with GAAP.
"Cash Equivalents" means (a) marketable direct obligations issued by,
----------------
or unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by Standard & Poor's Ratings Services ("S&P") or P-1 by Moody's
---
Investors Service, Inc. ("Moody's"), or carrying an equivalent rating by a
-------
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; or (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"Change in Law" means (a) the adoption of any law, rule or regulation
-------------
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compli-
4
<PAGE>
ance by any Lender or the Issuing Bank (or, for purposes of Section 2.14(b), by
any lending office of such Lender or by such Lender's or the Issuing Bank's
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after
the date of this Agreement.
"Change of Control" means (i) the acquisition, directly or indirectly,
-----------------
by any one "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) (other than the Sponsors, whether collectively or individually
(other than Permitted Third Party Transferees as defined in the Securities
Purchase Agreement)) of beneficial ownership of more than 30% of the Common
Stock of the Borrower on a fully diluted basis); (ii) during any period of 24
consecutive calendar months after the Effective Date, individuals who at the
beginning of such period constituted the Board of Directors of the Borrower
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the stockholders or members, as the case may
be, of the Borrower was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of such Board of Directors then in office;
or (iii) any "Change of Control" or similar event shall occur under the Senior
Notes (or any other unsecured Indebtedness issued or incurred in connection with
an Offering in aggregate principal amount in excess of $100,000,000 issued or
incurred by the Borrower in compliance with this Agreement) or New Preferred
Stock.
"Chase" means The Chase Manhattan Bank.
-----
"Class", when used in reference to any Loan or Borrowing, refers to
-----
whether such Loan, or the Loans comprising such Borrowing, are Term Loans,
Revolving Loans or Swingline Loans.
"Class A Common Stock" means the Class A Common Stock of the Borrower.
--------------------
"Class B Stock" means, collectively, the Class B Common Stock of the
-------------
Borrower and the Series B Convertible Preferred Stock of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time.
"Collateral" means all assets of the Loan Parties, now owned or
----------
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Collateral Agent" means The Chase Manhattan Bank, in its capacity as
----------------
Collateral Agent for the Secured Parties under the Loan Documents, and shall
include any successor to the Collateral Agent.
"Commitment" means, as to any Lender, each of the Term Loan Commitment
----------
and Revolving Commitment of such Lender.
"Commitment Fee" has the meaning provided in Section 2.12(a).
--------------
"Commitment Increase" has the meaning as provided in Section 2.09(e).
-------------------
5
<PAGE>
"Common Stock" means, with respect to the Borrower, (a) for so long as
------------
the Class A Common Stock remains a separate class of the Borrower's common stock
and the special voting provisions available to the Class B Stock apply, the
shares of Class A Common Stock then outstanding, on a fully diluted basis,
including, without limitation, any shares of Class A Common Stock issuable upon
the conversion of any securities (including the Series A Convertible Preferred
Stock of the Borrower and the Class B Stock) then outstanding which are or may
be convertible, directly or indirectly, into Class A Common Stock, and (b)
thereafter, all securities of any class of common stock, on a fully diluted
basis, entitling the holders thereof (whether at all times or by reason of the
happening of any contingency) to vote in the election of the members of the
board of directors of the Borrower.
"Commonly Controlled Entity" means an entity, whether or not
--------------------------
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Company" means any corporation, limited liability company,
-------
partnership or other business entity (or the adjectival form thereof, where
appropriate).
"Company Document" means the operative organizational documents of a
----------------
Company, such as the certificate of incorporation, by-laws, partnership
agreement, certificate of partnership and limited liability company agreement.
"Compliance Certificate" means a certificate duly executed by the
----------------------
Responsible Officer substantially in the form of Exhibit B.
"Contingent Purchase Obligations" means (i) obligations for the
-------------------------------
purchase of assets, including Equity Ownership Interests, to be acquired in the
future, unless upon satisfaction of any applicable conditions to closing, the
seller may maintain a suit for the full purchase price thereof; (ii) contingent
deferred obligations for the purchase of assets, including "earn-out" payments,
for property or assets owned, unless and until the amount is then determinable
and satisfaction of the conditions to payment thereof is probable, in Borrower's
reasonable determination, (iii) obligations under options held by others to
compel the purchase of assets in the future, including puts or buy-sell options,
unless and until such option is exercised and (iv) obligations under Buy/Sell
Arrangements unless and until such obligations are non-contingent.
"Contractual Obligation" means, as to any Person, any material
----------------------
provision of any material security issued by such Person or of any material
agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its assets are bound.
"Control Investment Affiliate" means, as to any Person, any other
----------------------------
Person that (a) directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person and (b) is organized by such Person
primarily for the purpose of making equity or debt investments in one or more
companies. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
6
<PAGE>
"Core Assets" means Hotels (or Equity Ownership Interest in Persons
-----------
owning such Hotels) branded as Wyndham Hotels, Wyndham Garden Hotels, Wyndham
Resorts and Wyndham Grand Heritage Hotels, or Hotels which will be branded as
such within one year after acquisition thereof (so long as such Hotels are so
branded within such time period); provided, that notwithstanding anything to the
--------
contrary, the Hotels described in Schedule II and Unrestricted Assets shall not
be included in this definition of Core Assets.
"Default" means any of the events specified in Article VII, whether or
-------
not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Defaulting Lender" means any Lender with respect to which a Lender
-----------------
Default is in effect.
"Derivatives Counterparty" has the meaning provided in Section 6.07.
------------------------
"Derivatives Obligations" of any Person means all Interest Rate
-----------------------
Protection Agreements and all other obligations of such Person in respect of any
interest rate swap transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, forward equity transaction,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Determination Date" has the meaning provided in the definition of Pro
------------------
Forma Basis.
"Disposition" means with respect to any asset, any sale, lease, sale
-----------
and leaseback, assignment, conveyance, transfer or other disposition thereof.
The terms "Dispose" and "Disposed of" shall have correlative meanings.
------- -----------
"Dividends" has the meaning provided in Section 6.07.
---------
"Documents" means the Transaction Documents and the Loan Documents.
---------
"Dollars" or "$" refers to lawful money of the United States of
-------
America.
"Domestic Subsidiary" means any Subsidiary of the Borrower that is
-------------------
incorporated or organized under the laws of the United States of America or any
State thereof.
"EBITDA" means for any Person for any period, the net income of such
------
Person for such period, plus (a) the sum of the following amounts of such Person
for such period determined in conformity with GAAP to the extent included in the
determination of such net income: (i) depreciation expense, (ii) amortization
expense and all other non-cash expenses and charges, (iii) interest expense,
(iv) income tax expense, (v) extraordinary losses (and other losses on sales or
other dispositions of assets not otherwise included in extraordinary losses
determined in conformity with GAAP), (vi) all minority interests, including
minority interests attributable to
7
<PAGE>
the OP Units and (vii) commencing with the first Fiscal Quarter in 1999, Non-
Recurring Identified Charges, less (b) extraordinary gains of such Person
determined in conformity with GAAP to the extent included in the determination
of such net income (and other gains on sales or other dispositions of assets not
otherwise included in extraordinary gains determined in conformity with GAAP)
and equity earnings attributable to all minority interests, including equity
earnings attributable to minority interests in the OP Units.
"Effective Date" has the meaning provided in Section 9.13.
--------------
"Environmental Laws" means any and all foreign, Federal, state, local
------------------
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"Equity Ownership Interest" means any and all shares, interests,
-------------------------
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation), including partnership interest and limited liability company
membership interest, and any and all warrants, rights or options to purchase any
of the foregoing (excluding Buy/Sell Arrangements so long as the obligations to
purchase the interests in respect thereof are contingent).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"Eurodollar" when used in reference to any Loan or Borrowing, refers
----------
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate
"Event of Default" means any of the events specified in Article VII,
----------------
provided that any requirement for the giving of notice, the lapse of time, or
- --------
both, has been satisfied.
"Exchange Act" means the Securities Exchange Act of 1934, and the
------------
regulations promulgated thereunder.
"Exchanges" has the meaning provided in Section 6.05(c).
---------
"Excluded Foreign Subsidiary" means any Foreign Subsidiary in respect
---------------------------
of which either the pledge of more than 65% of the capital stock of such
Subsidiary as Collateral or the guaranteeing by such Subsidiary of the
Obligations, would, in the good faith judgment of the Borrower, result in
adverse tax consequences to the Borrower.
8
<PAGE>
"Excluded Taxes" means, with respect to the Administrative Agent, any
--------------
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.17(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.17(a).
"Existing Credit Agreement" means that certain Credit Agreement, dated
-------------------------
as of July 18, 1997, as amended through the Effective Date, among Old Patriot,
Chase, as administrative agent, and others.
"Existing Equity Forwards" means the forward equity transactions
------------------------
entered into by the Borrower with certain counterparties, as in effect
immediately prior to the Effective Date.
"Existing Indebtedness" has the meaning provided in Section 6.02(d).
---------------------
"Facility" means either of the credit facilities established under
--------
this Agreement, i.e., the Term Loan Facility or the Revolving Loan Facility.
----
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fees" mean all amounts payable pursuant to or referred to in Section
----
2.12.
"Fiscal Quarters" means the fiscal quarters of the Borrower ending
---------------
March 31, June 30, September 30 and December 31.
"Foreign Lender" means any Lender that is organized under the laws of
--------------
a jurisdiction other than that the United States of America, each State thereof
and the District of Columbia.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is not
------------------
a Domestic Subsidiary.
9
<PAGE>
"Forward Purchase Obligations" means obligations to purchase Hotels
----------------------------
(or an Equity Ownership Interest in a Person which owns such a Hotel) and
related assets, including obligations in the form of take-out financings, upon
the completion of construction or renovation thereof, or upon the occurrence of
another future contingency (excluding obligations under purchase, sale and
acquisition agreements entered into in the ordinary course of business).
"Fronting Fee" has the meaning as provided in Section 2.12(b).
------------
"GAAP" means generally accepted accounting principles in the United
----
States of America consistently applied throughout the periods involved.
"Governmental Authority" means any nation or government, any state or
----------------------
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Guarantee Obligation" means as to any Person (the "guaranteeing
-------------------- ------------
person"), any obligation of (a) the guaranteeing person or (b) another Person
- ------
(including any bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
-------------------
of any other third Person (the "primary obligor") in any manner, whether
---------------
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
asset constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase asset, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not include
-------- -------
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or then determinable, in which
case the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guaranty and Collateral Agreement" means the Guaranty and Collateral
---------------------------------
Agreement to be executed and delivered by the Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit C, as the same may be amended,
supplemented or otherwise modified from time to time.
10
<PAGE>
"HIA Reserve Amount" means a hotel improvement allowance reserve
------------------
amount which initially shall be zero, and (i) which may be increased (and
reincreased after any decrease described in clause (ii) below) by the Borrower
in accordance with Section 2.11, not to exceed $300,000,000 at any time and (ii)
which shall be decreased by the amount of Capital Expenditures, together with
investments made in or improvements made to Hotels, by the Borrower and its
Subsidiaries.
"Hospitality/Leisure-Related Business" means the hotel, resort
------------------------------------
(whether or not incorporating hospitality), extended stay lodging, other
hospitality, vacation or timeshare business or any casino (but only if part of a
Hotel and not as a stand-alone or primary business), senior living (excluding
congregate care), leisure or recreational business and other businesses
incidental to, or in support of such business, including without limitation, (i)
developing, managing, operating, improving or acquiring lodging facilities,
restaurants and other food-service facilities, golf facilities or other leisure
or entertainment facilities or club, convention or meeting facilities and
marketing services or reservation systems related thereto, and (ii) acquiring,
developing, managing or improving any real estate ancillary or connected to any
hotel, resort, extended stay lodging, other hospitality-related business, casino
(but only if a part of a Hotel and not as a stand-alone or primary business),
senior living (excluding congregate care) or recreational business or
reservation system constructed, leased, owned, managed or operated (or proposed
to be constructed, leased, owned, managed or operated) by the Borrower or any of
its Subsidiaries at any time.
"Hotel" means any Real Property (including Improvements thereon and
-----
any retail, golf, tennis, spa or other resort amenities appurtenant thereto)
comprising an operating facility offering hotel or lodging services.
"Improvements" means all buildings, structures, fixtures, tenant
------------
improvements and other improvements of every kind and description now or
hereafter located in or on or attached to any Real Property, including all
building materials, water, sanitary and storm sewers, drainage, electricity,
steam, gas, telephone and other utility facilities, parking areas, roads,
driveways, walks and other site improvements; and all additions and betterments
thereto and all renewals, substitutions and replacements thereof.
"Increase Effective Date" has the meaning as provided in Section
-----------------------
2.09(e).
"Increasing Lender" has the meaning as provided in Section 2.09(d).
-----------------
"Increasing Rate Term Loan Facility" means, to the extent the
----------------------------------
Indebtedness under 6.02(f) is incurred on the Effective Date, the collective
reference to (i) the Increasing Rate Note Purchase and Loan Agreement, dated as
of the date hereof, among the Borrower, the lenders from time to time parties
thereto and Chase, as administrative agent for such lenders, together with the
Exchange "Notes" referred to therein, and to the extent any "Exchange Notes" are
issued in connection therewith, such Exchange Notes and the Indenture governing
same and (ii) any other document governing Indebtedness incurred pursuant to
Section 6.02(f)(A)(i) (including any "Notes" or "Exchange Notes" issued
thereunder or in connection therewith).
11
<PAGE>
"Increasing Rate Term Loans" means the term loans (including "Notes")
--------------------------
incurred under the Increasing Rate Term Loan Facility.
"Indebtedness" means as to any Person, without duplication, (i) all
------------
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money or for the deferred purchase price of any asset (including
Forward Purchase Obligations but excluding Contingent Purchase Obligations) or
services; (ii) the maximum amount available to be drawn under all letters of
credit issued for the account of such Person and all unpaid drawings in respect
of such letters of credit, (iii) all Indebtedness of the types described in
clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any
Lien on any asset owned by such Person, whether or not such Indebtedness has
been assumed by such Person, (iv) Capital Lease Obligations, (v) all obligations
of such person to pay a specified purchase price for goods or services, whether
or not delivered or accepted, i.e., take-or-pay and similar obligations, (vi)
----
all Guarantee Obligations of such Person, and (vii) solely for purposes of
Sections 6.03 and 7.04, all net exposure of Derivative Obligations, including
obligations under any Interest Rate Protection Agreement, Other Hedging
Agreements or under any similar type of agreement or arrangement calculated in
accordance with GAAP; provided, that Indebtedness shall not include (a) trade
--------
payables incurred in the ordinary course of business, (b) operating lease
obligations (including, without limitation, the lessee's obligations under (i)
the eleven Lease Agreements dated as of May 2, 1996 and/or May 3, 1996
originally between HPTWN Corporation, as lessor, and Garden Hotel Associates Two
LP, as lessee (subsequently assigned to GHALP Corporation, as lessee), (ii) the
Lease dated as of January 8, 1997 originally between HPTSLC Corporation, as
lessor, and WHC Salt Lake City Corporation, as lessee, and (iii) any other
operating lease pursuant to which the Borrower, or any of its Subsidiaries or
Joint Ventures, as lessee, leases all or any portion of a Hotel from the holder
of an ownership or leasehold interest in such Hotel, as lessor), (c) short term
notes evidencing earnest money deposits until delivered to the payee and (d) at
the time of determination of outstanding Indebtedness at any time, the aggregate
amount of Forward Purchase Obligations not in excess of $400,000,000 then
outstanding.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Indemnitee" has the meaning as provided in Section 9.03(b).
----------
"Information" has the meaning as provided in Section 9.12.
-----------
"Information Memorandum" means the Confidential Information Memorandum
----------------------
relating to the Borrower and the Transactions.
"Initial Loans" has the meaning as provided in Section 2.09(e).
-------------
"Insolvency" means, with respect to any Multiemployer Plan, the
----------
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Intellectual Property" means the collective reference to all rights,
---------------------
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trade-
12
<PAGE>
marks, trademark licenses, technology, know-how and processes, and all rights to
sue at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom.
"Interest Coverage Ratio" means, for any Test Period, the ratio of (i)
-----------------------
Total Adjusted EBITDA for such Test Period to (ii) Total Cash Interest Expense
for such Test Period; provided that for the first three Test Periods ending
after the Effective Date, the Total Cash Interest Expense shall be calculated
from July 1, 1999 through the end of the period ending on each such date (taken
as one accounting period) multiplied by 4, 2 and 4/3, respectively.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Borrowing in accordance with Section 2.07
"Interest Payment Date" means (a) with respect to any ABR Loan (other
---------------------
than a Swingline Loan), monthly in arrears on the tenth day of each calendar
month, (b) with respect to any Eurodollar Loan, on the tenth day of each
calendar month and (c) with respect to any Swingline Loan, the day that such
Loan is required to be repaid.
"Interest Period" means with respect to any Eurodollar Borrowing, the
---------------
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three, six months or,
if available from each Lender required to make Loans under such Borrowing, nine
or twelve months thereafter, as the Borrower may elect; provided, that (i) if
--------
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period.
For purposes hereof, the date of a Borrowing initially shall be the date on
which such Borrowing is made and thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.
"Interest Rate Protection Agreement" means any interest rate swap
----------------------------------
agreement, interest rate cap agreement, interest rate collar agreement
(including costless collars), interest rate hedging agreement, interest rate
floor agreement or other similar agreement or arrangement.
"Investment" has the meaning provided in Section 6.06. In the event
----------
the Borrower or any of its Subsidiaries creates or forms a Subsidiary ("New
Entity") and contemporaneously sells or issues Equity Ownership Interests in the
New Entity to any Person other than to the Borrower and its Subsidiaries such
that after giving effect to such sale or issuance, such New Entity constitutes a
Joint Venture, the Borrower or such Subsidiary shall be deemed to have made an
Investment in the New Entity valued at an amount equal to the lesser of (x) the
fair market value (as determined in good faith by the Borrower) of the Equity
Ownership Interest retained by the Borrower or such Subsidiary in the New Entity
and (y) the aggregate
13
<PAGE>
amount of all Investments made by the Borrower and its Subsidiaries in such New
Entity prior to such sale or issuances of Equity Ownership Interests.
"Investment Returns" means, with respect to any Investment, the sum of
------------------
the aggregate amount of cash repayments or returns of principal or capital on
such Investment, cash interest or cash distributions or dividends thereon, and
any other cash returns in respect thereof.
"Issuer" has the meaning provided in the Guaranty and Collateral
------
Agreement.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
------------
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05. The Issuing Bank may, in its discretion, arrange for
one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in
which case the term "Issuing Bank" shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate.
"Joint Venture" means with respect to any Person, at any date, any
-------------
other Person in whom such Person directly or indirectly holds an Investment, and
whose financial results would not be consolidated under GAAP with the financial
results of such Person on the consolidated financial statements of such Person,
if such statements were prepared as of such date; provided that any Joint
--------
Venture of a Person which is an Unrestricted Subsidiary shall not be treated as
a Joint Venture hereunder for so long as such Person is an Unrestricted
Subsidiary.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
---------------
a Letter of Credit.
"LC Obligations" means at any time, an amount equal to the sum of (a)
--------------
the aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of LC Disbursements that have not then
been reimbursed pursuant to Section 2.05.
"Lead Arranger and Book Manager" means Chase Securities Inc.
------------------------------
"Leasehold" means, as to any Person, all of the right, title and
---------
interest of such Person as lessee or licensee in, to and under any lease or
license of land, improvements and/or fixture.
"Lender Default" means (i) each Lender which has refused (and which
--------------
has not retracted such refusal) to make available its portion of any Borrowing
or to fund its portion of any unreimbursed payment under a Letter of Credit or
(ii) a Lender which has notified in writing the Borrower and/or the
Administrative Agent that it does not intend to comply with its obligations
under Section 2.01 or Section 2.05, in each case for any reason, including,
without limitation, as a result of any takeover of such Lender by any regulatory
authority or agency.
"Lenders" means on the Effective Date the Persons listed on Schedule
-------
III and thereafter any other Person that shall have become a party hereto
pursuant to a fully executed Assignment and Acceptance, other than any such
Person that ceases to be a party hereto pursuant
14
<PAGE>
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" has the meaning provided in Section 2.05(a).
----------------
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
---------
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other) or other security agreement
or any preferential arrangement in the nature of the foregoing (including,
without limitation, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any other
similar recording or notice statute, and any capital lease having substantially
the same effect as any of the foregoing and excluding any equipment operating
leases and any precautionary filings related thereto).
"Loan" means any loan made by any Lender pursuant to this Agreement
----
and shall include Term Loans, Revolving Loans and Swingline Loans.
"Loan Documents" means this Agreement, any Notes and the Security
--------------
Documents.
"Loan Parties" means the Borrower and each Subsidiary of the Borrower
------------
that is a party to a Loan Document.
"Margin Stock" has the meaning provided in Regulation U.
------------
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, properties, prospects, operations, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries taken as a whole
or (b) the validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
"Materials of Environmental Concern" means any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances,
15
<PAGE>
materials or wastes, defined or regulated as such in or under any Environmental
Law, including asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Maturity Date" means the Revolving Loan Maturity Date or the Term
-------------
Loan Maturity Date, as the case may be.
"Minimum Borrowing Amount" means (i) for Term Loans, $5,000,000, (ii)
------------------------
for Revolving Loans, $5,000,000 and for (iii) Swingline Loans $1,000,000.
"Multiemployer Plan" means a plan that is a multiemployer plan as
------------------
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means (a) for any Asset Disposition or
-----------------
Reinvestment Event, the gross cash proceeds (including any cash received by way
of deferred payment pursuant to a promissory note, receivable or otherwise, but
only as and when received) received by Borrower or any of its Subsidiaries from
any Asset Disposition or Reinvestment Event, net of (i) reasonable transaction
costs (including, without limitation, any underwriting, brokerage or other
customary selling commissions and reasonable legal, advisory, professional and
other fees and expenses, including title and recording expenses, surveys,
insurance premiums and similar costs associated therewith) and payments of
unassumed liabilities relating to the assets sold at the time of, or within 90
days after, the date of such sale, (ii) the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Lenders pursuant to this Agreement) which is secured by any of the respective
assets which were the subject of such Asset Disposition or Reinvestment Event,
including any premium, make-whole or breakage amount related thereto, (iii) the
estimated marginal increase in income taxes which will be payable by the
Borrower's consolidated group with respect to the fiscal year in which the sale
occurs or deferred payment is received as a result of such sale, and (iv) all
contractually required distributions and other payments made to other interest
holders of the Borrower or any of its Subsidiaries or Joint Ventures in
connection with such Asset Disposition or Reinvestment Event; provided, however,
-------- -------
that (x) such gross proceeds shall not include any portion of such gross cash
proceeds which the Borrower determines in good faith should be reserved for
post-closing adjustments (including indemnification payments and purchase price
adjustments, to the extent the Borrower delivers to the Lenders a certificate
signed by a Responsible Officer of such Borrower officer as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than one
year following the date of the respective Asset Disposition or Reinvestment
Event provided, however, such one year period shall be extended to the extent
-------- -------
any amount of such proceeds is subject to a good faith dispute or claim), the
amount (if any) by which the reserved amount in respect of such sale or
disposition exceeds the actual post-closing adjustments payable by the Borrower
or any of its Subsidiaries shall constitute Net Cash Proceeds on such date
received by the Borrower and/or any of its Subsidiaries from such sale, lease,
transfer or other disposition, and (y) with respect to any Asset Disposition or
Recovery Event relating to the assets of a Joint Venture, such Net Cash Proceeds
shall only include the portion of such Net Cash Proceeds received by the
Borrower or any of its Subsidiaries; and (b) in connection with any incurrence
or issuance of Indebtedness, the cash proceeds received from such issuance or
incurrence, net of (i) if such Indebtedness is incurred to refinance other
Indebtedness permitted under Section 6.02, the amount necessary to repay such
16
<PAGE>
other Indebtedness, including, without limitation, accrued but unpaid interest,
any breakage costs, penalties, premium, and any other reasonable fees and
expenses incurred in connection therewith, (ii) attorneys' fees, investing
banking fees, accountants' fees, underwriting discounts and commissions and
(iii) other customary fees and expenses actually incurred in connection
therewith.
"New Hotel" shall mean any Hotel owned by the Borrower, its
---------
Subsidiaries or Joint Ventures which is being or has been newly constructed, or
substantially refurbished or rebuilt (so long as any such Hotel is or was
substantially closed while being refurbished or rebuilt); provided that any New
Hotel shall cease to be treated as a New Hotel from and after the earlier of (x)
the first day of the Fiscal Quarter occurring after 18 months from the date such
New Hotel opened or re-opened for business and (y) the Fiscal Quarter in which
the ratio of Total Adjusted EBITDA to Total Cash Interest Expense attributable
to such New Hotel equals or exceeds the Interest Coverage Ratio required to be
exceeded by the Borrower under Section 6.01(c) for the most recent Fiscal
Quarter.
"New Hotel Indebtedness" means, with respect to any New Hotel, the sum
----------------------
of (a) all Indebtedness either secured by such New Hotel or incurred to finance
the construction, refurbishment or rebuilding of such New Hotel and (b) all
other cash outlays in respect of the construction, refurbishment or rebuilding
of such New Hotel, provided, that the interest rate associated with any amounts
--------
under this clause (b) shall be deemed to be the interest rate which would have
been applicable to Revolving Loans under this Agreement which are Eurodollar
Loans having an Interest Period of three months determined on the first day of
the then most recently ended Fiscal Quarter.
"New Preferred Stock" means newly issued shares of the Borrower's
-------------------
Series A Convertible Preferred Stock and Series B Convertible Preferred Stock,
issued on or after the Effective Date pursuant to the Securities Purchase
Agreement and the Certificate of Designation therefor as in effect on the
Effective Date.
"Non-Core Assets" means all assets (other than Unrestricted Assets)
---------------
which are not Core Assets, except that the Wyndham Franklin Plaza shall be
included in this definition of Non-Core Assets.
"Non-Defaulting Lenders" means all Lenders other than Defaulting
----------------------
Lenders.
"Non-Increasing Lender" has the meaning as provided in Section
---------------------
2.09(d).
"Non-Recourse Indebtedness" means Indebtedness with respect to which
-------------------------
no portion is guaranteed by, and no recourse claim (other than claims in respect
of customary indemnities and non-recourse carveouts) can be made against, the
Borrower or any of its Subsidiaries (other than Special Purpose Subsidiaries).
"Non-Recurring Identified Charges" means certain identified non-
--------------------------------
recurring charges specifically identified in 5.2(d), Parts II (A)(1)(a)-(m) and
II (D)(4) of the disclosure letter to the Securities Purchase Agreement and
related to EBITDA as described therein.
17
<PAGE>
"Note" has the meaning provided in Section 2.08(e).
----
"Obligations" means all amounts owing by any Loan Party to the
-----------
Administrative Agent, the Collateral Agent, the Lead Arranger and Book Manager
or any Lender pursuant to the terms of this Agreement or any other Loan
Document.
"Offering" means a (i) registered public offering of debt securities,
--------
(ii) sale or placement of debt securities pursuant to Rule 144A of the
Securities Act of 1933 ("Rule 144A") or (iii) private placement of debt
securities with a "qualified institutional buyer" as defined in Rule 144A.
"Old Patriot" means Patriot American Hospitality, Inc., prior to the
-----------
Effective Date a publicly traded real estate investment trust.
"OP Units" means Patriot OP Units and Wyndham Partnership OP Units.
--------
"Other Hedging Agreement" means foreign exchange contracts, currency
-----------------------
swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency values.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participant" has the meaning provided in Section 9.04(e).
-----------
"Participation Fee" has the meaning provided in Section 2.12(b).
-----------------
"Patriot OP" means Patriot American Hospitality Partnership, L.P., a
----------
Virginia limited partnership.
"Patriot OP Units" means the partnership units of Patriot OP which
----------------
remain outstanding immediately after the consummation of the Transaction.
"PBGC" means the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition" means any acquisition, consisting of a single
---------------------
transaction or a series of related transactions, by the Borrower or any one or
more of its Subsidiaries of all of the Equity Ownership Interests of, or all or
part of the assets of, or of a business, unit or division of, any Person
organized under the laws of the United States or any state thereof (such
business, unit or division, the "Acquired Business"), provided that (a) the
----------------- --------
consideration paid by the Borrower or such Subsidiary or Subsidiaries pursuant
to such acquisition shall be solely in a form referred to in clause (a), (b),
(c) or (d) of the definition of "Purchase Price" set forth in this Section 1.01
(or some combination thereof), (b) the Borrower shall be in compliance, on a Pro
Forma Basis with the covenants contained in Section 6.01, (c) no Default or
Event of Default shall have occurred
18
<PAGE>
and be continuing, or would occur after giving effect to such acquisition and
(d) all actions required to be taken with respect to any acquired or newly
formed Subsidiary or otherwise with respect to the Acquired Business in such
acquisition under Section 3.15 shall have been taken.
"Permitted Encumbrances" means (i) those liens, encumbrances and other
----------------------
matters affecting title to any Real Property and found reasonably acceptable by
the Administrative Agent, (ii) as to any particular Real Property at any time,
such easements, encroachments, covenants, restrictions, rights of way, minor
defects, irregularities or other encumbrances that do not materially impair such
Real Property, (iii) zoning and other municipal ordinances which are not
violated in any material respect by the existing improvements and the present
use made by the mortgagor thereof of the premises, (iv) general real estate
taxes and assessments not yet delinquent, and (v) such other items as the
Administrative Agent may consent to (such consent not to be unreasonably
withheld).
"Permitted Liens" has the meaning as provided in Section 6.03.
---------------
"Person" means any individual, partnership, limited liability company,
------
joint venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or instrumentality
thereof.
"Plan" means at a particular time any employee benefit plan that is
----
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledged Notes" has the meaning as provided in the Guaranty and
-------------
Collateral Agreement.
"Pledged Stock" has the meaning as provided in the Guaranty and
-------------
Collateral Agreement.
"Prepayment Date" has the meaning provided in Section 2.18(c).
---------------
"Prepayment Option Notice" has the meaning provided in Section
------------------------
2.18(c).
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Pro Forma Basis" means with respect to any incurrence of Indebtedness
---------------
or issuance of preferred stock by the Borrower or any of its Subsidiaries or
Joint Ventures or the acquisition or Disposition of a Hotel or other real
property or the consummation of a Permitted Acquisition (or acquisition of the
Equity Ownership Interest of the Person or Persons owning such Hotel or Acquired
Business which is the subject of a Permitted Acquisition), the calculation of
the consolidated results of the Borrower and its Subsidiaries and Joint Ventures
otherwise determined in accordance with this Agreement as if the respective
incurrence of Indebtedness,
19
<PAGE>
issuance of preferred stock, acquisition or Permitted Acquisition or Disposition
(and all other Indebtedness incurred, other preferred stock issued or other such
acquisitions or Permitted Acquisition or Disposition effected during the
respective Calculation Period or thereafter and on or prior to the date of
determination) (each such date, a "Determination Date") had been effected on the
------------------
first day of the respective Calculation Period; provided that all such
--------
calculations shall take into account the following assumptions:
(i) pro forma effect shall be given to (1) any Indebtedness
--- -----
incurred or preferred stock issued subsequent to the end of the Calculation
Period and prior to the date of determination, (2) any Indebtedness
incurred or preferred stock issued during such period to the extent such
Indebtedness or preferred stock is outstanding at the date of determination
and (3) any Indebtedness to be incurred or preferred stock to be issued on
the date of determination, in each case as if such Indebtedness had been
incurred or such preferred stock had been issued on the first day of such
Calculation Period and after giving effect to the application of the
proceeds thereof;
(ii) there shall be excluded from preferred stock dividends any
preferred stock dividends related to any preferred stock issued or
outstanding during such Calculation Period or thereafter but that is not
outstanding or is to be redeemed on the date of determination; and
(iii) pro forma effect shall be given to all sales and acquisitions
--- -----
or Dispositions of Hotels or other Real Property or Permitted Acquisitions
that occur during such Calculation Period or thereafter and on or prior to
the Determination Date (including any Indebtedness assumed or acquired in
connection therewith) as if they had occurred on the first day of such
Calculation Period, provided that in connection with any such acquisitions
or Dispositions, pro forma effect (for periods prior to such acquisition)
--- -----
shall be given to the management fees if any payable pursuant to the
respective management agreements as if such management fees had been
payable throughout the Calculation Period.
"Pro Forma Financial Statements" has the meaning as provided in
------------------------------
Section 3.01(a).
"Projections" has the meaning as provided in Section 5.02 (c).
-----------
"Properties" has the meaning provided in Section 3.18(a).
----------
"Purchase Price" means with respect to any Permitted Acquisition, the
--------------
sum (without duplication) of (a) the amount of cash paid by the Borrower and its
Subsidiaries in connection with such acquisition, (b) the value (as determined
for purposes of such acquisition in accordance with the applicable acquisition
agreement) of all capital stock or other equity interests of the Borrower or
Subsidiaries or Joint Ventures issued or given as consideration in connection
with such acquisition, (c) the Net Cash Proceeds of any equity issuance applied
to finance such acquisition and (d) the principal amount (or, if less, the
accreted value) at the time of such acquisition of all Assumed Indebtedness or
other Indebtedness permitted under Sections 6.02 (e), (i), (j) and (l) with
respect thereto.
20
<PAGE>
"Real Property" means for any Person, all the right, title and
-------------
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" means the actual receipt by the Borrower, any of its
--------------
Subsidiaries or any of their Joint Ventures of any insurance or condemnation
proceeds payable (i) by reason of theft, physical destruction or damage or any
other similar event with respect to any properties or assets of the Borrower or
any of its Subsidiaries or Joint Ventures, (ii) by reason of any condemnation,
taking, seizing or similar event with respect to any properties or assets of the
Borrower or any of its Subsidiaries or Joint Ventures and (iii) under any policy
of insurance required to be maintained under Section 5.05 (other than liability
or business interruption insurance).
"Register" has the meaning set forth in Section 9.04.
--------
"Regulation D" means Regulation D of the Board as in effect from time
------------
to time.
"Regulation T" means Regulation T of the Board as in effect from time
------------
to time.
"Regulation U" means Regulation U of the Board as in effect from time
------------
to time.
"Regulation X" means Regulation X of the Board as in effect from time
------------
to time.
"Reimbursement Obligation" means the obligation of the Borrower to
------------------------
reimburse the Issuing Bank pursuant to Section 2.05 for amounts paid under
Letters of Credit.
"Reinvestment Assets" means any assets useful in the Borrower's and
-------------------
its Subsidiaries' business.
"Reinvestment Deferred Amount" means with respect to any Reinvestment
----------------------------
Event, the aggregate Net Cash Proceeds received by the Borrower or any of its
Subsidiaries in connection therewith that are not applied pursuant to Section
2.11 as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event" means any Recovery Event or Exchange in respect
------------------
of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a Responsible
-------------------
Officer stating that no Event of Default has occurred and is continuing and that
the Borrower (directly or indirectly through a Subsidiary or a Joint Venture)
intends and expects to use all or a specified portion of the Net Cash Proceeds
of a Reinvestment Event to acquire assets useful in its business.
"Reinvestment Prepayment Amount" means with respect to any
------------------------------
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended or irrevocably committed pursuant to a binding agreement, prior
to the relevant Reinvestment Prepayment Date, to acquire assets useful in the
Borrower's business, provided that such acquisition made with the Net Cash
Proceeds of Dispositions of Core Assets shall be made in Core Assets.
21
<PAGE>
"Reinvestment Prepayment Date" means with respect to any Reinvestment
----------------------------
Event, the date occurring twelve months after such Reinvestment Event (plus an
additional six months in the case of an Asset Disposition of Non-Core Assets for
Net Cash Proceeds of $50,000,000 or greater).
"Related Fund" means, with respect to any Lender that is a fund that
------------
invests in bank loans, any other fund that invests in bank loans and is advised
or managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents,
trustees and advisors of such Person and such Person's Affiliates.
"Reorganization" means, with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event" means any of the events set forth in Section
----------------
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or. 35 of
PBGC Reg. (S) 4043.
"Required Lenders" means the Non-Defaulting Lenders, the sum of whose
----------------
outstanding Term Loans (or, if prior to the Effective Date, Term Loan
Commitments) and Revolving Commitments (or after the termination thereof,
outstanding Revolving Loans and Revolving Percentage of Swingline Loans and LC
Obligations) represent an amount greater than 50% of the sum of all outstanding
Term Loans (or, if prior to the Effective Date, Term Loan Commitments) of Non-
Defaulting Lenders and the Total Revolving Commitments (or after the termination
thereof, the sum of the then total outstanding Revolving Loans of Non-Defaulting
Lenders and the aggregate Revolving Percentages of all Non-Defaulting Lenders of
the total outstanding Swingline Loans and LC Obligations at such time).
"Requirement of Law" means, with respect to any Person, any law,
------------------
treaty, rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its assets or to which such Person or any of its assets are subject.
"Responsible Officer" means the chief executive officer, president,
-------------------
chief financial officer or treasurer of the Borrower, but in any event, with
respect to financial matters, the chief financial officer or president of the
Borrower.
"Restricted Payment" means any dividend or other distribution (whether
------------------
in cash, securities or other assets) with respect to any shares of any class of
capital stock or other Equity Ownership Interest of the Borrower or any of its
Subsidiaries, or any payment (whether in cash, securities or other assets),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, defeasance, acquisition, cancellation or termination of
any such shares of capital stock of the Borrower or Subsidiary, or any option,
warrant or other right to acquire any such shares of capital stock of the
Borrower or such Subsidiary.
22
<PAGE>
"Restructuring" means the Restructuring Plan as defined in the
-------------
Securities Purchase Agreement.
"Revolving Commitment" means, with respect to any Lender, the
--------------------
obligation of such Lender, if any, to make Revolving Loans and participate in
Swingline Loans and Letters of Credit in an aggregate principal and/or face
amount not to exceed the amount set forth under the heading "Revolving
Commitment" opposite such Lender's name on Schedule III or in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof.
"Revolving Extensions of Credit" means, with respect to any Revolving
------------------------------
Lender at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Loans held by such Lender then outstanding, (b) such
Lender's Revolving Percentage of the LC Obligations then outstanding and (c)
such Lender's Revolving Percentage of the aggregate principal amount of
Swingline Loans then outstanding.
"Revolving Lender" means each Lender that has a Revolving Commitment
----------------
or that holds Revolving Loans.
"Revolving Loan" has the meaning provided in Section 2.01(a).
--------------
"Revolving Loan Facility" means the Facility evidenced by the Total
-----------------------
Revolving Commitments.
"Revolving Loan Maturity Date" means June 30, 2004.
----------------------------
"Revolving Percentage" means, as to any Revolving Lender at any time,
--------------------
the percentage which such Lender's Revolving Commitment then constitutes of the
Total Revolving Commitments (or, at any time after the Revolving Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of such Lender's Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding).
"Scheduled Repayment" has the meaning provided in Section 2.11(e).
-------------------
"SEC" means the Securities and Exchange Commission, any successor
---
thereto and any analogous Governmental Authority.
"Secured Parties" has the meaning provided in the Guarantee and
---------------
Collateral Agreement.
"Securities Purchase Agreement" means the Securities Purchase
-----------------------------
Agreement, dated February 18, 1999 among the Borrower, Old Patriot, certain of
their Subsidiaries and the Sponsors, as amended by the First Amendment dated on
or about June 30, 1999.
"Security Documents" means the collective reference to the Guaranty
------------------
and Collateral Agreement and all other security documents hereafter delivered to
the Collateral Agent
23
<PAGE>
granting a Lien on any asset of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.
"Senior Note Indenture" means any Indenture to be entered into by the
---------------------
Borrower in connection with the issuance of senior unsecured notes, together
with all instruments and other agreements entered into by the Borrower in
connection therewith, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with Section 6.08.
"Senior Notes" means the notes of the Borrower to be issued pursuant
------------
to any Senior Note Indenture.
"Senior Secured Leverage Ratio" means, on any date, the ratio of (i)
-----------------------------
Total Indebtedness on such date secured by a Lien on any asset of the Borrower,
its Subsidiaries or Joint Ventures to (ii) Total Adjusted EBITDA for the Test
Period most recently ended on or prior to such date. All calculations of the
Senior Secured Leverage Ratio shall be made on a Pro Forma Basis.
"Single Employer Plan" means any Plan that is covered by Title IV of
--------------------
ERISA, but that is not a Multiemployer Plan.
"Solvent" when used with respect to any Person, means that, as of any
-------
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured. It is understood that the representation and
warranty contained in Section 3.21 is made (a) without reliance upon, or the
benefit of, the services, analyses, opinions or conclusions of any appraiser or
valuation experts; (b) without investigation or inquiry other than (i) review
of the Borrower's consolidated financial statements and business plans, and (ii)
inquiry of the officers of the Borrower who have responsibility for financial
reporting and accounting matters as to the existence or any events or conditions
that, as of the Effective Date, would cause the representation and warranty
contained in Section 3.21 to be incorrect and (c) without inquiry as to the
legal meanings of the foregoing terms under any laws other than the laws of the
State of New York or federal laws.
"Special Purpose Subsidiary" means any Subsidiary of the Borrower
--------------------------
which is a special purpose entity in connection with any securitization or
similar financing in respect of
24
<PAGE>
Indebtedness permitted by Section 6.02 and whose assets consist primarily of
properties and assets subject to such securitization or financing or the Equity
Ownership Interest in any other Special Purpose Subsidiary.
"Sponsors" means the collective reference to the Persons listed on
--------
Schedule IV hereto and their Permitted Assignees and Permitted Third Party
Transferees (as such terms are defined in the Security Purchase Agreement).
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"Subsequent Borrowing" has the meaning as provided in Section 2.09(e).
--------------------
"Subsidiary" means as to any Person, (i) any corporation more than 50%
----------
of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person and/or one or
more Subsidiaries of such person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more subsidiaries of such person has more than a 50% equity interest at
the time. Notwithstanding the foregoing, no Unrestricted Subsidiary shall be
considered a Subsidiary of the Borrower or its Subsidiaries for purposes of this
Agreement.
"Subsidiary Guarantor" means each Subsidiary of the Borrower (other
--------------------
than an Excluded Foreign Subsidiary) as set forth on Schedule V on the Effective
Date or which becomes a Subsidiary as required under Section 5.10 hereof.
"Swingline Expiry Date" means the date which is two Business Days
---------------------
prior to the Revolving Loan Maturity Date.
"Swingline Exposure" means, at any time, the aggregate principal
------------------
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Revolving Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its capacity as
----------------
lender of Swingline Loans hereunder.
"Swingline Loan" has the meaning provided in Section 2.04(a).
--------------
25
<PAGE>
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan" has the meaning provided in Section 2.01(b).
---------
"Term Loan Commitment" means, with respect to any Lender, the
--------------------
obligation of such Lender, if any, to make Term Loans in an aggregate principal
amount not to exceed the amount set forth under the heading "Term Commitment"
opposite such Lender's name on Schedule IV or in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same may be changed
from time to time pursuant to the terms hereof.
"Term Loan Facility" means the Facility evidenced by the Total Term
------------------
Loan Commitments.
"Term Loan Lender" means each Lender that has a Term Loan Commitment
----------------
or that holds a Term Loan.
"Term Loan Maturity Date" means June 30, 2006.
-----------------------
"Term Loan Prepayment Amount" has the meaning provided in Section
---------------------------
2.18(c).
"Test Period" means, for any determination, the four consecutive
-----------
Fiscal Quarters then last ended, in each case taken as one accounting period.
"Total Adjusted EBITDA" means, for any period without duplication, (i)
---------------------
the product of (a) EBITDA of the Borrower and its Subsidiaries and Joint
Ventures all on a combined basis in accordance with GAAP for such period (b)
multiplied, in the case of each such Person, by the Allocation Percentage
applicable to such Person, plus (ii) the amount of Approved Procurement Savings
set forth on Schedule I for the Test Period ended on the date set forth thereon.
"Total Cash Interest Expense" means the sum of the total cash interest
---------------------------
expense in respect of Total Indebtedness for such period determined in
conformity with GAAP (excluding interest capitalized in accordance with GAAP,
amortization of deferred financing costs and other non-cash charges and
expenses); provided there shall be excluded from Total Cash Interest Expense the
cash interest expense (not to exceed $20 million for any applicable period of
calculation) attributable to New Hotel Indebtedness.
"Total Indebtedness" means the sum (without duplication) of all
------------------
Indebtedness of the Borrower plus the Allocation Percentage of Indebtedness of
all of the Subsidiaries and Joint Ventures of the Borrower (other than Guarantee
Obligations of the Borrower or any of its Subsidiaries and Joint Ventures in
respect of obligations of the Borrower or any of its Subsidiaries and Joint
Ventures which would otherwise not constitute Indebtedness), without
duplication, determined on a combined basis in accordance with GAAP (adjusted to
exclude the portion of Indebtedness of Subsidiaries and Joint Ventures in excess
of the Allocation Percentages of such Persons' Indebtedness).
26
<PAGE>
"Total Leverage Ratio" means, on any date, the ratio of (i) Total
--------------------
Indebtedness on such date to (ii) Total Adjusted EBITDA for the Test Period most
recently ended on or prior to such date. All calculations of the Total Leverage
Ratio shall be made on a Pro Forma Basis.
"Total Revolving Commitment" means, at any time, the aggregate amount
--------------------------
of the Revolving Commitments then in effect. The original amount of the Total
Revolving Commitment is $500,000,000.
"Total Revolving Extensions of Credit" means, at any time, the
------------------------------------
aggregate amount of the Revolving Extensions of Credit of the Revolving Lenders
outstanding at such time.
"Total Term Loan Commitment" means, at any time, the aggregate amount
--------------------------
of the Term Loan Commitments then in effect. The original aggregate amount of
the Total Term Commitment is $1,300,000,000.
"Transaction" means the transaction contemplated to occur on or prior
-----------
to the Effective Date, consisting of (i) the Restructuring, (ii) the issuance of
the New Preferred Stock, (iii) the issuance of the Senior Notes or the
Increasing Rate Loans, (iv) the refinancing of the Existing Credit Agreement and
other Indebtedness described in Section 4.01(b)(ii) and (v) the cash settlement
of the Existing Equity Forwards, and all other transactions contemplated by the
Securities Purchase Agreement.
"Transaction Documents" means the Securities Purchase Agreement, the
---------------------
New Preferred Stock, the documents evidencing the Increasing Rate Term Loan
Facility or the Senior Note Indenture, the documents evidencing or effectuating
the Restructuring and all material agreements relating to the foregoing.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"UCC" means the Uniform Commercial Code as from time to time in effect
---
on the relevant jurisdiction.
"Unencumbered" means with respect to any Hotel, management agreements,
------------
franchise agreements or time share agreements, at any date of determination, the
circumstance that such Hotel or such agreement, as the case may be, on such
date:
(a) is not subject to any Liens (including restrictions on
transferability or assignability, other than commercially reasonable
restrictions in the Company Documents of any Subsidiary of the Borrower
which do not prohibit such Subsidiary from disposing or realizing the value
of, any Hotel owned by it, or the Equity Ownership Interest in such
Subsidiary (including any such Lien or restriction imposed by (i) any
agreement governing Indebtedness, and (ii) the Company Documents of the
Borrower or any of its Subsidiaries)) other than Permitted Liens, and, in
the case of any ground lease (to the extent permitted by the definition
thereof), restrictions on transferability or assignability in respect of
such ground lease;
27
<PAGE>
(b) (x) is not subject to any agreement (including (i) any agreement
governing Indebtedness, and (ii) if applicable, the Company Documents of
the Borrower or any of its Subsidiaries) which prohibits or limits the
ability of such Person to create, incur, assume or suffer to exist any Lien
upon such Hotel or such agreement, as the case may be, other than Permitted
Liens (excluding any agreement or organizational document (x) which limits
generally the amount of Indebtedness which may be incurred by such Person
or (y) which limits the amount of obligations secured by Liens upon such
Hotel in a manner which would not prohibit a Lien securing Obligations in
an amount equal to such Person's pro rata share of the value of such
Hotel); and
(c) is not subject to any agreement (including any agreement governing
Indebtedness) which entitles any Person to the benefit of any Lien, other
than Permitted Liens, on such Hotel or such agreement, as the case may be,
or would entitle any Person to the benefit of any such Lien upon the
occurrence of any contingency (including, without limitation, pursuant to
an "equal and ratable" clause).
For the purposes of this Agreement, any Hotel owned by a Subsidiary of the
Borrower shall not be deemed to be Unencumbered unless both (i) such Hotel and
(ii) all Equity Ownership Interest owned directly or indirectly by the Borrower
in such Subsidiary is Unencumbered.
"United States" and "U.S." each mean the United States of America.
------------- ----
"Unrestricted Assets" means those assets as described in Schedule VI,
-------------------
together with (i) any properties and assets acquired in consideration or
exchange for, or with the proceeds of, the sale, lease, conveyance, disposition
or other transfer of, or Recovery Event with respect to, any properties and
assets described Schedule VI or the proceeds thereof, and (ii) the proceeds of
the sale, lease, conveyance, disposition or other transfer of, or Recovery Event
with respect to, any properties and assets described Schedule VI or described in
clause (i) above.
"Unrestricted Subsidiary" means the Persons described on Schedule VI
-----------------------
on the Effective Date, and any other Subsidiary or Joint Venture of the Borrower
(whether existing on, or acquired or created after, the Effective Date) and
designated by the Borrower as an Unrestricted Subsidiary hereunder after the
Effective Date by written notice to the Administrative Agent, provided that the
--------
Borrower shall only be permitted to so designate a new Unrestricted Subsidiary
after the Effective Date and so long as (i) unless such Unrestricted Subsidiary
is capitalized through Investments by the Borrower or any of its Subsidiaries or
Joint Ventures consisting solely of Unrestricted Assets, no Default under
Sections 7.01 or Section 7.05 or Event of Default exists or would result
therefrom, (ii) such Unrestricted Subsidiary shall be capitalized (to the extent
capitalized by the Borrower or any of its Subsidiaries) through Investments as
permitted by, and in compliance with, Section 6.06, with any assets (other than
Unrestricted Assets) owned by any such Unrestricted Subsidiary at the time of
the initial designation thereof to be treated as Investments pursuant to Section
6.06, provided that at the time of the initial Investment by the Borrower or any
--------
Subsidiary in such Subsidiary, the Borrower shall designate such entity as an
Unrestricted Subsidiary in a written notice to the Administrative Agent and
(iii) no obligations of any Unrestricted Subsidiary shall be with recourse to,
or an obligation of, the Borrower or any of its Subsidiaries; provided further,
-------- -------
that each Subsidiary or Joint Venture of
29
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an Unrestricted Subsidiary shall also be considered an Unrestricted Subsidiary
for purposes of this Agreement (whether or not such Subsidiary or Joint Venture
shall have been so designated) and shall also cease to be an Unrestricted
Subsidiary upon such direct or indirect parent Unrestricted Subsidiary ceasing
to be an Unrestricted Subsidiary.
"Unutilized Revolving Commitment" means with respect to any Revolving
-------------------------------
Lender, at any time, such Revolving Lender's Revolving Commitment at such time
less the sum of (i) the aggregate outstanding principal amount of Revolving
Loans made by such Revolving Lender and (ii) such Revolving Lender's Revolving
Percentage of LC Obligations.
"Wholly-Owned Subsidiary" means, as to any Person, (i) any corporation
-----------------------
100% of whose capital stock (other than director's qualifying shares) is at the
time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such
Person (ii) any partnership, limited liability company, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% Equity Ownership Interest, at such time,
and (iii) any Subsidiary of the Borrower shall also be considered a Wholly-Owned
Subsidiary of each such Person if (x) 100% of such Subsidiary's capital stock
(other than director's qualifying shares) is at the time owned by both such
Persons and/or one or more Wholly-Owned Subsidiaries of such Persons and (y) if
such Subsidiary is a partnership, limited liability company, association, joint
venture or any other non-corporate entity, both such Persons and/or one or more
Wholly-Owned Subsidiaries of such Persons hold 100% of the Equity Ownership
Interests in such Subsidiary at such time; provided, that notwithstanding the
--------
foregoing, each of Patriot OP and Wyndham Partnership OP shall be deemed to be a
Wholly-Owned Subsidiary except to the extent that Patriot OP Units or Wyndham
Partnership OP Units, as the case may be, are issued after the Effective Date to
Persons other than the Borrower and its Wholly-Owned Subsidiaries (giving effect
to this provision).
"Wholly-Owned Subsidiary Guarantor" means any Subsidiary Guarantor
---------------------------------
that is a Wholly Owned Subsidiary of the Borrower.
"Wyndham Partnership" means Wyndham International Operating
-------------------
Partnership, L.P., a Delaware limited partnership.
"Wyndham Partnership OP Units" means the partnership units of Wyndham
----------------------------
Partnership.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of
--------------------------------------
this Agreement, Loans may be classified and referred to by Class a (e.g.,
----
"Revolving Loan") or by Type (e.g., "Eurodollar Loan") or by Class and Type
----
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
- -----
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
---- ----
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
----
Borrowing").
SECTION 1.03 Terms Generally. The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The word
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<PAGE>
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herewith), (b) any reference herein to any Person shall be construed to include
such Person's successors and assigns, (c) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, and (d) all
reference herein to "assets" of any Person shall be construed to mean the assets
and properties of such Person.
ARTICLE II
The Credits
-----------
SECTION 2.01 Commitments. (a) Subject to the terms and conditions
-----------
set forth herein, each Revolving Lender agrees to make a revolving loan or
revolving loans (each a "Revolving Loan" and collectively, the "Revolving
Loans") to the Borrower from time to time on or after the Effective Date and
prior to the Revolving Loan Maturity Date in an aggregate principal amount that
will not result in such Lender's Revolving Extension of Credit exceeding such
Lender's Revolving Commitment. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
(b) Subject to the terms and conditions set forth herein, each Term
Loan Lender agrees to make a term loan or term loans (each a "Term Loan and
collectively, the "Term Loans") to the Borrower on the Effective Date in an
aggregate principal amount not to exceed such Lender's Term Loan Commitment.
Once repaid, Terms Loans may not be reborrowed.
SECTION 2.02 Loans and Borrowings. (a) (i) Each Revolving Loan
--------------------
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Revolving Lenders ratably in accordance with their respective Revolving
Commitments and (ii) each Term Loan shall be made as part of a Borrowing
consisting of Term Loans made by the Term Loan Lenders ratably in accordance
with their respective Term Loan Commitments in effect on the Effective Date
immediately prior to the Term Loan Borrowing on such date. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the
--------
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Loan Borrowing shall
be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request in accordance herewith, (ii) each Term Loan Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith and (iii) each Swingline Loan shall be an ABR Loan. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
--------
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement.
30
<PAGE>
(c) The aggregate principal amount of each Borrowing under a Facility
shall not be less than the Minimum Borrowing Amount for such Facility.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of ten Eurodollar
- --------
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing of Eurodollar Loans if the Interest Period requested with respect
thereto would end after the Revolving Loan Maturity Date or the Term Loan
Maturity Date, as the case may be.
SECTION 2.03 Requests for Borrowings. To request a Borrowing under
-----------------------
any Facility, the Borrower shall notify the Administrative Agent of such request
by telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of the proposed
Borrowing and (b) in the case of an ABR Borrowing, not later than noon, New York
City time, one Business Day before the date of the proposed Borrowing; provided
--------
that any such notice of an ABR Revolving Loan Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e) may be
given not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in a form approved by the Administrative
Agent and signed by the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04 Swingline Loans. (a) Subject to the terms and
---------------
conditions set forth herein, the Swingline Lender in its individual capacity
agrees to make a revolving loan or
31
<PAGE>
revolving loans (each a "Swingline Loan and collectively, the "Swingline Loans")
to the Borrower at any time and from time to time on and after the Effective
Date and prior to the Swingline Expiry Date, in an aggregate principal amount at
any time outstanding that will not result in (i) the aggregate principal amount
of outstanding Swingline Loans exceeding $10,000,000 or (ii) the sum of the
total Revolving Extensions of Credit exceeding the total Revolving Commitments;
provided that the Swingline Lender shall not be required to make a Swingline
- --------
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested
date (which shall be a Business Day) and amount of the requested Swingline Loan.
The Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Revolving Lenders to acquire participations on the
immediately succeeding Business Day, in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans
in which Revolving Lenders will participate. Promptly upon receipt of such
notice, the Administrative Agent will give notice thereof to each Revolving
Lender, specifying in such notice such Revolving Lender's Revolving Percentage
of such Swingline Loan. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent on the immediately succeeding Business Day, for the account
of the Swingline Lender, such Revolving Lender's Revolving Percentage of such
Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or Event of Default (including under Section 7.05) or reduction or termination
of the Revolving Commitment, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Revolving Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
- ------- --------
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent;
32
<PAGE>
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.
SECTION 2.05 Letters of Credit. (a) General. Subject to the terms
----------------- -------
and conditions set forth herein, the Borrower may request the issuance of an
irrevocable standby letter of credit or letters of credit for its own account,
in a form reasonably acceptable to the Administrative Agent and the Issuing
Bank, at any time and from time to time on and after the Effective Date and
prior to the Revolving Loan Maturity Date (each such standby letter of credit, a
"Letter of Credit"). In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control. Schedule VII
hereto contains a description of all letters of credit issued pursuant to the
Existing Credit Agreement and outstanding on the Effective Date. Each such
letter of credit, including any extension or renewal thereof, shall constitute a
"Letter of Credit" for all purposes of this Agreement, issued, for purposes of
Section 2.05(a), on the Effective Date.
(b) Notice of Issuance, Amendment, Renewal, Extension, Certain
----------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the amendment,
- ----------
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and each request for the
issuance, amendment, renewal or extension of each Letter of Credit by Borrower
shall be deemed to be a representation and warranty that), after giving effect
to such issuance, amendment, renewal or extension (i) the LC Obligations shall
not exceed $50,000,000 and (ii) the sum of the Total Revolving Extensions of
Credit shall not exceed the Total Revolving Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
---------------
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit and (ii) the date that is five Business
Days prior to the Revolving Loan Maturity Date, provided that any Letter of
--------
Credit with a tenor of up to one year may provide for the renewal or extension
thereof for additional periods of up to one year (which shall in no event extend
beyond the date referred to in clause (ii) above).
33
<PAGE>
(d) Participations. By the issuance of a Letter of Credit (or
--------------
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Revolving Lenders, the
Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender
hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such Revolving Lender's Revolving Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Revolving Lender's Revolving Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Revolving
Lender acknowledges and agrees that its obligation to acquire participations
pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or Event of Default or reduction or
termination of the Revolving Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
-------------
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (1) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that
--------
the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.04 that such payment be financed
with an ABR Revolving Loan Borrowing or Swingline Loan in an equivalent amount
and, to the extent so financed, the Borrower's obligation to make such payment
shall be discharged and replaced by the resulting ABR Revolving Loan Borrowing
or Swingline Loan. If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and such
Revolving Lender's Revolving Percentage thereof. Promptly following receipt of
such notice, each Revolving Lender shall pay to the Administrative Agent its
Revolving Percentage of the payment then due from the Borrower, in the same
manner as provided in Section 2.06 with respect to Loans made by such Revolving
Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
------- --------
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the Issuing Bank or, to the extent that Revolving Lenders have
made payments pursuant to this paragraph to reimburse the Issuing Bank, then to
such Revolving Lenders and the Issuing Bank as their interests may appear. Any
payment made by a Revolving
34
<PAGE>
Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Revolving Loan and shall not
relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
--------------------
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder.
Neither the Administrative Agent, the Revolving Lenders nor the Issuing Bank,
nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided that the foregoing shall not be
--------
construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank (as finally determined by a court of
competent jurisdiction), the Issuing Bank shall be deemed to have exercised care
in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
-----------------------
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
--------
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
35
<PAGE>
(h) Interim Interest. If the Issuing Bank shall make any LC
----------------
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
- --------
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Lender pursuant to paragraph of this Section to reimburse the
Issuing Bank shall be for the account of such Revolving Lender to the extent of
such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced
-------------------------------
at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Revolving Lenders of any such replacement of the Issuing
Bank. At the time any such replacement shall become effective, the Borrower
shall pay all unpaid fees accrued for the account of the replaced Issuing Bank
pursuant to Section 2.12(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
----------------------
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent at the request of the Required Lenders (or, if the maturity
of the Loans has been accelerated, Revolving Lenders with exposure for LC
Obligations representing greater than 50% of the aggregate LC Obligations)
demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Revolving Lenders, an
amount in cash equal to the LC Obligations as of such date plus any accrued and
unpaid interest thereon; provided that the obligation to deposit such cash
--------
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described in
Section 7.05. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent, but for the Borrower's Account and at the Borrower's risk
and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements
36
<PAGE>
for which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Obligations at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of the Revolving Lenders with exposure
for LC Obligations representing greater than 50% of the total LC Obligations),
be applied to satisfy other obligations of the Borrower under this Agreement. If
the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.
SECTION 2.06 Funding of Borrowings. (a) Each Lender shall make each
---------------------
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
--------
in Section 2.04. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request;
provided that ABR Revolving Loans made to finance the reimbursement of an LC
- --------
Disbursement as provided in Section 2.04(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing.
SECTION 2.07 Interest Elections. (a) Each Borrowing initially shall
------------------
be of the Type specified in the applicable Borrowing Request and, in the case of
a Eurodollar Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request. Thereafter, the Borrower may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising
37
<PAGE>
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.02 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
38
<PAGE>
SECTION 2.08 Repayment of Loans; Evidence of Debt. (a) The Borrower
------------------------------------
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Term Loan Lender the Scheduled Repayments as provided in Section
2.11(e), (ii) to the Administrative Agent for the account of each Revolving
Lender the then unpaid principal amount of each Revolving Loan on the Revolving
Loan Maturity Date and (iii) to the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of (A) the Swingline Expiry Date
and (B) the first date after such Swingline Loan is made that is the 15th or
last day of a calendar month and is at least two Business Days after such
Swingline Loan is made; provided that on each date that a Revolving Loan
--------
Borrowing is made the Borrower shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
----- -----
amounts of the obligations recorded therein; provided that the failure of any
--------
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note (the "Note"). In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04(b)) be represented by one
or more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.09 Termination, Reduction and Increase of Commitments. (a)
--------------------------------------------------
Unless previously terminated, (i) the Total Revolving Commitment shall terminate
on the Revolving Loan Maturity Date and (ii) the Total Term Loan Commitment
shall terminate on the Effective Date after giving effect to the Borrowing of
Term Loans on such date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Total Revolving Commitment; provided that (i) each reduction of the
--------
Total Revolving Commitment shall be in an amount that is an integral multiple of
$1,000,000 and not less than
39
<PAGE>
$5,000,000 and (ii) the Borrower shall not terminate or reduce the Total
Revolving Commitment if, after giving effect to any concurrent prepayment of the
Revolving Loans and Swingline Loans in accordance with Section 2.10, the sum of
the Revolving Extensions of Credit would exceed the Total Revolving Commitment.
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Total Revolving Commitment under paragraph (b) of
this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Revolving Lenders of the contents thereof. Each notice
delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Revolving Commitment delivered by
- --------
the Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or
reduction of the Total Revolving Commitment shall be permanent. Each reduction
of the Total Revolving Commitment shall be made ratably among the Revolving
Lenders in accordance with their respective Revolving Commitment.
(d) The Borrower may on one occasion at any time not later than twelve
months prior to the Revolving Loan Maturity Date, by written notice to the
Administrative Agent (which shall promptly deliver a copy to each of the
Revolving Lenders), request that the Total Revolving Commitment be increased by
an amount not in excess of $300,000,000. Such notice shall set forth the amount
of the requested increase in the Total Revolving Commitment and the date on
which such increase is requested to become effective (which shall be not less
than 30 days or more than 60 days after the date of such notice), and shall
offer each Revolving Lender the opportunity to increase its Revolving Commitment
by its Applicable Percentage of the proposed increased amount. Each Revolving
Lender shall, by notice to the Borrower and the Administrative Agent given not
more than 30 days after the date of the Borrower's request, either agree to
increase its Revolving Commitment by all or a portion of the offered amount
(each Lender so agreeing being an "Increasing Lender") or decline to increase
its Revolving Commitment (and any Revolving Lender that does not deliver such a
notice within such period of 30 days shall be deemed to have declined to
increase its Revolving Commitment) (each Revolving Lender so declining or deemed
to have declined being a "Non-Increasing Lender"). In the event that, on the
30th day after the Borrower shall have delivered a request pursuant to the first
sentence of this paragraph, the Revolving Lenders shall have agreed pursuant to
the preceding sentence to increase their Revolving Commitments by an aggregate
amount less than the increase in the Total Revolving Commitment requested by the
Borrower, the Administrative Agent may arrange for one or more banks or other
financial institutions (any such bank or other financial institution being
called an "Augmenting Lender"), which may include any Revolving Lender or Term
Lender, to extend a Revolving Commitment or increase its existing Revolving
Commitment in an aggregate amount equal to the unsubscribed amount, provided
--------
that each Augmenting Lender, if not already a Lender hereunder, shall be subject
to the approval of the Borrower and the Administrative Agent (which approvals
shall not be unreasonably withheld) and each Augmenting Lender shall execute all
such documentation as the Administrative Agent shall specify to evidence its
Commitment and its status as a Lender hereunder provided further that if
-------- -------
40
<PAGE>
the aggregate amount of the increase in Total Revolving Commitments, after
giving effect to the additional commitments of Increasing Lenders and Augmenting
Lenders, is less than the increase in Total Revolving Commitments requested by
the Borrower, the Borrower may accept such lesser increase. Increased and new
Revolving Commitments created pursuant to this clause (d) shall become effective
on the date specified in the request delivered by the Borrower pursuant to the
first sentence of this paragraph. Notwithstanding the foregoing, no increase in
the Total Revolving Commitment (or in the Revolving Commitment of any Revolving
Lender) shall become effective under this paragraph unless, (i) on the date of
such increase, the conditions set forth in paragraph (a) and (b) of Section 4.02
shall be satisfied (with all references in such paragraphs to a Borrowing being
deemed to be references to such increase) and the Administrative Agent shall
have received a certificate to that effect dated such date and executed by a
member of senior management of the Borrower and (ii) the Administrative Agent
shall have received (with sufficient copies for each of the Revolving Lenders)
documents consistent with those delivered on the Effective Date under clause (f)
of Section 4.01 as to the Company's power to borrow hereunder after giving
effect to such increase; and
(e) On the effective date (the "Increase Effective Date") of any
increase in the Total Revolving Commitment pursuant to Section 2.09(d) (the
"Commitment Increase"), (i) the aggregate principal amount of the Revolving
Loans outstanding (the "Initial Loans") concurrently with giving effect to the
Commitment Increase on the Increase Effective Date shall be deemed to be paid,
(ii) each Increasing Lender and each Augmenting Lender that shall have been a
Revolving Lender prior to the Commitment Increase shall pay to the
Administrative Agent in same day funds an amount equal to the difference between
(A) the product of (1) such Lender's Applicable Percentage (calculated after
giving effect to the Commitment Increase) multiplied by (2) the amount of the
Subsequent Borrowing (as hereinafter defined) and (B) the product of (1) such
Lender's Applicable Percentage (calculated without giving effect to the
Commitment Increase) multiplied by (2) the amount of the Initial Loans, (iii)
each Augmenting Lender that shall not have been a Revolving Lender prior to the
Commitment Increase shall pay to Administrative Agent in same day funds an
amount equal to the product of (1) such Augmenting Lender's Applicable
Percentage (calculated after giving effect to the Commitment Increase)
multiplied by (2) the amount of the Subsequent Borrowings, and (iv) after the
Administrative Agent receives the funds specified in clauses (ii) and (iii)
above, the Administrative Agent shall pay to each Non-Increasing Lender the
portion of such funds that is equal to the difference between (A) the product of
(1) such Non-Increasing Lender' Applicable Percentage (calculated without giving
effect to the Commitment Increase) multiplied by (2) the amount of the Initial
Loans, and (B) the product of (1) such Non-Increasing Lender's Applicable
Percentage (calculated after giving effect to the Commitment Increase)
multiplied by (2) the amount of the Subsequent Borrowings, (v) after the
effectiveness of the Commitment Increase, the Borrower shall be deemed to have
made new Borrowings (the "Subsequent Borrowing") in an aggregate principal
amount equal to the aggregate principal amount of the Initial Loans deemed
repaid and of the types and for the Interest Periods specified in a Borrowing
Request delivered to the Administrative Agent in accordance with Section 2.03,
(vi) each Non-Increasing Lender, each Increasing Lender and each Augmenting
Lender shall be deemed to hold its Applicable Percentage of each Subsequent
Borrowing (calculated after giving effect to the Commitment Increase) and (vii)
the Borrower shall pay each Increasing Lender and each Non-Increasing Lender any
and all accrued but unpaid
41
<PAGE>
interest on the Initial Loans. The deemed payments made pursuant to clause (i)
above in respect of each Eurodollar Loan shall be subject to indemnification by
the Borrower pursuant to the provisions of Section 2.16.
SECTION 2.10 Prepayment of Loans. The Borrower shall have the right
-------------------
to prepay the Loans and the right to allocate such prepayments to Revolving
Loans and Term Loans and Swingline Loans on the following terms and conditions:
(i) the Borrower shall give the Administrative Agent (x) not later than 12:00
noon, New York City time at least one Business Day before the date of prepayment
of such Borrower's intent to prepay ABR Loans and (y) not later than 12:00 noon,
New York City time at least three Business Days before the date of prepayment of
such Borrower's intent to prepay Eurodollar Loans and (z) not later than 12:00
Noon, New York City time on the date of prepayment of such Borrower's intent to
prepay Swingline Loans, notice of the amount of such prepayment and the Types of
Loans to be prepaid and, in the case of Eurodollar Loans, the specific Borrowing
or Borrowings pursuant to which made, which notice (other than any notice to
prepay Swingline Loans) the Administrative Agent shall promptly transmit to each
of the Lenders; (ii) each prepayment of Revolving Loans, Term Loans and
Swingline Loans, as the case may be shall be the lesser of (x) the total amount
outstanding for each Loan and (y) the Minimum Borrowing Amount, provided that if
--------
any partial prepayment of Eurodollar Loans made pursuant to any Borrowing shall
reduce the outstanding Eurodollar Loans made pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount applicable thereto, then such
Borrowing may not be continued as a Borrowing of Eurodollar Loans and any
election of an Interest Period with respect thereto given by the relevant
Borrower shall have no force or effect; (iii) each prepayment in respect of any
Loans made pursuant to a Borrowing shall be applied pro rata among the Lenders
--- ----
which made such Loans, provided that in connection with any prepayment of Loans
--------
pursuant to this Section 2.10, such prepayment shall not be required to be
applied to any Loans of a Defaulting Lender; (iv) optional prepayments of Term
Loans will be made at 102% of the principal amount thereof during the first year
following the Effective Date and 101% of the principal amount thereof during the
second year following the Effective Date and any such prepayment of the Term
Loans shall be applied (x) during the first two years after the Effective Date,
to the next installments of the Scheduled Repayments due in direct order of
maturity of such Term Loans and (y) thereafter, (A) first, to the installments
due on such Term Loans in the following twelve months and (B) second, to the
remaining installments pro rata on the amount of the Term Loans then
outstanding, and (v) prepayments of Term Loans shall be subject to Section 2.18.
SECTION 2.11 Mandatory Applications and Prepayments; Scheduled
-------------------------------------------------
Commitment Reductions. (a) If on any date the sum of (i) the aggregate
- ---------------------
outstanding principal amount of all Revolving Loans and Swingline Loans (after
giving effect to all other repayments thereof on such date) plus (ii) the
aggregate LC Obligations on such date exceeds the Total Revolving Commitment as
then in effect, the Borrower shall repay on such date the principal of Swingline
Loans, then Revolving Loans, in an aggregate equal to such excess. If, after
giving effect to the prepayment of all outstanding Revolving Loans and Swingline
Loans, the aggregate amount of LC Obligations exceeds the Total Revolving
Commitment as then in effect, the Borrower agrees to pay to the Administrative
Agent on such date an amount in cash and/or Cash Equivalent equal to such excess
(up to the aggregate amount of LC Obligations at such time) and the
Administrative Agent shall hold such payment as security for the obligation of
the Borrower
42
<PAGE>
hereunder pursuant to a cash collateral agreement to be entered into in form and
substance reasonably satisfactory to the Administrative Agent and the Borrower
(which shall permit certain investments in Cash Equivalents reasonably
satisfactory to the Administrative Agent, until the proceeds are applied to the
secured obligations or released to the Borrower at such time as the aggregate
amount of LC Obligations shall no longer exceed the Total Revolving Commitment
then in effect).
(b) Notwithstanding anything to the contrary contained in this
Agreement or in any other Loan Document all then outstanding Loans shall be
repaid in full on the respective Maturity Date for such Loans.
(c) In addition to any other mandatory prepayments pursuant to this
Section 2.11,
(i) if the Borrower issues Senior Notes after the Effective Date and
the Net Cash Proceeds of any such issuance are greater than $250,000,000,
the full amount of any such issuance shall be applied as required in
accordance with clause (iv) below.
(ii) If the Borrower issues Senior Notes after the Effective Date and
the Net Cash Proceeds of any such issuance are less than or equal to
$250,000,000, the Borrower may retain up to $250,000,000 of all such
issuances, and shall apply all amounts in excess of $250,000,000 of all
such issuances in the aggregate as required in accordance with clause (iv)
below.
(iii) If the Borrower or any of its Subsidiaries incurs or issues
unsecured Indebtedness (other than Senior Notes) after the Effective Date
and the Net Cash Proceeds thereof are greater than (x) $100,000,000 per
incurrence or issuance or (y) $250,000,000 in the aggregate, such excess
amount shall be applied in accordance with clause (v) below.
(iv) All amounts required to be applied in accordance with this
clause (iv) shall be applied (i) first, to repay outstanding Increasing
Rate Term Loans, if any, (ii) second, to finance the acquisitions of
Investments, assets and businesses, (iii) third, at the option of the
Borrower, to repay obligations in respect of Indebtedness that will become
due within the next six months of the date of receipt of net proceeds, (iv)
fourth, at the option of the Borrower, to refinance other Indebtedness, (v)
fifth, to increase the HIA Reserve Amount, (vi) sixth, to repay outstanding
Swingline Loans and Revolving Loans (without any commitment reduction) and
(vii) seventh, to repay outstanding Term Loans.
(v) All amounts required to be applied in accordance with this
clause (v) shall be applied (i) first, at the option of the Borrower, to
repay outstanding mortgage Indebtedness, (ii) second, to the extent the
Indebtedness which gives rise to such payment obligation is purchase money
Indebtedness (including Capital Lease Obligations) or Assumed Indebtedness,
to finance such acquisition, (iii) third, at the option of the Borrower, to
increase the HIA Reserve Amount, (iv) fourth, to repay outstanding
Swingline Loans and Revolving Loans (without any commitment reduction) and
(v) fifth,
43
<PAGE>
to repay Term Loans and Increasing Rate Term Loans then outstanding pro
---
rata (based on the principal amount of Term Loans and Increasing Rate Term
----
Loans then outstanding).
(d) In addition to any other mandatory prepayments pursuant to this
Section 2.11, if on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Disposition or from any Reinvestment
Event (other than relating to Unrestricted Assets), then, unless a Reinvestment
Notice shall be delivered in respect of such Reinvestment Event (or such Net
Cash Proceeds are applied as permitted pursuant to Section 6.07(b)(iii)), a
prepayment of an amount equal to 100% of such Net Cash Proceeds (or the portion
thereof not subject to a Reinvestment Notice) shall be applied within five
Business Days following such date as follows: (i) first, at the option of the
Borrower, to repay mortgage Indebtedness, (ii) second, at the option of the
Borrower to increase the HIA Reserve Amount, (iii) third, to repay outstanding
Revolving Loans and Swingline Loans (without any commitment reduction) and (iv)
fourth, to repay Term Loans and Increasing Rate Term Loans then outstanding pro
---
rata (based on the principal amount of Term Loans and Increasing Rate Term Loans
- ----
outstanding). Additionally, on each Reinvestment Prepayment Date, an amount
equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied as required above.
(e) In addition to any other mandatory repayment pursuant to this
Section 2.11, on each date set forth below, the Borrower shall be required to
repay that principal amount of Term Loans, to the extent then outstanding, as is
set forth opposite such date (each such repayment, as the same may be reduced as
provided in Sections 2.09 and 2.10, a "Scheduled Repayment"):
<TABLE>
<CAPTION>
Scheduled Repayment Date Amount
------------------------------------ -------------------
<S> <C>
December 30, 2001 $ 10,000,000
June 30, 2002 $ 5,000,000
December 30, 2002 $ 5,000,000
June 30, 2003 $ 5,000,000
December 30, 2003 $ 5,000,000
June 30, 2004 $ 5,000,000
December 30, 2004 $ 5,000,000
June 30, 2005 $ 5,000,000
December 30, 2005 $ 5,000,000
June 30, 2006 $1,250,000,000
</TABLE>
(f) The application of any prepayment under this Section 2.11 shall be
made, (i) first to ABR Loans and, second, to Eurodollar Loans, (ii) pro rata
among the Lenders which made such Loans, (iii) to reduce the Scheduled
Repayments pro rata based on the amount of Term Loans then outstanding and (iv)
shall be subject to Section 2.18. Each prepayment of the Loans under this
Section 2.11 (except in the case of Revolving Loans that are ABR Loans and
44
<PAGE>
Swingline Loans) shall be accompanied by accrued interest to the date of such
prepayment on the amount prepaid.
SECTION 2.12 Fees. (a) The Borrower agrees to pay to the
----
Administrative Agent for the account of each Non-Defaulting Lender with a
Revolving Commitment, a commitment fee (the "Commitment Fee") during the period
from and including the Effective Date, but excluding the date on which such
Revolving Commitment terminates computed at a rate for each day equal to the
Applicable Margin on the daily Unutilized Revolving Commitment of such Non-
Defaulting Lender; provided that, if such Non-Defaulting Lender continues to
--------
have any Revolving Extension of Credit after its Revolving Commitment
terminates, then such Commitment Fee shall continue to accrue on the daily
amount of such Non-Defaulting Lender's Revolving Extension of Credit from and
including the date on which its Revolving Commitment terminates to but excluding
the date on which such Non-Defaulting Lender ceases to have any Revolving
Extension of Credit. Accrued Commitment Fees shall be payable in arrears on the
last day of March, June, September and December of each year and on the date on
which the Total Revolving Commitment terminates, commencing on the first such
date to occur after the date hereof, provided that any Commitment Fee accruing
--------
after the date on which the Total Revolving Commitment terminates shall be
payable on demand.
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Non-Defaulting Lender with a Revolving Commitment a
participation fee with respect to its participations in Letters of Credit (the
"Participation Fee"), which shall accrue at the same Applicable Margin as
interest on Eurodollar Revolving Loans on the average daily amount of such Non-
Defaulting Lender's LC Obligations (excluding any portion thereof attributable
to unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Non-
Defaulting Lender's Revolving Commitment terminates and the date on which such
Non-Defaulting Lender ceases to have any LC Obligations, and (ii) to the Issuing
Bank a fronting fee (the "Fronting Fee"), which shall accrue at the rate of .25%
per annum on the average daily amount of the LC Obligations (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any LC Obligations, as well as the Issuing Bank's standard fees with respect
to the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation Fees and Fronting Fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided
--------
that all such fees shall be payable on the date on which the Total Revolving
Commitment terminates and any such fees accruing after the date on which the
Total Revolving Commitment terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All Participation Fees and Fronting Fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
45
<PAGE>
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
Commitment Fees and Participation Fees, to the Revolving Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.13 Interest. (a) The Loans comprising each ABR Borrowing
--------
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Margin for ABR Loans.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Margin for Eurodollar Loans.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) to the extent permitted by applicable law in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans or
Swingline Loans, upon termination of the Total Revolving Commitment; provided
--------
that (i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand and (ii) in the event of any conversion of any Eurodollar Loan
prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.14 Alternate Interest. If prior to the commencement of any
------------------
Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines in good faith (which
determination shall be conclusive absent manifest error) that adequate and
reasonable means do not exist
46
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for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (or
Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective,
(ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing
shall be made as an ABR Borrowing.
SECTION 2.15 Increased Costs. (a) If any Change in Law shall:
---------------
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines in good faith that
any Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or on
the capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or the Issuing Bank, as the case may be, such additional
47
<PAGE>
amount or amounts as will compensate such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section including the calculation thereof in reasonable detail shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender or the Issuing Bank, as the case may be, the
amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
--------
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further, that, if the Change
----------------
in Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16 Break Funding Payments. In the event of (a) the payment
----------------------
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.10 and is revoked in accordance therewith) or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.18, then,
in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate (in the case of a Eurodollar Loan)
that would have been applicable to such Loan, for the period from the date of
such event to the last day of the then current Interest Period therefor (or, in
the case of a failure to borrow, convert or continue, for the period that would
have been the Interest Period for such Loan), over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period,
for dollar deposits of a comparable amount and period from other banks in the
eurodollar market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof. Notwithstanding the foregoing provisions
of this Section 2.16, if at any time the Borrower incurs breakage costs under
this Section 2.16 as a result of Eurodollar Loans being prepaid other than on
the last day of an Interest Period applicable thereto
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<PAGE>
(the "Affected Eurodollar Loans"), then the Borrower may in its sole discretion
initially deposit a portion (up to 100%) of the amounts that otherwise would
have been paid in respect of the Affected Eurodollar Loans with the
Administrative Agent (which deposit must be equal in amount to the amount of the
Affected Eurodollar Loans not immediately prepaid) to be held as security for
the obligations of the Borrower hereunder pursuant to a cash collateral
agreement to be entered into in form and substance reasonably satisfactory to
the Administrative Agent and shall provide for investments satisfactory to the
Administrative Agent and the Borrower, with such cash collateral to be directly
applied upon the first occurrence (or occurrences) thereafter of the last day of
an Interest Period applicable to the relevant Loans that are Eurodollar Loans
(or such earlier date or dates as shall be requested by the Borrower), to repay
an aggregate principal amount of such Loans equal to the Affected Eurodollar
Loans not initially prepaid pursuant to this sentence. Notwithstanding anything
to the contrary contained in the immediately preceding sentence, all amounts
deposited as cash collateral pursuant to the immediately preceding sentence
shall be held for the sole benefit of the Lenders whose Loans would otherwise
have been immediately prepaid with the amounts deposited upon the taking of any
action by the Administrative Agent or the Lenders pursuant to the remedial
provisions of Article VIII and amounts held as cash collateral pursuant to this
Section 2.16 shall, subject to the requirements of applicable law, be
immediately applied to the Loans.
SECTION 2.17 Taxes. (a) Any and all payments by or on account of
-----
any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
--------
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
49
<PAGE>
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such Jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law and reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of Set-
------------------------------------------------------
offs. (a) The Borrower shall make each payment required to be made by it
- ----
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All
payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) Notwithstanding anything to the contrary in this Agreement, with
respect to the amount of any optional or mandatory prepayment that would
otherwise be allocated to Term Loans (such amounts, the "Term Loan Prepayment
Amount"), the Borrower may, in lieu of applying such amount to the prepayment of
Term Loans on the date specified for such prepayment as otherwise provided
herein, give the Administrative Agent telephonic notice (promptly confirmed in
writing) requesting that the Administrative Agent prepare and provide to
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<PAGE>
each Lender a notice (each, a "Prepayment Option Notice") as described below. As
promptly as practicable after receiving such notice from the Borrower, the
Administrative Agent will send to each Term Loan Lender a Prepayment Option
Notice, which shall be in the form of Exhibit D and shall include an offer by
the Borrower to prepay, on the date (each a "Prepayment Date") that is 10
Business Days after the date of the Prepayment Option Notice, the Term Loans of
such Lender by an amount equal to the pro rata portion of the Term Loan
Prepayment Amount indicated in such Lender's Prepayment Option Notice as being
applicable to such Lender's Term Loans. The offer of the Borrower to prepay its
Term Loans will be deemed accepted by each Term Loan Lender that does not
respond to the Prepayment Option Notice of the Borrower within 10 Business Days.
On the Prepayment Date, (i) the Borrower shall pay to the relevant Term Loan
Lenders the aggregate amount necessary to prepay that portion of the outstanding
relevant Term Loans in respect of which such Lenders have accepted prepayment as
described above (such Lenders, the "Accepting Lenders") and (ii) the Borrower
shall pay to the Accepting Lenders (unless such Accepting Lender shall decline
to receive such additional payments) an amount equal to the portion of the Term
Loan Prepayment Amount not accepted by the Accepting Lenders, and such amount
shall be applied pro rata to the prepayment of the then outstanding Term Loans
--- ----
of such Accepting Lenders.
(d) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Term Loans, Revolving Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Term Loans, Revolving Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Term Loans, Revolving Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Term Loans, Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any such participations
--------
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such
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<PAGE>
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Bank, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then each
of the Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19 Mitigation Obligations, Replacement of Lenders. (a) If
----------------------------------------------
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
in each case in an amount greater than that generally charged by the other
Lenders, or if any Lender becomes a Defaulting Lender, or if any Lender refuses
to consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement or the other Loan Documents which have been approved
by the Required Lenders as provided in Section 9.02(b), then the Borrower may,
at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
--------
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank and Swingline
Lender), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or
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payments required to be made pursuant to Section 2.17, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower makes the following representations and warranties, to the
Administrative Agent and each Lender, all of which shall survive the execution
and delivery of this Agreement and the making of the Loans and the issuance of
any Letter of Credit:
SECTION 3.01 Financial Condition. (a) The unaudited pro forma
------------------- --- -----
consolidated balance sheet and statement of operations of the Borrower and its
consolidated Subsidiaries as at March 31, 1999, or for the period of four
consecutive fiscal quarters ended, March 31, 1999 (the "Pro Forma Financial
Statements"), copies of which have heretofore been furnished to each Lender,
have been prepared giving effect (as if such events had occurred on such date or
at the beginning of such period, as the case may be) to (i) the consummation of
the Transaction, (ii) the Loans to be made, Letters of Credit to be issued, and
the Senior Notes (or the Increasing Rate Term Loans to be funded, as the case
may be) and New Preferred Stock to be issued on the Effective Date and the use
of proceeds thereof and (iii) the payment of fees and expenses in connection
with the foregoing. The Pro Forma Financial Statements have been prepared based
on the best information available to the Borrower as of the date of delivery
thereof, and present a good faith estimate on a pro forma basis of the financial
--- -----
position of Borrower and its consolidated Subsidiaries as at, or for the period
of four consecutive fiscal quarters ended, March 31, 1999 assuming that the
events specified in the preceding sentence had actually occurred at such date or
at the beginning of such period, as the case may be.
(b) The audited consolidated balance sheets of the Borrower as at
December 31, 1996, December 31, 1997 and December 31, 1998, and the related
consolidated statements of operations, stockholder's equity and cash flows for
the fiscal years ended on such dates, present fairly the consolidated financial
condition of the Borrower as at such date, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal years then
ended. The unaudited consolidated balance sheet of the Borrower as at March 31,
1999, and the related unaudited consolidated statements of operations,
stockholder's equity and cash flows for the three-month period ended on such
date, present fairly the consolidated financial condition of the Borrower as at
such date, and the consolidated results of its operations and its consolidated
cash flows for the three-month period then ended (subject to normal year-end
audit adjustments). All such financial statements have been prepared in
accordance with GAAP applied consistently throughout the periods involved. The
Borrower and its Subsidiaries do not have any material contingent liabilities
and liabilities for taxes, or any long-term leases or unusual forward or long-
term commitments, including any interest rate or foreign currency swap or
exchange transaction
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or other obligation in respect of derivatives, all as determined in accordance
with GAAP, that are not reflected in the most recent financial statements
referred to in this paragraph. During the period from December 31, 1998 to and
including the date hereof there has been no Disposition by the Borrower or any
of its Subsidiaries of any material part of its business or assets, other than
has been disclosed to the Lenders prior to the Effective Date.
SECTION 3.02 No Change. Since December 31, 1998 there has been no
---------
development or event that has had or would reasonably be expected to have a
Material Adverse Effect.
SECTION 3.03 Company Existence; Compliance with Law. Each of the
--------------------------------------
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the Company power and authority, and the legal right, to own and operate its
assets, to lease the assets it operates as lessee and to conduct the business in
which it is currently engaged, (c) is duly qualified as a foreign Company and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of assets or the conduct of its business requires such qualification,
except to the extent that the failure to be so qualified and in good standing
would not, in the aggregate, reasonably be expected to have a Material Adverse
Effect, and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
SECTION 3.04 Company Power; Authorization; Enforceable Obligations.
-----------------------------------------------------
Each Loan Party has the Company power and authority, and the legal right to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of the Borrower, to borrow hereunder. Each Loan Party has taken all
necessary Company action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. All
consents or authorizations of, filings with, notices to or other act by or in
respect of, any Governmental Authority or any other Person required in
connection with the Transaction and the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents have been obtained and are in full force and
effect, except consents, authorizations, filings and notices described in
Schedule VIII. Each Loan Document has been duly executed and delivered on
behalf of each Loan Party thereto. This Agreement constitutes, and each other
Loan Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party thereto, enforceable against each such Loan Party
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
SECTION 3.05 No Violation. The execution, delivery and performance
------------
of this Agreement and the other Loan Documents, the issuance of Letters of
Credit, the borrowings hereunder and the use of the proceeds thereof (i) will
not violate any Requirement of Law or any material Contractual Obligation of the
Borrower or any of its Subsidiaries, (ii) will not conflict with or result in
any breach of any of the terms, covenants, conditions or provisions of, or
consti-
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tute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien (other than pursuant to the Security
Documents) upon any of the properties or assets of the Borrower or any of its
Subsidiaries, pursuant to the terms of any indenture, mortgage, deed of trust,
credit agreement or loan agreement, or any other material agreement, contract or
instrument, to which the Borrower or any of its Subsidiaries, is a party or by
which it or any of its property or assets is bound or to which it may be
subject, except to the extent that such conflict or default would not reasonably
be expected to have a Material Adverse Effect or (iii) will not violate any
provision of any Company Document of the Borrower or any of its Subsidiaries. No
Requirement of Law or Contractual Obligation applicable to the Borrower or any
of its Subsidiaries would reasonably be expected to have a Material Adverse
Effect.
SECTION 3.06 Litigation. No litigation, investigation or proceeding
----------
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions contemplated
hereby or thereby or (b) except as set forth on Schedule IX, that would
reasonably be expected to have a Material Adverse Effect.
SECTION 3.07 No Default. Neither the Borrower nor any of its
----------
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 3.08 Intellectual Property. The Borrower and each of its
---------------------
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No claim has been
asserted and is pending by any Person challenging or questioning the use of any
Intellectual Property or the validity or effectiveness of any Intellectual
Property which would reasonably be expected to have a Material Adverse Effect,
nor does the Borrower know of any valid basis for any such claim. The use of
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person in any material respect, except to the extent that such
infringements would not, in the aggregate, be reasonably likely to have a
Material Adverse Effect.
SECTION 3.09 Taxes. Each of the Borrower and each of its
-----
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its assets and all other taxes, fees or other charges imposed on it or
any of its assets by any Governmental Authority to the extent due and payable
(other than any the amount or validity of that are currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or its
Subsidiaries, as the case may be or which would not reasonably be expected to
have a Material Adverse Effect); no material tax Lien has been filed, and, to
the knowledge of the Borrower, no claim is being asserted, with respect to any
such tax, fee or other charge, which claim would reasonably be expected to have
a Material Adverse Effect.
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SECTION 3.10 Federal Regulations. No part of the proceeds of any
-------------------
Loans will be used for "buying" or "carrying" any "Margin Stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect or for any purpose that violates or is
inconsistent with the provisions of the Regulations T, U or X of the Board.
SECTION 3.11 Labor Matters. Except as, in the aggregate, would not
-------------
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against the Borrower or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened; (b) hours worked by
and payment made to employees of the Borrower and its Subsidiaries have not been
in violation of the Fair Labor Standards Act or any other applicable Requirement
of Law dealing with such matters; and (c) all payments due from the Borrower or
any of its Subsidiaries on account of employee health and welfare insurance have
been paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
SECTION 3.12 ERISA. Neither a Reportable Event nor an "accumulated
-----
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Single
Employer Plan which would reasonably be likely to have a Material Adverse
Effect, and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code, except to the extent that the failure to so
comply would not, in the aggregate, be reasonably likely to have a Material
Adverse Effect. No termination of a Single Employer Plan has occurred, and no
Lien against the Borrower or any Commonly Controlled Entity and in favor of the
PBGC or a Single Employer Plan has arisen, during such five-year period which
would reasonably be likely to have a Material Adverse Effect. The present value
of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by a material amount. Neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and based
on such information provided to the Borrower by the Sponsors of the
Multiemployer Plans, Borrower believes that neither the Borrower nor any
Commonly Controlled Entity would become subject to any material liability under
ERISA which would reasonably be likely to have a Material Adverse Effect if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made. To the knowledge of the
Borrower no such Multiemployer Plan is in Reorganization or in a state of
Insolvency.
SECTION 3.13 Investment Company Act; Other Regulations. No Loan
-----------------------------------------
Party is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law that limits
its ability to incur Indebtedness.
SECTION 3.14 Public Utility Holding Company Act. Neither Borrower
----------------------------------
nor its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an
56
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"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 3.15 Subsidiaries; Joint Ventures. (a) On the Effective
----------------------------
Date, Schedule V sets forth the name and jurisdiction of formation of each
Subsidiary and Joint Venture owned directly or indirectly by the Borrower on
such date and, as to each such Subsidiary or Joint Venture, the percentage of
each class of Equity Ownership Interest therein owned by the Borrower or any of
its Subsidiaries, (b) Section 5.10(b)(C) shall have been complied with, to the
extent required thereby, in respect of each Subsidiary or Joint Venture of the
Borrower acquired or created after the Effective Date and (c) there are no
outstanding subscriptions, options, warrants, calls, rights or other agreements
or commitments (other than (i) stock options granted to employees or directors
and directors' qualifying shares and (ii) Buy/Sell Arrangements) of any nature
relating to any Equity Ownership Interests of the Borrower or any Equity
Ownership Interest in any Subsidiary, except as set forth on Schedule V.
SECTION 3.16 Use of Proceeds; Margin Regulations. (a) The proceeds
-----------------------------------
of the Term Loans, and the proceeds (not to exceed $300 million) of the
Revolving Loans shall be used by the Borrower, subject to the other restrictions
set forth in this Agreement, to fund the Transaction and related fees and
expenses. The proceeds of the Revolving Loans shall be used by the Borrower and
its Subsidiaries, to fund (i) the amounts described in the previous sentence,
(ii) acquisitions of assets and businesses, Investments, Capital Expenditures
and capital expenditures for furniture, fixtures and equipment in
Hospitality/Leisure-Related Businesses and (iii) general working capital needs
of the Borrower and its Subsidiaries.
(b) Neither the making of any Loan nor the use of the proceeds thereof
nor the occurrence of any other extension of credit under the Loan Documents
will violate or be inconsistent with the provisions of Regulation T, U or X of
the Board. At the time of the making of each Loan, and after giving effect
thereto and the use of the proceeds thereof, no more than 25% of the value (as
defined in Regulation U of the Board) of the assets of the Borrower, and of the
Borrower and its Subsidiaries on a consolidated basis, subject to the
restrictions in Section 6.03 and 6.05 shall constitute Margin Stock. If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form U-1 or FR Form G-3, as
applicable, referred to in Regulation U.
SECTION 3.17 Hotels. (a) The Borrower and each of its Subsidiaries,
------
and to the best knowledge of the Borrower, its Joint Ventures, has good and
marketable fee simple absolute title to all material Real Property purported to
be owned by them, and has good and marketable title to, or valid leasehold
interests in, all other material Real Property purported to be leased by them,
free and clear of all Liens, other than Permitted Liens. Schedule X contains a
true and complete list of each Hotel owned or leased by the Borrower, any of its
Subsidiaries, or any of its Joint Ventures on the Effective Date, and the type
of interest therein held by the Borrower or any of its Subsidiaries.
(b) All material Real Property leased on the Effective Date by the
Borrower or any of its Subsidiaries as tenant, or any of their Joint Ventures is
listed on Schedule X. To the
57
<PAGE>
best knowledge of the Borrower, each of such leases is valid and enforceable in
accordance with its terms and is in full force and effect in all material
respects. None of the Borrower, nor its Subsidiaries, nor, to the best knowledge
of the Borrower, any of its Joint Ventures, or any other party to any such lease
is in default of its obligations thereunder or has delivered or received any
notice of default under any such lease, nor has any event occurred which, with
the giving of notice, the passage of time or both, would constitute a default
under any such lease, except for defaults which would not reasonably be expected
to have a Material Adverse Effect.
(c) Each ground lease with respect to any Hotel which is located on a
Leasehold is in full force and effect and no party thereto has denied or
disaffirmed any of its material obligations thereunder or has defaulted (beyond
applicable cure and notice periods) in the due performance or observance of any
material term, covenant or agreement on its part to be performed or observed
pursuant thereto, except in the case of any ground leases such denials,
disaffirmations and defaults as would not reasonably be expected to have a
Material Adverse Effect.
(d) Each Hotel complies in all material respects with (i) all
Requirements of Law, (ii) all material consents, licenses (including liquor
licenses), certificates and permits required by all Requirements of Law for the
operation of each Hotel have been obtained and are in full force and effect and
(iii) all utility services and facilities necessary for the operation of each
Hotel are available at such Hotel, except in the case of clauses (i), (ii) and
(iii) such non-compliances or failures to comply, obtain or have in full force
and effect and available as would not reasonably be expected to have a Material
Adverse Effect.
SECTION 3.18 Environmental Matters. Except as, in the aggregate,
---------------------
would not reasonably be expected to have a Material Adverse Effect:
(a) to the best knowledge of the Borrower, the facilities and
properties owned, leased or operated by the Borrower or any of its
Subsidiaries (the "Properties") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or
concentrations or under circumstances that constitute or constituted a
violation of, or could give rise to liability under, any Environmental Law;
(b) neither the Borrower nor any of its Subsidiaries has received or
is aware of any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties or
the business operated by the Borrower or any of its Subsidiaries (the
"Business"), nor does the Borrower have knowledge or reason to believe that
any such notice will be received or is being threatened;
(c) to the best knowledge of the Borrower, Materials of Environmental
Concern have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location that could give rise to
liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Properties in violation of, or in a manner that could
give rise to liability under, any applicable Environmental Law;
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(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or
the Business;
(e) to the best knowledge of the Borrower, there has been no release
or threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of the Borrower or
any Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law with respect to
the Properties or the Business; and
(g) neither the Borrower nor any of its Subsidiaries has assumed any
liability of any other Person under Environmental Laws.
SECTION 3.19 Accuracy of Information, etc. No statement or
-----------------------------
information contained in this Agreement, any other Loan Document, or any other
document, certificate or statement furnished by or on behalf of any Loan Party
(other than the Projections, pro forma financial information and forecasts) to
the Administrative Agent or the Lenders, or any of them, for use in connection
with the transactions contemplated by this Agreement or the other Loan
Documents, contained as of the date such statement, information, document or
certificate was so furnished, any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements contained herein or
therein not materially misleading in light of the circumstances in which such
statements are made. The Projections and pro forma financial information
--- -----
contained in the materials referenced above are based upon good faith estimates
and assumptions believed by management of the Borrower to be reasonable at the
time made, it being recognized by the Lenders that such Projections and
financial information as they relate to future events are not to be viewed as
fact, that such Projections and financial information are subject to significant
uncertainties and contingencies, many of which are beyond the control of the
Borrower and its Subsidiaries and that actual results during the period or
periods covered by such financial information may differ from the projected or
estimated results set forth therein by a material amount. As of the date
hereof, there is no fact known to any Loan Party that would reasonably be
expected to have a Material Adverse Effect that has not been expressly disclosed
herein, in the other Loan Documents, or in any other documents, certificates and
statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
SECTION 3.20 Security Documents. The Guaranty and Collateral
------------------
Agreement is, and after the execution and delivery thereof, each other Security
Document will be, effective to
<PAGE>
create in favor of the Collateral Agent, for the benefit of the Secured Parties,
a legal, valid and enforceable security interest in the Collateral described
therein. In the case of the certificated Pledged Stock described in the Guaranty
and Collateral Agreement, when stock certificates representing such certificated
Pledged Stock are delivered to the Administrative Agent, in the case of Pledged
Notes described in the Guaranty and Collateral Agreement, when the intercompany
promissory notes representing such Pledged Notes and in the case of the other
Collateral described in the Guaranty and Collateral Agreement, when financing
statements and other filings specified in the opinion delivered pursuant to
Section 4.01(g) (or otherwise notified to the Administrative Agent) in
appropriate form are filed in the offices specified on Annex B to the Guaranty
and Collateral Agreement (or otherwise notified to the Administrative Agent),
the Guaranty and Collateral Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the Loan Parties
in such Collateral and the proceeds thereof, as security for the Obligations (as
defined in the Guaranty and Collateral Agreement), in each case prior and
superior in right to any other Person except, and subject to, Permitted Liens
(except, in the case of Collateral consisting of Pledged Stock or, Pledged
Notes, subject only to Permitted Liens described in Section 6.03).
SECTION 3.21 Solvency. The Loan Parties (taken as a whole) are, and
--------
after giving effect to the Restructuring and the incurrence of all Indebtedness
and obligations being incurred in connection herewith and therewith will be and
will continue to be, Solvent.
SECTION 3.22 Existing Indebtedness. Schedule XI sets forth a true
---------------------
and complete list of all Existing Indebtedness constituting borrowed money and
guarantees of same of the Borrower and its Subsidiaries in excess of $1,000,000
as of the Effective Date and intended to remain outstanding after such date, in
each case showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly guaranteed
such debt.
SECTION 3.23 Year 2000 Matters. Any reprogramming required to permit
-----------------
the proper functioning (but only to the extent that such proper functioning
would otherwise be impaired by the occurrence of the year 2000) in and following
the year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Borrower or any of its
Subsidiaries in the conduct of their business, and the testing of all such
systems and other equipment as so reprogrammed, will be completed by October 31,
1999, except to the extent that the failure to so reprogram and test would not
reasonably be expected to have a Material Adverse Effect. The costs to the
Borrower and its Subsidiaries that have not been incurred as of the date hereof
for such reprogramming and testing would not reasonably be expected to have a
Material Adverse Effect.
SECTION 3.24 Transaction. As of the Effective Date, (i) the
-----------
Transaction has been consummated in all material respects in accordance with the
terms of the respective Transaction Documents (except as approved by the
Administrative Agent, such approval not to be unreasonably withheld) and all
applicable laws, (ii) all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or
consummate the Transaction will have been obtained, given, filed or taken and
are or will be in full force and effect (or effective judicial relief
60
<PAGE>
with respect thereto has been obtained), except where the failure to so obtain,
give, file or take would not be reasonably expected to have a Material Adverse
Effect, (iii) all applicable waiting periods with respect thereto have or, prior
to the time when required, will have, expired without, in all such cases, any
action being taken by any competent authority which restrains, prevents, or
imposes material adverse conditions upon the Transaction, (iv) there does not
exist any judgment, order or injunction prohibiting or imposing material adverse
conditions upon the Transaction, or any Loan or the performance by any Loan
Party of its obligations under the respective Documents, (v) all actions taken
by each Loan Party pursuant to or in furtherance of the Transaction have been
taken in material compliance with the respective Documents (except for
modifications and waivers consented to by the Administrative Agent pursuant to
Section 4.01(b)) and all applicable laws and (vi) all representations and
warranties of the Loan Parties contained in the Transaction Documents and made
(or deemed made) on the Effective Date shall be true and correct in all material
respects on such date.
ARTICLE IV
Conditions Precedent
---------------------
SECTION 4.01 Conditions to Initial Extension of Credit. The
-----------------------------------------
agreement of each Lender to make the initial extension of credit requested to be
made by it is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit on the Effective Date, of the following
conditions precedent:
(a) Credit Agreement; Guaranty and Collateral Agreement. The
---------------------------------------------------
Administrative Agent shall have received (i) this Agreement, executed and
delivered by the Administrative Agent, the Lenders and the Borrower, (ii) the
Guaranty and Collateral Agreement, executed and delivered by the Borrower and
each Subsidiary Guarantor and (iii) an Acknowledgment and Consent in the form
attached to the Guaranty and Collateral Agreement, executed and delivered by
each Issuer, if any, that is not a Loan Party.
(b) Transaction, etc. (i) On or prior to the Effective Date, there
-----------------
shall have been delivered to the Lenders copies of all Transaction Documents,
all of which shall be certified by a Responsible Officer of the Borrower and/or
its Subsidiaries as true and correct and be in full force and effect and shall
be in form and substance reasonably satisfactory to the Administrative Agent and
the Lenders. On the Effective Date, the Transaction shall have been consummated
in accordance with the Transaction Documents and all applicable laws. All
conditions to the consummation of the Transaction under the Transaction
Documents and related material agreements shall have been satisfied, without
waiver or modification (except with the consent of the Administrative Agent,
which consent shall not be unreasonably withheld).
(ii) In connection therewith, the transactions described below (and to
the extent any of the other transactions described on the Sources and Uses Table
attached to the Securities Purchase Agreement (and updated through the Effective
Date) are to be consummated with such transactions) shall have been consummated
prior to or concurrently with the funding of the initial Loans hereunder and
pursuant to documents, and in a manner, reasonably satisfactory to the
Administrative Agent and the Lenders:
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(A) the Borrower shall have received at least $1,000,000,000 in gross
cash proceeds from the issuance of New Preferred Stock to the Sponsors,
provided that such amount may be reduced by (x) the excess cash proceeds of
dispositions of Arcadian Hotels (such reduction not to exceed $300,000,000)
as more fully described in the Securities Purchase Agreement, so long as
all proceeds thereof have been used to permanently repay outstandings under
the Existing Credit Agreement and (y) an amount not to exceed $45,000,000
so long as the Sponsor obligated to invest such amount shall be obligated
to do so within one day in a manner satisfactory to the Administrative
Agent (it being agreed and understood that the failure of the Borrower to
receive such amount, which may be received from such Sponsor or any other
Sponsor, shall be an Event of Default);
(B) the Borrower shall have received at least $650,000,000 in gross
cash proceeds from the issuance of the Senior Notes or the incurrence of
Increasing Rate Term Loan;
(C) the Borrower shall have settled for cash its outstanding Existing
Equity Forwards (to the extent not previously settled by the sale of Old
Patriot common stock by any counterparty thereto) and repaid and/or
refinanced its Indebtedness (other than Existing Indebtedness); and
(D) (x) the Administrative Agent shall have received satisfactory
evidence that the Existing Credit Agreement shall have been terminated and
all amounts thereunder shall have been paid in full (or with respect to
letters of credit, assumed under this Agreement) and (y) satisfactory
arrangements shall have been made for the termination of all Liens granted
in connection therewith.
(c) Pro Forma Financial Statements. The Lenders shall have received
------------------------------
the Pro Forma Financial Statements.
(d) Lien Searches. The Administrative Agent shall have received the
-------------
results of a recent lien search in each of the jurisdictions where the Borrower
and its material Subsidiaries are incorporated and to the extent requested by
the Administrative Agent, where material assets of the Loan Parties are located,
and such search shall reveal no liens on any of the assets of the Borrower or
its Subsidiaries, except for Permitted Liens and Liens discharged on or prior to
the Effective Date.
(e) Fees. The Lenders and the Administrative Agent shall have
----
received all fees required to be paid by the Borrower, and all expenses for
which invoices have been presented (including the reasonable fees and expenses
of legal counsel to the Administrative Agent), on or before the Effective Date.
All such amounts may be paid with proceeds of Loans made on the Effective Date
and, to the extent paid in such manner, will be reflected in the funding
instructions given by the Borrower to the Administrative Agent on or before the
Effective Date.
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(f) Closing Certificate. The Administrative Agent shall have
-------------------
received, a certificate of each Loan Party, dated the Effective Date,
substantially in the form of Exhibit E with appropriate insertions and
attachments.
(g) Legal Opinions. The Administrative Agent shall have received the
--------------
legal opinion of Goodwin Procter & Hoar LLP, counsel to the Borrower and its
Subsidiaries, substantially in the form of Exhibit F.
(h) Pledged Stock; Stock Powers; Pledged Notes. The Administrative
------------------------------------------
Agent shall have received (i) the certificates representing the shares of
certificated capital stock pledged pursuant to the Guaranty and Collateral
Agreement, together with an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor thereof and (ii)
each promissory note pledged to the Administrative Agent pursuant to the
Guaranty and Collateral Agreement endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank) by the pledgor thereof.
(i) Filings, Registrations and Recordings. Each document (including
-------------------------------------
any Uniform Commercial Code financing statement) required by the Security
Documents or under law or reasonably requested by the Administrative Agent to be
filed, registered or recorded in order to create in favor of the Administrative
Agent, for the benefit of the Lenders, a perfected Lien on the Collateral
described therein, prior and superior in right to any other Person (other than
with respect to Permitted Liens), shall be in proper form for filing,
registration or recordation.
(j) Solvency Certificate. The Administrative Agent shall have
--------------------
received a solvency certificate from a member of senior management the Borrower
in the form of Exhibit G.
SECTION 4.02 Conditions to Each Extension of Credit. The agreement
--------------------------------------
of each Lender to make any extension of credit requested to be made by it on any
date (including its initial extension of credit) is subject to the satisfaction
of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by any Loan Party in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of such date as if made on
and as of such date (unless such representations expressly relate to an earlier
date, in which case they shall be true and correct in all material respects on
and as of such earlier date).
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the
Borrower hereunder shall constitute a representation and warranty by the
Borrower as of the date of such extension of credit that the conditions
contained in this Section 4.02 have been satisfied.
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ARTICLE V
Affirmative Covenants
---------------------
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or the Administrative Agent hereunder, the Borrower shall
and shall cause each of its Subsidiaries (and each of its Unrestricted
Subsidiaries with respect to Section 5.12 described below) to:
SECTION 5.01 Financial Statements. Furnish to the Administrative
--------------------
Agent with sufficient copies for each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related audited consolidated statements of income
and of cash flows for such year, setting forth in each case in comparative
form the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising out
of the scope of the audit, by Ernst & Young LLP or other independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in each case in comparative form the figures
for the previous year, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year-end audit
adjustments and the notes thereto).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
SECTION 5.02 Certificates; Other Information. Furnish to the
-------------------------------
Administrative Agent with sufficient copies for each Lender (or, in the case of
clause (i), to the relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 5.01(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 5.01, (i) a certificate of a Responsible Officer
stating that, to the best of each such
64
<PAGE>
Responsible Officer's knowledge, each Loan Party during such period has
observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and the other Loan
Documents to which it is a party to be observed, performed or satisfied by
it, and that such Responsible Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate and
(ii) in the case of quarterly or annual financial statements, (x) beginning
with the Compliance Certificate for the Fiscal Quarter ending September 30,
1999, a Compliance Certificate containing all information and calculations
necessary for determining compliance by the Borrower and its Subsidiaries
with the provisions of this Agreement referred to therein as of the last
day of the fiscal quarter or fiscal year of the Borrower, as the case may
be and (y) to the extent not previously disclosed to the Administrative
Agent pursuant to this clause (y), a listing of each new Subsidiary of any
Loan Party acquired or created by any Loan Party since the date of the most
recent list delivered pursuant to this clause (y) (or, in the case of the
first such list so delivered, since the Effective Date);
(c) as soon as available, and in any event no later than 60 days after
the end of each fiscal year of the Borrower, a detailed consolidated budget
for the following fiscal year (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of the following
fiscal year, the related consolidated statements of projected cash flow,
projected changes in financial position and projected income and a
description of the underlying assumptions applicable thereto), and, as soon
as available, significant revisions, if any, of such budget and projections
with respect to such fiscal year (collectively, the "Projections"), which
Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on estimates,
information and assumptions believed by such Responsible Officer to be
reasonable;
(d) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, a narrative discussion and
analysis of the financial condition and results of operations of the
Borrower and its Subsidiaries for such fiscal quarter and for the period
from the beginning of the then current fiscal year to the end of such
fiscal quarter, as compared to the portion of the Projections covering such
periods and to the comparable periods of the previous year; provided that
--------
delivery of such narrative discussion and analysis on Form 10-Q filed with
the SEC with respect to such fiscal quarter shall be deemed to satisfy the
foregoing requirement;
(e) promptly after the receipt thereof by the Borrower, a copy of any
"management letter" addressed to the board of directors of the Borrower or
any of its Subsidiaries from its certified public accountants and any
internal control memoranda relating thereto;
(f) at the time of the delivery of the financial statements described
in Section 5.01, a certificate of the chief financial officer of the
Borrower, identifying all Asset Dispositions and Reinvestment Events made
during the fiscal quarter of the Borrower, and the proceeds thereof, and,
except as previously disclosed as having been reinvested or otherwise
applied as required by this Agreement, pursuant to this Section (f), the
information tracking all Asset Dispositions and Reinvestment Events made
prior such
65
<PAGE>
fiscal quarter as to the status of the proceeds, thereof, including whether
such proceeds were reinvested or otherwise used as required under this
Agreement;
(g) no later than five Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed amendment,
supplement, waiver or other modification with respect to the Senior Note
Indenture or the Increasing Rate Term Loan Facility as to which the Senior
Note Indenture or the Increasing Rate Term Loan Facility requires the
approval of any percentage of the holders of Indebtedness thereunder;
(h) within five Business Days after the same are sent, copies of all
financial statements and reports that the Borrower sends to the holders of
any class of its debt securities or public equity securities and, within
five Business Days after the same are filed, copies of all financial
statements and reports that the Borrower may make to, or file with, the
SEC; and
(i) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
SECTION 5.03 Payment of Obligations. Pay, discharge or otherwise
----------------------
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except (i) where the amount
or validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be or
(ii) where the failure to pay, discharge or satisfy would not, in the aggregate,
be reasonably likely to have a Material Adverse Effect.
SECTION 5.04 Maintenance of Existence; Compliance. (a) (i)
------------------------------------
Preserve, renew and keep in full force and effect its corporate existence and
(ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 6.04 and except, in the case of
clause (ii) above, to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law, except to the extent that failure to comply
therewith would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 5.05 Maintenance of Property; Insurance. (a) Keep all
----------------------------------
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted in accordance with industry standards
and (b) maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least such
risks (but including in any event public liability, product liability and
business interruption expense coverage) as are usually insured against in the
same general area by companies engaged in the same or a similar business.
SECTION 5.06 Inspection of Property; Books and Records; Discussions.
------------------------------------------------------
(a) Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation
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to its business and activities and (b) permit representatives of any Lender,
upon reasonable prior notice, to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants.
SECTION 5.07 Notices. Promptly give notice to the Administrative
-------
Agent with sufficient copies for each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding that may exist at any time between the Borrower
or any of its Subsidiaries and any Governmental Authority, that in either
case would reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount claimed is $15,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought
which would reasonably be expected to have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof, to the
extent such events, in the aggregate, would be reasonably likely to have a
Material Adverse Effect: (i) the occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a Plan,
the creation of any Lien in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the termination, Reorganization or Insolvency of, any Single Employer Plan
or Multiemployer Plan; and
(e) any development or event that has had or would reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.07 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
SECTION 5.08 Environmental Laws. Except as would not reasonably be
------------------
expected to have a Material Adverse Effect:
(a) Comply with, and contractually require compliance by all tenants
and subtenants, if any, with, all applicable Environmental Laws, and obtain
and comply with
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and maintain, and contractually require that all tenants and subtenants
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable
Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws.
SECTION 5.09 Interest Rate Protection. In the case of the Borrower,
------------------------
within 180 days after the Effective Date, enter into Interest Rate Protection
Agreements to the extent necessary to provide that at least 50% of the aggregate
principal amount of the Term Loans (or 35% if the Increasing Rate Term Loans are
repaid in full) and Increasing Rate Term Loans outstanding on the date such
Interest Rate Protection Agreement is entered into is subject to either a fixed
interest rate or interest rate protection for a period of not less than three
years, which Interest Rate Protection Agreements shall have terms and conditions
reasonably satisfactory to the Administrative Agent.
SECTION 5.10 Additional Collateral; New Subsidiaries, etc. (a) At
---------------------------------------------
the expense of the Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time (subject to the rights and
interests in connection with Liens permitted by Section 6.03 (g)) such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, reports and
other assurances or instruments and take such further steps relating to the
Collateral covered by the Security Documents as the Collateral Agent may
reasonably require. Furthermore, the Borrower shall cause to be delivered to
the Collateral Agent such opinions of counsel from any foreign jurisdiction of
formation of any Issuer or Loan Party and other related documents as may be
reasonably requested by the Collateral Agent to assure itself that this Section
5.10 has been complied with.
(b) With respect to any new Subsidiary (other than an Excluded Foreign
Subsidiary) created or acquired after the Effective Date by the Borrower or its
Subsidiaries (which, for the purposes of this paragraph (b), shall include any
existing Subsidiary that ceases to be an Excluded Foreign Subsidiary), shall
promptly (and in any event within 30 days) (unless the Administrative Agent
otherwise consents, in its reasonable discretion, based on the economic or other
burdens of effecting the following) (i) execute and deliver to the
Administrative Agent such amendments to the Security Documents as the
Administrative Agent deems necessary or advisable to grant to the Administrative
Agent, for the benefit of the Lenders, a perfected first priority security
interest in the Equity Ownership Interest of such new Subsidiary that is owned
by the Borrower or any of its Subsidiaries, (ii) to the extent such ownership
interest is evidenced by certificated capital stock, deliver to the
Administrative Agent the certificates representing such together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
the Borrower or such Subsidiary, as the case may be and (iii) cause such new
Subsidiary (A) to become a party to the Guaranty and Collateral Agreement, (B)
to take such actions necessary or advisable to grant to the Administrative Agent
for the benefit of the Lenders a perfected first priority security interest in
the Collateral described in the Guaranty and Collateral Agreement with respect
to such new Subsidiary, including the filing of Uniform Commercial Code
financing
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<PAGE>
statements in such jurisdictions as may be required by the Guaranty and
Collateral Agreement or by law or as may be requested by the Administrative
Agent and (C) to deliver to the Collateral Agent a certificate of such
Subsidiary, substantially in the form of Exhibit H to the Guaranty and
Collateral Agreement, with appropriate insertions and attachments. With respect
to any new Joint Venture created or acquired after the Effective Date by the
Borrower or any Subsidiary Guarantor, the actions described in clauses (i) and
(ii) above shall be taken as if such Joint Venture were a Subsidiary and none of
the actions described in clause (iii) above shall be required to be taken.
Notwithstanding the foregoing provisions of this paragraph (b), none of the
actions described in clauses (i), (ii) and (iii) above shall be required to be
taken with respect to any Subsidiaries and Joint Ventures financed pursuant to
Section 6.02 (e) or with respect to Special Purpose Subsidiaries.
(c) With respect to any new Excluded Foreign Subsidiary created or
acquired after the Effective Date by the Borrower or any of its Subsidiaries,
promptly (unless the Administrative Agent otherwise consents, in its reasonable
discretion, based on the economic or other burdens of effecting the following)
(i) execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement as the Administrative Agent deems necessary
or advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a perfected first priority security interest in the Equity Ownership
Interest of such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries (provided that in no event shall more than 65% of the total
outstanding voting Equity Ownership Interests of any such new Subsidiary be
required to be so pledged) and (ii) and in the case such Equity Ownership
Interest is evidenced by certificated capital stock, deliver to the
Administrative Agent the certificates representing such certificated capital
stock, together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of the Borrower or such Subsidiary, as the case may be,
and take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Administrative Agent's security
interest therein.
SECTION 5.11 Year 2000 Compliance. Perform any reprogramming that
--------------------
the Borrower deems necessary to permit the proper functioning of the Borrower
and its Subsidiaries with minimal interruption, in and following the year 2000,
of (i) the Borrower's and each of its Subsidiaries' computer systems and (ii)
equipment containing embedded microchips and the testing of all such systems and
equipment, which reprogramming will be completed by October 31, 1999, in each
case, except to the extent that the failure to effect such reprogramming and
testing would not be reasonably expected to result in a Material Adverse Effect.
SECTION 5.12 Maintenance of Separateness. Satisfy customary
---------------------------
corporate formalities including the holding of regular board of directors' and
shareholders' meetings and the maintenance of corporate offices and records.
None of the Borrower nor any of its Subsidiaries shall make any payment to a
creditor of any Unrestricted Subsidiary or Joint Venture in respect of any
liability of any Unrestricted Subsidiary or Joint Venture which is not a
liability of the Borrower or such Subsidiary (other than Guarantee Obligations
by the Borrower or any Subsidiary of the obligations of Joint Ventures permitted
hereunder), and no bank account of any Unrestricted Subsidiary or Joint Venture
shall be commingled with any bank account of the Borrower or any of its
Subsidiaries. Any financial statements distributed to any creditors of any
Unrestricted Subsidiary or Joint Venture shall, to the extent permitted by GAAP,
clearly establish
69
<PAGE>
the corporate separateness of such Unrestricted Subsidiary or Joint Venture from
the Borrower and its Subsidiaries. Finally, neither the Borrower nor any of its
Subsidiaries or Unrestricted Subsidiaries shall take any action, or conduct its
affairs in a manner, which could result in the corporate existence of any
Unrestricted Subsidiary being ignored, or in the assets and liabilities of the
Borrower or any of its Subsidiaries being substantively consolidated with those
of any Unrestricted Subsidiary or Joint Venture in a bankruptcy, reorganization
or other insolvency proceeding.
ARTICLE VI
Negative Covenants
------------------
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letters of Credit remain outstanding or any Loan or other amount is
owing to any Lender or the Administrative Agent hereunder, the Borrower shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly:
SECTION 6.01 Financial Covenants.
-------------------
(a) Total Leverage Ratio. Permit the Total Leverage Ratio to exceed
--------------------
on the last day of any Test Period ending during any period set forth below to
exceed the ratio set forth below opposite such period.
<TABLE>
<CAPTION>
Total
Period Leverage Ratio
------ --------------
<S> <C>
September 30, 1999 until
December 31, 2000 6.50 to 1.00
January 1, 2001 until
December 31, 2001 6.25 to 1.00
January 1, 2002 until
December 31, 2002 6.00 to 1.00
January 1, 2003 until
December 31, 2003 6.00 to 1.00
January 1, 2004 until
December 31, 2004 5.75 to 1.00
Thereafter 5.75 to 1.00
</TABLE>
(b) Senior Secured Leverage Ratio. (i) At any time neither clause
-----------------------------
(ii) nor clause (iii) below applies, permit the Senior Secured Leverage Ratio on
the last day of any Test
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<PAGE>
Period ending during any period set forth below to exceed the ratio set forth
below opposite such period:
<TABLE>
<CAPTION>
Senior
Period Secured Leverage Ratio
------ ----------------------
<S> <C>
September 30, 1999 until
December 31, 2000 5.95 to 1.00
January 1, 2001 until
December 31, 2001 5.75 to 1.00
January 1, 2002 until
December 31, 2002 5.50 to 1.00
January 1, 2003 until
December 31, 2003 5.25 to 1.00
January 1, 2004 until
December 31, 2004 5.00 to 1.00
Thereafter 4.75 to 1.00
</TABLE>
(ii) At any time after at least $650,000,000 (but less than
$1,000,000,000) of Senior Notes have been issued by the Borrower and no
Increasing Rate Term Loans are outstanding, permit the Senior Secured Leverage
Ratio on the last day of any Test Period ending during any period set forth
below to exceed the ratio set forth below opposite such period:
<TABLE>
<CAPTION>
Senior
Period Secured Leverage Ratio
------ ----------------------
<S> <C>
September 30, 1999 until
December 31, 1999 5.00 to 1.00
January 1, 2000 until
June 30, 2000 5.00 to 1.00
July 1, 2000 until
December 31, 2000 5.00 to 1.00
January 1, 2001 until
June 30, 2001 5.00 to 1.00
</TABLE>
71
<PAGE>
<TABLE>
<S> <C>
July 1, 2001 until
December 31, 2001 4.75 to 1.00
January 1, 2002 until
June 30, 2002 4.50 to 1.00
July 1, 2002 until
December 31, 2002 4.50 to 1.00
Thereafter 4.375 to 1.00
</TABLE>
(iii) At any time after at least $1,000,000,000 of Senior Notes have
been issued by the Borrower and no Increasing Rate Term Loans are outstanding,
permit the Senior Secured Leverage Ratio on the last day of any Test Period
ending during any period set forth below to exceed the ratio set forth below
opposite such period:
<TABLE>
<CAPTION>
Senior
Period Secured Leverage Ratio
------ ----------------------
<S> <C>
September 30, 1999 until
December 31, 1999 4.75 to 1.00
January 1, 2000 until
June 30, 2000 4.75 to 1.00
July 1, 2000 until
December 31, 2000 4.75 to 1.00
January 1, 2001 until
June 30, 2001 4.75 to 1.00
July 1, 2001 until
December 31, 2001 4.75 to 1.00
January 1, 2002 until
June 30, 2002 4.50 to 1.00
July 1, 2002 until
December 31, 2002 4.50 to 1.00
Thereafter 4.375 to 1.00
</TABLE>
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<PAGE>
(c) Interest Coverage Ratio. Permit the Interest Coverage Ratio to be
-----------------------
less than (x) for any Test Period ending after June 30, 1999 and on or prior to
December 31, 2001, 2.00 to 1.00, (y) for any Test Period ending after December
31, 2001 and on or prior to December 31, 2002, 2.10 to 1.00 and (z) for any Test
Period ending after December 31, 2002, 2.20 to 1.00.
SECTION 6.02 Indebtedness. Create, issue, assume, become liable in
------------
respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Unsecured intercompany Indebtedness of the Borrower to any
Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary,
provided that (i) if the obligor under any such Indebtedness is a Loan
Party, such intercompany Indebtedness shall be subordinated to the
Obligations of such Loan Party and (ii) if the obligor thereunder is not a
Loan Party and the holder of such Indebtedness is a Loan Party, such holder
shall receive an intercompany note as evidence thereof and pledge the same
pursuant to the Security Documents;
(c) Guarantee Obligations (i) by the Borrower in respect of
obligations of its Subsidiaries or Joint Ventures, (ii) by any Wholly-Owned
Subsidiary Guarantor of any obligations of any other Wholly-Owned
Subsidiary Guarantor, (iii) by any Subsidiary of any obligations of any
Person acquired by it which Person becomes a Subsidiary after giving effect
to such acquisition so long as such acquisition is permitted under this
Agreement and (iv) by any Special Purpose Subsidiary of any obligations of
any other Special Purpose Subsidiary;
(d) Indebtedness outstanding on the date hereof (the "Existing
Indebtedness") and to the extent constituting borrowed money and guarantees
of same of the Borrower and its Subsidiaries in excess of $1,000,000 as of
the Effective Date and intended to remain outstanding after such date
(excluding the Loans and intercompany Indebtedness between or among the
Borrower and its Wholly-Owned Subsidiaries) listed on Schedule XI and any
refinancings, refundings, renewals or extensions thereof (without
increasing, or shortening the maturity of, the principal amount thereof or
securing such Indebtedness with Liens on assets not otherwise securing such
Indebtedness on the Effective Date);
(e) Indebtedness (including, without limitation, Capital Lease
Obligations and refinancings of such Indebtedness) secured by Liens
permitted by Section 6.03 (g); provided that (i) such Indebtedness shall be
--------
incurred without recourse to any Subsidiary of the Borrower other than the
Subsidiary incurring such Indebtedness, (ii) such Indebtedness may be
incurred with recourse to the Borrower (or supported by an unsecured
guaranty by the Borrower) and (iii) the principal amount of such
Indebtedness used to acquire Equity Ownership Interests shall not exceed
$150,000,000 in the aggregate;
(f) (A) (i) Indebtedness of the Borrower of at least $650,000,000 in
respect of the Increasing Rate Term Loan Facility or (ii) in respect of any
Senior Notes, and if issued
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<PAGE>
after the Effective Date, the proceeds of which are applied as required in
Section 2.11 and (B) Guarantee Obligations of any Subsidiary Guarantor in
respect of Indebtedness incurred pursuant to clause (A)(i), other than such
Indebtedness evidenced by "Exchange Notes" as described in the Increasing
Rate Term Loan Facility;
(g) Assumed Indebtedness incurred pursuant to Permitted Acquisitions
(including refinancings, refundings, renewals or extensions thereof) or
Exchanges permitted under Section 6.05(c)(i) or (ii); provided that (i)
--------
such Indebtedness shall be incurred without recourse to any Subsidiary of
the Borrower other than the Subsidiary making such Permitted Acquisition
and any Person that becomes a Subsidiary as a result of such Permitted
Acquisition and (ii) such Indebtedness may be incurred with recourse to the
Borrower (or supported by an unsecured guarantee by the Borrower);
(h) Indebtedness (x) in an aggregate amount not to exceed at any time
$200,000,000 with respect to construction loans, completion guarantees,
performance bonds, surety bonds or customs bonds required in the ordinary
course of business or (y) in an aggregate principal amount not to exceed at
any time $15,000,000 in connection with appeal bonds or the enforcement of
rights or claims of any Borrower or any of its Subsidiaries or in
connection with judgments that do not result in a Default under Section
7.07 or an Event of Default;
(i) No more than $200 million (which shall automatically increase to
$400 million if no Increasing Rate Term Loans are outstanding) of
additional secured Indebtedness outstanding at any time (the "Additional
Basket Amount") secured by the assets owned or leased by the Borrower or
its Subsidiaries on the Effective Date (or Reinvestment Assets to the
extent acquired with the proceeds of the Disposition of such assets or
pursuant to an Exchange in respect or such assets (but excluding
Unrestricted Assets)); provided, that (i) such Additional Basket Amount may
--------
be reduced or increased (but not above $200 million (or $400 million if no
Increasing Rate Term Loans are outstanding)), as such amount may be
increased under clause (ii) below) as follows: (A) such amount shall be
increased by an amount equal to the product of (1) the then existing
Additional Basket Amount multiplied by (2) a fraction, the numerator of
which is (I) (x) 70% of the fair market value (determined in good faith by
the senior management of the Borrower) of assets which are acquired and are
Unencumbered after the Effective Date or become Unencumbered after the
Effective Date as a result of the repayment of Indebtedness and (y) 70% of
the amount invested in Unencumbered assets (other than investments
consisting of maintenance Capital Expenditures) and the denominator of
which is (II) 70% of the fair market value (determined in good faith by the
senior management of the Borrower) of all assets which are Unencumbered
immediately prior to giving effect to such acquisition, repayment and
investment and (B) such amount shall be decreased by an amount equal to the
product of (1) the then existing Additional Basket Amount multiplied by (2)
a fraction, the numerator of which is (I) 70% of the fair market value
(determined in good faith by the senior management of the Borrower) of
Unencumbered assets which are disposed of after the Effective Date, or
assets which were Unencumbered prior to the determination of the status
thereof, and no longer are Unencumbered as a result of the incurrence of
Indebtedness secured by such asset or the
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<PAGE>
Equity Ownership Interest of the Subsidiary which owns such asset and the
denominator of which is (II) 70% of the fair market value (determined in
good faith by the senior management of the Borrower) of all assets which
are Unencumbered immediately prior to giving effect to such disposition and
incurrence (ii) from and after the first time the Senior Secured Leverage
Ratio (calculated on a Pro Forma Basis) at the time of incurrence of such
Indebtedness is less than (x) 3.5 to 1.0, such amount of additional
Indebtedness shall be increased to $375 million (or $575 million if no
Increasing Rate Term Loans are outstanding) and (y) 3.0 to 1.0, such amount
of additional Indebtedness shall be increased to $550 million (or $750
million if no Increasing Rate Term Loans are outstanding) and (iii) the
loan to value ratio of any such Indebtedness to the assets so encumbered
shall not be less than 50%;
(j) Additional unsecured Indebtedness of the Borrower and its
Subsidiaries, provided, that such Indebtedness is not of the type described
--------
in clauses (b), (e), (f), (h) or (k) of this Section 6.02;
(k) Indebtedness under Forward Purchase Obligations not to exceed $200
million at any time outstanding; and
(l) If no Increasing Rate Term Loans are outstanding, Indebtedness in
an aggregate principal amount not to exceed $360,000,000 at any time
outstanding secured by Liens under the Security Documents (on a pari passu
basis with the Obligations as set forth therein); provided that to the
--------
extent any Increasing Rate Loans are outstanding, Indebtedness pursuant to
this clause in an aggregate principal amount not to exceed $15,000,000 will
be permitted.
SECTION 6.03 Liens. Create, incur, assume or suffer to exist any Lien
-----
upon any of its assets, whether now owned or hereafter acquired, except
("Permitted Liens"):
(a) Liens for taxes, assessments or governmental charges or levies not
yet due or that are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are
--------
maintained on the books of the Borrower or its Subsidiaries, as the case
may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that do not
in the aggregate materially detract from the value of the assets of the
Borrower and its Subsidiaries taken as a whole or materially impair the use
thereof in the operation of the business of the Borrower or such Subsidiary
or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, purchase contracts, construction
contracts, statutory
75
<PAGE>
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that do not in any
case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(f) Liens in existence on the date of this Agreement securing Existing
Indebtedness (including refinancings thereof permitted under Section 6.02
(d), provided that no such Lien is spread to cover any additional assets
--------
after the Effective Date (other than "products" and "proceeds" thereof or
customary after acquired property, as each such term is defined in the
Uniform Commercial Code of the State of New York) and that the amount of
Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness (including refinancings of such
Indebtedness) of the Borrower or any other Subsidiary incurred pursuant to
Section 6.02 (e) to finance the acquisition of or improvement to fixed or
capital assets or the acquisition or creation after the Effective Date of
Equity Ownership Interest in Subsidiaries and/or Joint Ventures, provided
--------
that (i) such Liens shall be created substantially simultaneously with (or
within 90 days after) the acquisition or creation of or improvement to such
fixed or capital assets or such Equity Ownership Interests (or refinancings
thereof subject to clauses (ii) and (iii) below), (ii) such Liens do not at
any time encumber any assets other than the assets or such Equity Ownership
Interests financed or improved by such Indebtedness (including the
"products" and "proceeds" thereof or customary after acquired property, as
each such term is defined in the Uniform Commercial Code of the State of
New York) and (iii) with respect to refinancings thereof, the amount of
Indebtedness secured thereby is not increased;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor or licensor under any lease or
license (including subleases or sublicenses) entered into by the Borrower
or any other Subsidiary in the ordinary course of its business and covering
only the assets so leased;
(j) Liens securing Assumed Indebtedness and Exchanges permitted
pursuant to Section 6.05(c)(i) and (ii) (or refinancings thereof), provided
--------
that such Liens (i) were not incurred in contemplation of the Permitted
Acquisition consummated in conjunction with the assumption of such Assumed
Indebtedness (or refinancing thereof) and (ii) do not encumber any assets
other than the assets acquired pursuant to such acquisition;
(k) Liens securing Indebtedness of the Borrower or any Subsidiary
incurred pursuant to Sections 6.02(h), (i) and (j);
(l) Liens arising from judgments, decrees or attachments or securing
appeal bonds in circumstances not constituting a Default under Section 7.07
or an Event of
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Default, provided that the amount of cash and assets (determined on a fair
--------
market value basis) deposited or delivered to secure the respective
judgment or decree or subject to attachment or appeal bond shall not exceed
$15,000,000 at any time outstanding;
(m) (i) Liens to secure the performance by the Borrower and its
Subsidiaries of leases of Real Property or personal property, to the extent
incurred or made in the ordinary course of business, (ii) licenses,
sublicenses, leases or subleases entered into the ordinary course of
business not interfering in any material respect with the business of the
Borrower and its Subsidiaries, (iii) Liens arising from precautionary
Uniform Commercial Code financing statements regarding operating leases,
and (iv) statutory and common law landlords' liens under leases to which
any of the Borrower and its Subsidiaries is a party;
(n) Permitted Encumbrances;
(o) Liens in favor of the Borrower or any of its Subsidiary Guarantors
granted by any Subsidiary; and
(p) Customary Liens encumbering the Equity Ownership Interests owned
by the Borrower, any of its Subsidiaries or any Joint Venture (which Equity
Ownership Interests are not required to be pledged pursuant to the
Guarantee and Collateral Agreement) granted in favor of any non-Affiliate
partners or members in any Joint Venture or non-Wholly Owned Subsidiary
owned by Borrower or any Subsidiary and for failure of such Person to
perform its obligations under the relevant Company Documents.
SECTION 6.04 Fundamental Changes. Enter into any merger,
-------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of, all or substantially all
of its assets, or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower (provided that the Borrower shall be the continuing or
--------
surviving corporation) or with or into any Subsidiary (provided that if any
--------
such Subsidiary is a Subsidiary Guarantor or Wholly-Owned Subsidiary
Guarantor, such Subsidiary Guarantor or Wholly- Owned Subsidiary Guarantor,
as the case may be, shall be the continuing or surviving corporation);
(b) any Subsidiary of the Borrower may Dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or any
Subsidiary Guarantor; and
(c) any Permitted Acquisition or Exchange may be structured as a
merger with or into the Borrower (provided that the Borrower shall be the
--------
continuing or surviving corporation) or with or into any Subsidiary
(provided that if any such Subsidiary is a Subsidiary Guarantor or Wholly-
---------
Owned Subsidiary Guarantor, such Subsidiary Guarantor or Wholly-Owned
Subsidiary Guarantor, as the case may be, shall be the continuing or
surviving corporation); and
(d) the Borrower and its Subsidiaries may Dispose of Unrestricted
Assets.
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SECTION 6.05 Disposition of Assets or Equity Ownership Interests.
---------------------------------------------------
Dispose of any of its assets, whether now owned or hereafter acquired, or, in
the case of any Subsidiary, issue or sell any Equity Ownership Interest of such
Subsidiary to any Person, except:
(a) the Disposition of (i) obsolete, damaged or worn out assets in the
ordinary course of business and (ii) Unrestricted Assets;
(b) the sale of inventory in the ordinary course of business;
(c) the following Dispositions (collectively "Exchanges") shall be
permitted: (i) like-kind exchanges pursuant to and in compliance with
Section 1031 of the Code (with any Net Cash Proceeds received in connection
therewith not subject to a Reinvestment Notice to be applied as required
under Section 2.11), (ii) a simultaneous exchange of assets for assets
(with any Net Cash Proceeds received in connection therewith not subject to
a Reinvestment Notice to be applied as required under Section 2.11) and
(iii) Dispositions of Non-Core Assets and Core Assets, for an amount equal
to at least the fair market value thereof (determined in good faith by the
senior management of the Borrower), for at least 75% cash consideration,
provided that (A) on the date of consummation of any Exchange, the Borrower
--------
shall deliver a Reinvestment Notice with respect thereto and any
Reinvestment Prepayment Amount in respect thereof is applied as required
under Section 2.11 and (B) all Net Cash Proceeds of Exchanges resulting
from Dispositions of Core Assets shall be reinvested in Core Assets;
(d) Assets Dispositions (including pursuant to Buy/Sell Agreements)
consisting of (i) Non-Core Assets and (ii) Core Assets, the Net Cash
Proceeds of which shall not exceed $300,000,000 in the aggregate; in the
case of all Assets Dispositions pursuant to this clause (d), such
Disposition shall be for an amount equal to at least the fair market value
thereof (as determined by the senior management of the Borrower) for at
least 75% cash consideration; provided that on the date of consummation of
any such Asset Disposition, the Borrower shall apply the Net Cash Proceeds
thereof as required under Section 2.11 without the delivery of a
Reinvestment Notice;
(e) the sale or issuance of the Equity Ownership Interest in any
Subsidiary or Joint Ventures (i) to the Borrower or any other Subsidiary
of the Borrower, provided that if the Equity Ownership Interests were owned
by the Borrower or a Wholly-Owned Subsidiary Guarantor, such sale or
issuance shall be to the Borrower or Wholly-Owned Subsidiary Guarantor, as
the case may be, or (ii) subject to the limitations in clause (d) above
(other than issuance of Equity Ownership Interests to any other Person
after giving effect to which and after giving effect to any Investment made
by other Persons in such Subsidiary or Joint Venture, the value of the
Investment (reasonably determined by Borrower) retained by the Borrower or
such Subsidiary has not been reduced) to any other Person;
(f) leases and licenses (and subleases and sublicenses) of real or
personal property in the ordinary course of business (so long as any such
lease does not create a Capital Lease Obligation except to the extent
permitted by Section 6.02);
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(g) licenses and sublicenses of patents, trademarks, copyrights and
know-how to third Persons, in the ordinary course of business, and to one
another; and
(h) Investments permitted by Section 6.06 and as otherwise permitted
pursuant to Section 6.04.
SECTION 6.06 Investments. Make any advance, loan, extension of
-----------
credit (by way of guaranty or otherwise) or capital contribution to, or purchase
any Equity Ownership Interest, bonds, notes, debentures or other debt securities
of, or any assets constituting a business unit of, or make any other investment
in, any other Person (all of the foregoing, "Investments"), except:
(a) the Investments held on the Effective Date and identified on
Schedule XII;
(b) (i) extensions of trade credit in the ordinary course of business
or (ii) extensions of credit resulting from advances by the Borrower and
its Subsidiaries as a manager of a Hotel which will be reimbursed by the
owner thereof in the ordinary course of the business;
(c) investments in Cash Equivalents;
(d) Guarantee Obligations permitted by Section 6.02 (c); provided that
any guaranty by the Borrower or any Wholly-Owned Subsidiary Guarantor of
the obligations of any non-Wholly-Owned Subsidiary, shall not be an
Investment in such non-Wholly Owned Subsidiary subject to clause (f) below;
(e) loans and advances to and guaranties for the benefit of employees
of the Borrower or any Subsidiary of the Borrower (i) in the ordinary
course of business for travel, entertainment, relocation expenses and
similar purposes or (ii) to enable such employee to exercise employee stock
options or stock grants or for other purposes in an aggregate amount not to
exceed $5,000,000;
(f) Investments by the Borrower or any of its Subsidiaries in the
Borrower or any Person that, prior to, or after giving effect to, such
Investment, is a Subsidiary of the Borrower, provided that in the case of
--------
Investments in Subsidiaries the Equity Ownership Interests in which were
acquired with Indebtedness described in Section 6.02 (e), the net amount
(net of Investment Returns relating to Investments made or acquired
pursuant to this Clause (f)) of such Investments (when added to the
Investments in Joint Ventures described in the proviso in (g) below) shall
not exceed $150,000,000 at any time;
(g) Investments by the Borrower and its Subsidiaries in Joint Ventures
not to exceed $200,000,000 per fiscal year of the Borrower, provided that
in the case of Joint Ventures acquired with Indebtedness described in
Section 6.02 (e), the net amount (net of Investment Returns relating to
Investments made or acquired pursuant to this Clause (g)) of such
Investments (when added to the Investments in Subsidiaries described in the
proviso in (f) above) shall not exceed $150,000,000 at any time;
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(h) Investments constituting Permitted Acquisitions and Exchanges; and
(i) Investments in Unrestricted Subsidiaries (x) from or consisting of
Unrestricted Assets and (y) so long as no Default exists under Sections
7.01 or 7.05 or Event of Default then exists or would arise therefrom, and
if no Increasing Rate Term Loans are outstanding, not to exceed $37,500,000
in any fiscal year of the Borrower; provided that neither the Borrower nor
--------
any of its Subsidiaries shall make such Investment by transferring any Core
Asset (or Equity Ownership Interest in any entity which owner holds Core
Assets) to such Unrestricted Subsidiary; and
(j) Investments by the Borrower and its Subsidiaries received as non-
cash consideration for, or remaining after giving effect to, any
Disposition permitted by Section 6.05(a), (c), (d) and (e).
SECTION 6.07 Dividends. Declare or pay such dividend (other than
---------
dividends payable solely in (i) common stock of the Person making such dividend
or (ii) the same class of Equity Ownership Interest of the Person making such
dividend on which such dividend is being declared or paid) on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any Equity Ownership Interest of the Borrower or any Subsidiary, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or assets, or in obligations of the
Borrower or any Subsidiary or enter into or incur any Derivatives Obligations or
other transaction with any financial institution, commodities or stock exchange
(a "Derivatives Counterparty") obligating it to make payments to such
Derivatives Counterparty as a result of any change in market value of its Equity
Ownership Interests (collectively, "Dividends"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any
Subsidiary Guarantor;
(b) so long as no Default under Sections 7.01 and 7.05 or Event of
Default exists or would result therefrom, the Borrower may (i) pay
regularly accruing cash Dividends on the New Preferred Stock not to exceed
$29,250,000 per fiscal year of the Borrower, with such Dividends to be paid
in accordance with the terms of the certificate of designation therefor,
(ii) redeem up to $300 million of New Preferred Stock at the stated amount
thereof plus accrued but unpaid dividends thereon with the excess proceeds
of a rights offering of additional shares of New Preferred Stock, plus pay
an associated premium of up to 2%, and (iii) redeem New Preferred Stock
with the proceeds of Asset Dispositions of Arcadian Hotels in accordance
with the requirements of the Securities Purchase Agreement;
(c) any non-Wholly-Owned Subsidiary of the Borrower may pay cash
Dividends to the holders of its Equity Ownership Interests generally, so
long as the Borrower or its respective Subsidiary which owns the Equity
Ownership Interest in the Subsidiary paying such Dividends receives at
least its proportionate share thereof (based upon its relative economic
holdings of equity interest in the Subsidiary paying such
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Dividends and taking into account the relative preferences, if any, of the
various classes of equity interests in such Subsidiary or the terms of any
agreements applicable thereto);
(d) so long as no Default or Event of Default shall have occurred and
be continuing, the Borrower may purchase the Borrower's common stock or
common stock options from present or former officers or employees of the
Borrower or any Subsidiary upon the death, disability or termination of
employment of such officer or employee, provided, that the aggregate amount
--------
of payments under this paragraph (d) after the date hereof (net of any
proceeds received by the Borrower after the date hereof in connection with
resales of any common stock or common stock options so purchased) shall not
exceed $1,000,000; and
(e) Patriot OP and Wyndham Partnership may redeem outstanding OP
Units, provided that any such redemptions to be made in cash may only be
made so long as no Default under Sections 7.01 or 7.05 or Event of Default
exists or would result therefrom.
Notwithstanding the foregoing, any payments made in respect of
indemnity obligations, purchase price adjustments and other similar payments
pursuant to the Securities Purchase Agreement shall not be considered Dividends.
SECTION 6.08 Payments and Modifications of Certain Debt Instruments
------------------------------------------------------
and Preferred Stock. (a) Make or offer to make any payment, prepayment,
- -------------------
repurchase or redemption of or otherwise defease or segregate funds with respect
to Senior Notes or Indebtedness under the Increasing Rate Term Loan Facility,
other than interest payments expressly required by the terms thereof and
pursuant to mandatory prepayment provisions contained in the Increasing Rate
Term Loan Facility (and as expressly permitted in this Agreement), (b) amend,
modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of any Senior Note
Indenture or the Increasing Rate Term Loan Facility (other than any such
amendment, modification, waiver or other change that (i) would extend the
maturity or reduce the amount of any payment of principal thereof or reduce the
rate or extend any date for payment of interest thereon and (ii) does not
involve the payment of a consent fee) or (c) amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other
change to, any of the terms of the (A) New Preferred Stock in a manner which (x)
would increase the amount of Dividends or shorten the time of payments thereon,
shorten the time for any scheduled redemption, or increase the amount thereof or
add any additional rights to the holders thereof to receive mandatory
redemptions or add covenants restricting the operations of the Borrower and its
Subsidiaries or (y) would be reasonably likely to be materially adverse to the
Lenders or (B) the Securities Purchase Agreement in a manner which would be
reasonably likely to be materially adverse to the Lenders.
SECTION 6.09 Transactions with Affiliates. Enter into any
----------------------------
transaction, including any purchase, sale, lease or exchange of assets, the
rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than the Borrower or any Subsidiary, or Joint
Ventures but including any Unrestricted Subsidiary) unless such transaction is
(a) otherwise permitted under this Agreement, (b) in the ordinary course of
business of the Borrower or such Subsidiary, as the case may be, and (c) upon
fair and reasonable terms no less
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favorable to the Borrower or such Subsidiary, as the case may be, than it would
obtain in a comparable arm's length transaction with a Person that is not an
Affiliate; provided that the following shall in any event be permitted: (i) the
--------
Transaction; (ii) intercompany transactions among the Borrower and its Wholly-
Owned Subsidiaries, and its other Subsidiaries, and loans and advances to
current and former employees, to the extent expressly permitted by Sections 6.06
and 6.07, shall be permitted; (iii) transaction fees and expenses contemplated
to be paid under the Securities Purchase Agreement; (iv) the Borrower and its
Subsidiaries may enter into employment arrangements with respect to the
procurement of services with their respective officers and employees in the
ordinary course of business; (v) the payment on the Effective Date of certain
consulting and advisory fees to the Sponsors pursuant to the Securities Purchase
Agreement, (vi) the payment of consulting or other fees to the Borrower by any
of its Subsidiaries in the ordinary course of business, and (vii) the Borrower
may make payments in respect of indemnity obligations, purchase price
adjustments and other similar payments pursuant to the Securities Purchase
Agreement. In no event shall any management, consulting or similar fee be paid
or payable by the Borrower or any of its Subsidiaries to any Person except as
specifically provided in this Section 6.09 other than pursuant to employment and
severance agreements approved by the compensation committee of Borrower's Board
of Directors.
SECTION 6.10 Clauses Restricting Subsidiary Distributions. Enter
--------------------------------------------
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Borrower to (a) pay
Dividends in respect of any Equity Ownership Interest of such Subsidiary held
by, or pay any Indebtedness owed to, the Borrower or any other Subsidiary of the
Borrower, (b) make loans or advances to, or other Investments in, the Borrower
or any other Subsidiary of the Borrower or (c) transfer any of its assets to the
Borrower or any other Subsidiary of the Borrower, except for such encumbrances
or restrictions existing under or by reason of (i) any restrictions existing
under the Loan Documents or applicable law, (ii) restrictions in the Senior Note
Indenture (or similar restrictions in other documents evidencing Indebtedness
permitted hereunder) or the documents governing the Increasing Rate Term Loan
Facility, and other restrictions in effect on the date hereof and listed on
Schedule XIII, (iii) in the case of clause (c) above, customary non-assignment
clauses in leases and other contracts entered into in the ordinary course of
business, and restrictions in the Company Documents of non-Wholly-Owned
Subsidiaries and Joint Ventures imposing restrictions on the transfers of the
Equity Ownership Interests therein and (iv) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement that has been entered into in
connection with the Disposition of all or substantially all of the Equity
Ownership Interest or assets of such Subsidiary and (v) any restrictions with
respect to a Special Purpose Subsidiary imposed pursuant to the documents
governing the related securitization or financing. It is understood and agreed
that any asset that is Unencumbered shall be deemed not in violation of this
Section 6.10.
SECTION 6.11 Changes in Fiscal Periods. Permit the fiscal year of
-------------------------
the Borrower to end on a day other than December 31 or change the Borrower's
method of determining Fiscal Quarters.
SECTION 6.12 Negative Pledge Clauses. Enter into or suffer to exist
-----------------------
or become effective any agreement that prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its assets or revenues,
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whether now owned or hereafter acquired, other than (a) this Agreement and the
other Loan Documents, (b) any agreements governing any secured Indebtedness
(including in connection with securitizations and similar financings) permitted
hereby (in which case, any prohibition or limitation shall only be effective
against the Equity Ownership Interests or assets financed or leased thereby) or
leasing obligations, (c) the Senior Note Indenture (or similar restrictions in
other documents evidencing Indebtedness permitted hereunder) or the documents
evidencing the Increasing Rate Term Loan Facility, (d) customary negative pledge
and assignment provisions in agreements entered into in the ordinary course of
business, including, without limitation, agreements relating to joint venture
interests (whether conducted as a corporation, partnership, limited liability
company or other legal entity or through other legal or contractual
arrangements), (e) any restrictions with respect to assets imposed pursuant to
an agreement that has been entered into in connection with the Disposition of
such assets and (f) any restrictions with respect to a Special Purpose
Subsidiary imposed pursuant to the documents governing the related
securitization or financing.
SECTION 6.13 Lines of Business. Enter into any business, either
-----------------
directly or through any Subsidiary, except for the Hospitality/Leisure-Related
Business.
SECTION 6.14 Subsidiary Stock. Permit any of its Subsidiaries to
----------------
issue any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and additional issuances which do
not decrease the percentage ownership of the Borrower or any of its Subsidiaries
in any class of the capital stock of such Subsidiaries, (iii) to qualified
directors to the extent required by applicable law and (iv) Subsidiaries formed
after the Effective Date may issue capital stock or other Equity Ownership
Interests to any Person so long as the Investments by the Borrower and its
Subsidiaries in such Subsidiaries are in accordance with the requirements of
Section 6.06(e). All capital stock issued in accordance with this Section 6.14
other than capital stock issued by a Special Purpose Subsidiary shall, to the
extent required by the Guaranty and Collateral Agreement, be delivered to the
Collateral Agent for pledge pursuant to the Guarantee and Collateral Agreement.
SECTION 6.15 Derivatives Obligations. Contract, create, incur,
-----------------------
assume or suffer to exist any Derivatives Obligations, except:
(i) Interest Rate Protection Agreements may be entered into by the
Borrower, and its Subsidiaries in compliance with Section 5.09, and such
other non-speculative Interest Rate Protection Agreements which may be
entered into from time to time; and
(ii) Other Hedging Agreements may be entered into by the Borrower and
its Subsidiaries, so long as such Other Hedging Agreements are for bona
fide foreign exchange currency hedging purposes and are not speculative in
nature.
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ARTICLE VII
Events of Default
If any of the following events shall occur and be continuing:
SECTION 7.01 Payments. The Borrower shall fail to pay any principal
--------
of any Loan or Reimbursement Obligation when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other amount payable hereunder or under any
other Loan Document, within five Business Days after any such interest or other
amount becomes due in accordance with the terms hereof; or
SECTION 7.02 Representations, etc. Any representation or warranty
---------------------
made or deemed made by any Loan Party herein or in any other Loan Document or
that is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; or
SECTION 7.03 Covenants. (i) The Borrower shall default in the
---------
observance or due performance of any term, covenant or agreement contained in
Sections 4.01(b)(ii)(A)(y), 5.07(a) and Article 6 of this Agreement; or (ii) any
Loan Party shall default in the observance or due performance of any term,
covenant or agreement contained in this Agreement or any other Loan Document
(other than as provided in 7.01, 7.02 or 7.03(i)), and such default shall
continue unremedied for a period of 30 days after notice to the Borrower from
the Administrative Agent or the Required Lenders; or
SECTION 7.04 Default Under Other Agreements. The Borrower or any of
------------------------------
its Subsidiaries shall (i) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation in respect of Indebtedness, and
the Increasing Rate Term Loans but excluding the Loans and Non-Recourse
Indebtedness) on the scheduled or original due date with respect thereto beyond
the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (ii) default in making any payment of any
interest on any such Indebtedness beyond the period of grace, if any, provided
in the instrument or agreement under which such Indebtedness was created; or
(iii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided, that a
default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (d) shall not at any time constitute a Default or an Event of Default
unless, at such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph (d) shall have
occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $15,000,000; or
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SECTION 7.05 Bankruptcy, etc. (i) The Borrower or any of its
----------------
Subsidiaries shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication or
appointment which is not vacated, dismissed or stayed pending appeal within 60
days or (B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any
such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof, or (iv) the Borrower or
any of its Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or
SECTION 7.06 ERISA. Any Person shall engage in any non-exempt
-----
"prohibited transaction" (as defined in Section 406 and 408 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any "accumulated funding deficiency"
(as defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Single Employer Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled Entity,
(iii) a Reportable Event shall occur with respect to, or proceedings shall
commence under Title IV of ERISA to have a trustee appointed, or a trustee shall
be appointed under Title IV of ERISA, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, likely to result in the termination of such Plan
for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate
in a "distress termination" or an "involuntary terminations, as such terms are
defined in Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity
shall, or is likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any
other event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or condition, together
with all other such events or conditions, if any, would reasonably be expected
to have a Material Adverse Effect; or
SECTION 7.07 Judgments. One or more judgments or decrees shall be
---------
entered against the Borrower or any of its Subsidiaries involving in the
aggregate a liability (not paid or to the extent not covered by insurance) of
$15,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
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SECTION 7.08 Security Documents. Any of the Security Documents shall
------------------
cease, for any reason, to be in full force and effect, or any Loan Party or any
Affiliate of any Loan Party shall so assert or any Lien created by any of the
Security Documents shall (except as expressly permitted therein) cease to be
enforceable and of the same effect and priority purported to be created thereby;
or
SECTION 7.09 Change of Control. A Change of Control shall occur;
-----------------
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of Section 7.05 above with respect to the
Borrower, automatically the Revolving Commitments shall immediately terminate
and the Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents (including all amounts
of LC Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Revolving Commitments to be terminated forthwith,
whereupon the Revolving Commitments shall immediately terminate; and (ii) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including all amounts of LC Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
Except as expressly provided above in this Section, presentment, demand, protest
and all other notices of any kind (other than notices expressly required
pursuant to this Agreement and any other Loan Document) are hereby expressly
waived by the Borrower.
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ARTICLE VIII
The Administrative Agent
------------------------
SECTION 8.01 Appointment. The Lenders hereby designate Chase as
------------
Administrative Agent to act as specified herein and in the other Loan Documents
(for purposes of this Section 8, the term "Administrative Agent" shall mean
Chase in its capacity as Administrative Agent hereunder and Collateral Agent
pursuant to the Security Documents). Each Lender hereby irrevocably authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement, the other Loan Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto.
SECTION 8.02 The Administrative Agent in its Individual Capacity.
----------------------------------------------------
The Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent hereunder and may accept fees and other consideration from
the Borrower or any Subsidiary or other Affiliate thereof for services in
connection with this Agreement and otherwise without having to account for the
same to the Lenders.
SECTION 8.03 Nature of Duties. The Administrative Agent shall not
-----------------
have any duties or obligations except those expressly set forth herein. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or a Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or
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representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
SECTION 8.04 Reliance. The Administrative Agent shall be entitled to
---------
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, with respect to all legal matters
pertaining to this Agreement and any other Loan Document and shall not be liable
for any action taken or not taken by it in accordance with the advice of any
such counsel, accountants or experts.
SECTION 8.05 Resignation or Removal of the Administrative Agent.
---------------------------------------------------
Subject to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time from
the performance of all its functions and duties hereunder and/or under the Loan
Documents by notifying the Lenders, the Issuing Bank and the Borrower. Upon any
such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent. Furthermore, the Administrative Agent may be
removed by the Required Lenders in the event that it has committed a willful
breach of, or was grossly negligent in the performance of, its material
obligations hereunder.
SECTION 8.06 Lack of Reliance on the Administrative Agent. Each
---------------------------------------------
Lender acknowledges that it has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of each Loan
Party and each of their Subsidiaries in connection with the making and the
continuance of the Loans, participation in Letters of Credit and the
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taking or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of each Loan Party and each of their
Subsidiaries and, except as expressly provided in this Agreement, the
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or issuance of Letters of Credit or at any time or times
thereafter. The Administrative Agent shall not be responsible to any Lender for
any recitals, statements, information, representations or warranties herein or
in any document, certificate or other writing delivered in connection herewith
or for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Loan Document or the financial condition of any Loan Party or any of its
Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Loan Document, or the financial condition of any Loan
Party or any of its Subsidiaries or the existence or possible existence of any
Default or Event of Default.
SECTION 8.07 Certain Rights of the Administrative Agent. If the
------------------------------------------
Administrative Agent shall request instructions from the Required Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Loan Document, the Administrative Agent shall be entitled
to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Lenders;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Lender shall have any
right of action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder or under any
other Loan Document in accordance with the instructions of the Required Lenders.
SECTION 8.08 Indemnification. To the extent that the Administrative
---------------
Agent is not reimbursed and indemnified by the Borrower, the Lenders will
reimburse and indemnify the Administrative Agent, in proportion to their
respective "percentages" as used in determining the Required Lenders, for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its respective duties hereunder or under any
other Loan Document, in any way relating to or arising out of this Agreement or
any other Loan Document; provided that no Lender shall be liable for any portion
--------
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
SECTION 8.09 Other Agents. Nothing in this Agreement shall impose on
------------
any Documentation Agent or Syndication Agent, in each case in such capacity, any
duties or obligations.
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ARTICLE IX
Miscellaneous
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SECTION 9.01 Notices. Except in the case of notices and other
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communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 1950 Stemmons Freeway, Suite 6001,
Dallas, Texas 75207, Attention Chief Financial Officer (Telecopy No.
[(214)-863-1527]);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Manhattan Plaza, 8th Floor, New York,
New York 10081, Attention of Christine Gould (Telecopy No. (212) 552-5701),
with a copy to The Chase Manhattan Bank, 270 Park Avenue, New York 10017,
Attention of Alan Breindel (Telecopy No.(212) 270-3513);
(c) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02 Waivers; Amendments. (a) Neither this Agreement nor
-------------------
any other Loan Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Loan Parties party thereto and the Required
Lenders, provided that no such change, waiver, discharge or termination shall,
--------
without the consent of each Lender (other than a Defaulting Lender) with
Obligations being directly modified thereby, (i) extend the final scheduled
maturity of any Loan or extend the stated maturity of any Letter of Credit
(unless such Letter of Credit is not extended beyond the Revolving Loan Maturity
Date), or reduce the rate or extend the time of payment of interest (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or Fees thereon, or reduce the principal amount thereof (except
to the extent repaid in cash), (ii) amend, modify or waive any provision of this
Section 9.02 or reduce the percentage specified in the definition of Required
Lenders (it being understood that, with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Lenders or the provisions of this Section 9.02
on substantially the same basis as the extensions of Term Loans and Revolving
Loan Commitments are included on the Effective Date), (iii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (iv) release all or substantially all of the Collateral
or Subsidiary Guarantors under this Agreement or any other Loan Document (except
as expressly provided in the Loan Documents); provided further, that no such
----------------
change, waiver, discharge or termination shall (x) increase the Commitments of
any Lender
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over the amount thereof then in effect without the consent of such Lender (it
being understood that waivers or modifications of conditions precedent,
covenants, Defaults or Events of Default or of a mandatory reduction in the
Total Revolving Commitment shall not constitute an increase of the Commitment of
any Lender, and that an increase in the available portion of any Commitment of
any Lender shall not constitute an increase in the Commitment of such Lender),
(y) without the consent of the Administrative Agent, amend, modify or waive any
provision of Section 8 as same applies to the Administrative Agent or any other
provision as the same relates to the rights or obligations of the Administrative
Agent, and (z) without the consent of Chase or the respective Issuing Lender,
amend, modify or waive any provision of Section 2.03 or alter its rights or
obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or
termination with respect to any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 9.02(b), the consent of the Required Lenders is obtained but the consent
of one or more of such other Lenders whose consent is required is not obtained,
then the Borrower shall have the right, so long as all non-consenting Lenders
whose individual consent is required are treated as described below, to replace
each such non-consenting Lender or Lenders with one or more replacement Lenders
pursuant to Section 2.19(b) so long as at the time of such replacement, each
such replacement Lender consents to the proposed change, waiver, discharge or
termination, provided, that in any event the Borrowers shall not have the right
--------
to replace a Lender solely as a result of the exercise of such Lender's rights
(and the withholding of any required consent by such Lender) pursuant to the
second proviso to Section 9.02(a).
SECTION 9.03 Expenses; Indemnity; Damage Waiver. (a) The Borrower
----------------------------------
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of White & Case LLP as counsel for the Administrative Agent,
in connection with the syndication of the credit facilities provided for herein,
the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
----------
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement
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or instrument contemplated hereby, the performance by the parties hereto of
their respective obligations hereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom (including any refusal by the Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence or release of
Materials of Environmental Concern on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
--------
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and non-appealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent, the Lead Arranger or the Issuing Bank as the case may be,
such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
--------
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent or the Issuing Bank in its capacity as
such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
5 days after written demand therefor.
SECTION 9.04 Successors and Assigns. (a) The provisions of this
----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing
Bank and the Lenders) and any legal or equitable right, remedy or claim under or
by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the
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Loans at the time owing to it); provided that (i) except in the case of an
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assignment to a Lender, an Affiliate of a Lender or a Related Fund of a Lender,
each of the Borrower and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's obligations in
respect of its LC Obligations or Swingline Exposure, the Issuing Bank and the
Swingline Lender) must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) except in the case of
an assignment to a Lender or an Affiliate of a Lender or a Related Fund of a
Lender or an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 (treating any fund that invests in bank loans and any
other fund that invests in bank loans and is managed by the same investment
advisor of such fund or by an affiliate of such fund as a single assignment for
purposes of the minimum amount) unless each of the Borrower and the
Administrative Agent otherwise consent (which consent shall not be unreasonably
withheld, (iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement, (iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further, that any consent of the Borrower or
----------------
Administrative Agent otherwise required under this paragraph shall not be
required if a Default exists under Sections 7.01 or 7.05 or Event of Default
exists or results therefrom. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03 as relating to any period of time
prior to the effectiveness of such assignment). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall
be available for inspection by the Borrower,
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the Issuing Bank and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
- --------
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
--------
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(a) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 9.08
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 2.17 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank (or in the case of a Lender that is an investment fund, to
the trustee under the indenture to which such fund is a party), and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
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a Lender from any of its
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obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05 Survival. All covenants, agreements, representations
--------
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06 Counterparts. This Agreement may be executed in
------------
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 9.07 Severability. Any provision of this Agreement held to
------------
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof, and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default shall have
---------------
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09 Governing Law, Jurisdiction; Consent to Service of
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Process. (a) This Agreement shall be construed in accordance with and governed
- -------
by the law of the State of New York.
95
<PAGE>
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its assets, to the nonexclusive jurisdiction of the Supreme Court of
the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that the Administrative Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement against the Borrower or its properties in the courts of any
Jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
--------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of
--------
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality. Each of the Administrative Agent, the
---------------
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
96
<PAGE>
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
(including the National Association of Insurance Commissioners), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, the Issuing Bank or any Lender on
a nonconfidential basis from a source other than the Borrower. For the purposes
of this Section, "Information" means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the
--------
case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13 Effectiveness. This Agreement shall become effective on
-------------
the date (the "Effective Date") when (i) the Borrowers and each of the Lenders
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile) the same
to the Administrative Agent and (ii) the Lenders shall have received the fees
described to them in writing by the Administrative Agent and (iii) the
Administrative Agent shall have received any fees agreed between itself and the
Borrowers which are then due and owing.
SECTION 9.14 Domicile of Loans. Each Lender may transfer and carry
-----------------
its Loans and/or Commitments at, to or for the account of any office, Subsidiary
or Affiliate of such Lender. Notwithstanding anything to the contrary contained
herein, to the extent that a transfer of Loans pursuant to this Section 9.14
would, at the time of such transfer, result in increased costs under Sections
2.05(f), 2.15, 2.16 and 2.17 from those being charged by the respective Lender
prior to such transfer, then the Borrowers shall not be obligated to pay such
increased costs (although the Borrowers shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective transfer).
SECTION 9.15 Calculations; Computations. The financial statements to
--------------------------
be furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrowers to the
Lenders) ("GAAP"), except to the extent the definitions in this Agreement
expressly dictate different treatment; provided that, except as otherwise
--------
specifically provided herein, including in the definitions, all computations
determining compliance with Section 6.01,
97
<PAGE>
shall utilize accounting principles and policies in conformity with those used
to prepare the annual financial statements first delivered to the Lenders
pursuant to Section 5.01.
* * *
98
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
WYNDHAM INTERNATIONAL, INC.,
By /s/ John P. Bohlmann
---------------------------------------------
Title: Sr. Vice President
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent,
By /s/ Thomas H. Kozlark
---------------------------------------------
Title: Vice President
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
By /s/ Thomas H. Kozlark
---------------------------------------------
Title: Vice President
BANKERS TRUST COMPANY,
Individually and as Syndication Agent
By /s/ Garrett W. Thelander
---------------------------------------------
Title: Principal
BEAR STEARNS CORPORATE LENDING INC.,
Individually and as Co-Documentation Agent
By /s/ Michael Offen
---------------------------------------------
Authorized Signatory
CREDIT LYONNAIS NEW YORK BRANCH,
Individually and as Documentation Agent
By /s/ Andrea Griffis
---------------------------------------------
Title: Vice President
99
<PAGE>
NATIONSBANK, N.A.
Individually and as Syndication Agent
By /s/ M. David Howard
---------------------------------------------
Title: Senior Vice President
VAN KAMPEN PRIME RATE INCOME TRUST
By /s/ Lisa M. Mincheski
---------------------------------------------
Title: Vice President
VAN KAMPEN SENIOR INCOME TRUST
By /s/ Lisa M. Mincheski
---------------------------------------------
Title: Vice President
MERRILL LYNCH SENIOR FLOATING RATE
FUND II, INC.
By /s/ Paul Travers
---------------------------------------------
Title: Authorized Signatory
KZH APPALOOSA LLC
By /s/ Peter Chin
---------------------------------------------
Title: Authorized Agent
FRANKLIN FLOATING RATE TRUST
By /s/ Chauncey Lufkin
---------------------------------------------
Title: Vice President
100
<PAGE>
MORGAN STANLEY DEAN WITTER PRIME
INCOME TRUST
By /s/ Peter Gewirtz
-------------------------------------------
Title: Authorized Signatory
KZH PAMCO LLC
By /s/ Virginia Conway
-------------------------------------------
Title: Authorized Agent
KZH WATERSIDE LLC
By /s/ Virginia Conway
-------------------------------------------
Title: Authorized Agent
BHF (USA) CAPITAL COROPRATION
By /s/ Scott H. Finch
-------------------------------------------
Title: Vice President
By /s/ Catherine Hickey
-------------------------------------------
Title: Managing Director
KZM SOLEIL-2 LLC
By /s/ Virginia Conway
-------------------------------------------
Title: Authorized Agent
LONGLANE MASTER TRUST IV
By: BankBoston, N.A.,
as its Trust Administrator
By /s/ Renee A. Ross
-------------------------------------------
Title: Managing Director
Credit Derivatives
101
<PAGE>
DEBT STRATEGIES FUND II, INC.
By /s/ Paul Travers
-------------------------------------------
Title: Authorized Signatory
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.,
as its Investment Manager
By /s/ Jason T. Groom
-------------------------------------------
Title: Assistant Vice President
KZH III LLC
By /s/ Virginia Conway
-------------------------------------------
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By /s/ Virginia Conway
-------------------------------------------
Title: Authorized Agent
ALLSTATE INSURANCE COMPANY
By /s/ Daniel C. Leimbach
-------------------------------------------
Title: Authorized Signatory
By /s/ Patricia W. Wilson
-------------------------------------------
Title: Authorized Signatory
CANADIAN IMPERIAL BANK OF COMMERCE
By /s/ William M. Swenson
-------------------------------------------
Title: Authorized Signatory
102
<PAGE>
FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
as attorney in fact
By /s/ Anne M. McCarthy
-------------------------------------------
Title: Authorized Agent
KZH CNC LLC
By /s/ Virginia Conway
-------------------------------------------
Title: Authorized Signatory
KZH ING-2 LLC
By /s/ Virginia Conway
-------------------------------------------
Title: Authorized Agent
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By /s/ Clifford M. Noreen
-------------------------------------------
Title: Senior Managing Director
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.
its General Partner
By /s/ Scott D. Krase
-------------------------------------------
Title: Vice President
103
<PAGE>
OCTAGON LOAN TRUST
By: Octagon Credit Investors, as Manager
By /s/ James P. Ferguson
-------------------------------------------
Title: Managing Director
TYLER TRADING, INC.
By /s/ Johnny E. Graves
-------------------------------------------
Title: President
STEIN ROE & FARNHAM INCORPOATED, as Agent for
KEYPORT LIFE INSURANCE COMPANY
By /s/ Brian W. Good
-------------------------------------------
Title: Vice President and Portfolio Manager
SEQUILS I, LTD.
By: TCW Advisors, Inc, as its Collateral
Manager
By /s/ Justin L. Driscoll
-------------------------------------------
Title: Senior Vice President
By /s/ Jonathan R. Insull
-------------------------------------------
Title: Vice President
104
<PAGE>
ALLSTATE LIFE INSURANCE COMPANY
By /s/ Daniel C. Leimbach
-------------------------------------------
Title: Authorized Signatory
By /s/ Patricia W. Wilson
-------------------------------------------
Title: Authorized Signatory
ARCHIMEDES FUNDING II, Ltd.
By: ING Capital Advisors, LLC
As Collateral Manager
By /s/ Michael J. Campbell
-------------------------------------------
Title: Senior Vice President &
Portfolio Manager
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC.,
By: ING Capital Advisors LLC
As Investment Advisor
By: /s/ Michael J. Campbell
-------------------------------------------
Title: Senior Vice President &
Portfolio Manager
105
<PAGE>
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P.
By: ING Capital Advisors, LLC
as Investment Advisor
By /s/ Michael J. Campbell
-------------------------------------------
Title: Senior Vice President &
Portfolio Manager
MASSMUTUAL HIGH YIELD PARTNERS II LLC
By: HYP Management, Inc. as Managing Member
By /s/ Clifford M. Noreen
-------------------------------------------
Title: Vice President
NEW YORK LIFE INSURANCE & ANNUITY CORPORATION
By /s/ Anthony Malloy
-------------------------------------------
Title: Director
NEW YORK LIFE INSURANCE COMPANY
By /s/ Anthony Malloy
-------------------------------------------
Title: Director
MERRILL LYNCH SENIOR FLOATING RATE FUND II,
INC.
By /s/ Paul Travers
-------------------------------------------
Title: Authorized Signatory
106
<PAGE>
KZH CRESCENT-2 LLC
By /s/ Virginia Conway
-----------------------------------------
Title: Authorized Agent
KZH ING-1 LLC
By /s/ Virginia Conway
-----------------------------------------
Title: Authorized Agent
SENIOR HIGH INCOME PORTFOLIO, INC.
By /s/ Paul Travers
-----------------------------------------
Title: Authorized Signatory
SRF TRADING, INC.
By /s/ Kelly C. Walker
-----------------------------------------
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company, Its
Investment Manager Sequils I, LTD
By /s/ Jonathan R. Insull
-----------------------------------------
Title: Vice President
KZH CRESCENT LLC
By /s/ Virginia Conway
-----------------------------------------
Title: Authorized Agent
107
<PAGE>
KZH CRESCENT-3 LLC
By /s/ Virginia Conway
-----------------------------------------
Title: Authorized Agent
KZH ING-3 LLC
By /s/ Virginia Conway
-----------------------------------------
Title: Authorized Agent
DEBT STRATEGIES FUND III, INC.
By /s/ Paul Travers
-----------------------------------------
Title: Authorized Signatory
UNITED OF OMAHA LIFE INSURANCE COMPANY
By: TCW Asset Management Company, Its
Investment Advisor
By /s/ Justin L. Driscoll
-----------------------------------------
Title: Senior Vice President
By /s/ Jonathan R. Insull
-----------------------------------------
Title: Vice President
CONTINENTAL ASSURANCE COMPANY
By /s/ Justin L. Driscoll
-----------------------------------------
Title: Senior Vice President
By /s/ Jonathan R. Insull
-----------------------------------------
Title: Vice President
108
<PAGE>
CYPRESSTREE INSTITUTIONAL FUND, LLC
By: CypressTrees Investment Management
Company, Inc., its Managing Member
By /s/ Timothy M. Barns
-----------------------------------------
Title: Managing Director
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management
Company, Inc. its Managing Director
By /s/ Timothy M. Barns
-----------------------------------------
Title: Managing Director
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC.
As: Attorney-in-Fact and on behalf of
First Allmerica Financial Life
Insurance Company as Portfolio
Manager
By /s/ Timothy M. Barns
-----------------------------------------
Title: Managing Director
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By /s/ Timothy M. Barns
-----------------------------------------
Title: Managing Director
109
<PAGE>
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY,
By /s/ Brian W. Good
-----------------------------------------
Title: Vice President and Portfolio
Manager, Stein Row & Farnham Incorporated,
as Advisor to the Stein Roe Floating Rate
Limited Liability Company
CYPRESSTREE SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By /s/ Timothy M. Barns
-----------------------------------------
Title: Managing Director
THE BANK OF NOVA SCOTIA NEW YORK AGENCY
By /s/ Melvin J. Mandelbaum
-----------------------------------------
Title: Vice President
BANKBOSTON, N.A.
By /s/ E. Donald Besch, Jr.
-----------------------------------------
Title: Managing Director
SOCIETE GENERALE, SOUTHWEST AGENCY
By /s/ Carina T. Huynh
-----------------------------------------
Title: Vice President
110
<PAGE>
BANK OF HAWAII
By /s/ Brenda Testerman
-----------------------------------------
Title: Vice President
BANK LEUMI USA
By /s/ Gloria Bucher
-----------------------------------------
Title: First Vice President
& Managing Director
SIAM COMMERCIAL BANK PUBLIC COMPANY LIMITED,
NEW YORK AGENCY
By /s/ Caesar Bolante
-----------------------------------------
Title: Co-General Manager
By /s/ David I. Ramos
-----------------------------------------
Title: Assistant General Manager
Corporate Finance and Treasury
111
<PAGE>
ANNEX A
-------
PRICING GRID
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Applicable Margin for Applicable Margin for
Eurodollar Loans ABR Loans
------------------------------------------------------------------------------------
Applicable Commitment
Pricing Total Leverage Revolving Loans Term Loans Revolving Loans Term Loans Fee Margin
Level Ratio
- -----------------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C>
7 Greater than or 2.75% 3.50% 1.75% 2.50% 0.500%
equal to
5.00 to 1.0
- -----------------------------------------------------------------------------------------------------------------------
6 Greater than or 2.50% 3.25% 1.50% 2.25% 0.500%
equal to
4.50 to 1.0
and less than
5.00 to 1.0
- -----------------------------------------------------------------------------------------------------------------------
5 Greater than or 2.25% 3.00% 1.25% 2.00% 0.500%
equal to
4.00 to 1.0
and less than
4.50 to 1.0
- -----------------------------------------------------------------------------------------------------------------------
4 Greater than or 2.00% 3.00% 1.00% 2.00% 0.375%
equal to
3.50 to 1.0
and less than
4.00 to 1.0
- -----------------------------------------------------------------------------------------------------------------------
3 Greater than or 1.75% 3.00% 0.75% 2.00% 0.375%
equal to
3.00 to 1.0
and less than
3.50 to 1.0
- -----------------------------------------------------------------------------------------------------------------------
2 Greater than or 1.50% 2.75% 0.50% 1.75% 0.250%
equal to
2.50 to 1.0
and less than
3.00 to 1.0
- -----------------------------------------------------------------------------------------------------------------------
1 Less than 1.25% 2.75% 0.25% 1.75% 0.250%
2.50 to 1.0
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
Changes in the Applicable Margin resulting from changes in the Total
Leverage Ratio shall become effective on the date (the "Adjustment Date") on
---------------
which financial statements
<PAGE>
Annex A
Page 2
are delivered to the Lenders pursuant to Section 5.01 (but in any event not
later than the 45th day after the end of each of the first three quarterly
periods of each fiscal year or the 90th day after the end of each fiscal year,
as the case may be) and shall remain in effect until the next change to be
effected pursuant to this paragraph. Each determination of the Total Leverage
Ratio pursuant to this pricing grid shall be made with respect to the period of
four consecutive fiscal quarters of the Borrower ending at the end of the period
covered by the relevant financial statements. If any financial statements
referred to above are not delivered within the time periods specified above,
then until such financial statements are delivered, the Applicable Margins shall
be calculated on the basis of Pricing Level 7. In addition, at any time prior to
the first Adjustment Date occurring after four full Fiscal Quarters have been
completed after the Closing Date (x) the Applicable Commitment Fee Margin shall
be .50% and (y) the Applicable Margins on Loans shall be calculated on the basis
of the higher of (i) Pricing Level 6 and (ii) the Pricing Level otherwise
applicable (with Pricing Level 7 being the highest). At all times while an Event
of Default shall have occurred and is continuing, all Applicable Margins shall
be calculated on the basis of Pricing Level 7. Additionally, at any time that
(i) Pricing Level 6 or lower is in effect and (ii) Senior Secured Leverage Ratio
is (x) equal to or less than 3.25 to 1.0 but greater than 3.00 to 1.0, Pricing
Level 3 shall apply, (y) equal to or less than 3.00 to 1.0 but greater than 2.50
to 1.0, Pricing Level 2 shall apply and (z) equal to or less than 2.50 to 1.0,
Pricing Level 1 shall apply.
Notwithstanding the foregoing, as long as any Increasing Rate Term
Loans remain outstanding, the above Applicable Margin for Loans (but not the
Applicable Commitment Fee Margin) shall be increased by .250%.
<PAGE>
SCHEDULE I
----------
APPROVED PROCUREMENT SAVINGS
----------------------------
---------------------------------------------
Test Period
Ending
------
======================== ====================
September 30, 1999 $ 40,000,000
------------------------ --------------------
December 30, 1999 $ 34,300,000
------------------------ --------------------
March 31, 2000 $ 28,600,000
------------------------ --------------------
June 30, 2000 $ 22,900,000
------------------------ --------------------
September 30, 2000 $ 17,200,000
------------------------ --------------------
December 30, 2000 $ 11,500,000
------------------------ --------------------
March 31, 2001 $ 5,800,000
---------------------------------------------
<PAGE>
Schedule II
Certain Non-Core Assets
1. Wyndham Franklin Plaza
<PAGE>
SCHEDULE III
------------
COMMITMENTS
Revolving Loan Term Loan
Lender Commitment Commitment
- ------ -------------- ------------
The Chase Manhattan Bank $145,000,000.00 $607,900,000.00
Bankers Trust Company 50,000,000.00 10,000,000.00
Bear Stearns Corporate Lending Inc. 50,000,000.00 10,000,000.00
Credit Lyonnais New York Branch 50,000,000.00 20,000,000.00
Nationsbank, N.A. 50,000,000.00 15,500,000.00
Van Kampen Prime Rate Income Trust 100,000,000.00
Van Kampen Senior Income Trust 75,000,000.00
Merrill Lynch Senior Floating Rate
Fund, Inc. 69,000,000.00
KZH Appaloosa LLC 30,000,000.00
Franklin Floating Rate Trust 25,000,000.00
Morgan Stanley Dean Witter Prime
Income Trust 25,000,000.00
KZH Pamco LLC 20,000,000.00
KZH Waterside, LLC 20,000,000.00
BHF (USA) Capital Corporation 15,000,000.00
KZH Soleil-2 LLC 15,000,000.00
Longlane Master Trust IV 15,000,000.00
Debt Strategies Fund II, Inc. 13,500,000.00
Pilgrim Prime Rate Trust 13,500,000.00
KZH III LLC 12,600,000.00
KZH CypressTree-1 LLC 12,000,000.00
Allstate Life Insurance Company 10,000,000.00
Canadian Imperial Bank of Commerce 10,000,000.00
Floating Rate Portfolio 10,000,000.00
KHZ CNC LLC 10,000,000.00
KZH ING-2 LLC 10,000,000.00
Massachusetts Mutual Life Insurance
Company 10,000,000.00
Oak Hill Securities Fund, L.P. 10,000,000.00
Octagon Loan Trust 10,000,000.00
Tyler Trading, Inc. 7,500,000.00
Keyport Life Insurance Company 6,000,000.00
Sequils I, Ltd. 6,000,000.00
Allstate Insurance Company 5,000,000.00
Archimedes Funding II, Ltd. 5,000,000.00
Archimedes Funding, LLC 5,000,000.00
ING High Income Principal Preservation
Fund Holdings, LDC 5,000,000.00
ING Capital Senior Secured High Income
Fund, L.P. 5,000,000.00
MassMutual High Yield Partners II LLC 5,000,000.00
New York Life Insurance & Annuity
Corporation 5,000,000.00
New York Life Insurance Company 5,000,000.00
Merrill Lynch Senior Floating Rate
Fund II, Inc. 4,000,000.00
KZH Crescent-2 LLC 3,500,000.00
KZH ING-1 LLC 3,000,000.00
Senior High Income Portfolio, Inc. 3,000,000.00
SRF Trading, Inc. 3,000,000.00
Crescent/Mach I Partners, L.P. 2,500,000.00
KZH Crescent LLC 2,500,000.00
KZH Crescent-3 LLC 2,500,000.00
KZH ING-3 LLC 2,000,000.00
Debt Strategies Fund III, Inc. 2,000,000.00
<PAGE>
Schedule III
Page 2
<TABLE>
<S> <C> <C>
Continental Assurance Company 1,000,000.00
CypressTree Institutional Fund, LLC 1,000,000.00
CypressTree Investment Fund, LLC 1,000,000.00
First Allmerica Financial Life Insurance Company 1,000,000.00
North American Senior Floating Rate Fund 1,000,000.00
Stein Roe Floating Rate Limited Liability Company 1,000,000.00
CypressTree Senior Floating Rate Fund 500,000.00
The Bank of Nova Scotia New York Agency 45,000,000.00
BankBoston, N.A. 45,000,000.00
Societe Generale, Southwest Agency 45,000,000.00
Bank of Hawaii 10,000,000.00
Bank Leumi USA 5,000,000.00
Siam Commercial Bank Public Company Limited, New York Agency 5,000,000.00
- ------------------------------------------------------------------------------------------------------
Total $500,000,000.00 $1,300,000,000.00
</TABLE>
<PAGE>
Schedule IV
Sponsors
Apollo Real Estate Investment Fund IV, L.P.
Apollo Investment Fund IV, L.P.
Apollo Overseas Partners IV, L.P.
Apollo Real Estate Investment Fund, III, L.P.
BCP Voting, Inc., as voting trustee
THL-CCI, Limited Partnership
Thomas H. Lee Equity Fund IV, L.P.
Thomas H. Lee Foreign Fund IV, L.P.
Thomas H. Lee Foreign Fund IV-B, L.P.
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 1998 Irrecovable Trust
Stephen Zachary Lee
Charles W. Robins as Custodian for Jesse Lee
Charles W. Robins
James Westra
Thomas H. Lee Charitable Investment Limited Partnership
Adam A. Abramson
<PAGE>
Joanne M. Ramos
Wm. Matthew Kelly
Beacon Capital Partners, L.P.
Strategic Real Estate Investments I, LLC
AIF/THL PAH LLC
Chase Equity Associates, L.P.
CMS Co-Investment Subpartnership
CMS Diversified Partners, L.P.
PW Hotel I, LLC
Guayacan Private Equity Limited Partnership
The Bonnybrook Trust
The Franklin Trust
The Dartmouth Trust
CKE Associates LLC
2
<PAGE>
Schedule V
Subsidiaries; Joint Ventures and Equity Ownership Interests
(Includes Unrestricted Subsidiaries)
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
SUBSIDIARIES: Wholly-Owned (Includes Unrestricted Subsidiaries)
- ------------------------------------------------------------------------------------------------------------------------------------
1500 Canal Street Investors II, L.P. DE 1% GP - PAH GP, Inc. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Albuquerque C.I. Associates, L.P. KS 1% GP - PAH-CI Holding, L.L.C. Y
99% LP - Patriot American Hospitality Partnership,
L.P. ("Patriot American Hospitality Partnership,
L.P.")
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian (UK) Developments Ltd. England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian France SA France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Group Services Limited England & Wales 99% economic interest - Arcadian International Limited N
100% Voting A Shares/1% economic interest -Wyndham
International Operating Partnership, L.P. ("Wyndham
OP")
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Hotel Bouffemont SARL France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian (Italy) Limited England & Wales 100% - Arcadian Group Services Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Hotels (UK) Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Hotels Limited England & Wales 100% - Wyndham International Operating Partnership, N
L.P. ("Wyndham OP")
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian International Limited England & Wales 100% - Patriot American UK Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian International Resorts, Limited England & Wales 100% - Arcadian Group Services Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Properties SNC France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Resorts Sarl France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Atlanta C. I. Associates II, L.P. KS 1% GP - C.I. General, L.L.C. N
50% LP - C.I. Holding, L.L.C.
49% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
BJV Realty, Inc. AZ 100% - PAH Leasing LLC Y
- ------------------------------------------------------------------------------------------------------------------------------------
Boulders Carefree Sewer Corporation AZ 100% - PAH Leasing LLC Y
- ------------------------------------------------------------------------------------------------------------------------------------
Boulders Joint Venture AZ 99.9% - Patriot American Hospitality Partnership Y
("Patriot American Hospitality Partnership, L.P.")
.1% - PAH GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Bourbon Orleans Investors II, L.P. DE 1% GP - PAH GP, Inc. N
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Burrllen Enterprises of Maryland MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
CFMB, Inc. DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Albuquerque Lessee GP, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
C.I. Albuquerque Lessee, L.P. DE 99% LP - Wyndham OP Y
1% GP - C.I. Albuquerque Lessee GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Atlanta Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP - C.I. Lessee GP, Inc
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. General, L.L.C. KS 20% - Patriot American Hospitality Partnership, L.P. N
80% - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Holding, L.L.C. KS 99% - Patriot American Hospitality Partnership, L.P. N
1% - PAH-CI Holding, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Knoxville Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP - C.I. Lessee GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Lessee GP, Inc. DE 100% - Wyndham N
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Omaha Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP - C.I. Lessee GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Overland Park Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP - C.I. Lessee GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Wichita General, L.L.C. KS 20% - Patriot American Hospitality Partnership, L.P. N
80% - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Wichita Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP - C.I. Lessee GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Carefree Management LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Carnicon Holdings Corp. FL 100% - CHC Hotels & Resorts Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
Carnicon Puerto La Cruz Venezuela 100% - Carnicon Venezuela Hotel Consultants LC N
- ------------------------------------------------------------------------------------------------------------------------------------
Centralized Operations, Inc. AZ 100% - Resort Services, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
CHC Hotels & Resorts Corp. FL 100% - Wyndham Y
- ------------------------------------------------------------------------------------------------------------------------------------
CHC Lease Partners FL 99% - CHC REIT Lessee Corp. Y
1% - CHC REIT Management Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
CHC REIT Lessee Corp. FL 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
CHC REIT Management Corp. FL 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Chicago-ES Holding Corp. DE 100% - PAH GP, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Chicago-ES Member Corp. DE 100% - Chicago-ES Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
Chilston Park Limited England and 100% - Arcadian International Limited N
Wales
- ------------------------------------------------------------------------------------------------------------------------------------
CHMB, Inc. TX 100% - WHCMB, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Clipper Inns Limited England and 100% - Arcadian (Italy) Limited N
Wales
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Inns of America, Inc. KS 100% - Wyndham Management Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
Conquistador Holding, Inc. DE 1% - Patriot American Hospitality, Inc. N
99% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
Criterion Hotel Management Corp. FL 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Criterion NY Inc. FL 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads Development Company DE 100% - PAH Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CSMC of Kalamazoo, Inc. MI 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Deuce Management Company LLC TX 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Don CeSar Holdings, LLC DE 100% - PAH Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Denver, LLC DE 100% Member - DT-Denver Mezz, LLC N
0% Manager (no economic interest) - DT-Denver
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Denver Manager Corp. DE 100% - DT-Denver Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Denver Mezz, LLC DE 0% Manager (no economic interest) - DT-Denver Mezz N
Manager Corp.
100% Member - Patriot American Hospitality
Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Denver Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT Glenview, LLC DE 100% Member - Glenview Hospitality, L.P. N
0% Manager (no economic interest) - DT Glenview
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT Glenview Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
El Conquistador Ferryboat, Inc. Puerto Rico 100% - Williams Hospitality Group Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
El Conquistador Partnership L.P., S.E. DE 50% - WKA El Con Associates N
50% - Conquistador Holding, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
El San Juan Holding, Inc. DE 1% - Patriot American Hospitality, Inc. N
99% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
ES Phoenix, LLC DE 100% Member - ES Phoenix Mezz, LLC N
0% Manager (no economic interest) - ES Phoenix
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
ES Phoenix Manager Corp. DE 100% - ES Phoenix Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
ES Phoenix Mezz, LLC DE 0% Manager (no economic interest) - ES Phoenix N
Mezz Manager Corp.
100% Member - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
ES Phoenix Mezz Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
ES Schaumburg, LLC DE 100% Member - ES Schaumburg Mezz, LLC N
0% Manager (no economic interest) - ES
Schaumburg Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
ES Schaumburg Manager Corp. DE 100% - ES Schaumburg Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
ES Schaumburg Mezz, LLC DE 100% Member - Interstone/PAH Partners, L.P. N
0% Manager (no economic interest)- ES
Schaumburg Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
ES Schaumburg Mezz Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Holding Corp. DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Lessee, L.P. DE 99% LP - ESC Greenspoint Member, LLC N
1% GP - ESC Greenspoint Member, Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Member Corp. DE 100% - ESC Greenspoint Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Member, LLC DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
ESJ Hotel Corporation DE 100% - Posados de Puerto Rico Associates, Incorporated N
- ------------------------------------------------------------------------------------------------------------------------------------
Ettington Park Group Ltd. England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Ettington Park Hotel Limited England & Wales 100% - Arcadian Group Services Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
European New Timeshare Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Fair Oaks Sierra Associates, L.P. KS 1% GP - SFHC Holdings, LLC N
99% LP - Summerfield Hotel Company, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Family Suites Corporation DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Family Suites Limited Partnership DE 100% GP - Family Suites Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Family Suites Management Corporation DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Family Suites Management Partnership, L.P. DE 100% GP - Family Suites Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
FS Development Corporation DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GAH-II Corporation DE 100% - CHC REIT Management Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
GAH-II, L.P. DE 49.5% LP - CHC REIT Management Y
48.34% LP - Wyndham OP
1.0% GP - GAH-II Corporation
.48% GP - Deuce Management Company LLC
- ------------------------------------------------------------------------------------------------------------------------------------
GB Hotel Management de Mexico S. de RL de C.V. Mexico 100% - CHC Hotels & Resort Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
GH (Cayman) Limited Cayman Islands 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Atlanta, LLC MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Chicago, Inc. IL 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Detroit, Inc. MI 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Greeneville, Inc. TN 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Providence, Inc. RI 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GH Trademarks LLC MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Wichita, Inc. KS 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GH-San Diego, Inc. DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GHALP GP, Inc. DE 100% - PAH-Westmont CI N
Holding, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
GHALP Operating GP, Inc. DE 100% - Wyndham N
- ------------------------------------------------------------------------------------------------------------------------------------
GHALP Operating Partnership, L.P. DE 1% GP - GHALP Operating GP, Inc. N
99% LP - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
GHALP Partnership, L.P. DE 1% GP - GHALP GP, Inc. N
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
GHMB, Inc. TX 100% - WHCMB, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
GHV-Colorado, Inc. CO 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GHV-Galveston, Inc. TX 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Glenview Hospitality, L.P. DE 1% GP - PAH Deuce GP, LLC Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay Management LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Grand Bay Management Company FL 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Hotels, Inc. MD 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Leasing, LLC MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Real Estate Group LLC MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Management Services, Inc. FL 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
H-Cleveland, LLC DE 100% Member - H-Cleveland Mezz, LLC N
0% Manager (no economic interest) - H-Cleveland
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Cleveland Manager Corp. DE 100% - H-Cleveland Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Cleveland Mezz, LLC DE 100% Manager - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) H-Cleveland Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Cleveland Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Columbus, LLC DE 100% Member - H-Columbus Mezz, LLC N
0% Manager (no economic interest) - H-Columbus
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Columbus Manager Corp. DE 100% - H-Columbus Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Columbus Mezz, LLC DE 0% Manager (no economic interest) - H-Columbus N
Mezz Manager Corp.
100% Member - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Columbus Mezz Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Delmar, LLC DE 100% Member - H-Delmar Mezz, LLC N
0% Manager (no economic interest) - H-Delmar
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Delmar Manager Corp. DE 100% - H-Delmar Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Delmar Mezz, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - H-Delmar Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Delmar Mezz Manager Corp. DE 100% PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Gateway, LLC DE 100% Member - H-Gateway Mezz, LLC N
0% Manager (no economic interest) - H-Gateway
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Gateway Manager Corp. DE 100% - H-Gateway Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Gateway Mezz, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - H-Gateway
Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Gateway Mezz Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Melbourne GP, LLC DE 100% Member - Melbourne Hospitality, L.P. N
0% Manager (no economic interest) - H-Melbourne
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Melbourne, L.P. DE 99.5% L.P. - Melbourne Hospitality, L.P. N
0.5% G.P. - H-Melbourne GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
H-Melbourne Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
HMG Beverage, Inc. TX 100% - PAH-Management Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Hilt-Hunt, LLC DE 100% Member - Hilt-Hunt Mezz, LLC N
0% Manager (no economic interest) - Hilt-Hunt
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Hilt-Hunt Manager Corp. DE 100% - Hilt-Hunt Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Hilt-Hunt Mezz, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - Hilt-Hunt
Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Hilt-Hunt Mezz Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Hotel Gressy SNC France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Hotel L'Horizon Limited Jersey 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Housemanor Limited England & Wales 100% - Arcadian (Italy) Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Burlington Corporation VT 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Capital Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Conshohocken Partnership, L.P. DE 1% GP - IHC Realty Corporation Y
99% LP - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/FS Development Corporation DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Houston Partnership, L.P. DE 1% GP - IHC Realty Corporation Y
99% LP - IHC Texas Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Interstone Partnership II, L.P. DE 1% GP - PAH-Interstone, Inc. Y
99% LP - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Jacksonville Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Jamaica Corporation DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Maryville Hotel Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Member Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Miami Beach Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Miami Mortgage Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Park West Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Pittsburgh Partnership, L.P. DE 1% GP-PAH - Real Estate Member, Inc. Y
92.2327% GP - PAH - Pittsburgh, LLC
6.7673% LP - PAH-Franchise Holding, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Reach Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Realty Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Realty Partnership, L.P. DE 1.0333% GP - IHC Realty Corporation Y
98.9667% LP - IHC Member Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Santa Maria Corporation DE 100% - PAH-Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Texas Corporation DE 100% - IHC Member Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Title Agency Corporation DE 100% - PAH-Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHP Investment Company, L.L.C. DE 1% GP - IHC Realty Corporation Y
99% LP - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
IHP Lessee LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Interstone/PAH Partners, L.P. DE 98% LP - IHC Realty Partnership, L.P. Y
1% GP - IHC Realty Corporation
1% LP - Patriot American Hospitality Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
INTMB, Inc. DE 100% - PAH-Management Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
Isla Verde Tourism Parking Corporation Puerto Rico 100% - Posados de San Juan Associates N
- ------------------------------------------------------------------------------------------------------------------------------------
Kansas City Hospitality, L.P. DE 99% LP - Patriot American Hospitality Partnership, Y
L.P.
1% GP - PAH Deuce GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Knoxville C.I. Associates, L.P. TN 1% GP - C.I. General, L.L.C. N
99% LP - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
L'Horizon Hotels Limited England & Wales 100% - Arcadian (Italy) Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
L'Horizon Hotel (Jersey) Limited Jersey 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
L'Horizon Management (Jersey) Limited Jersey 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison (ELL) Limited Scotland 100% Malmaison Resources Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Brand Ltd. Scotland 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Hotels Limited England & Wales 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Resources Limited England & Wales 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Mar-Ty, LLC DE 100% Member - Mar-Ty Mezz, LLC N
0% Manager (no economic interest) Mar-Ty
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Mar-Ty Manager Corp. DE 100% - Mar-Ty Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Mar-Ty Mezz, LLC DE 100% Member - PA Troy Hospitality Investors, L.P. N
0% Manager (no economic interest) Mar-Ty Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Mar-Ty Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Marina Hospitality, L.P. DE 99% LP - Patriot American Hospitality Partnership, Y
L.P.
1% GP - PAH Deuce GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
MBAH, Inc. TX 100% - WHCMB, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Melbourne Hospitality, L.P. DE 99% LP - Patriot American Hospitality Partnership, Y
L.P.
1% GP - PAH Deuce GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
The Mollington Banastre Hotel Limited England & Wales 100% - Arcadian Group Services Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
O-H Acquisition, Inc. DE 100% - PAH-Westmont CI Holding, Inc Y
- ------------------------------------------------------------------------------------------------------------------------------------
Omaha C.I. Associates, L.P. KS 1% GP - C.I. General, L.L.C. N
99% LP - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
Overland Park C.I. Associates, L.P. KS 1% GP - C.I. General, L.L.C. N
99% LP - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PA Hunt Valley Investors, L.P. VA 1% GP - PAH-GP, Inc. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PA Ravinia Partners VA 4% GP - Patriot American Hospitality Partnership, L.P. N
96% LP - Wyndham International, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PA Troy Hospitality Investors, L.P. DE 1% GP - PAH GP, Inc. Y
99%LP - Patriot American Hospitality Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Pagle Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Acquisition Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Allen Operating Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Asset Management, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Batterymarch Realty Company, LLC DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Batterymarch Operating Company, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Billerica Realty Company, LLC DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Buttes L.L.C. DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Deuce GP, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH (France) Sarl France 100% - PAH G.B., Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH GAH Holding, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH GAH Holdings, L.P. DE 99% LP - Wyndham OP Y
1% GP- PAH GAH Holdings, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
PAH GP, Inc. DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Leasing LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH LP, Inc. DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Ravinia, Inc. VA 99% - Patriot American Hospitality Partnership, L.P. N
(class B non-voting)
1% - PA Ravinia Partners
- ------------------------------------------------------------------------------------------------------------------------------------
PAH River House, L.P. DE 1% GP - PAH-RH, LLC Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH River North, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Stanly Ranch LLC DE 99% - Wyndham OP Y
1.00% - PAH-Stanly Holding LLC
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Stanly Holding LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Ventana Canyon, L.P. DE 1% GP - PAH GP, Inc. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Windwatch LLC DE 99% - Patriot American Hospitality Partnership, L.P. N
1% - PAH Windwatch Partners
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PAH Windwatch Partners DE 4% GP - Patriot American Hospitality Partnership, N
L.P.
96% LP Wyndham International, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Westlake LLC DE 90% - Patriot American Hospitality Partnership, L.P. N
10% - WI Ohio Investors, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Akron, L.L.C. DE 90% - Patriot American Hospitality Partnership, L.P. N
10% - WI Ohio Investors, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood I, L.L.C. DE 90% - Patriot American Hospitality Partnership, L.P. N
10% - WI Ohio Investors, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood II, L.L.C. DE 90% - Patriot American Hospitality Partnership, L.P. N
10% - WI Ohio Investors, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-BV Holding Corp. DE 100% - Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-BV Palace Corp. DE 100% - PAH-BV Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-BV Palace, L.P. DE .5% GP - PAH-BV Palace Corp. N
99.5% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Carefree, L.P. DE 1% GP - PAH GP, Inc. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-CI Holding, LLC DE 99% - Patriot American Hospitality Partnership, L.P. Y
1% - Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Columbus Holding, Inc. DE 1% - Wyndham OP Y
99% - Patriot American Hospitality Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Franchise Holding, Inc. DE 94.3464% - Patriot American Hospitality, Inc. Y
4.6536% - Patriot American Hospitality Partnership,
L.P.
1% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAH FF&E Holding, Inc. DE 99% - Patriot American Hospitality Partnership, L.P. Y
1% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAHG FF&E Holding, Inc. DE 99% - Patriot American Hospitality Partnership, L.P. Y
1% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-GBM, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-GP Allen Partners, L.P. DE 1% GP - PAH Allen Operating Corporation Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Grand Bay Miami, L.P. DE 1% GP - PAH-GBM, LLC Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-HVP General Partner Corp. DE 100% - PAH-HVP Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-HVP Holding Corp. DE 100% - Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Interest Holding, Inc. DE 1% - Wyndham OP (100 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(9,900 Class B Non-Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PAH-Interstate Holdings, Inc. DE 1% - Wyndham OP (247.58 Class A Voting) Y
52.279% - Patriot American Hospitality, Inc.
(12,943.34 Class B Non-Voting)
47.721% - PAH-Management Corporation (11,567.15 Class
B Non-Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Interstone, Inc. DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-IP Holding, Inc. DE 1% - Wyndham OP (100 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(9,900 Class B Non Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Management Corporation DE 99% - Patriot American Hospitality, Inc. Y
1% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAHP FF&E Holding, Inc. DE 99% - Patriot American Hospitality Partnership, L.P. Y
1% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh CI Holding, Inc. DE 1% - Wyndham OP (100 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(9,900 Class B Non Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh, LLC DE 100% - PAH-Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Real Estate Member, Inc. DE 100% - PAH-Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-RH, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Holding Corp. DE 9.09% - Patriot American Hospitality Partnership, L.P. Y
90.91% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Leasing, Inc. DE 9.09% - Patriot American Hospitality Partnership, L.P. Y
90.91% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield LLC DE 100% - PAH-Summerfield Holding Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-T, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Tampa, L.P. DE 1% GP - PAH-T, LLC Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Westmont CI Holding, Inc. DE 1% - Wyndham OP (110 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(10,890 Class B Non Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-WMC Holding, Inc. DE 1% - Wyndham OP (100 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(9,900 Class B Non Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Xerxes Holding, Inc. DE 1% - Wyndham OP (100 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(9,900 Class B Non Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAHMB, Inc. TX 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAHMB Maryland, Inc. MD 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Parsippany, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - Parsippany
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Parsippany Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Hospitality, Inc. DE 100% - Wyndham International, Inc. ("Wyndham") Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American UK Limited England & Wales 100% - Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Bougainvillea Development Company, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Bougainvillea, LLC DE 75% - Wyndham OP Y
25% - Patriot American Hospitality Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Grand Heritage, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Holding LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Land Holding LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Miami Note Holder, L.P. DE 1% GP - PAH GP, Inc. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Racetrack Land LLC DE 99% - Patriot American Hospitality Partnership, L.P. Y
1% - Patriot Land Holding LLC
- ------------------------------------------------------------------------------------------------------------------------------------
P.H.G., LLC MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Pittsburgh C.I., Inc. KS 100% - PAH-Pittsburgh C.I. Holding, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Polycourt Limited England & Wales 100% - Arcadian (Italy) Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Posadas de Puerto Rico Associates, Incorporated DE 100% - WHG Resorts and Casinos Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Posadas de Regency, Inc. DE 1% - Patriot American Hospitality, Inc. N
99% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
Posadas de San Juan Associates (New York NY 50% - ESJ Hotel Corporation N
joint venture) 50% - Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Posadas Finance Corporation DE 100% - Posadas de Puerto Rico Associates, Incorporated N
- ------------------------------------------------------------------------------------------------------------------------------------
PSMB, Inc. CA 100% - WHCMB, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PW Land Associates Limited Partnership PA 99% GP - IHC/Park West Corporation Y
1% LP - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PWMB, Inc. DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
R-Houston GP, LLC DE 100% Member - R-Houston LP, LLC N
0% Manager (no economic interest) - R-Houston GP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
R-Houston GP Manager Corp. DE 100% - R-Houston LP, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
R-Houston, L.P. DE 0.5% GP - R-Houston GP, LLC N
99.5% LP- R-Houston LP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
R-Houston LP, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - R-Houston LP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
R-Houston LP Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
R-Lisle, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - R-Lisle
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
R-Lisle Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Rad-Burl, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - Rad-Burl
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Rad-Burl Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Rad-Jose, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - Rad-Jose
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Rad-Jose Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Ravinia, LLC DE 100% Member - Ravinia Mezz, LLC N
0% Manager (no economic interest) - Ravinia
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Ravinia Manager Corp. DE 100% - Ravinia Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Ravinia Mezz, LLC DE 100% Member - PAH Ravinia, Inc. N
0% Manager (no economic interest) - Ravinia Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Ravinia Mezz Manager Corp. DE 100% - PAH Ravinia, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Resorts Limited Partnership DE 1% GP - PAH Carefree, L.P. N
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Resorts Limited Partnership II DE .1% GP - PAH Carefree, L.P. N
99.9% LP - Resorts Limited Partnership
- ------------------------------------------------------------------------------------------------------------------------------------
Richardson C.I. Associates, L.P. TX 1% GP - Patriot American Hospitality Partnership, L.P. Y
99% LP - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
Ronald Wilson Properties Limited England & Wales 100% - Arcadian (Italy) Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Rose Hall Associates Limited Partnership TX 99% LP - Patriot American Hospitality Partnership, N
L.P.
1% GP - WHC Caribbean, Ltd.
- ------------------------------------------------------------------------------------------------------------------------------------
Societe Anonyme du Chateau de Bessy France 100% - Arcadian Group Services Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Salt Lake City Operating GP, Inc. DE 100% - Wyndham N
- ------------------------------------------------------------------------------------------------------------------------------------
Salt Lake City Operating Partnership, L.P. DE 99% LP - Wyndham OP N
1% GP - Salt Lake City Operating GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Savannah C.I. Associates, L.P. GA 5% GP - PAH-CI Holding, L.L.C. Y
95% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
SFHC Holdings, LLC KS 100% - Summerfield Hotel Company, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
SFMB, Inc. DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Sierra Suites Marketing Association KS 100% - Summerfield Hotel Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
St. Louis C.I. Associates, L.P. MO 1% GP - Patriot American Hospitality Partnership, L.P. Y
99% LP - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
Stone Development Sarl France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Company, L.P. KS 1% GP - PAH-Summerfield, LLC Y
99% LP - PAH-Summerfield Holding Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Corporation DE 100% - PAH-Summerfield Holding Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Summerfield Hotel Leasing Company, L.P. KS 1% GP - Summerfield Hotel Leasing Corporation N
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Leasing Corporation KS 100% - PAH-Summerfield Leasing, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield HPT Lease Company, L.L.C. DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield HPT Lease Company, L.P. KS 99% LP - Patriot American Hospitality Partnership, N
L.P.
1% - Summerfield HPT Lease Company, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Marketing Association DE 100% - Summerfield Hotel Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
Syracuse Associates Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
TCC Maturin, C.A. Venezuela 100% - TCC Venezuela, L.C. N
- ------------------------------------------------------------------------------------------------------------------------------------
TCC Venezuela, L.C. FL 50% - CHC Hotels & Resorts Corp. Y
50% - Carnicon Holdings Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison Company (Edinburgh) Ltd. England & Wales 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison Hotel (Glasgow) Ltd Scotland 100% - Malmaison Brand Ltd. N
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison Hotel (Leeds) Ltd. England & Wales 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison Hotel (Manchester) Ltd. England & Wales 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison Hotel (Newcastle) Ltd. England & Wales 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
The Reserve Collection Boulders LLC DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
The Reserve Collection Peaks LLC DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Tillian Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Toledo Hotel Investors, L.P. DE 99% LP - Patriot American Hospitality Partnership, Y
L.P.
1% GP - PAH Deuce GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Topeka C. I. Associates, L.P. KS 96.51% LP - Patriot American Hospitality Partnership, Y
L.P.
3.49%GP - PAH-CI Holding, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Tree-Mass, LLC DE 100% Member - Tree-Mass Mezz, LLC N
0% Manager (no economic interest) - Tree-Mass Manager
Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Tree-Mass Manager Corp. DE 100% - Tree-Mass Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Tree-Mass Mezz, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - Tree-Mass Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Tree-Mass Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Bel Age, LLC DE 100% Member - W-Bel Age Mezz, LLC N
0% Manager (no economic interest) - W-Bel Age Manager
Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Bel Age Manager Corp. DE 100% - W-Bel Age Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Bel Age Mezz, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Bel Age Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Bel Age Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
W-Brookfield, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Brookfield
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Brookfield Manager Corp. DE 100% - PAH-GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Buttes, LLC DE 100% Member - W-Buttes Mezz, LLC N
0% Manager (no economic interest) - W-Buttes
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Buttes Manager Corp. DE 100% W-Buttes Mezz, LLC. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Buttes Mezz, LLC DE 100% Member - PAH Buttes L.L.C. N
0% Manager (no economic interest) - W-Buttes
Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Buttes Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Charlotte, LLC DE 100% - Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Charlotte
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Charlotte Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Colinas GP, LLC DE 100% Member - W-Colinas Mezz LP, LLC N
0% Manager (no economic interest) - W-Colinas GP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Colinas GP Manager Corp. DE 100% - W-Colinas Mezz LP, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Colinas, L.P. DE 0.5% GP - W-Colinas GP, LLC N
99.5% LP - W-Colinas Mezz LP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Colinas LP Manager Corp. DE 100% Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Colinas Mezz LP, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Colinas LP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Commerce, LLC DE 0% Manager (no economic interest) - W-Commerce N
Manager Corp.
100% Member - W-Commerce Mezz, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Commerce Manager Corp. DE 100% - W- Commerce Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Commerce Mezz, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Commerce
Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Commerce Mezz Manager Corp. DE 100% PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Emerald, LLC DE 100% Member - W-Emerald Mezz, LLC N
0% Manager (no economic interest) - W-Emerald
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Emerald Manager Corp. DE 100% - W-Emerald Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
14
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
W-Emerald Mezz, LLC DE 0% Manager (no economic interest) - W-Emerald N
Mezz Manager Corp.
100% Member - Patriot American Hospitality
Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Emerald Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Franklin GP, LLC DE 100% Member - W-Franklin Mezz L.P., LLC N
0% Manager (no economic interest) - W-Franklin GP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Franklin GP Manager Corp. DE 100% - W-Franklin Mezz, L.P., LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Franklin, L.P. DE 0.5% GP - W-Franklin GP, LLC N
95.5% LP - W-Franklin Mezz L.P., LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Franklin L.P. Manager Corp. DE 100% PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Franklin Mezz L.P., LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Franklin
L.P. Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Garden Atlanta, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Garden
Atlanta Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Garden Atlanta Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Greenspoint Holding Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Greenspoint, L.P. DE 1% GP - W-Greenspoint Member Corp. N
99% LP-WG Member, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Greenspoint Member Corp. DE 100% - W-Greenspoint Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Indiana, LLC DE 100% Member - W-Indiana Mezz, LLC N
0% Manager (no economic interest) W-Indiana
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Indiana Manager Corp. DE 100% - W-Indiana Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Indiana Mezz, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) W-Indiana Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Indiana Mezz Manager Corp. DE 100% PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Miami Airport GP, LLC DE 0% Manager (no economic interest) - W-Miami Airport N
Manager Corp.
100% Member - PAH-River House, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Miami Airport, L.P. DE 0.5% GP - W- Miami Airport GP, LLC N
99.5% LP - PAH-River House, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Miami Airport Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Novi, LLC DE 0% Manager (no economic interest) - W-Novi N
Manager Corp.
100% Member - W-Novi Mezz, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Novi Manager Corp. DE 100% - W-Novi Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Novi Mezz, LLC DE 0% Manager (no economic interest) - W-Novi Mezz N
Manager Corp.
100% Member - Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Novi Mezz Manager Corp. DE 100% - Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
W-Pleasanton, LLC DE 100% Member - W-Pleasanton Mezz, LLC N
0% Manager (no economic interest) - W-Pleasanton
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Pleasanton Manager Corp. DE 100% - W-Pleasanton Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Pleasanton Mezz, LLC DE 100% - Member - Patriot American Hospitality, Inc. N
0% Manager (no economic value) - W-Pleasanton
Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Pleasanton Mezz Manager Corp. DE 100% - Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Richardson GP Corp. DE 100% - W-Richardson Mezz L.P., LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Richardson, L.P. DE 0.5% GP - W- Richardson GP Corp. N
99.5% LP - W-Richardson Mezz L.P., LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Richardson L.P. Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Richardson Mezz L.P., LLC DE 0% Manager (no economic interest) - W-Richardson L.P. N
Manager Corp.
100% Member - Richardson C.I. Associates, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg, LLC DE 0% Manager (no economic interest) - N
W-Schaumburg Manager Corp.
100% Member - W-Schaumburg Mezz, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg Manager Corp. DE 100% - W-Schaumberg Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg Mezz, LLC DE 0% Manager (no economic interest) - N
W-Schaumburg Mezz Manager Corp.
100% Member - Patriot American Hospitality
Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-SSH, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
W-Tampa GP, LLC DE 0% Manager (no economic interest) - W-Tampa N
Manager Corp.
100% Member - PAH-Tampa, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Tampa, L.P. DE 0.5% GP - W- Tampa GP, LLC N
99.5% LP - PAH-Tampa, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Tampa Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale, LLC DE 0% Manager (no economic interest) - W-Wood Dale N
Manager Corp.
100% Member - W-Wood Dale Mezz, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale Manager Corp. DE 100% W-Wood Dale Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale Mezz, LLC DE 0% Manager (no economic interest) - W-Wood Dale Mezz N
Manager Corp.
100% Member - Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale Mezz Manager Corp. DE 100% Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W& CP (Exeter) Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
W&C Estates Ltd. England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Waterfront Management Corporation DE 100% - Wyndham Management Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
WCHNW, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - WCHNW Manager
Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
WCHNW Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Westminster & Country Construction Company England & Wales 100% - Arcadian (Italy) Limited N
Limited
- ------------------------------------------------------------------------------------------------------------------------------------
Westminster & Country Finance Limited England & Wales 100% - Arcadian (Italy) Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Westminster & Country Properties (Bicester) England & Wales 100% - Arcadian (Italy) Limited N
Limited
- ------------------------------------------------------------------------------------------------------------------------------------
Westminster & Country Properties (London) England & Wales 100% - Arcadian (Italy) Limited N
Limited
- ------------------------------------------------------------------------------------------------------------------------------------
WG Member, LLC DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
WH Interest, Inc. TX 100% - PAH-Interest Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Atlanta GP, LLC DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Caribbean, Ltd. Jamaica 1 Share (.5%) - Wyndham Management Corporation N
199 Shares (99.5%) - Xerxes Limited
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Chicago, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Columbus Corporation DE 100% - PAH-Columbus Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Finance, L.P. DE 1% GP - O-H Acquisition Corp. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Franchise Corporation DE 100% - PAH-Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHCMB, Inc. DE 100% - Wyndham Management Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHCMB Overland Park, Inc. KS 100% - WHCMB, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHCMB Toronto, Inc. Canada 100% - Wyndham Management Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
WHCMB Utah Private Club Corporation (Utah UT 100% - Wyndham Management Corporation N
non-profit corporation)
- ------------------------------------------------------------------------------------------------------------------------------------
WHG El Con Corp. DE 100% - WHG Resorts and Casinos Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
WHG Resorts & Casinos Inc. DE 100% - Wyndham N
- ------------------------------------------------------------------------------------------------------------------------------------
WI Ohio Investors, Inc. DE 1% - Wyndham OP Y
99% - Patriot American Hospitality Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Wichita C.I. Associates III, L.P. KS 13.36% GP - C.I. Wichita General, L.L.C. N
86.64% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Williams Hospitality Group Inc. DE 62% - Posadas de Puerto Rico, Incorporated N
38% - El San Juan Holding, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
WKA Development S.E. Puerto Rico 2% - Williams Hospitality Group Inc. N
98% - WKA El Con Associates
- ------------------------------------------------------------------------------------------------------------------------------------
WKA El Con Associates NY 53.46% - Conquistador Holdings, Inc. N
46.54% - WHG El Con Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
WMC II, Inc. DE 100% - Wyndham Management II, LLC Y
- ------------------------------------------------------------------------------------------------------------------------------------
WYN Travel, Inc. DE 100% - Wyndham Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham Atlanta Lessee, LLC DE 100% - Wyndham Y
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham French Holdings Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Hotels & Resorts (Aruba) N.V. Aruba 100% - Wyndham Management Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Hotels & Resorts Management, Ltd. Bermuda 100% - Wyndham Management Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham HPT Lessee, L.P. DE 1% GP - Wyndham HPT Lessee LLC N
99% LP - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham HPT Lessee LLC DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Acquisition Subsidiary DE 100% - Wyndham N
Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation DE 100% - PAH-IP Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Corporation DE 100% - PAH-WMC Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management II, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Holding Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Lessee Holding Corp. DE 100% - CHC Lease Partners N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Lessee LLC DE 1% - Wyndham Peachtree Lessee Member Corp. N
99% - Wyndham Peachtree Lessee Member, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Lessee Member, LLC DE 100% - CHC Lease Partners N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Lessee Member Corp. DE 100% - Wyndham Lessee Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree LLC DE 1% - Wyndham Peachtree Member Corp. N
99% - Wyndham Peachtree Member, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Member Corp. DE 100% - Wyndham Peachtree Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Member, LLC DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham SN Lessee Corp. DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham SN Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP Wyndham SN Lessee Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield Lessee, L.P. DE 99% LP - Wyndham OP Y
1% GP - Wyndham Summerfield Lessee LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield Lessee, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham UK Holdings Limited England & Wales 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Xerxes Limited Jamaica .5% - Wyndham Management Corporation (1 Share) N
99.5% - PAH-Xerxes Holding, Inc. (199 Shares)
- ------------------------------------------------------------------------------------------------------------------------------------
YO Hotel Investors, L.P. DE 99% LP - Patriot American Hospitality Partnership, Y
L.P.
1% GP - PAH Deuce GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
18
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
SUBSIDIARIES: Non-Wholly-Owned (Includes Unrestricted Subsidiaries)
- ------------------------------------------------------------------------------------------------------------------------------------
Atlanta American Hotel Investors, L.P. DE 1% GP - WHC Atlanta GP, LLC N
69% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Casa Marina Realty Partnership, L.P. DE 97.6063% LP - IHC Realty Partnership, L.P. N
1% GP - Casa Marina Realty Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
Casa Marina Realty Corporation DE 98.6063% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Chicago-ES, LLC DE 1% - Chicago-ES Member Corp. N
99% IHP/Class B Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
CHR Consulting Company, L.L.C. DE 99% - Colony Hotels and Resorts Company N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
CHR Services Company, L.L.C. DE 99% - Colony Hotels and Resorts Company N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Clipper Hotels Limited England & Wales 99% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
City Centre Partnership, L.P. DE 92.5% GP - Patriot American Hospitality Partnership, N
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Colony de Mexico, S.A. de C.V. Mexico .002% - Colony International Management Company, N
L.L.C.
99.998% - Colony Hotels and Resorts Company
- ------------------------------------------------------------------------------------------------------------------------------------
Colony Hotels and Resorts Company DE 100% - Interstate Hotels, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Colony International Management Company, L.L.C. DE 99% - Colony Hotels and Resorts Company N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Continental Design & Supplies Company, L.L.C. DE 99% - Interstate Hotels, LLC N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads Future Company, L.L.C. DE 1% - PAH-Crossroads Members, Inc. N
99% - Crossroads Hospitality Company, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads Future Financing Company, L.L.C. DE 100% - Crossroads Future Company, L.L.C. N
Future Financing Member Corporation (Special
Independent Member - no economic interest)
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads Hospitality Company, L.L.C. DE 99% - Interstate Hotels, LLC N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads Hospitality Tenant Company, L.L.C. DE 99% - Crossroads Hospitality Company, L.L.C. N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads/Memphis Company, L.L.C. DE 99% - Crossroads Hospitality Company, L.L.C. N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads/Memphis Financing Company, L.L.C. DE 100% - Crossroads/Memphis Partnership, L.P. N
Crossroads/Memphis Financing Corporation (Special
Independent Member - no economic interest)
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads/Memphis Financing Company II, L.L.C. DE 100% - Crossroads/Memphis Partnership, L.P. N
Crossroads/Memphis Financing II Corporation (Special
Independent Member - no economic interest)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
19
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Crossroads/Memphis Partnership, L.P. DE 83.2329% GP - Crossroads/ N
Memphis Company, L.L.C.
16.7671% LP - Crossroads Hospitality Company, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Des Plaines, LLC DE 100% Member - DT-Des Plaines Mezz, LLC N
0% Manager (no economic interest) - DT-Des
Plaines Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Des Plaines Manager Corp. DE 100% - DT-Des Plaines Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Des Plaines Mezz, LLC DE 100% Member - PAH-DT Chicago O'Hare N
Partners, L.P.
0% Manager (no economic interest) - DT-Des
Plaines Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Des Plaines Mezz Manager Corp. DE 100% - PAH-DT Chicago O'Hare Partners, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami GP, LLC DE 100% Member - DT-Miami Mezz, L.P. N
0% Manager (no economic interest) - DT Miami GP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami GP Manager Corp. DE 100% - DT-Miami Mezz, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami L.P. Manager Corp. DE 100% - PAH-DT Miami Airport Partners, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami, L.P. DE 0.5% GP - DT-Miami GP, LLC N
99.5% LP - DT-Miami Mezz, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami Mezz, L.P. DE 0.5% GP - DT-Miami L.P. Holding, LLC N
99.5% LP - PAH-DT Miami Airport Partners, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami L.P. Holding, LLC DE 100% Member - PAH-DT Miami Airport Partners, L.P. N
0% Manager (no economic interest) - DT-Miami LP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee GP, LLC DE 100% Member - DT-Tallahassee Mezz, L.P. N
0% Manager (no economic interest) - DT-Tallahassee GP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee GP Manager Corp. DE 100% - DT-Tallahassee Mezz, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee, L.P. DE 0.5% GP - DT-Tallahassee GP, LLC N
99.5% LP - DT-Tallahassee Mezz, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee L.P. Holding, LLC DE 100% Member - PAH-DT Tallahassee Partners, L.P. N
0% Manager (no economic interest) - DT-Tallahassee
L.P. Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee L.P. Manager Corp. DE 100% - PAH-DT Tallahassee Partners, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee Mezz, L.P. DE 99.5% LP - PAH-DT Tallahassee Partners, L.P. N
0.5% GP - DT-Tallahassee L.P. Holding, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Equity Bluefield, Inc. WV 100% - Crossroads/Memphis Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
Hilltop Equipment Leasing Company, L.P. DE 99% GP - PAH-Hilltop GP, LLC N
1% LP - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Hotel Venture Partners, Ltd. FL .5% GP - PAH-HVP General Partner Corp N
88.39% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Denver Partnership, L.P. DE 89% LP - IHC Realty Partnership, L.P. Y
1% GP - IHC Realty Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
IHC/Moscow Corporation DE 100% - Interstate Hotels, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Services Company, L.L.C. DE 99% - Interstate Hotels, LLC N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
IHP/Class B Partnership, L.P. DE 98.7829% GP - IHC Realty Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate Hotels, LLC DE 55% - PAH-Interstate Holdings, Inc. N
45% - Northridge Holdings, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate/Montour Associates, Ltd. PA 95.6075% GP - IHC/Park West Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners I L.P. DE 50.5% LP - IHC/Interstone Partnership II, L.P. Y
.5% GP - PAH Interstone, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners II L.P. DE 50.5% LP - IHC/Interstone Partnership II, L.P. N
.5% GP - PAH Interstone, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners III L.P. DE 50.5% LP - IHC/Interstone Partnership II, L.P. N
.5% GP - PAH Interstone, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners IV L.P. DE 50.5% LP - IHC/Interstone Partnership II, L.P. N
.5% GP - PAH Interstone, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone/CGL (WC) Partners LP DE 1% GP - IHC Realty Corporation N
64%LP - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Oak Hill Catering Company, Inc. WV 100% - Crossroads/Memphis Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Cambridge Holdings, LLC DE 100% - Interstate Hotels, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Allen Partners, L.P. DE 85% GP - PAH-GP Allen N
Partners, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Chicago O'Hare Partners, L.P. DE 90% GP - Patriot American Hospitality Partnership, Y
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Miami Airport Partners, L.P. DE 90% GP - Patriot American Hospitality Partnership, Y
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Minneapolis Suites Partners, L.P. DE 90% GP - Patriot American Hospitality Partnership, Y
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Park Place Partners, L.P. DE 90% GP - Patriot American Hospitality Partnership, Y
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Tallahassee Partners, L.P. DE 90% GP - Patriot American Hospitality Partnership, Y
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Hilltop GP, LLC DE 100% - Interstate Hotels, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Park West Hotel Associates PA 50% Managing GP - PW Land Associates Limited Y
Partnership
50% GP -Interstate/
Montour Associates
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Hospitality Partnership, L.P. VA 91%LP - PAH LP, Inc. Y
1% GP - PAH GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Royal Palace Hotel Associates FL 55% - PAH-BV Palace, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
21
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Swatara Associates PA 1.3350% GP, 96.6286% LP - IHC Realty Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
Syracuse Realty Associates, L.P. DE 93% LP - IHC Realty Partnership, L.P. Y
1% GP - Syracuse Associates Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
The Key West Reach Limited Partnership DE 96.1194% LP - IHC Realty Partnership, L.P. Y
1% GP - IHC Reach Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
The Peaks Real Estate Services, Inc. AZ 1000 shares Preferred Voting (66.66%) - PAH Leasing Y
LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Transatlantic Hotel Co. Sarl France 100% - Arcadian (UK) Developments Ltd. N
- ------------------------------------------------------------------------------------------------------------------------------------
Travis Real Estate Group Joint Venture TX 65.48% - Patriot American Hospitality Partnership, N
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Water Street Hotel, Ltd. DE 84% LP - IHC Realty Partnership, L.P. Y
1% GP - IHC/Jacksonville Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Operating Partnership, DE 1% GP - Wyndham International, Inc. Y
L.P. 80% LP - Wyndham International, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
22
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
JOINT VENTURES (Includes Unrestricted Subsidiaries)
- ------------------------------------------------------------------------------------------------------------------------------------
Al Jarafe Golf SA Spain 10% - Arcadian Group Service Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Ambassador Hotels, Ltd. England & Wales 50% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Beleggingsmaat-Schappij Stako II BV Netherlands 18.2% - Arcadian Group Service Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Block 125 River North Hotel Venture, L.L.C. DE 19.9% - PAH River North, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Cambridge Hotel Associates PA 25% Voting GP (85.7% Dist.) - PAH-Cambridge Holdings, N
LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Carnicon Venezuela Hotel Consultants LC Florida 50% - CHC Hotels & Resorts Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
CPHPAH Dos Pueblos Associates, L.L.C. DE 4% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads/Memphis Financing Corporation DE 100% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads/Memphis Financing II Corporation DE 100% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
DFW/H&R, Inc. TX 49% - PAH-Management Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Don Ce Sar Resort Hotel Ltd. FL 12% LP - PAH-Franchise Holding, Inc. N
1% GP - Don CeSar Holdings, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Dublin Inn, Ltd. OH 30% - WHC Columbus Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Fattoria Villa Saletta Srl. Italy 9% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Future Financing Member Corporation DE 100% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Host/Interstate Partnership, L.P. DE 5% LP - IHC/Pittsburgh Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Manhattan Beach, L.P. DE 25% LP - PAH-Franchise Holding, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Ontario, L.P. DE 10% LP - PAH-Franchise Holding, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Waterford, L.P. DE 25% LP - PAH-Franchise Holding, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
IHC II, LLC DE 99.99% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
IHP Holdings Partnership, L.P. PA 19.8165% Managing GP - IHP Investment Company, L.L.C. N
29.9299% GP - Chicago-ES, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate Hotels Corporation MD 1% - PAH-Interstate Holdings, Inc. N
3% - Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate Member, Inc. DE 100% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Las Casitas Development Company Inc. (S.E.) Puerto Rico 50% LP - WKA El Con Associates N
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Management Limited England & Wales 50% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Marquis Hotel Associates PA 50% - Pittsburgh C.I., Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
23
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Maryville Centre Hotel Joint Venture MO 50% Managing GP - IHC/Maryville Hotel Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Meadows Beverage Company, LLC CA 50% - CFMB, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Mentmore Golf & Country Club Plc. England & Wales 10% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Northridge Holdings, Inc. DE 100% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Oxford Wyn 633 Investment Company, L.L.C. DE 50% - WHC Chicago, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Resorts Services, Inc. AZ 99% - Wyndham (non-voting) N
- ------------------------------------------------------------------------------------------------------------------------------------
Santa Maria Joint Venture DE 50% - IHC/Santa Maria Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Shula's Steak Houses, L.P. DE 49% - W-SSH, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
State College BBQ/Concord Joint Venture DE 50% - Crossroads/Memphis Partnership L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
The Great Eastern Hotel Company Ltd. England & Wales 50% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Westmont C.I. Associates, Limited Partnership IL 9.0909% GP - PAH-Westmont CI Holding, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Westshaw Associates DE 50% - Patriot Bougainvillea, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
PAYROLL SUBSIDIARIES
(Includes Unrestricted Subsidiaries)
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
HEPC Anatole, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Andover, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Annapolis, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Aruba Beach, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Atlanta Gwinnett, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Atlanta Northlake, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Bel Age, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Bristol, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Brookfield, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Buckhead, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Burlington, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Cedar Rapids, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Charlotte, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Checkers, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Clubhouse, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Colorado Springs, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Columbus, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Commerce, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Copley, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Culver City, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Dallas Market Center, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Dedham, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Denver, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Detroit, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Elbow Beach, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Emerald Plaza, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Franklin Plaza, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Garden Albuquerque, Inc. (f/k/a WH Garden TX 100% - Wyndham Management Corporation N
Albuquerque, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------
HEPC GHALP, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Greenspoint, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Harbour Island, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Indianapolis, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
25
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
HEPC Kansas City, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Kingston, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC LaGuardia, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Las Colinas, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC LAX, Inc. (formerly WH LAX, Inc.) TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC LAX-U, Inc. (formerly WH LAX-U, Inc.) TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Lexington, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Long Term Stay, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Marietta, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Marin County, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Metrocenter, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Midtown Atlanta, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Milwaukee, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Monrovia, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Morgan Bay, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Mt. Olive, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC New Orleans, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Newark, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Northwest Chicago, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Novi, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Oakbrook Terrace, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC O'Hare, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Orange County, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Orlando, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Orlando Resort, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Overland Park, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Palm Springs, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Park Central, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Piscataway, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Pittsburgh, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Playhouse Square, Inc. TX 100% - Wyndham Management Corporation N
(formerly WH Playhouse Square, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Pleasanton, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Pruneyard, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Richmond, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Rose Hall, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
26
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
HEPC Salt Lake City, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Schaumburg, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Semi-Ah-Moo, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Sugar Bay Club, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Sugar Bay, Inc. TX 100% - Wyndham Management Corporation N
(formerly WH Sugar Bay, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Toronto, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Valley Forge, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC VF, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Vinings, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Waltham, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Warwick, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Windwatch, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Wood Dale, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
WIPC, LLC DE 100% - Wyndham OP N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Memphis, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Billerica, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Miami Beach, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
WIPC-Buena Vista Palace, LLC DE 100% - Wyndham OP N
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Management (Virgin Islands) Corporation DE 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
27
<PAGE>
Schedule V (continued):
-----------------------
Outstanding Subscriptions, Options, Warrants, Calls, Rights or Other
--------------------------------------------------------------------
Agreements/Commitments Relating to Equity Ownership Interests
-------------------------------------------------------------
of the Borrower and its Subsidiaries (except stock options to employees or
--------------------------------------------------------------------------
directors, directors' qualifying shares, or Buy/Sell Arrangements)
-------------------------------------------------------------------
A. Outstanding obligations to issue capital stock
----------------------------------------------
1. Preemptive Rights Agreement dated as of September 30, 1997 by and
among Patriot American Partnership, L.P., Wyndham International
Operating Partnership, L.P. and Karim Alibhai
2. Purchase Rights Agreement dated as of September 30, 1997 by and
among Patriot OP, Wyndham OP and each of the Holders (CMRR Eight,
Inc., CRMR Eight, Inc., Monique Weisfisch, Ryan Weisfisch, Cindy
Weisfisch, Richard Weisfisch, KC Eight CMRR, Inc. and KC Eight
CRMR, Inc.)
3. Transfer Restriction Agreement dated April 14, 1997 between
Wynopt Investment Partnership, L.P. and Patriot
B. Redemption Rights Agreements
----------------------------
1. Redemption Rights Agreement dated August 15, 1997 by and among
Wyndham and each of David Burrus, William F. Burruss, Jr., John W.
Cullen, IV and George Newton
2. Redemption Rights Agreement dated as of September 30, 1997 by
and among Karim Alibhai and Wyndham OP
3. Redemption Rights Agreement dated July 30, 1998 between Patriot
American Hospitality, Inc., Wyndham, Wyndham OP and Don Shula's
Steak Houses, Inc.
C. Voting Agreements
-----------------
1. Voting Agreements dated as of April 14, 1997 by and between
Patriot American Hospitality, Inc. and the following individuals:
(a) CF Securities, L.P.
(b) Paul A. Nussbaum
(c) William W. Evans III
(d) Leslie V. Bentley
(e) James D. Carreker
(f) Stanley M. Koonce, Jr.
(g) Anne L. Raymond
2. First Amendment to Stockholder Voting Agreement dated January 5,
1998 by and among Patriot American Hospitality, Inc., Wyndham and
Paul A. Nussbaum, William W. Evans III, Leslie V. Bentley, James D.
Carreker,
28
<PAGE>
Stanley M. Koonce, Jr. and Anne L. Raymond
3. Voting Agreement dated September 30, 1997 between Wyndham, Patriot
American Hospitality Operating Company Acquisition Subsidiary and
Patriot American Hospitality, Inc. and Sumner M. Redstone and
National Amusements, Inc.
4. Voting Agreement dated as of September 30, 1997 by and among
Wyndham and the CHCI Principal Stockholders (Carnival Corporation,
Sherwood Weiser and Donald Lefton)
5. Shareholders Agreement dated December 2, 1997 by and among Patriot
American Hospitality, Inc., Wyndham (f/k/a Patriot American
Hospitality Operating Company), Milton Fine and various Fine
trusts.
D. Option Agreements
-----------------
1. Option Agreement dated April 14, 1997 between Patriot OP and the
Grantors (James D. Carreker, Leslie V. Bentley, Stanley M. Koonce,
Jr. (individually), Anne L. Raymond, Crow Family Partnership L.P.,
Harlan R. Crow (through ISIS CRO, Inc.), Stanley M. Koonce (through
ISIS CRO, Inc.) and ISIS CRO, Inc.
2. Option Agreement dated April 14, 1997 between Patriot OP and the
Grantors (WH-MIS LP and James D. Carreker) and the Consenting
Partners (Trammell Crow Company, Kinetic Group I, Inc., Leslie V.
Bentley, James D. Carreker, Stanley M. Koonce, Jr., Anne L.
Raymond, George Lippe, Crow Family Partnership, L.P.
3. Option Agreement dated September 30, 1997 between Wyndham, Patriot
American Hospitality Operating Company Acquisition Subsidiary,
Patriot American Hospitality, Inc. and Louis J. Nicastro
4. Option Agreement dated March 31, 1998 between Posadas de Flamboyan,
L.P. and Patriot American Hospitality, Inc. relating to the
purchase of the Flamboyan Wing
5. Flamboyan Interests Option Agreement dated as of March 31, 1998
between Patriot American Hospitality, Inc., Marco Industrial, Inc.,
S.N.L. Realty Corp., Joseph Koffman, Martin Koffman, Debra Koffman,
David Koffman, Elizabeth Koffman, Steven Koffman and Jeffrey
Koffman
6. Stock Option Agreement dated January 17, 1997 by and among Thomas
W. Lattin, Rex E. Stewart, Michael Murphy and each of the Sellers
(Holtzman, Surguine, Nassikas, Goehring, Beckham and Lyon)
7. Non-Qualified Stock Option Agreements, dated as of January 15,
1997, entered into by Patriot American Hospitality, Inc. and each
of David Beckham; Michael
29
<PAGE>
J. Byrd; Bruce Campbell; Tom Dawson; William Gamble; Del Goehring;
Richard Holtzman; Kenneth B. Humes; Charles F. Kercheval; Scott
Lyons; William Nassikas; Richard Riess; and Michael Surguine
E. Subscription Agreements
-----------------------
1. Subscription Agreement dated November 3, 1997 by and between
Wyndham and Wyndham Hotel Corporation
2. Amendment No. 1 to Subscription Agreement dated January 5,
1998 by and between Wyndham and Wyndham Hotel Corporation
3. Subscription Agreement dated as of January 5, 1998 by and between
CF Securities, L.P., Patriot American Hospitality, Inc. and Wyndham
4. Subscription Agreement dated January 16, 1998 between WHG Resorts &
Casinos Inc., Patriot American Hospitality, Inc. and Wyndham
5. Subscription Agreement dated as of March 31, 1998 between
Patriot American Hospitality, Inc. and Wyndham
6. Omnibus Subscription and Exchange Agreement, dated June 4, 1998, by
and among Patriot OP, Patriot American Hospitality, Inc., Wyndham,
and the SFHC Partners' Representative, and the Designated SFHC
Partners regarding subscription by Designated SFHC Partners for
Paired Shares in Lieu of Paired Units
7. Subscription Agreement dated as of July 1, 1997 by and between
Patriot OP and Bay Meadows Operating Company
8. Subscription Agreement dated as of July 1, 1997 by and between
Patriot OP and Wyndham OP
9. Subscription Agreement dated as of June 2, 1998 among
Interstate, Wyndham and Patriot American Hospitality, Inc.
F. Patriot American Hospitality, Inc. Registration Rights Agreements
-----------------------------------------------------------------
1. Redemption and Registration Rights Agreement dated April 1,
1996 (WestCoast Portfolio)
2. Registration Rights Agreement dated May 1996 with LaSalle
Advisors Limited Partnership (Common Stock)
3. Registration Rights Agreement dated May 1996 with LaSalle
Advisors Limited Partnership (Units and Common Stock)
4. Registration Rights Agreement dated July 1996 with Houston
Greenspoint Hotel
30
<PAGE>
Associates (Wyndham Greenspoint Hotel)
5. Registration Rights Agreement dated November 15, 1996 with the
Sellers of the Tutwiler Hotel
6. Registration Rights Agreement dated January 16, 1997 with Lyon
RLP Investments Partnership (Carefree)
7. Registration Rights Agreement dated January 17, 1997 with
Morgan Stanley (Carefree)
8. Registration Rights Agreement dated July 24, 1997 (Wyndham Merger)
9. Registration Rights Agreement dated August 15, 1997 with
contributors of Grand Heritage
10. Registration Rights Agreement dated September 4, 1997 with
Metropolitan Tower Realty Company. Inc.
11. Registration Rights Agreement dated September 30, 1997 with
the Weisfisch Entities (Carnival/Gencom Merger)
12. Registration Rights Agreement dated September 30, 1997 with
Karim Alibhai (Carnival/Gencom Merger)
13. Registration Rights Agreement dated September 30, 1997 with
the Gencom Interests (Carnival/Gencom Merger)
14. Registration Rights Agreement dated October 1, 1997 with CHCI
Interests (Carnival/Gencom Merger)
15. Registration Rights Agreement dated December 2, 1997 with
Interstate Hotels Company
16. Registration Rights Agreement dated December 30, 1997 with
Contributors of Emerald Plaza
17. Registration Rights Agreement dated January 15, 1998 with
contributors of Buena Vista Hotel
18. Registration Rights Agreement dated March 31, 1998 with
Koffman (Williams Hotel Group)
19. Registration Rights Agreement dated as of April 1, 1998 with
Metro Hotels, Inc. and Metro Hotel Leasing Corporation
20. Registration Rights Agreement dated April, 1998 with the
Contributions of SF Hotel Company, L.P. (OP Unit Version)
31
<PAGE>
21. Registration Rights Agreement dated April, 1998 with the
Contributions of SF Hotel Company, L.P. (Paired Shares Version)
22. Registration Rights Agreement dated June 4, 1998 with certain
SFHC Partners (Paired Shares Version)
23. Registration Rights Agreement dated June 4, 1998 with certain
SFHC Partners (Paired Units Version)
24. Registration Rights Agreement dated June 30, 1998 with
certain CHCI Stockholders
25. Registration Rights Agreement dated July 30, 1998 with the
contributors of Shula's Steak House
26. Registration Rights Agreement dated July 15, 1998 with
McNeill Investment Co.
G. Approximately 427,000 shares to be issued to six Interstate vice
presidents in satisfaction of severance/retention obligations.
H. Le Manoir de Gressy re: Option to Put Shares/Guaranty
-----------------------------------------------------
Article Three of the Agreement (Protocole d'Accord) dated July 31, 1997, by
and between La Societe Arcadian International PLC ("Arcadian PLC"), La
Societe Arcadian Properties, La Societe Hoteliere de I'lle de France
("S.H.I.F."), La Societe W Finance Participation SARL ("SARL") and La
Societe COPARC ("COPARC") provides that Arcadian PLC will purchase all of
the interests held by S.H.I.F. (and/or SARL, as beneficiary) in SNC Gressy
(owner of the hotel) if the put option is exercised. The option may be
exercised one (1) time during the period from January 1, 1999 until January
31, 1999. (According to a memo attached to the Accord, the put option has
been exercised.) The option price is 40,000,000 french francs which may be
payable in shares (based on a formula linked to the average closing price
of shares over a 60 day period, as traded on the London stock exchange).
According to the correspondence in the file, the shares of Arcadian PLC are
no longer traded on the London market, and Arcadian has proposed to
S.H.I.F. Patriot shares in substitution (acceptance of this offer is being
confirmed by Arcadian). The memo indicates the outside closing date as
March 13, 1999. In addition, Article Four of the Agreement provides that in
the event S.H.I.F. and SARL exercise the put option set forth in Article
Three, Arcadian PLC agrees to guaranty the payment of all sums due COPARC
(under a 51,000,000 french franc credit facility made by COPARC to SNC
Gressy). As of 6/26/99, this transaction is in the process of closing. [See
also final Right of First Refusal/Options Chart below.]
I. Certain Obligations to Issue Company Stock
------------------------------------------
1. Executive Employment Agreement dated February 14, 1997, by and
between Patriot American Hospitality, Inc. and William W. Evans
III, as amended.
2. Severance Agreement between the Companies and Paul A. Nussbaum.
32
<PAGE>
J. Gencom Merger
-------------
Obligations to issue stock, registration rights, and other agreements and
commitments relating to Equity Ownership Interests (a) contained in and in
connection with Agreement and Plan of Merger dated as of June 29, 1999 by
and among Wyndham International, Inc., Gencom Interests, Inc., and each of
the Stockholders of Gencom Interests, Inc., or (b) in the alternative,
contained in and in connection with (i) Contribution Agreement (Baltimore
Omni Hotel) Phase II, dated as of September 30, 1997 between Patriot
American Hospitality Partnership, L.P. and Travis Real Estate Group, Inc.,
and (ii) Ancillary Contribution Agreement, dated September 30, 1997 by and
Among The Persons Named on Schedule A Attached Thereto, Patriot American
Hospitality Partnership, L.P. and Patriot American Hospitality Operating
Partnership, L.P. and the related contribution of interests in the
partnership owning related hotel assets in exchange for cash and/or Equity
Ownership Interests.
33
<PAGE>
Number of Outstanding Shares of Unvested
Restricted Stock: 381,670
Number of Outstanding Shares of Unvested
Restricted Paired Units: 1,128,612
Number of Outstanding Deferred Paired Units (for fees due
to Directors through 12/31/98 adjusted for 4th Quarter dividend): 37,255.99
34
<PAGE>
Summary of Options to Acquire Common Stock of Borrower Outstanding
After Exchange and With Stock Dividend
<TABLE>
<CAPTION> Total Number Common Stock Total Number
Long-Term Type of of Options Dividend @ Of Options
Incentive Plan Date of Grant Options Outstanding 7.333% Outstanding
1995 PAH Incentive Plan
<S> <C> <C> <C> <C> <C>
9/27/95 NQ** 60,286
10/25/95 ISO 216,967 15,910 232,877
10/25/95 NQ 250,044 18,336 268,380
4/19/96 ISO 23,656 1,735 25,391
4/19/96 NQ** 66,250
4/19/96 NQ 139,002 10,193 149,195
6/3/96 ISO 2,285 168 2,453
1/15/97 NQ 731,511 53,642 785,153
2/14/97 NQ** 57,216
4/1/97 NQ** 1,027,912
6/24/97 NQ* 23,889 1,752 25,641
Total 1995 PAH Incentive Plan 1,387,354 101,735 2,700,753
1997 OpCo Incentive Plan
10/1/97 NQ** 26,934
11/5/97 NQ 50,000 3,667 53,667
1/13/98 NQ 236,768 17,362 254,130
1/13/98 NQ 15,680 1,150 16,830
2/2/98 NQ* 242,348 17,771 260,119
2/6/98 NQ* 3,666 269 3,935
3/9/98 NQ* 18,000 1,320 19,320
5/19/98 NQ* 6,418 471 6,889
5/28/98 NQ 60,000 4,400 64,400
6/2/98 NQ 17,283 1,267 18,550
6/2/98 NQ 3,352 246 3,598
6/2/98 NQ 6,705 492 7,197
6/4/98 NQ* 94,113 6,901 101,014
6/12/98 NQ** 26,933
6/15/98 NQ* 433 32 465
6/19/98 NQ* 12,984 952 13,936
7/7/98 NQ* 822 60 882
7/27/98 NQ* 4,800 352 5,152
8/7/98 NQ* 1,778 130 1,908
8/17/98 NQ* 12,584 923 13,507
8/24/98 NQ* 8,223 603 8,826
10/13/98 NQ 3,500 257 3,757
11/13/98 NQ 30,000 2,200 32,200
12/11/98 NQ 50,000 3,667 53,667
3/25/99 NQ 892,080
4/19/99 NQ 5,600,000
4/21/99 NQ 12,000
5/7/99 NQ 850,000
Total 1997 OpCo Incentive Plan 879,457 64,491 8,351,894
</TABLE>
*These grants were eligible for the $8.10 option exchange program.
**These grants were eligible for the $5.1875 option exchange program.
NQ = Non-Qualified Options (no special tax treatment)
ISO = Incentive Stock Options (receive special capital gains tax treatment)
Page 1
<PAGE>
Summary of Options to Acquire Common Stock of Borrower Outstanding
After Exchange and With Stock Dividend
<TABLE>
<CAPTION> Total Number Common Stock Total Number
Long-Term Type of of Options Dividend @ Of Options
Incentive Plan Date of Grant Options Outstanding 7.333% Outstanding
<S> <C> <C> <C> <C> <C>
1997 REIT Incentive Plan
11/5/97 NQ 50,000 3,667 53,667
2/2/98 NQ* 37,334 2,738 40,072
5/28/98 NQ 60,000 4,400 64,400
6/15/98 NQ* 671 49 720
Total 1997 REIT Incentive Plan 148,005 10,853 158,858
Bay Meadows Opr Co 1988 Options
3/29/96 NQ 1,926 141 2,067
PAH Director's Plan
9/27/95 NQ 90,000 6,600 96,600
4/16/98 NQ 30,000 2,200 32,200
Total PAH Director''s Plan 120,000 8,800 128,800
Wyndham Int'l 1996 LTIP
5/21/96 NQ 303,199 22,234 325,433
11/1/96 NQ 27,440 2,012 29,452
11/4/96 NQ 4,116 302 4,418
1/15/97 NQ 20,000 1,467 21,467
1/21/97 NQ 378,328 27,743 406,071
6/18/97 NQ 7,409 543 7,952
10/23/97 NQ* 1,680 123 1,803
Total Wyndham Int'l 1996 LTIP 742,172 54,423 796,595
Grand Total 3,278,914 240,443 12,138,967
</TABLE>
*These grants were eligible for the $8.10 option exchange program.
**These grants were eligible for the $5.1875 option exchange program.
NQ = Non-Qualified Options (no special tax treatment)
ISO = Incentive Stock Options (receive special capital gains tax treatment)
Page 2
<PAGE>
Options to Purchase, Rights of First Refusal and Similar Rights in
Organizational Documents of Subsidiaries
PART I
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary Asset
from the percentages -----
Entity Name shown below based upon Name(s) Document ROFR/ROFO Put/Call
----------- economic performance.) ------- -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Swatara Associates IHC Realty Harrisburg Amended and Restated (S)9.4 - GP has None.
Partnership, L.P. Marriott Limited Partnership a Right of First
Pennsylvania (1.3350% GP; 96.6286 Joint Venture Offer ("ROFO")
(Term: December 31, 2078) LP) Agreement of Swatara upon a proposed
Milton Fine Revocable Associates dated as sale/transfer of
Trust and Edward A. of January 22, 1998. an LP interest
Perlow Testamentary in the entity.
Trust (2.0364% LP
agg.)
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone/CGL (WC) IHC Realty Warner Interstone/CGL (WC) None. (S)8.1(e) - IHC
Partners L.P. Partnership, L.P. Center Partners L.P. Limited Realty Corporation
(64% LP) Marriott Partnership Agreement or any of its
Delaware IHC Realty dated as of January replacement
(Term: December 31, 2045) Corporation (1% GP) 1, 1999. Affiliates and IHC
Connecticut General Realty
Life Insurance Partnership, L.P.
Company (35% LP) have a right to
buy out CGL LP's
interests upon
certain
action/inaction by
CGL LP.
(S)9.1 - both the
IHC Parties, on
the one hand, and
CGL LP, on the
other, shall, at
any time, have the
right to purchase
or sell all of
their respective
interests in the
Partnership each
to the other
Group, in the
manner set forth
in (S)9.1.
- ------------------------------------------------------------------------------------------------------------------------------------
Park West Hotel Associates PW Land Associates Pittsburgh First Amended and (S)9.4 - Other None.
Limited Partnership Airport Restated Partnership partners have a
Pennsylvania (50% Managing GP) Marriott Agreement of Park ROFO upon a
(Term: December 31, 2085) Interstate/Montour West Hotel Associates proposed
Associates (50% GP) dated as of May 20, sale/transfer of
PW Land Associates 1997. an partnership
Limited Partnership interest in the
is 100% IHC owned. entity.
Interstate/Montour
Associates is owned
as follows:
IHC/Park West
Corporation 95.6075%
GP; Fine Associates
3.9607% LP; Milton
Fine .4318% LP.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate/Montour IHC/Park West 50% GP in Second Amended and (S)9.4 - Other None.
Associates Corporation 95.6075% Park West Restated Agreement of partners have a
GP; Fine Associates Associates Limited Partnership ROFO upon a
Pennsylvania 3.9607% LP; Milton Owner of of Interstate/Montour proposed
(Term: December 31, 2085) Fine .4318% LP. Pittsburgh Associates, Ltd. sale/transfer of
Airport dated as of May 20, an partnership
Marriott 1997. interest in the
entity.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
37
<PAGE>
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary Asset
from the percentages -----
Entity Name shown below based upon Name(s) Document ROFR/ROFO Put/Call
----------- economic performance.) ------- -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
IHP/Class B Partnership, IHC Realty 99% Agreement of Limited (S)9.4 - GP has None.
L.P Partnership, L.P. Interest in Partnership of a ROFO upon a
(98.7829% GP) Chicago-ES, IHP/Class B proposed
Delaware Fine & Perlow LLC Partnership, L.P. sale/transfer of
(Term: December 31, 2085) Associates of Albany dated as of August an LP interest
(.3102% LP) 28, 1997, as amended in the entity.
Milton Fine Revocable by First Amendment to
Trust (.9069% LP) Agreement of Limited
Partnership of
IHP/Class B
Partnership, L.P.
dated as of March 3, 1998.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
38
<PAGE>
Options to Purchase, Rights of First Refusal and Similar Rights in
Organizational Documents
PART II
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary
from the percentages
Entity Name shown below based upon Document ROFR/ROFO Put/Call
----------- economic performance.) -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PAH-DT Miami Airport Patriot American Amended and Restated (S)8.8(a-c) - right of (S)8.5 Call Options
Partners, L.P. Hospitality Agreement of Limited first offer to the LP if provides that upon certain
Partnership, L.P. Partnership dated as the GP takes certain default/termination events,
(90% GP) of January 1, 1999 transfer actions. the GP has the right to
purchase or to cause the
DTR PAH Holding, Inc. After complying with the Partnership to purchase and
(10% LP) ROFO procedures, the GP require the LP to sell all
may enter into an of its interest at fair
exchange under Section market value.
1031 of the Code in lieu
of sale of the property. Upon certain other
defaults, the GP has the
(S)8.9 provides that if right (the "Default
the GP decides in its Option") to buy or cause
sole discretion to sell the Partnership to buy and
the property and elects require the LP to sell all
to transfer the property of its Partnership
by sale of all Interests at 90% of its
Partnership Interests, fair value.
the LP shall sell as
directed by the GP. The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after the certain
default/termination events,
the LP has right to sell
and require the Partnership
to purchase all of its
Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised.
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-DT Minneapolis Suites Patriot American Amended and Restated (S)8.8(a-c) - right of (S)8.5 Call Options
Partners, L.P. Hospitality Agreement of Limited first offer to the LP if provides that upon certain
Partnership, L.P. Partnership dated the GP takes certain default/termination events,
(90% GP) October 1, 1998 actions. the GP has the right to
purchase or to cause the
DTR PAH Holding, Inc. After complying with the Partnership to purchase and
(10% LP) ROFO procedures, the GP require the LP to sell all
may enter into an of its interest at fair
exchange under Section market value.
1031 of the Code in lieu
of sale of the property. Upon certain other
defaults, the GP has the
(S)8.9 provides that if right (the "Default
the GP decides in its Option") to buy or cause
sole discretion to sell the Partnership to buy and
the property and elects require the LP to sell all
to transfer the property of its Partnership
by sale of all Interests at 90% of its
Partnership Interests, fair value.
the LP shall sell as
directed by the GP. The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after the certain
default/termination events,
the LP has right to sell
and require the Partnership
to purchase all of its
Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
39
<PAGE>
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary
from the percentages
Entity Name shown below based upon Document ROFR/ROFO Put/Call
----------- economic performance.) -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PAH-Akron, L.L.C. Patriot American Operating Agreement (S)8.3 Automatic (S)8.5 Call Option: After
Hospitality dated as of June 30, Buyback: If (S)8.2 two years from the date of
[Currently wholly-owned] Partnership, L.P. 1997 (certain entities' the Agreement or in the
(90%) ("Managing non-affiliation with event of a certain
Member") Patriot/Managing Member) defaults, the Managing
is breached, the LLC Member and the Company can
WH Ohio Investors, must redeem (at fair purchase and require the
Inc. (10%) market value) the amount Minority Member to sell all
of the Minority Member's of the Minority Member's
Company Interest that is Company Interest at fair
necessary for compliance market value,
with (S)8.2.
(Note: an exercise of the
call option shall
automatically be deemed an
exercise of the
corresponding call options
in all of the other
operating agreements of the
other limited liability
companies formed by the
Managing Member with the
other Minority Members to
own hotel properties).
These options are in the
sole discretion of the
Managing Member, the
Company, or both.
(S)8.6 Put Option: From and
after 30 months from the
date of the Agreement, the
Minority Member has the
right (for 4 years) to sell
and require the Company to
purchase all of the
Minority Member's Company
Interest at fair market
value.
(S)8.9 Obligation to Sell
Company Interest: if
Managing Member decides to
sell the Property by means
of sale of all Company
Interests, the Minority
Member shall sell its
interest for a price
determined by a specific
formula.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood I, L.L.C. Patriot American Operating Agreement (S)8.3 Automatic (S)8.5 Call Option: After
Hospitality dated as of June 30, Buyback: If (S)8.2 two years from the date of
[Currently wholly-owned] Partnership, L.P. 1997 (certain entities' the Agreement or in the
(90%) ("Managing non-affiliation with event of a certain
Member") Patriot/Managing Member) defaults, the Managing
is breached, the LLC Member and the Company can
WH Ohio Investors, must redeem (at fair purchase and require the
Inc. (10%) ("Minority market value) the amount Minority Member to sell all
Member") of the Minority Member's of the Minority Member's
Company Interest that is Company Interest at fair
necessary for compliance market value,
with (S)8.2.
(Note: an exercise of the
call option shall
automatically be deemed an
exercise of the
corresponding call options
in all of the other
operating agreements of the
other limited liability
companies formed by the
Managing Member with the
other Minority Members to
own hotel properties).
These options are in the
sole discretion of the
Managing Member, the
Company, or both.
(S)8.6 Put Option: From and
after 30 months from the
date of the Agreement, the
Minority Member has the
right (for 4 years) to sell
and require the Company to
purchase all of the
Minority Member's Company
Interest at fair market
value.
(S)8.9 Obligation to Sell
Company Interest: if
Managing Member decides to
sell the Property by means
of sale of all Company
Interests, the Minority
Member shall sell its
interest for a price
determined by a specific
formula.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
40
<PAGE>
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary
from the percentages
Entity Name shown below based upon Document ROFR/ROFO Put/Call
----------- economic performance.) -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PAH-Beachwood II, L.L.C. Patriot American Operating Agreement (S)8.3 Automatic (S)8.5 Call Option: After
Hospitality dated June 30, 1997 Buyback: If (S)8.2 two years from the date of
[Currently wholly-owned] Partnership, L.P. (certain entities' the Agreement or in the
(90%) ("Managing non-affiliation with event of a certain
Member") Patriot/Managing Member) defaults, the Managing
is breached, the LLC Member and the Company can
26300 Chagrin Limited must redeem (at fair purchase and require the
Partnership (10%) market value) the amount Minority Member to sell all
("Minority Member") of the Minority Member's of the Minority Member's
Company Interest that is Company Interest at fair
necessary for compliance market value,
with (S)8.2.
(Note: an exercise of the
call option shall
automatically be deemed an
exercise of the
corresponding call options
in all of the other
operating agreements of the
other limited liability
companies formed by the
Managing Member with the
other Minority Members to
own hotel properties).
These options are in the
sole discretion of the
Managing Member, the
Company, or both.
(S)8.6 Put Option: From and
after 30 months from the
date of the Agreement, the
Minority Member has the
right (for 4 years) to sell
and require the Company to
purchase all of the
Minority Member's Company
Interest at fair market
value.
(S)8.9 Obligation to Sell
Company Interest: if
Managing Member decides to
sell the Property by means
of sale of all Company
Interests, the Minority
Member shall sell its
interest for a price
determined by a specific
formula.
- ------------------------------------------------------------------------------------------------------------------------------------
Atlanta American Hotel WHC Atlanta GP, Agreement of Limited (S)6.1 Purchase Option. (S)6.2 Put Option: Any time
Investors, L.P. L.L.C. (1% GP) Partnership dated as If certain events occur, after 5 years of the date
of December 19, 1997 any partner other than of the agreement (but no
Patriot American the Seller (the "Buyer") more than once a year),
Hospitality shall have the Americana has the right to
Partnership, L.P. continuing right to require the Wyndham
(69% LP) purchase the entire Partners to purchase all or
interest of the Seller, a portion of the PS
Atlanta Americana including all debts and interest of Americana,
Motor Hotel obligations of the PS including a pro rata
Corporation (30% LP) owing to the Seller, at portion of the debts and
fair market value. If obligations of the PS owing
the Seller is WHC and to Americana, at fair
Wyndham Hotel market value.
Corporation ("Wyndham
Partner"), the other
Wyndham Partners shall
have a preferential
right to purchase the
entire PS interest of
the Seller.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Allen Partners, L.P. PAH-GP Allen Amended and Restated (S)8.8(a-c) - ROFO to (S)8.5 Call Options
Partners, L.P. (85% Agreement of Limited the LP if the GP takes provides that upon certain
GP) Partnership dated as certain transfer actions. default/termination events,
DTR PAH Holding, Inc. of September 4, 1997 the GP has the right
(15% LP) After complying with the purchase or to cause the
ROFO procedures, the GP Partnership to purchase and
may enter into an require the LP to sell all
exchange under Section of its interest at fair
1031 of the Code in lieu market value.
of sale of the property.
Upon certain other
(S)8.9 provides that if defaults, the GP has the
the GP decides in its right (the "Default
sole discretion to sell Option") to buy or cause
the property and elects the Partnership to buy and
to transfer the property require the LP to sell all
by sale of all of its Partnership
Partnership Interests, Interests at 90% of its
the LP shall sell as fair value.
directed by the GP.
The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after certain
default/termination events,
the LP has the right to
sell and require the
Partnership to purchase all
of its Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
41
<PAGE>
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary
from the percentages
Entity Name shown below based upon Document ROFR/ROFO Put/Call
----------- economic performance.) -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PAH-DT Park Place Patriot American Amended and Restated (S)8.8(a-c) - ROFO to (S)8.5 Call Options
Partners, L.P. Hospitality Agreement of Limited the LP if the GP takes provides that upon certain
Partnership, L.P. Partnership dated as certain transfer actions. default/termination events,
(90% GP) of October 1, 1998 the GP has the right
After complying with the purchase or to cause the
DTR PAH Holding, Inc. ROFO procedures, the GP Partnership to purchase and
(10% LP) may enter into an require the LP to sell all
exchange under Section of its interest at fair
1031 of the Code in lieu market value.
of sale of the property.
Upon certain other
(S)8.9 provides that if defaults, the GP has the
the GP decides in its right (the "Default
sole discretion to sell Option") to buy or cause
the property and elects the Partnership to buy and
to transfer the property require the LP to sell all
by sale of all of its Partnership
Partnership Interests, Interests at 90% of its
the LP shall sell as fair value.
directed by the GP.
The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after certain
default/termination events,
the LP has the right to
sell and require the
Partnership to purchase all
of its Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Tallahassee Patriot American Amended and Restated (S)8.8(a-c) - ROFO to (S)8.5 Call Options
Partners, L.P., Hospitality Agreement of Limited the LP if the GP takes provides that upon certain
Partnership, L.P. Partnership dated as certain transfer actions. default/termination events,
(90% GP) of January 1, 1999 the GP has the right
After complying with the purchase or to cause the
DTR PAH Holding, Inc. ROFO procedures, the GP Partnership to purchase and
(10% LP) may enter into an require the LP to sell all
exchange under Section of its interest at fair
1031 of the Code in lieu market value.
of sale of the property.
Upon certain other
(S)8.9 provides that if defaults, the GP has the
the GP decides in its right (the "Default
sole discretion to sell Option") to buy or cause
the property and elects the Partnership to buy and
to transfer the property require the LP to sell all
by sale of all of its Partnership
Partnership Interests, Interests at 90% of its
the LP shall sell as fair value.
directed by the GP.
The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after certain
default/termination events,
the LP has the right to
sell and require the
Partnership to purchase all
of its Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Westlake, L.L.C. Patriot American Operating Agreement (S)8.3 Automatic (S)8.5 Call Option: After
Hospitality dated as of June 30, Buyback: If (S)8.2 two years from the date of
[Currently wholly-owned] Partnership, L.P. 1997 (certain entities' the Agreement or in the
(90%) non-affiliation with event of a certain
Patriot/Managing Member) defaults, the Managing
WH Ohio Investors, is breached, the LLC Member and the Company can
Inc. (10%) must redeem (at fair purchase and require the
market value) the amount Minority Member to sell all
of the Minority Member's of the Minority Member's
Company Interest that is Company Interest at fair
necessary for compliance market value,
with (S)8.2.
(Note: an exercise of the
call option shall
automatically be deemed an
exercise of the
corresponding call options
in all of the other
operating agreements of the
other limited liability
companies formed by the
Managing Member with the
other Minority Members to
own hotel properties).
These options are in the
sole discretion of the
Managing Member, the
Company, or both.
(S)8.6 Put Option: From and
after 30 months from the
date of the Agreement, the
Minority Member has the
right (for 4 years) to sell
and require the Company to
purchase all of the
Minority Member's Company
Interest at fair market
value.
(S)8.9 Obligation to Sell
Company Interest: if
Managing Member decides to
sell the Property by means
of sale of all Company
Interests, the Minority
Member shall sell its
interest for a price
determined by a specific
formula.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
42
<PAGE>
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary
from the percentages
Entity Name shown below based upon Document ROFR/ROFO Put/Call
----------- economic performance.) -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PAH-DT Chicago O'Hare Patriot American Amended and Restated (S)8.8(a-c) - right of (S)8.5 Call Options
Partners, L.P. Hospitality Agreement of Limited first offer to the LP if provides that upon certain
Partnership, L.P. Partnership dated as the GP takes certain default/termination events,
(90% GP) of January 1, 1999 actions. the GP has the right to
purchase or to cause the
DTR PAH Holding, Inc. After complying with the Partnership to purchase and
(10% LP) ROFO procedures, the GP require the LP to sell all
may enter into an of its interest at fair
exchange under Section market value.
1031 of the Code in lieu
of sale of the property. Upon certain other
defaults, the GP has the
(S)8.9 provides that if right (the "Default
the GP decides in its Option") to buy or cause
sole discretion to sell the Partnership to buy and
the property and elects require the LP to sell all
to transfer the property of its Partnership
by sale of all Interests at 90% of its
Partnership Interests, fair value.
the LP shall sell as
directed by the GP. The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after the certain
default/termination events,
the LP has right to sell
and require the Partnership
to purchase all of its
Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised.
- ------------------------------------------------------------------------------------------------------------------------------------
Hotel Venture Partners, PAH-HVP General Amended & Restated None. (S)8.5 Call Options. From
Ltd. Partner Corp. (.5% GP) Agreement of Limited the earlier of the 37th
Partnership dated month after closing or an
Patriot American January 15, 1998 Event of Default by BVIF,
Hospitality the GP may purchase or
Partnership, L.P. cause the Partnership,
("Patriot LP") Patriot LP or the GP's
(88.39% LP) designee to purchase BVIF's
interest. The price shall
Buena Vista be paid by issuance of
Investment Fund, Ltd. Paired Partnership Units
(11.11% LP) having a REIT Shares Value
equal to an agreed price
(all capitalized terms as
defined in the Agreement).
(S)8.7 See the identical
provision below under
PAH-BV Palace, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
City Centre Partnership, Patriot American Agreement of Limited None. (S)8.5 Call Option. Four
L.P. Hospitality Partnership dated years from the date of the
Partnership, L.P. November 25, 1997 Agreement, the G.P. and the
(92.5% GP) Partnership shall have the
1143 Associates right but not the
Limited Partnership obligation to purchase and
(7.5% LP) to require the L.P. to sell
all of its Limited
Partnership Interest.
(S)8.6 Put Option. Two
years from the date of the
Agreement, the L.P. shall
have the right but not the
obligation to sell and to
require the Partnership to
purchase all of its Limited
Partnership Interest.
(S)8.3 Automatic Buy-Back.
In the event that Section
8.2 is breached at any time
when the G.P. would be
taxed as a corporation
under (S)7704 of the Code,
but for the application of
(S)7704(c), the Partnership
shall redeem for the
greater of $5,500,000.00 or
the Exercise Price of all
of the L.P.'s Partnership
Interest.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
43
<PAGE>
<TABLE>
<CAPTION>
PATRIOT AMERICAN
OPTIONS/RIGHTS OF FIRST REFUSAL PROVISIONS IN MANAGEMENT AGREEMENTS
Relating to Properties (Owned or Leased)
----------------------------------------
PROPERTY MANAGER DOCUMENT PATRIOT PARTY (S) REFERENCE
<S> <C> <C> <C> <C>
Crowne Plaza Ravinia, Holiday Inns, Inc. Management Agreement dated PAH Ravinia, Inc. Article 18 contains a right of
Atlanta, GA December 1, 1995, as ROFO in favor of Holiday Inns,
amended by a First Inc. The Memorandum of
Amendment to Management Management Agreement which was
Agreement dated as of April apparently executed and recorded
30, 1996 recites that the franchise
agreement (which is activated
upon termination of the
management agreement) also
contains a ROFO which runs
consecutively with the right of
first offer in the management
agreement.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
44
<PAGE>
<TABLE>
<CAPTION>
PATRIOT AMERICAN
OPTIONS/RIGHT OF FIRST REFUSAL PROVISIONS IN FRANCHISE AGREEMENTS
Relating to Properties (Owned or Leased)
----------------------------------------
PART I
FRANCHISOR FRANCHISEE HOTEL PROPERTY DOCUMENT (S) REFERENCE
- --------------------------------------------------------------------------------------------------------------------------------
MARRIOTT
<S> <C> <C> <C> <C>
Marriott International, Inc PAH-Management Corporation Colorado Springs Marriott Inn (S)40 - Franchisor has
as assignee of Interstate Marriott Franchise Agreement ROFR to purchase, lease
Hotels, LLC (100% Owned) dated July 20, 1987, or purchase
as amended. Franchisee's stock.
Owner Agreement dated
March 31, 1994. (S)8(G) of the Owner
Agreement obligates the
Owner to observe and be
bound by all terms,
conditions and
restrictions of (S)40
of the MIFA.
(S)11 of the Owner
Agreement provides for
waiver of the ROFR set
forth in the MIFA in
connection with a
transaction where The
Blackstone Group or
Interstate Hotels
Corporation, or their
affiliates, hold
controlling equity
interests in the owner
of the Inn.
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott International, PAH-Management Corporation St. Louis Marriott West Marriott Inn (S)15.3 - Franchisor
Inc. as assignee of Interstate (Joint Venture) Franchise Agreement has ROFR to purchase,
Hotels, LLC dated April 6, 1990, lease or purchase
as amended. Franchisee's stock.
Owner Agreement dated (S)1.6 of the Owner
April 6, 1990. Agreement modifies the
right of first refusal
to purchase as set
forth in (S)15.3 of the
MIFA to a right of
first or concurrent
good faith negotiation
in sale situations
where Franchisee,
Approved Substitute
Management or Marriott
will not continue to
manage the Inn.
(S)2.2 of the Owner
Agreement obligates the
Owner to fully observe
and be bound by all
terms, conditions and
restrictions set forth
in the MIFA to the
extent applicable to
the Owner in its
capacity as owner.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
45
<PAGE>
<TABLE>
<CAPTION>
FRANCHISOR FRANCHISEE HOTEL PROPERTY DOCUMENT (S) REFERENCE
- --------------------------------------------------------------------------------------------------------------------------------
NON MARRIOTT
<S> <C> <C> <C> <C>
Hilton Inns, Inc. Wyndham International Gateway Hilton Hilton Inns, Inc. (S)20(b) - Franchisor
Operating Partnership, (100% Owned) Amended and Restated has ROFR to purchase or
L.P. as assignee of IHC License Agreement lease.
Realty Partnership, L.P. dated August 20, 1997.
---------------------------------------------------------------------------------------------------------
Wyndham International Parsippany Hilton Hilton Inns, Inc. (S)20(c) - Franchisor
Operating Partnership, (100% Owned) Amended and Restated has ROFR to purchase or
L.P. as assignee of IHC License Agreement lease.
Realty Partnership, L.P. dated August 15, 1997.
---------------------------------------------------------------------------------------------------------
Wyndham International Denver Hilton South Hilton Inns, Inc. (S)9(b) - Franchisor
Operating Partnership, (Joint Venture) License Agreement has ROFR to purchase or
L.P. as assignee of dated December 14, lease.
IHC/Denver Partnership, 1994.
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Inns, Inc. (cont.) Wyndham International Columbus Hilton Hilton Inns, Inc. (S)9b - Franchisor has
Operating Partnership, (100% Owned) License Agreement ROFR to purchase or
L.P. as assignee of IHC dated June 12, 1981, lease. (An undated and
Realty Partnership, L.P. as amended. unexecuted amendment in
the file provides in
(S)3 thereof for ROFR
to purchase or lease.)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
46
<PAGE>
<TABLE>
<CAPTION>
PATRIOT AMERICAN
OPTIONS/RIGHT OF FIRST REFUSAL PROVISIONS IN FRANCHISE AGREEMENTS
Relating to Properties (Owned or Leased)
----------------------------------------
PART II
HOTEL PROPERTY FRANCHISOR FRANCHISEE DOCUMENT (S) REFERENCE
<S> <C> <C> <C> <C>
PAH Hilton Inn Cleveland Hilton Inns, Inc. CHC Lease Partners License Agreement dated (S) 9(b), 9(e) Transfer of a
South September 28, 1995 controlling interest in the
Licensee (gives rise to a
ROFR in favor of the Licensor.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Radisson Hotel & Radisson Hotels CHC Lease Partners License Agreement effective (S) 9(b), 9(e) Transfer of a
Suites T&C Houston International, Inc. 10/2/95 not available - controlling interest in the
Summary herein from Licensee gives rise to a ROFR
11/30/90 agreement) in favor of the Licensor.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
47
<PAGE>
<TABLE>
<CAPTION>
OPTIONS/RIGHT OF FIRST REFUSAL AND SIMILAR RIGHTS IN MISCELLANEOUS AGREEMENTS
PROPERTY/ENTITY DOCUMENT (S) REFERENCE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Golden Door Spa Amendment Number Three To Agreement of Purchase (S)9.2(a) If Purchasers desire to offer the Spa
and Sale dated May 28, 1998. or the Art (any of the items of art listed on
Exhibit 1D) for sale with any third party,
Amendment Number Two To Agreement of Purchase and Deborah Szekely and Alexandre Szekely must be
Sale dated May 28, 1998. given notice of such decision. During the thirty
day period following such notice, either Szekely
Amendment Number One To Agreement of Purchase and will attempt to negotiate a mutually satisfactory
Sale dated February 19, 1998. agreement for the purchase of the Spa or the Art.
After the expiration of such thirty day period,
Agreement of Purchase and Sale dated February 19, if a mutually acceptable agreement is not
1998. reached, Purchasers may freely sell the Spa or
the Art.
Purchasers: Patriot American Hospitality, Inc. and
Wyndham International, Inc. (S)9.2(b) The ROFO is to purchase only the
physical assets (and not the name "Golden Door
Sellers: Golden Door, LLC and Deer Springs Ranch, Spa" or related trademarks) located at the
LLC Escondido, CA location only, and shall only apply
if the Spa is sold separately, and not in
connection with (i) a transfer to any Affiliated
Company (any other entity which is, along with
any Seller, a member of a controlled group of
corporations or a controlled group of trades or
businesses as defined in (S)414(b) or (c) of the
Internal Revenue Code, any entity which along
with any Seller is included in an affiliated
service group as defined in (S)414(m) of the
Internal Revenue Code, and any other entity which
is required to be aggregated with any Seller
pursuant to Treasury Regulations under (S)414(o)
of the Internal Revenue Code), (ii) a corporate
transaction involving the concurrent sale of
other Golden Door Spa assets and/or locations, or
(iii) a multi-asset transaction. Any successor to
Purchasers shall be bound by ROFO.
(S)9.2(c) Terms of ROFO with respect to Art.
(S)9.2(d) ROFO is personal to each of the
Szekelys.
(S)9.1 of the Purchase and Sale Agreement states
that if any one of Deborah Szekely, Alexandre
Szekely or Sarah Livia Brightwood (each a "Rancho
Owner") decides to offer their ownership
interests in Rancho or in the name "Rancho La
Puerte Spa" for sale to a third party, such
Rancho Owners will give Purchaser (PAH
Acquisition Corporation) notice of such decision.
Exhibit 1C of the Purchase and Sale Agreement
(copy of the Exhibit not attached) refers to
non-compete agreements executed by each of the
officers, directors and shareholders or members
of each Seller (Golden Door, LLC, Golden Door,
and Deer Springs Ranch, LLC).
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
48
<PAGE>
SCHEDULE VI
UNRESTRICTED ASSETS AND UNRESTRICTED SUBSIDIARIES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Unrestricted Asset Owner Unrestricted Subsidiaries/1/
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Villa Saletta development site Fattoria Villa Saletta SRL [100%] Fattoria Villa Saletta SRL
- ------------------------------------------------------------------------------------------------------------------------------------
Bessy I development site Chateau de Bessy SA [54.7%] Chateau de Bessy SA
- ------------------------------------------------------------------------------------------------------------------------------------
Bessy II development site The Transatlantic Hotel Company SARL [100%] The Transatlantic Hotel Company SARL
- ------------------------------------------------------------------------------------------------------------------------------------
Club Zaudin golf course Al Jarafe Golf, SA [10%] [Al Jarafe Golf, SA]
Interest held by Arcadian Group Services Limited [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Mentmore golf & country club Mentmore Golf & Country Club, Plc [10%] [Mentmore Golf & Country Club, Plc]
Interest held by Arcadian International Limited [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
European timeshare company Beleggingsmaat-Schappij Stako-II BV [18.6%] [Beleggingsmaat-Schappij Stako-II BV]
Interest held by Arcadian Group Services Limited [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Bouffemont development site Arcadian Hotel Bouffement SARL [100%] Arcadian Hotel Bouffement SARL
- ------------------------------------------------------------------------------------------------------------------------------------
DeGressy Hotel Hotel Gressy SNC [25%] Arcadian Properties SNC
Interest held by Arcadian Properties SNC [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
El Conquistador additional ESJ Hotel Corporation [100%] None
land
- ------------------------------------------------------------------------------------------------------------------------------------
Myrtle Beach additional land Patriot American Hospitality Partnership, LP [100%] None
- ------------------------------------------------------------------------------------------------------------------------------------
Border's leasehold Patriot American Hospitality, Inc. [100%] None
[landlord's interest]
- ------------------------------------------------------------------------------------------------------------------------------------
Boulders commercial access Boulders Joint Venture [100%] None
strip
- ------------------------------------------------------------------------------------------------------------------------------------
Stanly Ranch development site PAH Stanly Ranch LLC [100%] PAH Stanly Ranch LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Meadows del Mar Westshaw Associates, LP [50%] Patriot Bougainvillea LLC [100% Sub]
Interest held by Patriot Bougainvillea LLC [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Dos Pueblos golf course, CPH-PAH Dos Pueblos Associates, LLC [4%] [CPH-PAH Dos Pueblos Associates, LLC]
Santa Barbara Interest held by Patriot American Hospitality Partnership,
LP [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Shula Steakhouse franchising Shula's Steak Houses, LP [49%] W-SSH, LLC
venture Interest held by W-SSH, LLC [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Unrestricted Asset Owner Unrestricted Subsidiaries/1/
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Bay Meadows contingent Patriot American Hospitality, Inc. [100%] None
deferred sale price
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate assets and other Interstate Hotels, LLC [55%] PAH-Interstate Holdings, Inc.
businesses Interest held by PAH-Interstate Holdings, Inc. [100%] [Interstate Hotels Corporation]
Interstate Hotels Corporation [4%]
1% interest held by PAH-Interstate Holdings, Inc. [100%]
1% interest held by Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Hyatt Lexington Patriot American Hospitality Partnership, LP [100%] None
- ------------------------------------------------------------------------------------------------------------------------------------
Redmont Hotel Patriot American Hospitality Partnership, LP [100%] None
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Mayfair Patriot American Hospitality Partnership, LP [100%] None
- ------------------------------------------------------------------------------------------------------------------------------------
Don Cesar Hotel Don Cesar Resort Hotel, Ltd. [13%] [Don Cesar Resort Hotel, Ltd.]
12% interest held by Don Cesar Holdings LLC [100%] Don Cesar Holdings LLC
1% interest held by PAH Franchise Holding, Inc. [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Manhattan Beach Marriott HMC/Interstate Manhattan Beach, LP [25%] [HMC/Interstate Manhattan Beach, LP]
Interest held by PAH Franchise Holding, Inc, [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Pittsburgh Marriott Center Host/Interstate Partnership, LP [5%] IHC Pittsburgh Partnership, LP
Interest held IHC Pittsburgh Partnership, LP [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Santa Maria Santa Maria Joint Venture [50%] IHC Santa Maria Corporation
Interest held by IHC Santa Maria Corporation [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Waterford Marriott Interstate/HMC Waterford, LP [25%] [Interstate/HMC Waterford, LP]
Interest held by PAH Franchise Holding, Inc. [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Ontario Marriott HMC/Interstate Ontario, LP [10%] [HMC/Interstate Ontario, LP]
Interest held by PAH Franchise Holding, Inc. [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Westmont Westmont CI Associates, LP [9.0909%] PAH-Westmont CI Holding, Inc.
Interest held by PAH-Westmont CI Holding, Inc. [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Pittsburgh Marquis Hotel Associates [50%] Pittsburgh CI, Inc.
Interest held by Pittsburgh CI, Inc. [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Columbus Dublin Inn, Ltd. [30%] WHC Columbus Corporation
Interest held by WHC Columbus Corporation [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Note 1 Entities shown in brackets in this column are "Joint Ventures" rather
than "Subsidiaries"
<PAGE>
Schedule VII - Existing Letters of Credit
-----------------------------------------
Letters of Credit
-----------------
<TABLE>
<CAPTION>
Issuer Amount Project Party Expires
- -------- ---------- ----------- --------------------------------------------------- --------
<S> <C> <C> <C> <C>
Chase 9,794,281 Vinings Wyndman Vinings Industrial Development Revenue Bond 2/15/00
Chase 6,319,000 Summerfield Innkeepers USA LP 6/18/00
Chase 4,600,000 Arcadian Lloyds Bank Plc 12/31/99
Chase 3,700,000 Arcadian Coutes & Co. 5/13/99
- -------- ---------- ----------- --------------------------------------------------- --------
Total: 24,413,281
</TABLE>
<PAGE>
Schedule VIII
Consents; Filing
None.
<PAGE>
LITIGATION
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Schedule IX - Litigation
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
ACTION CLAIMANT COURT OR DESCRIPTION DATE
AGENCY FILED/SERVED
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Charles Charles Court of Plaintiffs allege individual Defendants wrongfully acted in Filed 1/12/99
Fraschilla et Fraschilla Chancery of effectively selling control of the Company to the Apollo
al vs. PAH/WYN et al the State of Acquisition Group for grossly inadequate consideration (the
Delaware, New "Refinancing") without first having adequately considered or
*class action Castle County explored all other alternatives to this sale or having taken
lawsuit steps to have maximized shareholder value.
- ------------------------------------------------------------------------------------------------------------------------------------
Johnson, et al, Doris USDC-Northern Putative securities class action case filed on behalf of Filed 5/7/99
v. PAH/WYN Johnson, et District of class of former shareholders of Bay Meadows and California
al California Jockey Club who subsequently became shareholders of Patriot/
*Putative class Wyndham alleging securities fraud under Rule 106-B of the
action lawsuit 1934 act and violation of section 11 and section 12(2) of the
1933 act in connection with the acquisition of Bay Meadows
and California Jockey Club.
- ------------------------------------------------------------------------------------------------------------------------------------
Irene Ansell, Irene Ansell, USDC for Allegations similar to those in the Johnson putative class Filed 5/14/99
et al v. et. Al Northern action lawsuit. Same defendants, class, and court named.
PAH/WYN District of Plaintiff's claim as damages the loss of value in Patriot
California stock received by former Bay Meadows shareholders in exchange
*Putative class for their stock, as well as the loss of the valuable assets
action lawsuit previously owned by Bay Meadows, including the land and
racetracks.
- ------------------------------------------------------------------------------------------------------------------------------------
Constatine Constatine USDC for Allegations similar to those in the Johnson putative class Filed 6/11/99
Sola, et al Sola, et al. Northern action lawsuit. Same defendants, class, and court named.
v. PAH/WYN District of Plaintiff's claim as damages the loss of value in Patriot
California stock received by former Bay Meadows shareholders in exchange
*Putative class for their stock, as well as the loss of the valuable assets
action lawsuit previously owned by Bay Meadows, including the land and
racetracks.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
LITIGATION
- ----------------------------------------------------------------------------------------------------------------------------------
ACTION CLAIMANT COURT OR DESCRIPTION DATE
AGENCY FILED/SERVED
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Peter J. Susnow Peter J. Susnow USDC for Allegations similar to those of the Johnson putative class Filed
et al vs. et al Northern action lawsuit filed on behalf of class of former shareholders 6/15/99
PAH/WYN et al District of Bay Meadows and California Jockey Club and subsequently
of Texas - became shareholders of Patriot/Wyndham alleging securities
Dallas fraud under Rule 10-B of the 1934 act and violation of section
Division 11 and section 12(2) of the 1933 act in connection with the
acquisition of Bay Meadows and California Jockey Club.
- ----------------------------------------------------------------------------------------------------------------------------------
Dorothy Gallagher Dorothy USDC for The nature of this action is for false and misleading Filed
et al vs. PAH/WII Gallagher Northern statements made under the SEC Act of 1934. 6/23/99 -
and James District Serve
Carreker & Paul of Texas - 6/24/99
Nussbaum Dallas
Division
- ----------------------------------------------------------------------------------------------------------------------------------
Peter Levitch Peter USDC for The nature of this action is for false and misleading Filed
et al vs. Levitch Northern statements made under the SEC Act of 1934. 6/22/99 -
PAH/WII and District Serve
James Carreker of Texas - 6/24/99
& Paul Nussbaum Dallas
Division
- ----------------------------------------------------------------------------------------------------------------------------------
*The Borrower and the Lenders acknowledge that the aforementioned matters
are each in their preliminary stages, and therefore, the Company
acknowledges that this Schedule is without prejudice to the rights of the
Lenders under Section 4.02(a) with respect to the Company's
representations set forth in Section 3.02 (no Material Adverse Change).
Page 2
</TABLE>
<PAGE>
SCHEDULE X -- OWNED & LEASED HOTELS
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Arcadian Brandsthatch Place Arcadian Hotels (UK) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Chilston Park Chilston Park Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Ettington Park Ettington Park Group Limited Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Haycock Arcadian Hotels (UK) Limited & Tillion Limited Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian L'Horizon Hotel L'Horizon Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Manoir DeGressy Hotel Gressy SNC JV Fee 25.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Mollington Banastre The Mollington Banastre Hotel Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Nutfield Priory Arcadian Hotels (UK) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Priest House Arcadian International Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Rookery Arcadian Hotels (UK) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Wood Hall Arcadian International Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Woodlands Park Arcadian Hotels (UK) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Albuquerque Albuquerque CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Atlanta Atlanta CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Nashville Airport Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Nashville Downtown Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Overland Park Overland Park CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Pittsburgh Marquis Hotel Associates JV Fee 50.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Savannah Savannah CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Topeka Topeka CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Valdosta Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Westmont Westmont CI Associates, LP JV Fee 9.0909
- ------------------------------------------------------------------------------------------------------------------------------------
Crowne Plaza Ravinia Ravinia, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Don Cesar Resort Don Cesar Resort Hotel, Ltd. JV Fee 13.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Allen Center PAH-DT Allen Partners, LP Sub Fee 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Anaheim PAH-DT Allen Partners, LP Sub Fee 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Denver/Boulder DT-Denver, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Des Plaines DT-Des Plaines , LLC Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Glenview DT-Glenview, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Luxeford PAH-DT Minneapolis Suites Partners, LP Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Miami Airport DT-Miami, LP Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Overland Park PAH-DT Allen Partners, LP Sub Fee 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Park Place PAH-DT Park Place Partners, LP Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Post Oak PAH-DT Allen Partners, LP Sub Lease 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree St. Louis PAH-DT Allen Partners, LP Sub Fee 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Tallahassee DT-Tallahassee, LP Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Tulsa PAH-DT Allen Partners, LP Sub Fee 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
Embassy Suites Chicago Chicago-ES, LLC Sub Lease 98.7951
- ------------------------------------------------------------------------------------------------------------------------------------
Embassy Suites Hunt Valley PA Hunt Valley Investors, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Embassy Suites Phoenix N ES Phoenix, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Embassy Suites Schaumburg ES Schaumburg, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Fort Magruder IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay, Carmel Valley CV Ranch, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay Chicago North Michigan [not yet open] Block 125 North Hotel Venture, LLC JV Fee 19.90
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay Golden Door Spa Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay Miami PAH-Grand Bay Miami, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay, Peaks at Telluride Telluride Resort & Spa, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay, The Boulders Boulders JV Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay, Ventana Canyon PAH Ventana Canyon, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Pickwick Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Redmont Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Hilton Cleveland South H-Cleveland, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Columbus H-Columbus, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Del Mar H-Delmar, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Denver IHC/Denver Partnership, LP Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Ft. Lauderdale Interstone/PAH Partners, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Huntington Hilt-Hunt, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Melbourne H-Melbourne, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Newark H-Gateway, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Parsippany Parsippany, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn Aristocrat Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn Brentwood IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn Lenox Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn North Dallas Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn NW Houston Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn NW Plaza Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn San Angelo Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn San Francisco Airport Patriot American Hospitality, Inc. Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn Westlake PAH-Westlake, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn YO Ranch YO Hotel Investors, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hyatt Lexington Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hyatt Newporter Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Edinburgh The Malmaison Company (Edinburgh) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Glasgow The Malmaison Hotel (Glasgow) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Leeds The Malmaison Hotel (Leeds) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Manchester The Malmaison Hotel (Manchester) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison New Castle The Malmaison Hotel (New Castle) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Marriott Albany IHP Holdings Partnership, LP JV Fee 49.3858
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Andover [conversion to Wyndham] Interstone/PAH Partners, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Arlington [conversion to Wyndham] IHC Realty Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Atlanta IHC Realty Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Casa Marina [conversion to Wyndham Resort] Casa Marina Realty Partnership, LP Sub Fee 98.6063
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Colorado Springs IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Courtyard Beachwood [conversion to Wyndham] PAH Beachwood I, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Harrisburg Swatara Associates Sub Fee 97.9636
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Houston IHC/Houston Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Indian River IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Manhattan Beach HMC/Interstate Manhattan Beach, LP JV Fee 25.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Minneapolis IHP Holdings Partnership, LP JV Fee 49.3858
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Ontario Airport HMC/Interstate Ontario, LP JV Fee 10.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Philadelphia IHC/Conshohocken Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Pittsburgh Airport Park West Hotel Associates Sub Fee 97.8038
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Pittsburgh Center Host/Interstate Partnership, LP JV Lease 5.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Reach Resort Key West Reach Limited Partnership Sub Fee 97.1192
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Roanoke [conversion to Wyndham] IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott San Diego IHP Holdings Partnership, LP JV Fee 49.3858
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott St. Louis West [conversion to Wyndham] Maryville Center Hotel JV JV Fee 50.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Syracuse [conversion to Wyndham] Syracuse Realty Associates, LP Sub Fee 94.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Troy Mar-Ty, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Tysons Corner Interstone/PAH Partners, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Valley Forge Interstone/PAH Partners, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Warner Center [conversion to Wyndham] Interstone/CGL (WC) Partners, LP Sub Fee 65.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Waterford HMC/Interstate Waterford, LP JV Fee 25.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Marriott Westborough IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Newark Airport [closed] Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Omni Baltimore Travis Real Estate Group JV Sub Fee 65.48
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Akron PAH-Akron, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Beachwood PAH-Beachwood II, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Burlington Rad-Burl, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Dallas Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Englewood IHC Realty Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Houston West R-Houston, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Jacksonville Marina Hospitality, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Kansas City Kansas City Hospitality, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Lisle R-Lisle, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson New Orleans 1500 Canal Street Investors II, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Northbrook Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Overland Park Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson San Jose Rad-Jose, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Ramada Inn San Francisco Airport Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Santa Maria Hotel Santa Maria Joint Venture JV Fee 50.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sheraton Four Points Blacksburg IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sheraton Four Points Saginaw Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sierra Suites Atlanta Cumberland Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sierra Suites Fair Oaks Fair Oaks Sierra Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sierra Suites Phoenix Camelback Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sierra Suites Westborough Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Addison Summerfield Hotel Leasing Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Atlanta Buckhead Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Summerfield Suites Atlanta Perimeter Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Belmont Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Chatsworth Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Denver Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Dulles Airport Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites El Segundo Summerfield Hotel Leasing Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Hanover Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites International Drive Orlando Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Lake Buena Vista Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Las Colinas Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Malvern Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Miami Airport [not yet open] Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Morristown Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Mount Laurel Summerfield Hotel Leasing Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Plaza Park Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Princeton Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites San Francisco Airport Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites San Jose Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Schaumburg Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Somerset Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites St. Louis Westport Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Sunnyvale Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Torrance Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Waltham Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites West Hollywood Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sunrise Suites Tinton Falls Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
WestCoast Long Beach Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
WestCoast Park Shore Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
WestCoast Valley River Inn Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Atlanta American [not yet opened] Atlanta American Hotel Investors, LP Sub Fee 70.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Batterymarch [not yet opened] PAH Batterymarch Realty Company, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Bel Age Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Billerica PAH Billerica Realty Company, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Bristol Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Buttes W-Buttes, LLC Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Chicago St. Clair Oxford/Wyn 633 Investment Company, LLC JV Lease 50.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Columbus Dublin Inn, Ltd JV Fee 30.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Emerald Plaza W-Emerald, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Franklin Plaza W-Franklin, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Ft. Lauderdale Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Gateway Miami PAH-River House, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Greenspoint W-Greenspoint, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Harbour Island WH Interest, Inc. Sub CapLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Northwest Chicago WCHNW, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Wyndham Peachtree, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Riverfront Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Salt Lake City Salt Lake City Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Toledo Toledo Hotel Investors, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Washington City Centre City Centre Partnership, LP Sub Fee 92.50
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Washington DC IHC Realty Partnership, LP Sub Fe 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Westshore PAH-Tampa, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Windwatch PAH Windwatch, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Wyndham Garden Atlanta Midtown W-Garden Atlanta, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Atlanta Perimeter GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Bloomington GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Bothell GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Brookfield W-Brookfield, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Chandler GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Charlotte W-Charlotte, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Commerce W-Commerce, LLC Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Dallas Market Center Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Dallas Park Central Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Indianapolis W-Indiana, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Kansas City Airport Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Knoxville Knoxville CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden LaGuardia Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Las Colinas W-Colinas, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Naperville GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Nashville GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden North Phoenix GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Novi W-Novi, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Omaha Omaha CI Associates LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Overland Park Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Phoenix Airport GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Pleasanton W-Pleasanton, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Richardson W-Richardson, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Richmond Patriot American Hospitality Partnership, LP Sub CapLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden San Diego GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Schaumburg W-Schaumburg, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Wyndham Garden Sea-Tac GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden St. Louis St.Louis CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Sunnyvale GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Vinings Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Wichita Wichita CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Wood Dale W- Wood Dale, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Ambassador West Patriot American Hospitality, Inc. Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Bourbon Orleans Bourbon Orleans Investors II, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Fairmont Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Mayfair Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Tremont House Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Tutwiler Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Union Station Patriot American Hospitality, Inc. Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort Buena Vista Palace Royal Palace Hotel Associates Sub Lease 95.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort Condado Plaza Posadas de Puerto Rico Associates, Inc. Sub Fee & Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort El Conquistador El Conquistador Partnership, LP Sub Fee & 100.00
Grand Bay Las Casitas Lease
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort El San Juan Posadas de San Juan Associates Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort Miami Beach IHC/Miami Beach Corporation Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort Myrtle Beach Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort, Regency Hotel [closed] Posadas de Regency, Inc. Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort Rose Hall Rose Hall Associates Limited Partnership Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
[Wyndham] Great Eastern [not yet opened] The Great Eastern Hotel Company Limited JV Lease 50.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Owned and leased real estate held by subsidiaries of Interstate Hotels, LLC
[Unrestricted Subsidiary] intentionally excluded.
"Primary Interest" reflects form of ownership of principal asset; facilities
leases and easement rights are excluded.
Lease = conventional ground lease or building lease. OpLease = operating lease.
CapLease = capital lease.
<PAGE>
SITES WITHOUT "HOTELS": DEVELOPMENT SITES & OTHER REAL PROPERTY INTERESTS
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Arcadian Villa Saletta [development site] Fattoria Villa Saletta SRL Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
Border's site [ground lease to retail tenant] Patriot American Hospitality, Inc. Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
Bouffemont [development site] Arcadian Hotel Bouffemont SARL Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
Chateau de Bessy II [development site] The Transatlantic Hotel Company SARL Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
Chateau de Bessy I [development site] Chateau de Bessy SA Sub Fee 54.70
- -----------------------------------------------------------------------------------------------------------------------------
Club Zaudin [golf course] Al Jarafe Golf SA JV Fee 10.00
- -----------------------------------------------------------------------------------------------------------------------------
El Conquistador additional land ESJ Hotel Corporation Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
George Row Company [timeshare units] Beleggingsmaat-Schappij Stako JV JV Fee 18.60
- -----------------------------------------------------------------------------------------------------------------------------
Dos Pueblos Golf Course [under development] CPH-PAH Dos Pueblos Associates, LLC JV Fee 4.00
- -----------------------------------------------------------------------------------------------------------------------------
Meadows del Mar [lots, golf course & hotel site] Westshaw Associates, LP JV Fee 50.00
- -----------------------------------------------------------------------------------------------------------------------------
Mentmore Golf & Country Club Mentmore Golf & Country Club PLC JV Fee 10.00
- -----------------------------------------------------------------------------------------------------------------------------
Stanly Ranch [development site] PAH-Stanly Ranch, LLC Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Schedule XI - Existing Indebtedness
Ownership
Lender Property / Facility % Borrower
<S> <C> <C> <C>
CSFB Conduit Embassy Suites Chicago 98.80% Chicago-ES, LLC
NatWest Great Eastern 50.00% The Great Eastern Hotel Company Limited
COPARC Gressy Term Loan 25.00% Hotel Gressy SNC
Coutts Consortium Malmaison Facilities 100.00% The Malmaison Limited
Malmaison Leeds 100.00% The Malmaison Company (Leeds) Limited
Malmaison Edinburgh 100.00% The Malmaison Hotel (Edinburgh) Limited
Malmaison Glasgow 100.00% The Malmaison Hotel (Glasgow) Limited
Malmaison Manchester 100.00% The Malmaison Hotel (Manchester) Limited
Malmaison New Castle 100.00% The Malmaison Hotel (New Castle) Limited
Credit Lyonnais Marriott Casa Marina 100.00% Casa Marina Realty Partnership, LP
Mass Mutual Marriott Don Cesar Resort 13.00% Don Cesar Resort Hotel, Ltd.
Credit Lyonnais Marriott Harrisburg 97.96% Swatara Associates
Mass Mutual Marriott Pittsburgh Airport 97.80% Park West Hotel Associates
M. Fine/J. Meisel et al Marriott Reach Resort 97.12% Key West Reach Limited Partnership
Mass Mutual Marriott Reach Resort 97.10% Key West Reach Limited Partnership
Bank of the Keys Marriott Santa Maria 50.00% Santa Maria Joint Venture
Lincoln National Bank Marriott St. Louis West 50.00% Maryville Center Hotel JV
Mass Mutual Marriott Syracuse 94.00% Syracuse Realty Associates, LP
CIGNA Marriott Warner Center 65.00% Interstone/CGL (WC) Partners, LP
Bank One Arizona, NA Meadows Del Mar - Golf Course 50.00% Westshaw Associates, LP
Bank One Arizona, NA Meadows Del Mar - Residential 50.00% Westshaw Associates, LP
Lincoln National Bank Radisson Beachwood 100.00% PAH-Beachwood II, LLC
Cassa di Risparmia di Lucca Saletta Term Loan 100.00% Fattoria Villa Saletta SRL
Finova Capital The Lodge at Ventana Canyon 100.00% PAH Ventana Canyon, LP
GMAC Wyndham Atlanta American 70.00% Atlanta American Hotel Investors, LP
Beacon Capital Wyndham Batterymarch 100.00% PAH Batterymarch Realty Company, LLC
Nomura Asset Capital Corp. Wyndham Buena Vista Palace 95.00% Royal Palace Hotel Associates
Paine Webber Wyndham Chicago St. Claire 50.00% Oxford/WYN 633 Investment Compnay, LLC
Huntington Bank Wyndham Dublin (Columbus) 30.00% Dublin Inn, Ltd
Citibank Wyndham El Conquistador 100.00% El Conquistador Partnership, LP
Government Development Bank Wyndham El Conquistador 100.00% El Conquistador Partnership, LP
Bank of Nova Scotia Wyndham El San Juan 100.00% Posadas de San Juan Associates
CSFB Conduit Wyndham Greenspoint 100.00% W-Greenspoint, LP
CSFB Conduit Wyndham Peachtree 100.00% Wyndham Peachtree, LLC
Republic Bank Wyndham Garden Billerica 100.00% PAH Billerica Realty Company, LLC
Development Authority of Cobb County Wyndham Garden Vinings 100.00% Patriot American Hospitality Partnership, LP
Capital Leases
Harbour Island Capital Lease 100.00% WH Interest, Inc.
Richmond Garden Capital Lease 100.00% Patriot American Hospitality Partnership, LP
Other Capital Leases 100.00%
ISIS Capital Leases 100.00%
Letters of Credit
The Chase Manhattan Bank Arcadia
The Chase Manhattan Bank Arcadia
The Chase Manhattan Bank Summerfield
The Chase Manhattan Bank Vinings
<CAPTION>
Secured /
Lender Maturity Unsecured Liability Guarantor
<S> <C> <C> <C> <C>
CSFB Conduit 10/16/08 S Non-Recourse N/A
NatWest 10/15/10 S Recourse N/A
COPARC 2/1/07 S Non-Recourse N/A
Coutts Consortium 12/31/03 S Recourse Arcadian International Ltd and Malmaison
subsidiaries.
12/31/03 S Recourse Arcadian International Ltd and Malmaison
subsidiaries.
12/31/03 S Recourse Arcadian International Ltd and Malmaison
subsidiaries.
1231//03 S Recourse Arcadian International Ltd and Malmaison
subsidiaries.
12/31/03 S Recourse Arcadian International Ltd and Malmaison
subsidiaries.
12/31/03 S Recourse Arcadian International Ltd and Malmaison
subsidiaries.
Credit Lyonnais 3/31/01 S Non-Recourse N/A
Mass Mutual 7/1/06 S Non-Recourse N/A
Credit Lyonnais 3/31/01 S Non-Recourse N/A
Mass Mutual 4/1/02 S Non-Recourse N/A
M. Fine/J. Meisel et al 7/1/00 S Non-Recourse PAH Franchise Holding, Inc. and PAH-Beachwood I,
LLC
Mass Mutual 10/1/05 S Recourse N/A
Bank of the Keys 8/27/00 S Recourse
Lincoln National Bank 5/1/02 S Non-Recourse N/A
Mass Mutual 12/1/02 S Non-Recourse N/A
CIGNA 1/1/04 S Non-Recourse N/A
Bank One Arizona, NA 5/31/03 S Recourse Partiot American Hospitality, Inc.
Bank One Arizona, NA 5/31/02 S Recourse N/A
Lincoln National Bank 5/31/05 S Non-Recourse N/A
Cassa di Risparmia di Lucca 7/1/14 Recourse Arcadian International Ltd.
Finova Capital 3/1/05 S Non-Recourse N/A
GMAC 8/1/02 S Non-Recourse Patriot American Hospitality Partnership, LP
Wyndham International, Inc., and
Beacon Capital 12/31/99 S Recourse Patriot American Hospitality Partnership, LP
Nomura Asset Capital Corp. 12/11/15 S Non-Recourse N/A
Paine Webber 8/20/01 S Non-Recourse N/A
Huntington Bank 4/1/09 Non-Recourse N/A
Citibank 6/30/00 S Non-Recourse Partiot American Hospitality, Inc.
Government Development Bank 2/15/06 S Non-Recourse N/A
Bank of Nova Scotia 8/31/03 S Non-Recourse Partiot American Hospitality, Inc.
CSFB Conduit 10/16/08 S Non-Recourse N/A
CSFB Conduit 10/23/01 S Non-Recourse N/A
Wyndham International, Inc.,
Patriot American Hospitality Partnership, LP
Republic Bank 5/14/99 S Recourse and Patriot American Hospitality, Inc.
Development Authority of Cobb County 2/1/23 U Recourse N/A
Capital Leases
S Recourse
S Non-Recourse
Letters of Credit
The Chase Manhattan Bank 5/13/99
The Chase Manhattan Bank 12/31/99
The Chase Manhattan Bank 6/18/00
The Chase Manhattan Bank 2/15/00
<CAPTION>
Lender Comments Allocated
<S> <C> <C>
CSFB Conduit 40,269,405
NatWest 24,600,000
COPARC 2,448,000
Coutts Consortium
6,822,032
23,387,978
Credit Lyonnais 30,566,000
Mass Mutual 4,410,095
Credit Lyonnais 19,587,750
Mass Mutual 14,326,783
M. Fine/J. Meisel et al Mortgage on Marriott Courtyard Beachwood. 9,347,583
Mass Mutual 14,825,245
Bank of the Keys 2,000,000
Lincoln National Bank 8,203,722
Mass Mutual 9,672,449
CIGNA 32,167,982
Bank One Arizona, NA Completion Guarantee - up to $4 M 8,071,623
Bank One Arizona, NA 5,232,904
Lincoln National Bank 4,970,917
Cassa di Risparmia di Lucca
Finova Capital 28,488,769
GMAC 10% guarantee for 24 months 17,979,500
Beacon Capital Completion Guarantee 45,000,000
Nomura Asset Capital Corp. 7,872,941
Paine Webber 20,000,000
Huntington Bank 1,975,917
Citibank 90,000,000
Government Development Bank 25,000,000
Bank of Nova Scotia $7.5 Million guarantee. 42,100,000
CSFB Conduit 39,921,574
CSFB Conduit 37,113,331
Republic Bank 16,411,083
Development Authority of Cobb County 46,158,186
Capital Leases
19,415,738
4,347,431
5,630,786
1,018,285
Letters of Credit
The Chase Manhattan Bank 3,700,000
The Chase Manhattan Bank 4,600,000
The Chase Manhattan Bank 6,319,000
The Chase Manhattan Bank 9,794,281
*In addition, certain inter-company Indebtedness is listed separately on Schedule XII
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Schedule XI - Existing Indebtedness
Schedule XI - Existing Indebtedness
Ownership
Lender Property / Facility % Borrower
<S> <C> <C> <C>
General Debt
- ------------
The Chase Manhattan Bank $600 MM Revolving Credit Facility 100.00% Wyndham International
The Chase Manhattan Bank $1.2 BB Term Loan Facility 100.00% Wyndham International
The Chase Manhattan Bank Increasing Rate Notes 100.00% Wyndham International, Inc.
Bank One Trustee, Public Debt Wyndham Senior Sub 100.00% Patriot American Hospitality, Inc.
Golden Door, LLC Golden Door Spa 100.00% Wyndham International, Inc.
Summerfield Associates, LP 100.00% Sierra Suites Marketing Association
Property Debt
- -------------
Bear Stearns New Mortgage Pool I & II
Crowne Plaza Ravinia 100.00% Ravinia, LLC
Doubletree Club Hotel Chicago 90.00% DT-Des Plaines, LLC
Doubletree Club Hotel Miami 90.00% DT-Miami, LLC
Doubletree Hotel Boulder 100.00% DT-Denver, LLC
Doubletree Hotel Tallahassee 90.00% DT-Tallahassee, LLC
Embassy Suites Phoenix North 100.00% ES Phoenix, LLC
Embassy Suites Schaumburg 100.00% ES Schaumburg, LLC
Hilton Columbus 100.00% H-Columbus, LLC
Hilton Del Mar 100.00% H-Delmar, LLC
Hilton Huntington 100.00% Hilt-Hunt, LLC
Hilton Inn Cleveland 100.00% H-Clevleand, LLC
Hilton Newark Gateway 100.00% H-Gateway, LLC
Marriott Troy 100.00% Mar-Ty, LLC
Radisson Suites Houston 100.00% R-Houston, LP
Wyndham Buttes 100.00% W-Buttes, LLC
Wyndham Emerald Plaza 100.00% W-Emerald, LLC
Wyndham Franklin Plaza 100.00% W-Franklin, LLC
Wyndham Garden Indianapolis 100.00% W-Indiana, LLC
Wyndham Garden LA Commerce 100.00% W-Commerce, LLC
Wyndham Garden Las Colinas 100.00% W-Colinas, LLC
Wyndham Garden Novi 100.00% W-Novi, LLC
Wyndham Garden Pleasanton 100.00% W-Pleasanton, LLC
Wyndham Garden Richardson 100.00% W-Richardson, LLC
Wyndham Garden Schaumburg 100.00% W-Schaumburg, LLC
Wyndham Garden Wood Dale 100.00% W-Wood Dale, LLC
Lehman Brothers New Mortgage Pool III
Doubletree Guest Suites Glenview 100.00% DT-Glenview, LLC
Hilton Inn Melbourne Airport 100.00% H-Melbourne, LP
Hilton Inn Parsipanny 100.00% Parsippany, LLC
Radisson Hotel Burlington 100.00% Rad-Burl, LLC
Radisson Inn Napervilee-Lisle 100.00% R-Lisle, LLC
Radisson Plaza Hotel San Jose Airport 100.00% Rad-Jose, LLC
Wyndham Northwest Chicago 100.00% WCHNW, LLC
Wyndham Garden Brookfield 100.00% W-Brookfield, LLC
Wyndham Garden Charlotte 100.00% W-Charlotte, LLC
Wyndham Garden Midtown 100.00% W-Garden Atlant, LLC
Royal Bank of Scotland et al Arcadian 2/98 Facility 100.00% Arcadian International Ltd and
subsidiaries
Royal Bank of Scotland et al Arcadian Additional Loan 100.00% Arcadian International Ltd and
subsidiaries
Royal Bank of Scotland et al Arcadian Overdraft Facility 100.00% Arcadian International Ltd and
subsidiaries
Royal Bank of Scotland et al Arcadian Revolving Credit Facility 100.00% Arcadian International Ltd and
subsidiaries
Royal Bank of Scotland et al Arcadian Term Loan 100.00% Arcadian International Ltd and
subsidiaries
First National Bank of Commerce Bourbon Orleans 100.00% Bourbon Orleans Investors II, LP
Salomon Brothers Realty Corp. Clubhouse
Clubhouse Atlanta 100.00% Atlanta CI Associates, LP
Clubhouse Knoxville 100.00% Knoxville CI Associates, LP
Clubhouse Omaha 100.00% Omaha CI Associates, LP
Clubhouse Overland Park 100.00% Overland Park CI Associates, LP
Clubhouse Wichita 100.00% Wichita CI Associates, LP
LW - SP2, LP Clubhouse Pittsburgh 50.00% Marquis Hotel Associates
Posadas de Regency, Inc. and
Posadas de
Bank of Nova Scotia (refinancing 6/30/99) Condado & Regency (combined) 100.00% Puerto Rico Associates, Inc.
Metropolitan Life Doubletree
Doubletree Allen Center 85.00% PAH-DT Allen Partners, LP
Doubletree Anaheim 85.00% PAH-DT Allen Partners, LP
Doubletree Overland Park 85.00% PAH-DT Allen Partners, LP
Doubletree Post Oak 85.00% PAH-DT Allen Partners, LP
Doubletree St. Louis 85.00% PAH-DT Allen Partners, LP
Doubletree Tulsa 85.00% PAH-DT Allen Partners, LP
<CAPTION>
Secured /
Lender Maturity UnSecured Liability Guarantor
<S> <C> <C> <C> <C>
General Debt
- ------------
The Chase Manhattan Bank 6/30/05 S Recourse Subsidiaries with exceptions
The Chase Manhattan Bank 6/30/06 S Recourse Subsidiaries with exceptions
The Chase Manhattan Bank 6/30/04 S Recourse Subsidiaries with exceptions
Bank One Trustee, Public Debt 5/15/06 U Recourse N/A
Golden Door, LLC 6/1/01 U Recourse N/A
Summerfield Associates, LP None Recourse N/A
Property Debt
- -------------
Bear Stearns 6/29/04 S Non-Recourse Wyndham International, Inc.
Crowne Plaza Ravinia
Doubletree Club Hotel Chicago
Doubletree Club Hotel Miami
Doubletree Hotel Boulder
Doubletree Hotel Tallahassee
Embassy Suites Phoenix North
Embassy Suites Schaumburg
Hilton Columbus
Hilton Del Mar
Hilton Huntington
Hilton Inn Cleveland
Hilton Newark Gateway
Marriott Troy
Radisson Suites Houston
Wyndham Buttes
Wyndham Emerald Plaza
Wyndham Franklin Plaza
Wyndham Garden Indianapolis
Wyndham Garden LA Commerce
Wyndham Garden Las Colinas
Wyndham Garden Novi
Wyndham Garden Pleasanton
Wyndham Garden Richardson
Wyndham Garden Schaumburg
Wyndham Garden Wood Dale
Lehman Brothers 6/29/02 S Non-Recourse
Doubletree Guest Suites Glenview
Hilton Inn Melbourne Airport
Hilton Inn Parsipanny
Radisson Hotel Burlington
Radisson Inn Napervilee-Lisle
Radisson Plaza Hotel San Jose Airport
Wyndham Northwest Chicago
Wyndham Garden Brookfield
Wyndham Garden Charlotte
Wyndham Garden Midtown
Royal Bank of Scotland et al 7/31/99 S Recourse Arcadian subsidiaries
Royal Bank of Scotland et al 7/31/99 S Recourse Arcadian subsidiaries
Royal Bank of Scotland et al 7/31/99 U Recourse Arcadian subsidiaries
Royal Bank of Scotland et al 11/14/01 S Recourse Arcadian subsidiaries
Royal Bank of Scotland et al 11/14/01 S Recourse Arcadian subsidiaries
First National Bank of Commerce 1/1/04 S Non-Recourse N/A
Salomon Brothers Realty Corp. 10/1/05 S Non-Recourse N/A
Clubhouse Atlanta
Clubhouse Knoxville
Clubhouse Omaha
Clubhouse Overland Park
Clubhouse Wichita
LW - SP2, LP 3/15/04 S Non-Recourse Pittsburgh CI, Inc.
Bank of Nova Scotia (refinancing 6/30/99) 6/22/04 S Recourse Wyndham International, Inc.
Associates, Inc.
Metropolitan Life 10/1/07 S Non-Recourse N/A
Doubletree Allen Center
Doubletree Anaheim
Doubletree Overland Park
Doubletree Post Oak
Doubletree St. Louis
Doubletree Tulsa
<CAPTION>
Lender Comments Allocated Debt
<S> <C> <C>
General Debt
- ------------
The Chase Manhattan Bank 400,000,000
The Chase Manhattan Bank 1,200,000,000
The Chase Manhattan Bank 650,000,000
Bank One Trustee, Public Debt 1,510,000
Golden Door, LLC 4,000,000
Summerfield Associates, LP Cash Flow note. 313,200
Property Debt
- -------------
Bear Stearns Non-recourse carve-outs. 340,000,000
Crowne Plaza Ravinia
Doubletree Club Hotel Chicago
Doubletree Club Hotel Miami
Doubletree Hotel Boulder
Doubletree Hotel Tallahassee
Embassy Suites Phoenix North
Embassy Suites Schaumburg
Hilton Columbus
Hilton Del Mar
Hilton Huntington
Hilton Inn Cleveland
Hilton Newark Gateway
Marriott Troy
Radisson Suites Houston
Wyndham Buttes
Wyndham Emerald Plaza
Wyndham Franklin Plaza
Wyndham Garden Indianapolis
Wyndham Garden LA Commerce
Wyndham Garden Las Colinas
Wyndham Garden Novi
Wyndham Garden Pleasanton
Wyndham Garden Richardson
Wyndham Garden Schaumburg
Wyndham Garden Wood Dale
Lehman Brothers Non-recourse carve-outs 235,000,000
Doubletree Guest Suites Glenview
Hilton Inn Melbourne Airport
Hilton Inn Parsipanny
Radisson Hotel Burlington
Radisson Inn Napervilee-Lisle
Radisson Plaza Hotel San Jose Airport
Wyndham Northwest Chicago
Wyndham Garden Brookfield
Wyndham Garden Charlotte
Wyndham Garden Midtown
Royal Bank of Scotland et al Secured by all Arcadian assets exc. Malmaison 5,650,050
Royal Bank of Scotland et al Secured by all Arcadian assets exc. Malmaison 6,400,700
Royal Bank of Scotland et al Secured by all Arcadian assets exc. Malmaison 2,573,203
Royal Bank of Scotland et al Secured by all Arcadian assets exc. Malmaison 29,057,400
Royal Bank of Scotland et al Secured by all Arcadian assets exc. Malmaison 20,178,750
First National Bank of Commerce 13,285,365
Salomon Brothers Realty Corp.
Clubhouse Atlanta 4,468,990
Clubhouse Knoxville 4,478,103
Clubhouse Omaha 5,542,293
Clubhouse Overland Park 4,780,686
Clubhouse Wichita 3,096,697
LW - SP2, LP $3.5 Million limited guarantee 2,648,232
$10 Million: $5 Million is secured pari pasu with
Bank of Nova Scotia (refinancing 6/30/99) The Chase Manhattan Bank Term Facility. 55,000,000
Metropolitan Life
Doubletree Allen Center
Doubletree Anaheim
Doubletree Overland Park
Doubletree Post Oak
Doubletree St. Louis
Doubletree Tulsa
</TABLE>
<PAGE>
Schedule XII
Investments
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Paul Nussbaum $ 152,074 Outstanding invoices for personal use of
Hospitality Partnership, (as of 5/31/99) corporate jet services and hotel facilities.
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American William W. Evans, III $ 424,375 Non-recourse loan (1998) for assistance with
Hospitality, Inc. (as of 6/25/99) payment of income taxes in connection with the
vesting of shares of paired common stock. Due
on November 27, 2003 or 60 days after
termination of employment, if earlier (7.5%
interest per annum) and secured by 53,667 shares
of paired common stock.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Lawrence S. Jones $ 779,524 Non-recourse loan (1998). Due on October 5,
(as of 5/31/99) 2001 (7.0% interest per annum). Mr. Jones'
(includes Employment Agreement provides that a portion of
interest, the loan may be forgiven upon Mr. Jones'
$750,000 note) termination of employment.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Paul Nussbaum Up to Guaranty of loan from NationsBank (due 2005,
Hospitality, Inc. approximately 5.5% interest per annum). Commitment to
$7,794,268 refinance loan as Company loan.
(as of 5/31/99)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Anne Raymond $ 5,196,959 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Raymond Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount $4,417,588. the loan amount due exceeds the value of the
shares (the "Raymond Debt Forgiveness") will be
forgiven.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Anne Raymond Amount of tax Commitment to make loan at time Raymond Secured
Hospitality Partnership, liability arising Loan is due to pay any tax liabilities resulting
L.P. from the Raymond from the Raymond Debt Forgiveness.
Debt Forgiveness
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American James Carreker $ 5,769,861 Loan (due July 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Carreker Secured Loan"). Repayment will
interest). Note be made by the security shares; any amount by
amount $4,904,573. which the loan amount due exceeds the value of
the shares (the "Carreker Debt Forgiveness")
will be forgiven.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American James Carreker Amount of tax Commitment to make loan at time Carreker Secured
Hospitality Partnership, liability arising Loan is due to pay any tax liabilities resulting
L.P. from the Carreker from the Carreker Debt Forgiveness.
Debt Forgiveness
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American James Carreker $ 696,214 Note (related to 12/97 salary advance); matures
Hospitality Partnership, (as of 12/31/98) July 2003 (interest at Company's revolver rate)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Leslie Bentley $ 2,123,607 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Bentley Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount $1,805,133. the loan amount due exceeds the value of the
shares (the "Bentley Debt Forgiveness") will be
forgiven.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Leslie Bentley Amount of tax Commitment to make loan at time Bentley Secured
Hospitality Partnership, liability arising Loan is due to pay any tax liabilities resulting
L.P. from the Bentley from the Bentley Debt Forgiveness.
Debt Forgiveness
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Stanley M. Koonce, Jr. $ 2,163,455 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Koonce Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount $1,839,006. the loan amount due exceeds the value of the
shares (the "Koonce Debt Forgiveness") will be
forgiven.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Stanley M. Koonce, Jr. Amount of tax Commitment to make loan at time Koonce Secured
Hospitality Partnership, liability arising Loan is due to pay any tax liabilities resulting
L.P. from the Koonce from the Koonce Debt Forgiveness.
Debt Forgiveness
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Company Leslie Bentley $ 430,000 Note; matures April 2002 (7% interest per annum)
(as of 5/31/99)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Company Dave Johnson $ 200,000 Note (related to margin call response); matures
(as of 5/31/99) April 2002 (7% interest per annum)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Leslie Ng $ 63,133 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per
annum)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Terry Hunzicker $ 37,880 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per
annum)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Diane Golden $ 8,820 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per
annum)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Deborah Gray $ 6,113 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per
annum)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Chief Operating Officer of $ 1,500,000 Present commitment; loan to be made in the
Wyndham future.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. David Lee $ 8,696 Note related to taxes on vested restricted stock.
(as of 5/31/99)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Debt Receivables
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American NorthCoast Hotels, LLC $ 2,000,000 Secured by pledge of equity interests in entity
Hospitality Partnership, (as of 6/25/99) owning WestCoast Roosevelt, Gateway and
L.P. Wenatchee hotels. Interest: 8.5% per annum.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Altamont Properties, LLC $ 6,250,000 Transaction has not closed and has not been
Hospitality Partnership, booked. Is in escrow pending sale of property.
L.P. Secured by leasehold mortgage on WestCoast Long
Beach Hotel. Interest: 10.5% per annum.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management WHC-LG Hotel Partners, L.P. $ 1,993,887 Secured by pledge of equity interests in WHC-LG.
Corporation (as of 6/25/99) Interest: 9.0% per annum.
(includes interest)
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Bluewater Palmas Ltd. $ 5,165,300 Secured by Mortgage and Pledge Agreement on
Hospitality, Inc. (as of 6/25/99) Palmas del Mar. Interest: 10.0% per annum.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Dublin Inn, Ltd. $ 2,619,127 Secured by pledge of partnership interests in
Corporation (as of 6/25/99) Wyndham Dublin (Columbus), OH. Interest: 13.5%
(includes per annum.
interest)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management San Juan Associates, L.P., S.E. $2,095,987 and Secured by pledge of partnership interests in
Corporation $ 473,450 Old San Juan Hotel. Two loans - for San Juan
(as of 6/25/99) construction and San Juan operations.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American John L. Hopkins III and Robert $ 2,150,000 Wyndham Garden -Richmond Airport
Hospitality, Inc. N. Prager (as of 6/25/99)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Aruba Hotel Enterprises N.V. $ 1,941,815 Wyndham-Aruba Beach Resort & Casino
Corporation Alfonso Riveroll Estrada, Pres. (as of 6/25/99)
- -----------------------------------------------------------------------------------------------------------------------------------
Intercompany Loans
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Boulders Carefree Sewer $ 487,850 The Boulders - Grand Bay
Hospitality Partnership, Corporation (as of 5/31/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American City Centre Partnership, L.P. Approximately Wyndham City Center
Hospitality Partnership, $ 25,699,997
L.P. (as of 6/30/99)
(includes
interest)
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH-GP Allen Partners $ 35,819,456 Doubletree - Allen Center
Hospitality Partnership, (as of 6/30/99)
L.P. (includes interest)
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Ravinia, Inc. 41,220,562 Crowne Plaza - Ravinia
Hospitality Partnership, (as of 5/31/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Windwatch LLC 31,343,070 Wyndham - Windwatch
Hospitality Partnership, (as of 5/31/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Leasing LLC 9,000,000 Carefree Resorts
Hospitality Partnership, (as of 5/31/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Dublin Inn Ltd. $ 1,278,260 Wyndham Garden - Dublin
Hospitality Partnership, (as of 5/31/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Patriot American Hospitality, $119,250,000 Interstate Acquisition
Inc. (as of 5/31/99)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 24,179,761 Patriot/Wyndham Merger
Operating Partnership, Partnership, L.P. (as of 6/30/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 4,057,323 Subscription Note issued by paired share
Operating Partnership, Partnership, L.P. (as of 6/25/99) company to other paired share company which
L.P. did not receive assets in the Summerfield
transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 1,758,555 Subscription Note issued by paired share
Operating Partnership, Partnership, L.P. (as of 6/25/99) company to other paired share company which
L.P. did not receive assets in the Summerfield
transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Patriot American Hospitality, $ 34,591,050 Subscription Note issued by paired share company
Inc. (as of 6/25/99) to other paired share company which did not
receive assets in the Interstate transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 9,086,559 Subscription Note issued by paired share company
Operating Partnership, Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the CF Asset transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 21,448,837 Subscription Note issued by paired share company
Operating Partnership, Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the Wyndham transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Wyndham International $ 2,465,909 Subscription Note issued by paired share company
Hospitality Partnership, Operating Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the Kaufman transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 4,564,980 Subscription Note issued by paired share company
Operating Partnership, Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the UBS transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 6,091,313 Subscription Note issued by paired share company
Operating Partnership, Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the Nations transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 6,955,397 Subscription Note issued by paired share company
Operating Partnership, Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the PaineWebber transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Patriot American Hospitality $ 258,572 Subscription Note issued by paired share company
Inc. Partnership, L.P. (as of 6/25/99) to other paired share company which did not
receive assets in the PAH LP transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Wyndham International $ 37,310 Subscription Note issued by paired share company
Operating Partnership, L.P. (as of 6/25/99) to other paired share company which did not
receive assets in the WI transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Wyndham International, Inc. $133,669,014 Subscription Note issued by paired share company
Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the WHG transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Other Investments
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Playhouse Square Hotel Limited No advances made Pursuant to Management Agreement, guaranty of
Partnership (whose owners as of 3/29/99 obligations of Playhouse Square Hotel Limited
include the Crow Family Partnership: up to $600,000 per year to the
Members and Wyndham Senior extent the Hotel Partnership experiences
Executive Officers) operating deficits, with maximum required
advances of $2.3 million over the term of the
guarantee extending from 1995 to 2000.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Owners of the Wyndham LAX $4,237,000 had In connection with the Los Angeles Airport
been funded as of Wyndham, the obligation to fund the unadvanced
12/31/98 portion of a $4,560,000 promissory note.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American ISIS 2000 Aggregate Ownership interests in connection with the
Hospitality Partnership, exercise price of exercise (on May 7, 1999) of options to purchase
L.P. $3,073,000 ownership interests in ISIS 2000.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Anatole Hotel Investors, L.P. $10,000,000, plus Unsecured construction loan agreement (1997).
Hospitality, Inc. $197,267 accrued
interest
(as of 6/30/99)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham/Patriot Gencom/Travis Stock/OP Investment in Gencom Interests, Inc., Travis
Units/Cash Real Estate Group Joint Venture and/or related
entities as described on Schedule V.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Various Subsidiaries and Joint N/A See Schedule V list of Equity Ownership Interests
Inc. and its Subsidiaries Ventures
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
10
<PAGE>
Schedule XIII
Existing Restrictions on Subsidiaries
None.
<PAGE>
Exhibit A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of June 30, 1999
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Wyndham International, Inc., a Delaware corporation (the
"Borrower"), the Lenders party hereto from time to time, Chase Securities Inc.
("CSI"), as Lead Arranger and Book Manager, NationsBank, N.A. and Bankers Trust
Company as Syndication Agents (each a "Syndication Agent," together the
Syndication Agents"), Credit Lyonnais New York Branch, as Documentation Agent,
Bear Stearns Corporate Lending Inc. as Co-Documentation Agent (each a
"Documentation Agent," together the "Documentation Agents") and The Chase
Manhattan Bank ("Chase"), as Administrative Agent. Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and the
Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement with respect to those credit facilities contained in the
Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facilities"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; and (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Subsidiaries or any other
obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto.
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 3.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will,
<PAGE>
Exhibit A
Page 2
independently and without reliance upon the Assignor, the Administrative Agent,
the Documentation Agents or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to subsection
2.17(e) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
<PAGE>
Exhibit A
Page 3
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
<PAGE>
Schedule 1
to Assignment and Acceptance
Name of Assignor:
-------------------------
Name of Assignee:
-------------------------
Effective Date of Assignment:
-------------
Credit Principal Commitment Percentage Assigned/1/
Facility Assigned Amount Assigned ---------------------------------
- ----------------- ---------------
$_______ ___._____________%
[Name of Assignee] [Name of Assignor]
By: By:
---------------------------- ------------------------------
Title: Title:
- ----------------
/1/ Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all
Lenders.
<PAGE>
[Consented to as of _______ ___, ____:
THE CHASE MANHATTAN BANK, AS
ADMINISTRATIVE AGENT
By:
------------------------------
Title:
WYNDHAM INTERNATIONAL, INC.
By:
------------------------------
Title: ]/1/,/2/
[THE CHASE MANHATTAN BANK, AS
SWINGLINE LENDER
By:
------------------------------
Title: ]/2/
[THE CHASE MANHATTAN BANK, AS
ISSUING BANK
By:
-------------------------------
Title: ]/2/
/1/ The consent of the Borrower and Administrative Agent are required for
assignments pursuant to Section 9.04 of the Credit Agreement except in the
case of an assignment to a Lender, an Affiliate of a Lender or a Related
Fund of a Lender.
/2/ In the case of an assignment of all or a portion of a Commitment or of any
Lender's obligations in respect of its LC Obligations or Swingline
Exposure, the consent of the Borrower, Administrative Agent and the Issuing
Bank or Swingline Lender, as the case may be, are required pursuant to
Section 9.04 of the Credit Agreement.
<PAGE>
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
_______ __, ____
The Chase Manhattan Bank,
as Administrative Agent
for the Lenders party
to the Credit Agreement referred to below
270 Park Avenue
New York, New York 10017
Attention: Alan Breindal
Re: COMPLIANCE CERTIFICATE
- ---------------------------
This COMPLIANCE CERTIFICATE is delivered pursuant to Sections 5.02(b)
and 5.02(f) of the Credit Agreement, dated as of June 30, 1999 (the "Credit
Agreement"), among Wyndham International, Inc., a Delaware corporation (the
"Borrower"), the Lenders party thereto from time to time, Chase Securities Inc.
("CSI"), as Lead Arranger and Book Manager, NationsBank, N.A. and Bankers Trust
Company, as Syndication Agents (each a "Syndication Agent," together the
Syndication Agents"), Credit Lyonnais New York Branch, as Documentation Agent,
Bear Stearns Corporate Lending Inc., as Co-Documentation Agent (each a
"Documentation Agent," together the "Documentation Agents") and The Chase
Manhattan Bank ("Chase"), as Administrative Agent. Capitalized terms not
defined herein shall have the same meanings ascribed thereto in the Credit
Agreement.
1. The individual executing this Certificate is a duly qualified
Responsible Officer of the Borrower and is executing this
Certificate on behalf of the Borrower.
2. The undersigned has reviewed the terms of the Credit Agreement and
has made a review of the transactions, financial condition and other affairs of
the Borrower, its Subsidiaries and Joint Ventures as of, and during the Fiscal
Quarter ending [ ], and the undersigned has no knowledge of the existence, as of
the date hereof, of any condition or event which (i) renders untrue or incorrect
any of the covenants, and in all material respects the representations and
warranties, contained in Articles III, V and VI of the Credit Agreement (it
being understood and agreed that any covenant, representation or warranty which
by its terms is made as of a specified date shall be required to be true and
correct only as of such specified date) or (ii) constitutes a Default or Event
of Default.
<PAGE>
EXHIBIT B
Page 2
3. Schedule I attached hereto accurately and completely sets forth
the financial data, computations and other matters required to establish
compliance with the following Sections of the Credit Agreement:
(a) Section 6.01(a) - Total Leverage Ratio;
(b) Section 6.01(b) - Senior Secured Leverage Ratio;
[(i) Section 6.01(b)(i) - Senior Secured Leverage Ratio];/1/
[(ii) Section 6.01(b)(ii) - Senior Secured Leverage Ratio];/2/
[(iii) Section 6.01(b)(iii) - Senior Secured Leverage Ratio];/3/
(c) Section 6.01(c) - Interest Coverage.
5. Schedule II attached hereto is a list of each new Subsidiary of
any Loan Party acquired or created by any Loan Party during the period covered
by this Certificate.
6. Schedule III attached hereto is a list (i) identifying all Asset
Dispositions, Reinvestment Events and the proceeds thereof made during the
period covered by this Certificate and (ii) all Asset Dispositions and
Reinvestment Events made prior to the period covered by this Certificate (except
as previously disclosed as required by the Credit Agreement) updated to reflect
the status of the proceeds thereof, including whether such proceeds were
reinvested or otherwise used as required under the Credit Agreement.
7. Schedule IV attached hereto is a list of any Hotel that is owned
by the Borrower, its Subsidiaries or Joint Ventures that is being or has been
newly constructed, or substantially refurbished or rebuilt and is being
designated by the Borrower as a New Hotel.
8. The covenants, and in all material respects the representations
and warranties, contained in Articles III, V and VI of the Credit Agreement and
in each of the other Loan Documents are true and correct as though made on and
as of such date (it being understood
- -------------------
/1/ Applicable only to the extent that Sections 6.01(b)(ii) and 6.01(b)(iii) of
the Credit Agreement do not apply.
/2/ Applicable only to the extent that at least $650 million (but less than $1
billion) of Senior Notes have been issued by the Borrower and no Increasing
Rate Loans are outstanding.
/3/ Applicable only to the extent that at least $1 billion of Senior Notes have
been issued by the Borrower and no Increasing Rate Loans are outstanding.
<PAGE>
EXHIBIT B
Page 3
and agreed that any covenant, representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct only as of
such specified date).
9. No Default or Event of Default has occurred and is continuing.
The Lenders and the Administrative Agent and their respective
successors and assigns may rely on the truth and accuracy of the foregoing in
connection with the extensions of credit to the Borrowers pursuant to the Credit
Agreement.
* * *
<PAGE>
EXHIBIT B
Page 4
IN WITNESS WHEREOF, the Borrowers have caused this Compliance Certificate
to be duly executed by their duly authorized Chief Financial Officer on this ___
day of ____, ____.
Wyndham International, Inc.
By:
------------------------------
Name:
Title:
<PAGE>
EXHIBIT B
Page 5
6.01(a) Total Leverage Ratio
Total Indebtedness as of __/__/__ __________
Total Adjusted EBITDA (Pro Forma)
Four Fiscal Quarters ended ___/___/___ __________
Ratio __________
(not to exceed 6.5:1.0 until 12/31/00;
6.25:1.00 from 1/01/01 until 12/31/01;
6.00:1.00 from 1/01/02 until 12/31/03;
5.75:1.00 thereafter)
[6.01(b)(i) Senior Secured Leverage Ratio
Total Indebtedness secured by a Lien
on any asset of the Borrower,
its Subsidiaries or Joint Ventures
as of __/__/__ __________
Total Adjusted EBITDA (Pro Forma)
Four Fiscal Quarters ended ___/___/___ __________
Ratio __________
(not to exceed 5.95:1.00 until 12/31/00;
5.75:1.00 from 1/01/01 until 12/31/01;
5.50:1.00 from 1/01/02 until 12/31/02;
5.25:1.00 from 1/01/03 until 12/31/03;
5.00 to 1.00 from 1/01/04 until 12/31/04;
4.75 to 1.00 thereafter)]/4/
- ------------------
/4/ Applicable only to the extent that Sections 6.01(b)(ii) and 6.01(b)(iii) of
the Credit Agreement do not apply.
<PAGE>
EXHIBIT B
Page 6
[6.01(b)(ii) Senior Secured Leverage Ratio
Total Indebtedness secured by a Lien
on any asset of the Borrower,
its Subsidiaries or Joint Ventures
as of ___/___/___ __________
Total Adjusted EBITDA (Pro Forma)
Four Fiscal Quarters ended ___/___/___ __________
Ratio
(not to exceed 5.00:1.00 unit 6/30/01; __________
4.75:1.00 from 7/01/01 until 12/31/01;
4.50:1.00 from 1/01/02 until 12/31/02;
4.375 thereafter)]/5/
- -----------------------
/5/ Applicable only to the extent that at least $650 million (but less than $1
billion) of Senior Notes have been issued by the Borrower and no Increasing
Rate Loans are outstanding.
<PAGE>
EXHIBIT B
Page 7
[6.01(b)(iii) Senior Secured Leverage Ratio
Total Indebtedness secured by a Lien on any asset of the Borrower,
its Subsidiaries or Joint Ventures
as of ___/___/___ __________
Total Adjusted EBITDA (Pro Forma)
Four Fiscal Quarters ended ___/___/___ __________
Ratio __________
(not to exceed 4.75:1.00 until 12/31/01;
4.50 :1.00 from 01/01/02 until 12/31/02;
4.375 thereafter)]/6/
6.01(c) Interest Coverage
Total Adjusted EBITDA
Four Fiscal Quarters ended ___/___/___ __________
Total Cash Interest Expense
Four Fiscal Quarters ended ___/___/___ __________
Ratio __________
(not less than 2.00:1.00 prior to 12/31/01;
2.10:1.00 prior to 12/31/02;
2.2:1.0 thereafter)
- ---------------------
/6/ Applicable only to the extent that at least $1 billion of Senior Notes have
been issued by the Borrower and no Increasing Rate Loans are outstanding.
<PAGE>
EXHIBIT C
[Conformed as Executed]
================================================================================
CHASE
GUARANTY AND COLLATERAL AGREEMENT
dated as of
JUNE 30, 1999
among
WYNDHAM INTERNATIONAL, INC.,
CERTAIN SUBSIDIARIES OF
WYNDHAM INTERNATIONAL, INC.
and
THE CHASE MANHATTAN BANK,
as Collateral Agent
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. DEFINED TERMS.......................................................... 2
1.1. Definitions............................................................. 2
SECTION 2. GUARANTY............................................................... 7
2.1. Guaranty................................................................ 7
2.2. Guaranty Absolute and Unconditional..................................... 8
2.3. Guaranty Exclusive and Independent...................................... 8
2.4. Notice.................................................................. 9
2.5. Amendments etc. with respect to Guaranteed Obligations.................. 9
2.6. Invalidity, Irregularity or Unenforceability of Guaranteed Obligations.. 10
2.7. Rights and Remedies Cumulative.......................................... 10
2.8. Subordination of Indebtedness........................................... 11
2.9. Waiver.................................................................. 11
2.10. Representations, Warranties and Covenants.............................. 12
2.11. Right of Set Off....................................................... 13
2.12. Repayment or Recovery.................................................. 13
2.13. Payments by any Guarantor.............................................. 14
2.14. Right of Contribution.................................................. 14
2.15. Designation of Additional Debt......................................... 15
2.16. Designation of Other Debt.............................................. 15
SECTION 3. PLEDGE OF SECURITY INTEREST, ETC....................................... 15
3.1. Security for Obligations................................................ 15
3.2. Pledge.................................................................. 17
3.3. Procedures.............................................................. 20
3.4. Subsequently Acquired Collateral........................................ 21
3.5. Transfer Taxes.......................................................... 22
3.6. Certain Representations and Warranties Regarding the Collateral......... 22
3.7. Appointment of Sub-Agents; Endorsements, etc............................ 22
3.8. Voting, etc., While No Event of Default................................. 22
3.9. Dividends and Distributions............................................. 23
3.10. Remedies in Case of an Event of Default................................ 23
3.11. Remedies, etc., Cumulative............................................. 24
3.12. Application of Proceeds................................................ 25
3.13. Purchasers of Collateral............................................... 27
3.14. Indemnity.............................................................. 27
3.15. Collateral Agent Not Bound............................................. 28
3.16. Further Assurances; Power-of-Attorney.................................. 28
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
3.17. The Collateral Agent as Collateral Agent............................... 29
3.18. Transfer by the Pledgors............................................... 29
3.19. Representations, Warranties and Covenants of the Pledgors.............. 29
3.20. Chief Executive Office; Records........................................ 31
3.21. Pledgors' Obligations Absolute, etc.................................... 31
3.22. Registration, etc...................................................... 32
SECTION 4. MISCELLANEOUS.......................................................... 33
4.1. Notices, etc............................................................ 33
4.2. Waiver; Credit Facility Amendment....................................... 34
4.3. Assignment.............................................................. 34
4.4. Section Headings........................................................ 34
4.5. Counterparts............................................................ 35
4.6. Severability............................................................ 35
4.7. Recourse................................................................ 35
4.8. Additional Guarantors and Pledgors...................................... 35
4.9. Termination; Release.................................................... 35
4.10. GOVERNING LAW.......................................................... 36
4.11. WAIVER OF JURY TRIAL................................................... 37
</TABLE>
SCHEDULE I The Collateral Agent
ANNEX A - List of Subsidiaries and Joint Ventures and Pledgors and Interests
Pledged and not Pledged
ANNEX B - List of Notes
ANNEX C - List of Chief Executive Offices
ANNEX D - Form of Agreement Regarding Uncertificated Securities, Limited
Liability Company Interests and Partnership Interests
ANNEX E - Form of Agreement Supplement
(ii)
<PAGE>
GUARANTY AND COLLATERAL AGREEMENT
GUARANTY AND COLLATERAL AGREEMENT, dated as of June 30, 1999, (as
amended, modified or supplemented from time to time, this "Agreement"), made by
---------
each of the undersigned (each a "Credit Party" and, together with any other
------------
entity that becomes a Credit Party hereto as provided herein, the "Credit
------
Parties") in favor of THE CHASE MANHATTAN BANK, as Collateral Agent (including
- -------
any successor collateral agent, the "Collateral Agent"), for the benefit of the
----------------
Secured Creditors (as defined below).
W I T N E S S E T H :
-------------------
WHEREAS, Wyndham International, Inc. (the "Borrower"), the Lenders
--------
Party thereto from time to time (the "Credit Facility Lenders"), Chase
-----------------------
Securities Inc. ("CSI"), as Lead Arranger and Book Manager (the "Lead
--- ----
Arranger"), NationsBank, N.A., and Bankers Trust Company, as Syndication Agents
(each as "Syndication Agent," together the "Syndication Agents"), Credit
Lyonnais New York Branch, as Documentation Agent and Bear Stearns Corporate
Lending Inc., as Co-Documentation Agent (each a "Documentation Agent," together
the "Documentation Agents") and The Chase Manhattan Bank ("Chase"), as
-----
Administrative Agent (the Administrative Agent, together with the Credit
Facility Lenders, the Lead Arranger and the Collateral Agent, the "Credit
------
Facility Creditors") have entered into a Credit Agreement, dated as of June 30,
- ------------------
1999 (as amended, modified or supplemented from time to time, the "Credit
------
Agreement") providing for the making of Loans to the Borrower and the issuance
- ---------
of, and participation in, Letters of Credit for the account of the Borrower as
contemplated therein;
WHEREAS, the Borrower, the Lenders Party thereto from time to time
(the "IRL Lenders"), CSI as Lead Arranger and Book Manager (the "IRL Lead
----------- --------
Arranger"), Bear, Stearns & Co., Inc. ("BSC"), as Co-Arranger and Syndication
- -------- ---
Agent (the "IRL Co-Arranger"), Bankers Trust Company, as Syndication Agent (the
---------------
"IRL Syndication Agent") and Chase, as the Administrative Agent (the "IRL
---
Administrative Agent," and together with the IRL Lenders, the IRL Lead Arranger
- --------------------
and the IRL Co-Arranger, the "IRL Creditors," and, the IRL Creditors, together
-------------
with the Credit Facility Creditors, the "Lender Creditors") have entered into an
----------------
Increasing Rate Note Purchase and Loan Agreement, dated as of June 30, 1999 (as
amended, modified or supplemented from time to time, the "IRL Agreement"),
-------------
providing for the making of Increasing Rate Term Loans to the Borrower;
WHEREAS, the Borrower from time to time, as permitted under the Credit
Agreement may enter into one or more agreements ("Additional Debt Agreements")
--------------------------
with one or more lenders to incur indebtedness in an amount not to exceed
$360,000,000 (the "Additional Debt Creditors");
-------------------------
WHEREAS, the Borrower may from time to time enter into one or more
Interest Rate Protection Agreements or Other Hedging Agreements with one or more
Credit Facility Lenders, IRL Lenders or any affiliate thereof (each such Credit
Facility Lender, IRL Lender or affiliate, even if the respective Lender or IRL
Lender subsequently ceases to be a Credit Facility
<PAGE>
Lender under the Credit Agreement or and IRL Lender under the IRL Agreement for
any reason, together with such Credit Facility Lenders, IRL Lenders, or their
affiliate's successors and assigns, if any, collectively, the "Other Creditors,"
---------------
and together with the Lender Creditors and the Additional Debt Creditors, the
"Secured Creditors");
-----------------
WHEREAS, each Guarantor (i) guaranties the obligations of the Borrower
under the Credit Agreement and the IRL Agreement pursuant to Section 2 of this
Agreement and (ii) may guaranty the obligations of the Borrower pursuant to
Additional Debt Agreements, Interest Rate Protection Agreements and/or Other
Hedging Agreements upon the execution and delivery to the Collateral Agent of an
Additional Debt Designation or Other Debt Designation, as the case may be,
appropriately completed and countersigned by the Borrower and each Guarantor;
WHEREAS, it is a condition precedent to (i) the making of Loans to the
Borrower and the issuance of, and participation in, Letters of Credit for the
account of the Borrower under the Credit Agreement and the making of Increasing
Rate Term Loans under the IRL Agreement that the Credit Parties shall have
executed and delivered this Agreement and (ii) to the extensions of credit under
the Additional Debt Agreements, Interest Rate Protection Agreements or Other
Hedging Agreements that the Borrower, and to the extent a Guarantor or Pledgor
with respect to such obligations and each other Credit Party shall have executed
and delivered this Agreement;
NOW, THEREFORE, in consideration of the foregoing and to induce the
Credit Facility Creditors to enter into the Credit Agreement, the IRL Creditors
to enter into the IRL Agreement, the Additional Debt Creditors to enter into
Additional Debt Agreements and the Other Creditors to enter into Interest Rate
Protection Agreements and/or Other Hedging Agreements, each Credit Party hereby
covenants and agrees with the Collateral Agent, for the benefit of the Secured
Creditors, as follows:
SECTION 1. DEFINED TERMS
-------------
1.1. Definitions. (a) Unless otherwise defined herein, all
-----------
capitalized terms used herein and defined in the Credit Agreement or the IRL
Agreement shall be used herein as therein defined. Reference to singular terms
shall include the plural and vice versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Additional Debt Agreements" has the meaning set forth in the
--------------------------
Recitals hereto.
"Additional Debt Creditors" has the meaning set forth in the Recitals
-------------------------
hereto.
"Additional Debt Designation" has the meaning set forth in Section
---------------------------
2.16 hereof.
"Additional Debt Documents" shall have the meaning provided in Section
-------------------------
2.1 hereof.
"Additional Debt Obligations" has the meaning set forth in Section
---------------------------
3.1(c) hereof.
2
<PAGE>
"Adjusted Net Worth" has the meaning set forth in Section 2.15 hereof.
------------------
"Administrative Agent" has the meaning set forth in the Recitals
--------------------
hereto.
"Adverse Claim" has the meaning given such term in Section 8-102(a)(1)
-------------
of the UCC.
"Aggregate Deficit Amount" has the meaning set forth in Section 2.15
------------------------
hereof.
"Aggregate Excess Amount" has the meaning set forth in Section 2.15
-----------------------
hereof.
"Agreement" has the meaning set forth in the first paragraph hereof.
---------
"Agreement Supplement" means an Agreement Supplement in the form of
--------------------
Annex E hereto, appropriately completed.
"Certificated Security" has the meaning given such term in Section 8-
---------------------
102(a)(4) of the UCC.
"Class" has the meaning set forth in Section 4.2 hereof.
-----
"Clearing Corporation" has the meaning given such term in Section 8-
--------------------
102(a)(5) of the UCC.
"Collateral" has the meaning set forth in Section 3.2 hereof.
----------
"Collateral Accounts" means any and all accounts established and
-------------------
maintained by the Collateral Agent in the name of any Credit Party to which
Collateral may be credited.
"Collateral Agent" has the meaning set forth in the first paragraph
----------------
hereof.
"Contribution Percentage" has the meaning set forth in Section 2.15
-----------------------
hereof.
"Control" has the meaning given such term in Section 8-106 of the UCC.
-------
"Credit Agreement" has the meaning set forth in the Recitals hereto.
----------------
"Credit Facility Creditors" has the meaning set forth in the Recitals
-------------------------
hereto.
"Credit Facility Lenders" has the meaning set forth in the Recitals
-----------------------
hereto.
"Credit Facility Obligations" has the meaning set forth in 3.1(a) of
---------------------------
this Agreement.
"Credit Party" has the meaning set forth in the first paragraph
------------
hereof.
"Event of Default" shall mean any "Event of Default" as defined in the
----------------
Credit Agreement and the IRL Agreement and any payment default under other
Guaranteed Documents,
3
<PAGE>
and shall include in any event any payment default on the Obligations, all after
giving effect to any applicable notice and cure period.
"Financial Asset" has the meaning given such term in Section 8-
---------------
102(a)(9) of the UCC.
"Foreign Company" has the meaning provided in Section 3.2 hereof.
---------------
"Guaranteed Additional Debt Obligations" has the meaning provided in
--------------------------------------
Section 2.1.
"Guaranteed Credit Facility Obligations" has the meaning provided in
--------------------------------------
Section 2.1 hereof.
"Guaranteed Documents" has the meaning set forth in Section 2.1
--------------------
hereof.
"Guaranteed IRL Obligations" has the meaning set forth in Section 2.1
--------------------------
hereof.
"Guaranteed Obligations" has the meaning set forth in Section 2.1
----------------------
hereof.
"Guaranteed Other Debt Obligations" has the meaning provided in
---------------------------------
Section 2.1 hereof.
"Guaranteed Parties" means (i) the Lender Creditors and (ii) to the
------------------
extent an Agreement Supplement is delivered to the Administrative Agent
entitling such Secured Creditors to the benefit of the guaranty set forth
herein, any Additional Debt Creditors and/or Other Creditors.
"Guarantor" means the collective reference to each Credit Party, other
---------
than the Borrower (including any such Credit Party which executes and delivers
an Agreement Supplement).
"Guaranty" shall mean the obligations of the Guarantors under Section
--------
2 hereof.
"Indemnitees" has the meaning set forth in Section 3.14 hereof.
-----------
"Instrument" has the meaning given such term in Section 9-105(1)(i) of
----------
the UCC.
"Investment Property" has the meaning given such term in Section 9-
-------------------
115(f) of the UCC.
"IRL Administrative Agent" has the meaning set forth in the Recitals
------------------------
hereto.
"IRL Agreement" has the meaning provided in the Recitals hereto.
-------------
"IRL Co-Arranger" has the meaning set forth in the Recitals hereto.
---------------
"IRL Creditors" has the meaning set forth in Recitals hereto.
-------------
4
<PAGE>
"IRL Loan Documents" shall have the meaning provided in Section 2.1
------------------
hereof.
"IRL Lead Arranger" has the meaning set forth in the Recitals hereto.
-----------------
"IRL Lenders" has the meaning set forth in the Recitals hereto.
-----------
"IRL Obligations" has the meaning set forth in Section 3.1(b) hereof.
---------------
"IRL Syndication Agent" has the meaning set forth in the Recitals
----------------------------------------------------------------
hereto.
- -------
"Lead Arranger" has the meaning set forth in the Recitals hereto.
-------------
"Lender Creditors" has the meaning set forth in the Recitals hereto.
----------------
"Limited Liability Company Assets" means all assets, whether tangible
--------------------------------
or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" means the entire limited
-----------------------------------
liability company membership interest at any time owned by any Pledgor in any
limited liability company that is a Subsidiary or Joint Venture of such Pledgor
(excluding Limited Liability Company Interests indicated on Annex A as not being
pledged, or otherwise determined by the Administrative Agent in its reasonable
discretion under Section 5.10(b) of the Credit Agreement, as not required to be
pledged).
"Net Worth" has the meaning set forth in Section 2.16 hereof.
---------
"Non-Voting Stock" means all capital stock which is not Voting Stock.
----------------
"Notes" means all intercompany promissory Notes at any time issued to
-----
any Pledgor.
"Obligations" has the meaning provided in Section 3.1 hereof.
-----------
"Other Creditors" has the meaning provided in the Recitals hereto.
---------------
"Other Debt Documents" has the meaning set forth in Section 2.1
--------------------
hereto.
"Other Debt Designation" has the meaning set forth in section 2.17
----------------------
hereof.
"Other Debt Obligations" has the meaning set forth in Section 3.1(d)
----------------------
hereof.
"Partnership Assets" means all assets, whether tangible or intangible
------------------
and whether real, personal or mixed (including, without limitation, all
partnership capital and interest in other partnerships), at any time owned or
represented by any Partnership Interest.
5
<PAGE>
"Partnership Interest" means the entire general partnership interest
--------------------
or limited partnership interest at any time owned by any Pledgor in any general
partnership or limited partnership that is a Subsidiary or Joint Venture of such
Pledgor (excluding Partnership Interests indicated on Annex A as not being
pledged, or otherwise determined by the Administrative Agent in its reasonable
discretion under Section 5.10(b) of the Credit Agreement, as not required to be
pledged).
"Pledged Equity Ownership Interest" means all Equity Ownership
---------------------------------
Interests (including Limited Liability Company Interests, Partnership Interests,
Notes and Stock) pledged or required to be pledged hereunder.
"Pledged Notes" means all Notes at any time pledged or required to be
-------------
pledged hereunder.
"Pledgor" means each Credit Party in its capacity as a Pledgor under
-------
Section 3 of this Agreement (excluding Guarantors indicated on Annex A, or
otherwise determined by the Administrative Agent in its reasonable discretion
under Section 5.10(b) of the Credit Agreement, as not required to be Pledgors
hereunder).
"Primary Obligations" has the meaning set forth in Section 3.12(b)
-------------------
hereof.
"Pro Rata Share" has the meaning set forth in Section 3.12(b) hereof.
--------------
"Proceeds" has the meaning given such term in Section 9-306(l) of the
--------
UCC.
"Relevant Payment" has the meaning set forth in Section 2.15 hereof.
----------------
"Representative" has the meaning set forth in Section 3.12(e) hereof.
--------------
"Required IRL Lenders" has the meaning set forth in Section 4.2
--------------------
hereof.
"Requisite Creditors" shall have the meaning provided in Section 4.2
-------------------
hereof.
"Required Secured Creditors" means (i) Required Lenders (under the
--------------------------
Credit Agreement) at all times prior to the date on which all Credit Facility
Obligations have been paid in full, (ii) the Required IRL Lenders at all times
after the date in clause (i) applies and prior to the date on which all IRL
Obligations have been paid in full and (iii) at any time thereafter the holders
of at least a majority of Additional Debt Obligations and Other Debt
Obligations.
"Secondary Obligations" has the meaning set forth in Section 3.12(b)
---------------------
hereof.
"Secured Creditors" has the meaning set forth in the Recitals hereto.
-----------------
"Securities Account" has the meaning given such term in Section 8-
------------------
501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended, as in
--------------
effect from time to time.
6
<PAGE>
"Security" and "Securities" has the meaning given such term in Section
-------- ----------
8-102(a)(15) of the UCC and shall in any event include all Stock and Notes (to
the extent same constitutes "Securities" under Section 8-102(a)(15)).
"Security Entitlement" has the meaning given such term in Section 8-
--------------------
102(a)(17) of the UCC.
"Stock" means all of the issued and outstanding shares of capital
-----
stock at any time owned by any Pledgor of any Foreign Corporation that is a
Subsidiary or Joint Venture of such Pledgor (excluding stock indicated on Annex
A as not being pledged, or otherwise determined by the Administrative Agent in
its reasonable discretion under Section 5.10(b) of the Credit Agreement as not
required to be pledged).
"Termination Date" has the meaning set forth in Section 3.23 hereof.
----------------
"UCC" means the Uniform Commercial Code as in effect in the State of
---
New York from time to time; provided that all references herein to specific
--------
sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"Uncertificated Security" has the meaning given such term in Section
-----------------------
8-102(a)(18) of the UCC.
"Voting Equity Ownership Interests" means all classes of Equity
---------------------------------
Ownership Interests of any Company entitled to vote.
SECTION 2. GUARANTY
--------
2.1. Guaranty. Each Guarantor, jointly and severally, absolutely,
--------
irrevocably and unconditionally guaranties to the applicable Guaranteed Parties,
as primary obligor and not merely as surety, the full and prompt payment when
due (whether at the stated maturity, by acceleration or otherwise) of (i) the
principal of, interest on and the Loans made to the Borrower under the Credit
Agreement and all reimbursement obligations and LC Obligations with respect to
Letters of Credit, together with all other obligations and liabilities owing by
the Borrower to the Credit Facility Creditors under the Credit Agreement and
each other Loan Document (including, without limitation, indemnities, Fees and
interest thereon), whether now existing or hereafter incurred under, arising out
of or in connection with, the Credit Agreement and each such other Loan
Document, and the due performance and compliance by the Borrower with all of the
terms, conditions and agreements contained in the Loan Documents (the
"Guaranteed Credit Facility Obligations"), (ii) the principal of, interest on
- ---------------------------------------
and Increasing Rate Term Loans made to the Borrower under the IRL Agreement and
the other loan documents related thereto (the "IRL Loan Documents") (including,
------------------
without limitation, indemnities, fees and interest thereon), whether now
existing or hereafter incurred under, arising out of or in connection with, the
IRL Agreement and IRL Loan Documents, and the due performance and compliance by
the Borrower with all of the terms, conditions and agreements contained in such
agreements (excluding Exchange Notes as defined in the IRL Agreement) (the
"Guaranteed IRL Obligations"), (iii) to the extent any
---------------------------
7
<PAGE>
Additional Debt Designation is executed by the Borrower and delivered to the
Collateral Agent entitling the Additional Debt Creditors to the benefit of this
Guaranty as permitted under the Credit Agreement, the principal of, interest on
and any loans made under any Additional Debt Agreement and any other loan
documents related thereto (the "Additional Debt Documents") (including, without
-------------------------
limitation, indemnities, fees and interest thereon), as and to the extent
designated by the Borrower in the Additional Debt Designation, whether now
existing or hereafter incurred under, arising out of or in connection with any
Additional Debt Agreement or Additional Debt Documents as permitted under the
Credit Agreement, and the due performance and compliance by the Borrower with
all of the terms, conditions and agreements contained in such agreements (the
"Guaranteed Additional Debt Obligations") and (iv) to the extent an Other Debt
--------------------------------------
Designation is executed and delivered by the Borrower to the Collateral Agent
entitling any Other Creditors to the benefits of this Guaranty, the obligations
made under any Interest Rate Protection Agreement with any of the Other
Creditors, Other Hedging Agreement with any of the Other Creditors and any other
documents related thereto (the "Other Debt Documents," and together with the
--------------------
Loan Documents, IRL Loan Documents, and the Additional Debt Documents, and this
Agreement, the "Guaranteed Documents") (including, without limitation,
--------------------
indemnities, fees and interest thereon), as and to the extent designated by the
Borrower in the Other Debt Designation whether now existing or hereafter
incurred arising out of or in connection with any Interest Rate Protection
Agreement with any of the Other Creditors, Other Hedging Agreement with any of
the Other Creditors or Other Debt Documents, and the due performance and
compliance by the Borrower with all of the terms, conditions and agreements
contained in such agreements (the "Guaranteed Other Debt Obligations," and all
---------------------------------
such obligations being herein collectively called the "Guaranteed Obligations"),
----------------------
in each case of the relevant Guaranteed Parties. Each Guarantor understands,
agrees and confirms that the Guaranteed Parties may enforce this Guaranty up to
the full amount of the Guaranteed Obligations against each Guarantor without
proceeding against any other Guarantor, against the Borrower, against any
security for the Guaranteed Obligations, or under any other guaranty covering
all or a portion of the Guaranteed Obligations.
2.2. Guaranty Absolute and Unconditional. Additionally, each
-----------------------------------
Guarantor, jointly and severally, absolutely, unconditionally and irrevocably,
guaranties the payment of any and all Guaranteed Obligations to the Guaranteed
Parties whether or not then due or payable by the Borrower upon the occurrence
in respect of the Borrower of any of the events specified in Section 7.05 of the
Credit Agreement, Section 7.05 of the IRL Agreement (or the comparable
provisions of any Additional Debt Agreement or Other Hedging Agreement with any
of the Other Creditors), and absolutely, unconditionally and irrevocably,
jointly and severally, promises to pay the Guaranteed Obligations to the
Guaranteed Parties, on order, on written demand, in lawful money of the United
States. This Guaranty shall constitute a guaranty of payment, and not of
collection.
2.3. Guaranty Exclusive and Independent. (a) The liability of each
----------------------------------
Guarantor hereunder is exclusive and independent of any security for or other
guaranty of the indebtedness of the Borrower, whether executed by such
Guarantor, any other Guarantor, any other guarantor or any other party, and the
liability of each Guarantor hereunder shall not be affected or impaired by any
circumstance or occurrence whatsoever, including, without limitation: (a) any
direction as to application of payment by the Borrower or by any other party,
(b) any other continuing or
8
<PAGE>
other guaranty, undertaking or maximum liability of a guarantor or of any other
party as to the indebtedness of the Borrower, (c) any payment on or in reduction
of any such other guaranty or undertaking except to the extent that any such
payment or reduction results in the actual permanent reduction of the Guaranteed
Obligations, (d) any dissolution, termination or increase, decrease or change in
personnel by the Borrower, (e) any payment made to any Guaranteed Party on the
indebtedness which any Secured Creditor repays the Borrower pursuant to a court
order in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding or
(f) any action or inaction by any Guaranteed Party as contemplated in Section
2.5 hereof.
(b) The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor, any other guarantor or the Borrower, and a
separate action or actions may be brought and prosecuted against each Guarantor
whether or not action is brought against any other Guarantor, any other
guarantor or the Borrower and whether or not any other Guarantor, any other
Guarantor or the Borrower be joined in any such action or actions. Any payment
by the Borrower or other circumstance which operates to toll any statute of
limitations as to the Borrower shall operate to toll the statute of limitations
as to each Guarantor.
2.4. Notice. Each Guarantor hereby waives, except as required by
------
applicable law and cannot be waived, notice of acceptance of this Agreement and
notice of any liability to which it may apply, and waives promptness, diligence,
presentment, demand of payment, protest, notice of dishonor or nonpayment of any
such liabilities, suit or taking of other action by the Collateral Agent or any
other Guaranteed Parties against, and any other notice to, any party liable
thereon (including such Guarantor, any other Guarantor or the Borrower).
2.5. Amendments etc. with respect to Guaranteed Obligations. Any
------------------------------------------------------
Guaranteed Party may at any time and from time to time without the consent of,
or notice to (except as required under applicable law and cannot be waived), any
Guarantor, and without impairing or releasing the obligations of such Guarantor
hereunder, from time to time and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increase or decrease in the rate
of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended, renewed
or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset there against;
9
<PAGE>
(c) exercise or refrain from exercising any rights against the
Borrower, any other Guarantor or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, Guarantors, other
Guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations or any
liability (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and may subordinate the payment of
all or any part thereof to the payment of any liability (whether due or
not) of the Borrower to creditors of the Borrower other than the Guaranteed
Parties;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Guaranteed Parties
regardless of what liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, the Guaranteed Documents or any of the instruments or agreements
referred to therein or otherwise amend, modify or supplement the Guaranteed
Documents or any of such other instruments or agreements; and
(h) take any other lawful action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of such Guarantor from its liabilities under this Guaranty.
2.6. Invalidity, Irregularity or Unenforceability of Guaranteed
----------------------------------------------------------
Obligations. No invalidity, irregularity or unenforceability of all or any part
- -----------
of the Guaranteed Obligations or of any security therefore shall affect, impair
or be a defense to this Guaranty, and this Guaranty shall be primary, absolute,
irrevocable and unconditional notwithstanding the occurrence of any event or the
existence of any other circumstances which might constitute a legal or equitable
discharge of a surety or Guarantor except payment in full of the Guaranteed
Obligations.
2.7. Rights and Remedies Cumulative. This Guaranty is a continuing
------------------------------
one and all liabilities to which it applies or may apply under the terms hereof
shall be conclusively presumed to have been created in reliance hereon. No
failure or delay on the part of any Guaranteed Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein expressly specified are cumulative
and not exclusive of any rights or remedies which any Guaranteed Parties would
otherwise have. No notice to or demand on any Guarantor in any case shall
entitle such Guarantor to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of any Guaranteed
Parties to any other or further action in any circumstances without notice or
demand. It is not necessary for any Guaranteed Parties to inquire into the
capacity or powers of the Borrower or the officers, directors, partners or
agents acting or purporting to act on their behalf, and any indebtedness
10
<PAGE>
made or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
2.8. Subordination of Indebtedness. Any indebtedness of the Borrower
-----------------------------
now or hereafter owing to any Guarantor is hereby subordinated to the
indebtedness of the Borrower to the Guaranteed Parties; and such indebtedness of
the Borrower to any Guarantor, if the Collateral Agent so requests at a time
when an Event of Default exists and is continuing and any Guaranteed Obligations
are outstanding, shall be collected, enforced and received by such Guarantor as
trustee for the Guaranteed Parties and be paid over to the Guaranteed Parties on
account of the indebtedness of the Borrower to the Guaranteed Parties, but
without affecting or impairing in any manner the liability of such Guarantor
under the other provisions of this Agreement. Prior to the transfer by any
Guarantor of any note or negotiable instrument evidencing any indebtedness of
the Borrower to such Guarantor, such Guarantor shall mark such note or
negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, each Guarantor
hereby agrees with the Guaranteed Parties that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this Guaranty
(whether contractual, under Section 509 of the Bankruptcy Code, or otherwise)
until all Guaranteed Obligations have been paid in full (it being understood
that each Guarantor is not waiving any right of subrogation that it may
otherwise have but is only waiving the exercise thereof as provided above).
2.9. Waiver. (a) Each Guarantor waives any right (except as shall
------
be required by applicable law and cannot be waived) to require the Guaranteed
Parties to: (i) proceed against the Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party; (ii) proceed against
or exhaust any security held from the Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party; or (iii) pursue any
other remedy in the Guaranteed Parties' power whatsoever. Each Guarantor waives
(except as shall be required by applicable law and cannot be waived) any defense
to the obligations of such Guarantor under this Guaranty based on or arising out
of any defense of the Borrower, such Guarantor, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party, other than payment
in full of the Guaranteed Obligations, including, without limitation, any
defense based on or arising out of the disability of the Borrower, such
Guarantor, any other Guarantor, any other guarantor of the Guaranteed
Obligations or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower, other than payment in full of the Guaranteed
Obligations. The Guaranteed Parties may, at their election, foreclose on any
security held by such Guaranteed Parties or the other Guaranteed Parties by one
or more judicial or non-judicial sales, whether or not every aspect of any such
sale is commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the Guaranteed Parties
may have against the Borrower or any other party, or any security, without
affecting or impairing in any way the liability of any Guarantor hereunder,
except to the extent the Guaranteed Obligations have been paid in full. Each
Guarantor waives any defense arising out of any such election by the Guaranteed
Parties, even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against
the Borrower or any other party or any security.
11
<PAGE>
(b) Each Guarantor waives, except as shall be required by applicable
law and cannot be waived, all presentments, demands for performance, protests
and notices, including, without limitation, notices of nonperformance, notices
of protest, notices of dishonor, notices of acceptance of this Guaranty, and
notices of the existence, creation or incurring of new or additional
indebtedness. Each Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that the Guaranteed Parties shall have
no duty to advise any Guarantor of information known to them regarding such
circumstances or risks.
2.10. Representations, Warranties and Covenants. In order to induce
-----------------------------------------
the Guaranteed Parties into (i) the making of Loans to the Borrower, and the
issuance of and participation in, Letters of Credit for the account of the
Borrower under the Credit Agreement, and the making of Increasing Rate Term
Loans under the IRL Agreement and (ii) to granting the extensions of credit
under the Additional Debt Agreements, and to the Other Creditors entering into
Interest Rate Protection Agreements or Hedging Agreements, each Guarantor
represents, warrants and covenants that, except as has been otherwise disclosed
in the Credit Agreement to the Collateral Agent,:
(a) Status. Such Guarantor (i) is a duly organized and validly
------
existing corporation, partnership or limited liability company, as the case
may be, in good standing (if applicable) under the laws of the jurisdiction
of its organization, (ii) has the corporate, partnership or limited
liability company power and authority, as the case may be, and legal right
to own and operate its assets, to lease the assets it operates as lessee
and to conduct the business in which it is currently engaged and (iii) is
duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the conduct of its business requires such
qualification, except for failures to be so qualified which, in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(b) Power and Authority. Such Guarantor has the corporate,
-------------------
partnership or limited liability company power and authority, as the case
may be, to make, deliver and perform the terms and provisions of this
Guaranty and each other Guaranteed Documents, to which it is a party and
has taken all necessary corporate, partnership or limited liability company
action to authorize the execution, delivery and performance by it of each
such Guaranteed Document. Except to the extent already obtained or made,
no consent or authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority or any other Person is required
in connection with the execution, delivery, performance, validity or
enforceability of this Guaranty or any such Guaranteed Documents. Such
Guarantor has duly executed and delivered this Guaranty and each other
Guaranteed Document to which it is a party and each such Guaranteed
Document constitutes the legal, valid and binding obligation of such
Guarantor enforceable in accordance with its terms, except to the extent
that the enforceability hereof and thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting the enforcement of creditors' rights generally and by
equitable principles (regardless of whether enforcement is sought in equity
or at law).
12
<PAGE>
(c) No Violation. The execution, delivery or performance by such
------------
Guarantor of this Guaranty or any other Guaranteed Document to which it is
a party, or compliance by it with the terms and provisions hereof and
thereof (i) will not violate any Requirement of Law or material Contractual
Obligation of such Guarantor, (ii) will not conflict with, or result in any
breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien (other than pursuant to the
Security Documents) upon any of the properties or assets of such Guarantor
or any of its Subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust, credit agreement or loan agreement or any other
material agreement, contract or instrument to which such Guarantor or any
of its Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it may be subject, except to the extent that
such conflict or default would not reasonably be expected to have a
Material Adverse Effect or (iii) will not violate any provision of any
Company Document of such Guarantor or any of its Subsidiaries. No
Requirement of Law or Contractual Obligation applicable to such Guarantor
or any of its Subsidiaries would reasonably be expected to have a Material
Adverse Effect.
(d) Each Guarantor represents, warrants, covenants and agrees that on
and after the Effective Date and until all commitments to extend credit
under the Guaranteed Documents have terminated and no Letter of Credit
remains outstanding and all Guaranteed Obligations have been paid in full,
such Guarantor shall, and shall cause each of its Subsidiaries to, take, or
refrain from taking, as the case may be, all actions that are necessary to
be taken or not taken to enable the Borrower to comply with all its
obligations, representations and covenants under the Guaranteed Documents,
and so that no violation of any provision, covenant or agreement contained
in Articles V and VI of the Credit Agreement, Articles V and VI of the IRL
Agreement, and so that no Event of Default, is caused by the actions of
such Guarantor or any of its Subsidiaries.
2.11. Right of Set Off. In addition to any rights now or hereafter
----------------
granted under applicable law (including, without limitation, Section 151 of the
New York Debtor and Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default,
each Guaranteed Party is hereby authorized at any time or from time to time,
without notice to any Guarantor or to any other Person, any such notice being
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or owing by
such Guaranteed Party to or for the credit or the account of such Guarantor,
against and on account of the obligations and liabilities of such Guarantor to
such Guaranteed Party under this Guaranty, irrespective of whether or not such
Guaranteed Party shall have made any demand hereunder and although said
obligations, liabilities, deposits or claims, or any of them, shall be
contingent or unmatured.
2.12. Repayment or Recovery. If claim is ever made upon any
---------------------
Guaranteed Party for repayment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Borrower), then and in such event
13
<PAGE>
each Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon such Guarantor, notwithstanding any revocation
hereof or other instrument evidencing any liability of the Borrower, and such
Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
2.13. Payments by any Guarantor. All payments made by any Guarantor
-------------------------
hereunder will be made without setoff, counterclaim or other defense.
2.14. Right of Contribution. At any time a payment in respect of the
---------------------
Guaranteed Obligations is made under this Guaranty, the right of contribution of
each Guarantor against each other Guarantor shall be determined as provided in
the immediately following sentence, with the right of contribution of each
Guarantor to be revised and restated as of each date on which a payment (a
"Relevant Payment") is made on the Guaranteed Obligations under this Agreement.
- -----------------
At any time that a Relevant Payment is made by a Guarantor that results in the
aggregate payments made by such Guarantor in respect of the Guaranteed
Obligations to and including the date of the Relevant Payment exceeding such
Guarantor's Contribution Percentage (as defined below) of the aggregate payments
made by all Guarantors in respect of the Guaranteed Obligations to and including
the date of the Relevant Payment (such excess, the "Aggregate Excess Amount"),
-----------------------
each such Guarantor shall have a right of contribution against each other
Guarantor who has made payments in respect of the Guaranteed Obligations to and
including the date of the Relevant Payment in an aggregate amount less than such
other Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the
Guaranteed Obligations (the aggregate amount of such deficit, the "Aggregate
---------
Deficit Amount") in an amount equal to (x) a fraction the numerator of which is
- --------------
the Aggregate Excess Amount of such Guarantor and the denominator of which is
the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantor. A Guarantor's right of contribution
pursuant to the preceding sentences shall arise at the time of each computation,
subject to adjustment to the time of any subsequent computation; provided that
--------
no Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been paid in full and all commitments by the Guaranteed Parties
to extend credit under the Guaranteed Documents have been terminated, it being
expressly recognized and agreed by all parties hereto that any Guarantor's right
of contribution arising pursuant to this Section 2.15 against any other
Guarantor shall be expressly junior and subordinate to such other Guarantor's
obligations and liabilities in respect of the Guaranteed Obligations and any
other obligations owing under this Guaranty. As used in this Section 2.16: (i)
each Guarantor's "Contribution Percentage" shall mean the percentage obtained by
-----------------------
dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y)
the aggregate Adjusted Net Worth of all Guarantors; (ii) the "Adjusted Net
------------
Worth" of each Guarantor shall mean the greater of (x) the Net Worth (as defined
below) of such Guarantor and (y) zero; and (iii) the "Net Worth" of each
---------
Guarantor shall mean the amount by which the fair salable value of such
Guarantor's assets on the date of any Relevant Payment exceeds its existing
debts and other liabilities (including contingent liabilities, but without
giving effect to any Guaranteed Obligations arising under this Guaranty) on such
date. Each of the Guarantors recognizes and acknowledges that the rights to
contribution arising hereunder shall constitute an asset in favor of the party
entitled to such contribution. In this connection, each Guarantor has the right
to waive its contribution right against any Guarantor to
14
<PAGE>
the extent that after giving effect to such waiver such Guarantor would remain
solvent, in the determination of the Required Lenders under the Credit
Agreement.
2.15. Designation of Additional Debt. The Borrower may, by written
-------------------------------
notice to the Collateral Agent (any such notice, an "Additional Debt
Designation"), designate any obligations of the Borrower or any of its
Subsidiaries, Joint Ventures or Unrestricted Subsidiaries as Guaranteed
Additional Debt obligations and Additional Debt Obligations under this
Agreement, provided such designation is permitted under Section 6.02(l) of the
Credit Agreement and 6.02(l) of the IRL Agreement. Any Additional Debt
Designation shall specify the principal amount of the obligation(s), the
obligee(s) thereof, the principal documents evidencing and/or governing such
obligation(s), and, if less than the entire amount of any obligation is so
designated, the portion of such obligation(s) designated as Guaranteed
Additional Debt Obligations and Additional Debt Obligations hereunder. Upon the
delivery of any such Additional Debt Designation permitted under Section 6.02(1)
of the Credit Agreement and the IRL Agreement, the obligations so designated
therein shall thereupon be deemed to be Guaranteed Additional Debt Obligations
or Additional Debt Obligations, as the case may be for all purposed of this
Agreement. The Collateral Agent shall from time to time, at Borrower's request,
give Borrower a written notice identifying all Additional Debt Designations
theretofore received by Collateral Agent form Borrower.
2.16. Designation of Other Debt. The Borrower may, by written notice
--------------------------
to the Collateral Agent (any such notice, an "Other Debt Designation"),
designate any obligations of Borrower or any of its Subsidiaries, Joint Ventures
or Unrestricted Subsidiaries as Guaranteed Other Debt obligations and Other Debt
Obligations under this Agreement, provided such designation is permitted under
the Credit Agreement and the IRL Agreement. Any Other Debt Designation shall
specify all of the material economic terms of the obligation(s), the obligee(s)
thereof, the principal documents evidencing and/or governing such obligation(s),
and, if less than the entire amount of any obligation is so designated, the
portion of such obligation(s) designated as Guaranteed Other Debt Obligations
and Other Debt Obligations hereunder. Upon the delivery of any such Other Debt
Designation permitted under the Credit Agreement and the IRL Agreement, the
obligations so designated therein shall thereupon be deemed to be Guaranteed
Other Debt Obligations or Other Debt Obligations for all purposed of this
Agreement. The Collateral Agent shall from time to time, at Borrower's request,
give Borrower a written notice identifying all Other Debt Designations
theretofore received by Collateral Agent form Borrower.
SECTION 3. PLEDGE OF SECURITY INTEREST, ETC.
---------------------------------
3.1. Security for Obligations. This Agreement is made by each
------------------------
Pledgor for the benefit of the respective Secured Creditors to secure:
(a) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and indebtedness
(including, without limitation, indemnities, fees and interest thereon) of
the Borrower to the Credit Facility Creditors, whether now existing or
hereafter incurred, arising out of, or in connection with the Credit
Agreement and the other Loan Documents to which the Borrower is a party
(including, in the case of each Guarantor, all Guaranteed Credit Facility
Obligations with
15
<PAGE>
respect thereto under this Agreement) and the due performance and
compliance by such Pledgor with all of the terms, conditions and agreements
contained in the Credit Agreement and such other Loan Documents (the
"Credit Facility Obligations");
---------------------------
(b) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and indebtedness
(including, without limitation, indemnities, fees and interest thereon) of
the Borrower to the IRL Creditors, whether now existing or hereafter
incurred under, arising out of, or in connection with the IRL Agreement,
the other IRL Loan Documents to which the Borrower is a party (including,
in the case of each Guarantor, all Guaranteed IRL Obligations with respect
thereto under this Agreement) and the due performance and compliance by
such Pledgor with all of the terms, conditions and agreements contained in
the IRL Agreement and such other IRL Loan Documents (but in any event
excluding Exchange Notes as defined in the IRL Agreement) (the "IRL
---
Obligations");
-----------
(c) to the extent any Additional Debt Designation is executed by the
Borrower and delivered to the Collateral Agent, the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of
all obligations and indebtedness of the Borrower to the Additional Debt
Creditors, whether now existing or hereafter incurred, arising out of, or
in connection with the Additional Debt Documents to the extent permitted by
the Credit Agreement to which the Borrower is a party, (including, in the
case of each Guarantor, all Additional Debt Obligations with respect
thereto, if any, under this Agreement), and the due performance and
compliance by such Pledgor with all of the terms, conditions and
agreements, contained in the Additional Debt Documents (the "Additional
----------
Debt Obligations");
----------------
(d) to the extent any Other Debt Designation is executed by the
Borrower and delivered to the Collateral Agent, the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of
all obligations and liabilities of the Borrower to the Other Creditors
under, or with respect to any Interest Rate Protection Agreement, Other
Hedging Agreement with the Other Creditors or Other Debt Documents
(including, in the case of each Guarantor, all Guaranteed Other Obligations
with respect thereto, if any, under this Agreement), whether such Interest
Rate Protection Agreement with the Other Creditors, Other Hedging Agreement
with the Other Creditors or Other Debt Documents are is now in existence or
hereafter arising, and the due performance and compliance by such Pledgor
with all of the terms, conditions and agreements contained in the Other
Debt Obligations (the "Other Debt Obligations");
----------------------
(e) after an Event of Default any and all sums advanced by Collateral
Agent in order to preserve the Collateral (as hereinafter defined) or
preserve its security interest in the Collateral;
(f) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations, or liabilities of the Collateral Agent
referred to in clauses (a) - (d) above, after an Event of Default shall
have occurred and be continuing, the reasonable expenses of retaking,
holding, preparing for sale or lease, selling or otherwise disposing of
16
<PAGE>
or realizing on the Collateral, or of any exercise by the Collateral Agent
of its rights hereunder, together with reasonable attorneys' fees and court
costs; and
(g) all amounts paid by any Secured Creditor as to which such Secured
Creditor has the right to reimbursement under Section 3.14 of this
Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (a)
through (g) of this Section 3.1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
- ------------
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
3.2. Pledge. To secure the Obligations and for the purposes set
------
forth in Section 3.1, each Pledgor hereby grants, pledges and assigns to the
Collateral Agent for the benefit of the Secured Creditors, and hereby creates a
continuing security interest in favor of the Collateral Agent for the benefit of
the Secured Creditors in, all of the right, title and interest in and to the
following, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
----------
(a) each of the Collateral Accounts including any and all assets of
whatever type or kind deposited by such Pledgor in such Collateral Account,
whether now owned or hereafter acquired, existing or arising, including,
without limitation, all Financial Assets in respect of an equity interest
in any Person of any type or nature deposited or required by the Credit
Agreement, IRL Agreement or any other Guaranteed Documents to be deposited
in such Collateral Account, and all investments and all certificates and
other Instruments (including depository receipts, if any) from time to time
representing or evidencing the same, and all dividends, interest,
distributions, cash and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of the foregoing;
(b) all Securities of such Pledgor from time to time in respect of any
Subsidiary or Joint Venture of such Pledgor (excluding Securities indicated
on Annex A, or otherwise determined by the Administrative Agent in its
reasonable discretion under Section 5.10(b) of the Credit Agreement, as not
required to be pledged);
(c) all Limited Liability Company Interests of such Pledgor from time
to time and all of its right, title and interest in each limited liability
company to which each such interest relates, whether now existing or
hereafter acquired, including, without limitation:
(A) all the capital thereof and its interest in all profits,
losses, Limited Liability Company Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of such
Limited Liability Company Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Limited Liability Company Interests, whether under any
limited liability com-
17
<PAGE>
pany agreement or otherwise, whether as contractual obligations,
damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
limited liability company agreement or operating agreement, or at law
or otherwise in respect of such Limited Liability Company Interests;
(D) all present and future claims, if any, of such Pledgor
against any such limited liability company for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability
company agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and privilege of
such Pledgor relating to such Limited Liability Company Interests,
including any power to terminate, cancel or modify any limited
liability company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in
the name of any of such Pledgor in respect of such Limited Liability
Company Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Limited Liability Company Asset, to enforce
or execute any checks, or other instruments or orders, to file any
claims and to take any action in connection with any of the foregoing;
and
(F) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash,
securities, interest, dividends, rights and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof;
(d) all Partnership Interests of such Pledgor from time to time and
all of its right, title and interest in each partnership to which each such
interest relates, whether now existing or hereafter acquired, including,
without limitation:
(A) all the capital thereof and its interest in all profits,
losses, Partnership Assets and other distributions to which such
Pledgor shall at any time be entitled in respect of such Partnership
Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Partnership Interests, whether under any partnership
agreement or otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
18
<PAGE>
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
partnership agreement or operating agreement, or at law or otherwise
in respect of such Partnership Interests;
(D) all present and future claims, if any, of such Pledgor
against any such partnership for moneys loaned or advanced, for
services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership agreement
or operating agreement or at law to exercise and enforce every right,
power, remedy, authority, option and privilege of such Pledgor
relating to such Partnership Interests, including any power to
terminate, cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all other
action on behalf of and in the name of any of such Pledgor in respect
of such Partnership Interests and any such partnership, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Partnership Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take
any action in connection with any of the foregoing; and
(F) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash,
securities, interest, dividends, rights and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof;
(e) all Security Entitlements of such Pledgor from time to time in any
and all of the foregoing;
(f) all Financial Assets and Investment Property of such Pledgor from
time to time in respect of any of the foregoing; and
(g) to the extent not otherwise included, all Proceeds of any and all
of the foregoing.
Notwithstanding anything to the contrary contained in this Section 3.2, no
Pledgor shall be required at any time to pledge hereunder more than 65% of the
voting Equity Ownership Interest of any Company which is not formed or
incorporated under the laws of the United States or any State thereof (each, a
"Foreign Company"), except that, subject to the Credit Agreement each Pledgor
- ----------------
shall be required to pledge hereunder 100% of any Non-Voting Stock at any time
and from time to time acquired by such Pledgor of any such Foreign Company.
19
<PAGE>
3.3. Procedures. (a) To the extent that any Pledgor at any time or
----------
from time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by the respective Pledgor) be pledged pursuant to Section 3.2 of this
Agreement and, in addition thereto, such Pledgor shall (to the extent provided
below) take the following actions as set forth below (as promptly as practicable
and, in any event, within 30 days after it obtains such Collateral) for the
benefit of the Collateral Agent and the Secured Creditors:
(i) with respect to a Certificated Security constituting Collateral
(other than a Certificated Security credited on the books of a Clearing
Corporation), the respective Pledgor shall physically deliver such
Certificated Security to the Collateral Agent, endorsed to the Collateral
Agent or endorsed in blank;
(ii) with respect to an Uncertificated Security constituting
Collateral (other than an Uncertificated Security credited on the books of
a Clearing Corporation), the respective Pledgor shall cause the issuer of
such Uncertificated Security to duly authorize and execute, and deliver to
the Collateral Agent, an agreement for the benefit of the Collateral Agent
and the Secured Creditors substantially in the form of Annex D hereto
(appropriately completed to the satisfaction of the Collateral Agent and
with such modifications, if any, as shall be reasonably satisfactory to the
Collateral Agent) pursuant to which such issuer agrees to comply with any
and all instructions originated by the Collateral Agent without further
consent by the registered owner and not to comply with instructions
regarding such Uncertificated Security (and any Partnership Interests and
Limited Liability Company Interests issued by such issuer) originated by
any other Person other than a court of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation (including a Federal
Reserve Bank, Participants Trust Company or The Depository Trust Company),
the respective Pledgor shall promptly notify the Collateral Agent thereof
and shall promptly take all actions reasonably required (i) to comply with
the applicable rules of such Clearing Corporation and (ii) to perfect the
security interest of the Collateral Agent under applicable law (including,
in any event, under Sections 9-115(4)(a) and (b), 9-115(1)(e) and 8-106(d)
of the UCC). The Pledgor further agrees to take such actions as the
Collateral Agent deems reasonably necessary or desirable to effect the
foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability
Company Interest (other than a Partnership Interest or Limited Liability
Interest credited on the books of a Clearing Corporation), (1) if such
Partnership Interest or Limited Liability Company Interest is represented
by a certificate, the procedure set forth in Section 3.3(a)(i) hereof, and
(2) if such Partnership Interest or Limited Liability Company Interest is
not represented by a certificate, the procedure set forth in Section
3.3(a)(ii) hereof;
(v) After the occurrence and continuance of an Event of Default,
with respect to cash which is Proceeds of Collateral (i) establishment by
the Collateral Agent of a cash
20
<PAGE>
account in the name of such Pledgor over which the Collateral Agent shall
have exclusive and absolute control and dominion (and no withdrawals or
transfers may be made therefrom by any Person except with the prior written
consent of the Collateral Agent) and (ii) deposit of such cash in such cash
account; and
(vi) with respect to any Note, physical delivery of such Note to the
Collateral Agent, endorsed to the Collateral Agent or endorsed in blank.
(b) In addition to the actions required to be taken pursuant to
preceding Section 3.3(a), each Pledgor shall take the following additional
actions with respect to the Securities and Collateral:
(i) with respect to all Collateral of such Pledgor whereby or with
respect to which the Collateral Agent may obtain "control" thereof within
the meaning of Section 8-106 of the UCC (or under any provision of the UCC
as same may be amended or supplemented from time to time, or under the laws
of any relevant State other than the State of New York), the respective
Pledgor shall take all actions as may be requested from time to time by the
Collateral Agent so that "control" of such Collateral is obtained and at
all times held by the Collateral Agent; and
(ii) each Pledgor shall from time to time cause appropriate
financing statements (on Form UCC-1 or other appropriate form) under the
Uniform Commercial Code as in effect in the various relevant States,
covering all Collateral hereunder for which the filing of such financing
statements is required to perfect the applicable security interest (with
the form of such financing statements to be satisfactory to the Collateral
Agent), to be filed in the relevant filing offices so that at all times the
Collateral Agent has a security interest in all Investment Property and
other Collateral which is perfected by the filing of such financing
statements (in each case to the maximum extent perfection by filing may be
obtained under the laws of the relevant states, including, without
limitation, Section 9-115(4)(b) of the UCC).
3.4. Subsequently Acquired Collateral. If any Pledgor shall acquire
--------------------------------
(by purchase, stock dividend or otherwise) any additional Collateral at any time
or from time to time after the date hereof, such Collateral shall automatically
(and without any further action being required to be taken) be subject to the
pledge and security interests created pursuant to Section 3.2 hereof and,
furthermore, the Pledgor will promptly thereafter take (or cause to be taken)
all action with respect to such Collateral in accordance with the procedures set
forth in Section 3.3 hereof, and will promptly thereafter deliver to the
Collateral Agent (i) a certificate executed by a principal executive officer of
such Pledgor describing such Collateral and certifying that the same has been
duly pledged in favor of the Collateral Agent (for the benefit of the Secured
Creditors) hereunder and (ii) supplements to Annexes A through C hereto as are
necessary to cause such annexes to be complete and accurate at such time.
Without limiting the foregoing, each Pledgor shall be required to pledge
hereunder any Equity Ownership Interest at any time and from time to time after
the date hereof acquired by such Pledgor of any Foreign Company, provided that
no Pledgor shall be required at any time to pledge hereunder more than 65% of
the Voting Equity Ownership Interest of any Foreign Company and subject to the
Credit Agreement each Pledgor shall be
21
<PAGE>
required to pledge hereunder 100% of any other Equity Ownership Interest at any
time and from time to time acquired by such Pledgor of any Foreign Company.
3.5. Transfer Taxes. Each pledge of Collateral under Section 3.1 or
--------------
Section 3.4 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.6. Certain Representations and Warranties Regarding the Collateral.
---------------------------------------------------------------
Each Pledgor represents and warrants that on the date hereof (i) each Subsidiary
or Joint Venture of such Pledgor, and the direct ownership thereof, is listed in
Annex A hereto; (ii) the Stock held by such Pledgor consists of the number and
type of shares of the stock of the corporations as described in Annex A hereto;
(iii) such Stock constitutes that percentage of the issued and outstanding
capital stock of the issuing corporation as is set forth in Annex A hereto; (iv)
the Notes held by such Pledgor consist of the promissory Notes described in
Annex B hereto where such Pledgor is listed as the lender; (v) the Limited
Liability Company Interests held by such Pledgor consist of the number and type
of interests of the Persons described in Annex A hereto; (vi) each such Limited
Liability Company Interest constitutes that percentage of the issued and
outstanding equity interest of the issuing Person as set forth in Annex A
hereto; (vii) the Partnership Interests held by such Pledgor consist of the
number and type of interests of the Persons described in Annex A hereto; (viii)
each such Partnership Interest constitutes that percentage or portion of the
entire partnership interest of the Partnership as set forth in Annex A hereto;
(ix) the Pledgor has complied with the respective procedure set forth in Section
3.2(a) hereof with respect to each item of Collateral described in Annexes A and
B hereto; and (x) on the date hereof, such Pledgor owns no other Securities
required to be pledged hereunder, Limited Liability Company Interests or
Partnership Interests.
3.7. Appointment of Sub-Agents; Endorsements, etc. The Collateral
---------------------------------------------
Agent shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Collateral, which may be held (in the
reasonable discretion of the Collateral Agent) in the name of the relevant
Pledgor, endorsed or assigned in blank or in favor of the Collateral Agent or
any nominee or nominees of the Collateral Agent or a sub-agent appointed by the
Collateral Agent.
3.8. Voting, etc., While No Event of Default. Notwithstanding
---------------------------------------
anything to the contrary contained herein, unless and until an Event of Default
shall have occurred and be continuing, each Pledgor shall be entitled to
exercise any and all voting and other consensual rights pertaining to the
Pledged Equity Ownership Interests and to give consents, waivers or
ratifications in respect thereof; provided that no vote shall be cast or not
--------
cast or any consent, waiver or ratification given or not given or any action
taken or not taken which would violate or be inconsistent with any of the terms
of this Agreement or any other Guaranteed Document, or which would have the
effect of materially impairing the position or interests of the Collateral Agent
or any Secured Creditor. All such rights of such Pledgor to vote and to give
consents, waivers and ratifications shall cease in case an Event of Default
shall occur and be continuing, and Section 3.10 hereof shall become applicable.
22
<PAGE>
3.9. Dividends and Distributions. Notwithstanding anything to the
---------------------------
contrary contained herein, unless and until there shall have occurred and be
continuing an Event of Default, all cash dividends, cash distributions, cash
Proceeds and other cash amounts payable in respect of the Collateral shall be
paid to the respective Pledgor. Subject to Section 3.3 hereof, the Collateral
Agent shall be entitled to receive directly, and to retain as part of the
Collateral:
(i) all other or additional stock, Notes, limited liability company
interests, partnership interests, instruments or other securities or
property (other than cash) paid or distributed by way of dividend,
distribution or otherwise in respect of the Collateral;
(ii) all other or additional stock, Notes, limited liability company
interests, partnership interests, instruments or other securities or
property paid or distributed in respect of the Collateral by way of merger,
consolidation, conveyance of assets, liquidation, exchange of stock, stock-
split, spin-off, split-up, reclassification, combination of shares or
similar rearrangement; and
(iii) all other property (other than cash) paid or distributed by
way of dividend or distribution in respect of the Collateral.
Nothing contained in this Section 3.9 shall limit or restrict in any way the
Collateral Agent's right to receive proceeds of the Collateral in any form in
accordance with Section 3.2 of this Agreement, provided that in the absence of
an Event of Default, such distributions and dividends may be received free and
clear of the Lien under this Agreement. All dividends, distributions, proceeds
or other payments which are received by any Pledgor contrary to the provisions
of this Section 3.9 and Section 3.10 hereof shall be received in trust for the
benefit of the Collateral Agent, shall be segregated from other property or
funds of such Pledgor and shall be forthwith paid over to the Collateral Agent
as Collateral in the same form as so received (with any necessary endorsement).
3.10. Remedies in Case of an Event of Default. In case an Event of
---------------------------------------
Default shall have occurred and be continuing, then in each and every case the
Collateral Agent shall be entitled to exercise all of the rights, powers and
remedies (whether vested in it by this Agreement or by any other Guaranteed
Document or by law) for the protection and enforcement of its rights in respect
of the Collateral, and the Collateral Agent shall be entitled to exercise all
the rights and remedies of a secured party under the UCC (subject, in the case
of a pledge of Securities, Partnership Interests or Limited Liability Company
Interests in any Subsidiary or Joint Venture to the provisions contained in the
charter or organizational documents of such Subsidiary or Joint Venture) and
also shall be entitled (subject to the immediately proceeding parenthetical), to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(a) to receive all amounts payable in respect of the Collateral
otherwise payable to such Pledgor under Section 3.9 hereof;
(b) to transfer all or any part of the Collateral into the Collateral
Agent's name or the name of its nominee or nominees;
23
<PAGE>
(c) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
(d) to vote all or any part of the Collateral (whether or not
transferred into the name of the Collateral Agent) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise act
with respect thereto as though it were the outright owner thereof (each
Pledgor hereby irrevocably constituting and appointing the Collateral Agent
the proxy and attorney-in-fact of such Pledgor, with full power of
substitution to do so);
(e) at any time and from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Collateral
Agent in its absolute discretion may determine, provided that at least 10
--------
days' written notice of the time and place of any such sale shall be given
to the respective Pledgor. The Collateral Agent shall not be obligated to
make any such sale of Collateral regardless of whether any such notice of
sale has theretofore been given. Each Pledgor hereby waives and releases
to the fullest extent permitted by law any right or equity of redemption
with respect to the Collateral, whether before or after sale hereunder, and
all rights, if any, of marshalling the Collateral and any other security
for the Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Collateral Agent on behalf of the Secured Creditors may
bid for and purchase all or any part of the Collateral so sold free from
any such right or equity of redemption. Neither the Collateral Agent nor
any other Secured Creditor shall be liable for failure to collect or
realize upon any or all of the Collateral or for any delay in so doing nor
shall any of them be under any obligation to take any action whatsoever
with regard thereto; and
(f) to set-off any and all Collateral against any and all Obligations,
and to withdraw any and all cash or other Collateral from any and all
Collateral Accounts and to apply such cash and other Collateral to the
payment of any and all Obligations.
3.11. Remedies, etc., Cumulative. Each and every right, power and
--------------------------
remedy of the Collateral Agent provided for in this Agreement or in any other
Guaranteed Document, or now or hereafter existing at law or in equity or by
statute shall be cumulative and concurrent and shall be in addition to every
other such right, power or remedy. The exercise or beginning of the exercise by
the Collateral Agent or any other Secured Creditor of any one or more of the
rights, powers or remedies provided for in this Agreement or any other
Guaranteed Document or now or hereafter existing at law or in equity or by
statute or otherwise shall not preclude the simultaneous or later exercise by
the Collateral Agent or any other Secured Creditor of all such other rights,
powers or remedies, and no failure or delay on the part of the Collateral Agent
or any other Secured Creditor to exercise any such right, power or remedy shall
operate as a waiver thereof. No notice to or demand on any Pledgor in any case
shall entitle it to any other or further notice or demand in similar or other
circumstances or constitute a waiver of any of the rights of the Collateral
Agent
24
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or any other Secured Creditor to any other or further action in any
circumstances without notice or demand. The Secured Creditors (including
Guaranteed Parties) agree that this Agreement may be enforced only by the action
of the Administrative Agent or the Collateral Agent, in each case acting upon
the instructions of the Required Lenders under the Credit Agreement (or, after
the date on which all Credit Facility Obligations have been paid in full and all
commitments in respect thereof terminated, the holders of at least the majority
of the outstanding IRL Obligations, Additional Debt Obligations and Other Debt
Obligations) and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Agreement or to realize upon
the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Administrative Agent or the
Collateral Agent for the benefit of the Secured Creditors upon the terms of this
Agreement.
3.12. Application of Proceeds. (a) All moneys or other proceeds
-----------------------
collected by the Collateral Agent upon any sale or other disposition of the
Collateral pursuant to the terms of this Agreement, together with all other
moneys or other proceeds received by the Collateral Agent hereunder, shall be
applied to the payment of the Obligations as follows:
(i) first, to the payment of all Obligations owing to the
Collateral Agent of the type described in clauses (e) and (f) of Section
3.1 of this Agreement;
(ii) second, to the extent moneys remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Primary Obligations shall be paid to the Secured Creditors as provided in
Section 3.12(e) hereof, with each Secured Creditor receiving an amount
equal to its outstanding Primary Obligations or, if the moneys are
insufficient to pay in full all such Primary Obligations, its Pro Rata
Share of the Primary Obligations of the amount remaining to be distributed;
(iii) third, to the extent moneys remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations shall be paid to the Secured Creditors as
provided in Section 3.12(e) hereof, with each Secured Creditor receiving an
amount equal to its outstanding Secondary Obligations or, if the moneys or
proceeds are insufficient to pay in full all such Secondary Obligations,
its Pro Rata Share of the Secondary Obligations of the amount remaining to
be distributed; and
(iv) fourth, to the extent moneys remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, and
following the termination of this Agreement pursuant to 3.23(a) hereof, to
the relevant Pledgor or to whomever may be lawfully entitled to receive
such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall mean,
--------------
when calculating a Secured Creditor's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Creditor's Primary Obligations
or Secondary Obligations, as the case may be, and the denominator of which is
the then outstanding amount of all Primary Obligations or Secondary Obligations,
as the case may be, (y) "Primary Obligations" shall mean collectively (i) in the
-------------------
case of
25
<PAGE>
the Credit Facility Obligations, all principal of, and interest on, all
Loans under the Credit Agreement, all LC Obligations (together with all interest
accrued thereon), and all Fees, (ii) in the case of IRL Obligations, all
principal of, and interest on, all Loans under the IRL Agreement, and all fees
payable thereunder, (iii) in the case of Additional Debt Obligations, all
principal of, and interest on, all loans under the Additional Debt Agreements,
all letter of credit reimbursement obligations thereunder (together with all
interest accrued thereon) and all fees payable thereunder and (iv) in the case
of the Other Debt Obligations, all amounts due under the Interest Rate
Protection or Other Hedging Agreements (other than indemnities, reasonable fees
(including, without limitation, reasonable attorneys' fees) and similar
obligations and liabilities) and (z) "Secondary Obligations" shall mean all
---------------------
Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their respective
Pro Rata Shares, the amounts received by such Secured Creditors hereunder shall
be applied (for purposes of making determinations under this Section 3.12 only)
(i) first, to their Primary Obligations and (ii) second, to their Secondary
Obligations. If any payment to any Secured Creditor of its Pro Rata Share of
any distribution would result in overpayment to such Secured Creditor, such
excess amount shall instead be distributed in respect of the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of the other Secured
Creditors, with each Secured Creditor whose Primary Obligations or Secondary
Obligations, as the case may be, have not been paid in full to receive an amount
equal to such excess amount multiplied by a fraction the numerator of which is
the unpaid Primary Obligations or Secondary Obligations, as the case may be, of
such Secured Creditor and the denominator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
(d) Each of the Secured Creditors agrees and acknowledges, by its
acceptance of this Agreement that if the Credit Facility Creditors or Additional
Debt Creditors are to receive a distribution on account of undrawn amounts with
respect to Letters of Credit issued (or deemed issued) under the Credit
Agreement or letters of credit issued under the Additional Debt Agreements
(which shall only occur after all outstanding loans and letter of credit
reimbursement obligations with respect to such Letters of Credit or letters of
credit have been paid in full), such amounts shall be paid to the Administrative
Agent under the Credit Agreement or the representative under the Additional Debt
Agreements, as the case may be and held by it, for the equal and ratable benefit
of the respective Secured Creditors, as cash security for the repayment of
Obligations owing to the Credit Facility Creditors as such. If any amounts are
held as cash security pursuant to the immediately preceding sentence, then upon
the termination of all outstanding Letters of Credit or letters of credit, and
after the application of all such cash security to the repayment of all
Obligations owing to the respective Secured Creditors after giving effect to the
termination of all such Letters of Credit or letters of credit, if there remains
any excess cash, such excess cash shall be returned by the Administrative Agent
to the Collateral Agent for distribution in accordance with Section 3.12(a)
hereof.
(e) Except as set forth in Section 3.12(d) hereof, all payments
required to be made hereunder shall be made (x) if to the Credit Facility
Creditors, to the Administrative Agent for the account of the Credit Facility
Creditors, (y) if to the IRL Creditors, to the IRL Administrative Agent for the
account of the IRL Creditors and (z) if to the Additional Debt
26
<PAGE>
Creditors or Other Debt Creditors, to the trustee, paying agent or other similar
representative (each, a "Representative") for the Other Debt Creditors or, in
--------------
the absence of such a Representative, directly to the Additional Debt Creditors
or Other Debt Creditors.
(f) For purposes of applying payments received in accordance with this
Section 3.12, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement, (ii) the IRL Administrative
Agent under the IRL Agreement and (iii) the Representative for the Additional
Debt Creditors and Other Debt Creditors or, in the absence of such a
Representative, upon the Additional Debt Creditors and Other Debt Creditors for
a determination (which the Administrative Agent, the IRL Administrative Agent,
each Representative for any Secured Creditor and the Secured Creditors agree (or
shall agree) to provide upon request of the Collateral Agent), of the
outstanding Primary Obligations and Secondary Obligations owed to the respective
Secured Creditors. Unless it has actual knowledge (including by way of written
notice from a Secured Creditor) to the contrary, the Administrative Agent and
each Representative, in furnishing information pursuant to the preceding
sentence, and the Collateral Agent, in acting hereunder, shall be entitled to
assume that no Secondary Obligations are outstanding. Unless it has actual
knowledge (including by way of written notice from an Additional Debt Creditor
or Other Debt Creditor) to the contrary, the Collateral Agent, in acting
hereunder, shall be entitled to assume that no Additional Debt Agreements,
Interest Rate Protection Agreements or Other Hedging Agreements are in
existence.
(g) It is understood and agreed that the Pledgors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
3.13. Purchasers of Collateral. Upon any sale of the Collateral by
------------------------
the Collateral Agent hereunder (whether by virtue of the power of sale herein
granted, pursuant to judicial process or otherwise), the receipt of the
Collateral Agent or the officer making the sale shall be a sufficient discharge
to the purchaser or purchasers of the Collateral so sold, and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Collateral Agent or such officer or be
answerable in any way for the misapplication or nonapplication thereof.
3.14. Indemnity. Each Pledgor jointly and severally agrees (i) to
---------
indemnify and hold harmless the Collateral Agent and each other Secured Creditor
and their respective successors, assigns, employees, agents, affiliates and
servants (individually an "Indemnitee," and collectively the "Indemnitees") from
---------- -----------
and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all costs and expenses, including reasonable
attorneys' fees, in each case growing out of or resulting from this Agreement or
the exercise by any Indemnitee of any right or remedy granted to it hereunder or
under any other Guaranteed Document (but excluding any claims, demands, losses,
judgments and liabilities or expenses to the extent incurred by reason of gross
negligence or willful misconduct of such Indemnitee (as finally determined by a
court of competent jurisdiction)). In no event shall any Indemnitee be liable,
in the absence of gross negligence or willful misconduct on its part, for any
matter or thing in connection with this Agreement other than to account for
monies actually received by it in accordance with the terms
27
<PAGE>
hereof. If and to the extent that the obligations of any Pledgor under this
Section 3.14 are unenforceable for any reason, such Pledgor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law. The indemnity obligations
of each Pledgor contained in this Section 3.14 shall continue in full force and
effect notwithstanding the full payment of all Obligations and notwithstanding
the discharge thereof.
3.15. Collateral Agent Not Bound. (a) Nothing herein shall be
--------------------------
construed to make the Collateral Agent or any other Secured Creditor liable as a
general partner or limited partner of any partnership or as a member of any
limited liability company and the Collateral Agent or any other Secured Creditor
by virtue of this Agreement or otherwise (except as referred to in the following
sentence) shall not have any of the duties, obligations or liabilities of a
general partner or limited partner of any partnership or of a member of any
limited liability company. The parties hereto expressly agree that, unless the
Collateral Agent shall become the absolute owner of a Partnership Interest or a
Limited Liability Company Interest pursuant hereto, this Agreement shall not be
construed as creating a partnership or joint venture among the Collateral Agent,
any other Secured Creditor and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 3.15, the Collateral Agent, by accepting this Agreement, did not intend
to become a general partner or limited partner of any partnership or of a member
of any limited liability company or otherwise be deemed to be a co-venturer with
respect to any Pledgor or any partnership or any limited liability company
either before or after an Event of Default shall have occurred. The Collateral
Agent shall have only those powers set forth herein and shall assume none of the
duties, obligations or liabilities of a general partner or limited partner of
any partnership or of a member of any limited liability company or any Pledgor.
(c) The Collateral Agent and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a result of
the pledge hereby effected.
(d) The acceptance by the Collateral Agent of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Collateral Agent or any other Secured Creditor to
appear in or defend any action or proceeding relating to the Collateral to which
it is not a party, or to take any action hereunder or thereunder, or to expend
any money or incur any expenses or perform or discharge any obligation, duty or
liability under the Collateral.
3.16. Further Assurances; Power-of-Attorney. (a) Each Pledgor
-------------------------------------
agrees that it will join with the Collateral Agent in executing and, at such
Pledgor's own expense, file and refile under the UCC or other applicable law
such financing statements, continuation statements and other documents in such
offices as the Collateral Agent may reasonably determine necessary or
appropriate and wherever required or permitted by law in order to perfect and
preserve the Collateral Agent's security interest in the Collateral and hereby
authorizes the Collateral Agent to file financing statements and amendments
thereto relative to all or any part of the Collateral without the signature of
such Pledgor where permitted by law, and agrees to do such further acts (or, in
the case of Securities, Partnership Interests or Limited Liability Company
Interests which
28
<PAGE>
are Joint Ventures, such Pledgor shall make reasonable efforts to do such
further acts) and things and to execute and deliver to the Collateral Agent such
additional conveyances, assignments, agreements and instruments as the
Collateral Agent may reasonably require or deem necessary to carry into effect
the purposes of this Agreement or to further assure and confirm unto the
Collateral Agent its rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Collateral Agent such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, to act from time to time solely after
the occurrence and during the continuance of an Event of Default in the
Collateral Agent's discretion to take any action and to execute any instrument
which the Collateral Agent may deem necessary or advisable to accomplish the
purposes of this Agreement.
3.17. The Collateral Agent as Collateral Agent. The Collateral Agent
----------------------------------------
will hold in accordance with this Agreement all items of the Collateral at any
time received under this Agreement. It is expressly understood and agreed by
each Secured Creditor that by accepting the benefits of this Agreement each such
Secured Creditor acknowledges and agrees that the obligations of the Collateral
Agent as holder of the Collateral and interests therein and with respect to the
disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in this Agreement (including Schedule I hereof). The
Collateral Agent shall act hereunder on the terms and conditions set forth
herein and in Schedule I hereof.
3.18. Transfer by the Pledgors. No Pledgor will sell or otherwise
------------------------
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the terms of this Agreement and the other
Guaranteed Documents).
3.19. Representations, Warranties and Covenants of the Pledgors. (a)
---------------------------------------------------------
Each Pledgor represents, warrants and covenants that except as otherwise
expressly disclosed:
(i) it is the legal, beneficial and record owner of, and has good
and marketable title to, all Collateral consisting of one or more
Securities and that it has sufficient interest in all Collateral in which a
security interest is purported to be created hereunder for such security
interest to attach (subject, in each case, to no pledge, lien, mortgage,
hypothecation, security interest, charge, option, Adverse Claim or other
encumbrance whatsoever, except the liens and security interests created by
this Agreement or as permitted under the Credit Agreement);
(ii) it has full power, authority and legal right to pledge all the
Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in accordance
with its terms, except to the extent that the enforceability hereof and
thereof may be limited by applicable bankruptcy, insolvency,
reorganiza-
29
<PAGE>
tion, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is
sought in equity or at law);
(iv) except to the extent already obtained or made, no consent or
(including, without limitation, any stockholder or creditor of such Pledgor
or any of its Subsidiaries) authorization of, filing with, notice to or any
other act by or in respect of, any Governmental Authority or any other
Person is required to be obtained by such Pledgor in connection with (a)
the execution, delivery or performance of this Agreement, (b) the validity
or enforceability of this Agreement (except as set forth in clause (iii)
above), (c) the perfection or enforceability of the Collateral Agent's
security interest in the Collateral or (d) except for compliance with or as
may be required by applicable securities laws, the exercise by the
Collateral Agent of any of its rights or remedies provided herein (it being
understood and agreed that the exercise of rights and remedies hereunder
may breach or create defaults under other agreements to such Pledgor or the
Pledged Equity Ownership Interests);
(v) the execution, delivery and performance by such Pledgor of this
Agreement will not violate any Requirement of Law or material Contractual
Obligation applicable to such Pledgor, or of the certificate of
incorporation, operating agreement, limited liability company agreement,
partnership agreement or by-laws of such Pledgor or of any securities
issued by such Pledgor or any of its Subsidiaries, or of any mortgage, deed
of trust, indenture, lease, loan agreement, credit agreement or other
contract, agreement or instrument or undertaking to which such Pledgor or
any of its Subsidiaries is a party or which purports to be binding upon
such Pledgor or any of its Subsidiaries or upon any of their respective
assets and will not result in the creation or imposition of (or the
obligation to create or impose) any lien or encumbrance on any of the
assets of such Pledgor or any of its Subsidiaries except as contemplated by
this Agreement (it being understood and agreed that the exercise of rights
and remedies hereunder may breach or create defaults under other agreements
to such Pledgor or the Pledged Equity Ownership Interests);
(vi) to the knowledge of such Pledgor, all of the Collateral
(consisting of Securities, Limited Liability Company Interests or
Partnership Interests) has been duly and validly issued, is fully paid and
non-assessable and is subject to no options to purchase or similar rights;
(vii) each of the Pledged Notes constitutes, or when executed by the
obligor thereof will constitute, the legal, valid and binding obligation of
such obligor, enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law);
(viii) the pledge, collateral assignment and delivery to the
Collateral Agent of the Collateral consisting of Certificated Securities
pursuant to this Agreement creates a valid and perfected first priority
security interest in such Securities, and the proceeds thereof, subject to
no prior Lien other than as permitted under the Credit Agreement or
30
<PAGE>
encumbrance or to any agreement purporting to grant to any third party a
Lien or encumbrance on the property or assets of such Pledgor which would
include the Securities and the Collateral Agent is entitled to all the
rights, priorities and benefits afforded by the UCC or other relevant law
as enacted in any relevant jurisdiction to perfect security interests in
respect of such Collateral; and
(ix) Control has been obtained by the Collateral Agent over all
Collateral consisting of Securities (including Notes which are Securities)
with respect to which such "control" may be obtained pursuant to Section 8-
106 of the UCC.
(b) Each Pledgor covenants and agrees that it will defend the
Collateral Agent's right, title and security interest in and to the Securities
and the proceeds thereof against the claims and demands of all persons
whomsoever; and each Pledgor covenants and agrees that it will have like title
to and right to pledge any other property at any time hereafter pledged to the
Collateral Agent as Collateral hereunder and will likewise defend the right
thereto and security interest therein of the Collateral Agent and the Secured
Creditors.
(c) Each Pledgor covenants and agrees that on and after the Effective
Date and until the Total Commitment has terminated and when no Letter of Credit
remains outstanding and all Credit Facility Obligations have been paid in full,
such Pledgor shall, and shall cause each of its Subsidiaries to, take, or will
refrain from taking, as the case may be, all actions that are necessary to be
taken or not taken to enable each of the Borrower to comply with all its
respective obligations, representations and covenants under the Credit
Agreement, so that no violation of any provision, covenant or agreement
contained in Sections 5 and 6 of the Credit Agreement, and so that no Event of
Default, is caused by the actions of such Pledgor or any of its Subsidiaries.
(d) Each Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Guaranteed Document.
3.20. Chief Executive Office; Records. The chief executive office of
-------------------------------
each Pledgor is located at the address specified in Annex C hereto. Each
Pledgor will not move its chief executive office except to such new location as
such Pledgor may establish in accordance with the last sentence of this Section
3.20. No Pledgor shall establish a new location for such offices until (i) it
shall have given to the Collateral Agent not less than 30 days' prior written
notice of its intention so to do, clearly describing such new location and
providing such other information in connection therewith as the Collateral Agent
may reasonably request and (ii) with respect to such new location, it shall have
taken all action, satisfactory to the Collateral Agent, to maintain the security
interest of the Collateral Agent in the Collateral intended to be granted hereby
at all times fully perfected and in full force and effect. Promptly after
establishing a new location for such offices in accordance with the immediately
preceding sentence, the respective Pledgor shall deliver to the Collateral Agent
a supplement to Annex C hereto so as to cause such Annex C hereto to be complete
and accurate.
3.21. Pledgors' Obligations Absolute, etc. The obligations of each
------------------------------------
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect (subject to Section 3.23 hereof) without regard
to, and shall not be released, suspended, discharged,
31
<PAGE>
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation: (i) any renewal, extension, amendment or
modification of or addition or supplement to or deletion from any Guaranteed
Document or any other instrument or agreement referred to therein, or any
assignment or transfer of any thereof; (ii) any waiver, consent, extension,
indulgence or other action or inaction under or in respect of any such agreement
or instrument including, without limitation, this Agreement; (iii) any
furnishing of any additional security to the Collateral Agent or its assignee or
any acceptance thereof or any release of any security by the Collateral Agent or
its assignee; (iv) any limitation on any party's liability or obligations under
any such instrument or agreement or any invalidity or unenforceability, in whole
or in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
or Joint Venture of any Pledgor, or any action taken with respect to this
Agreement by any trustee or receiver, or by any court, in any such proceeding,
whether or not such Pledgor shall have notice or knowledge of any of the
foregoing.
3.22. Registration, etc. (a) If an Event of Default shall have
------------------
occurred and be continuing then, and in every such case, upon receipt by any
Pledgor from the Collateral Agent of a written request or requests that such
Pledgor cause any registration, qualification or compliance under any Federal or
state securities law or laws to be effected with respect to all or any part of
the Collateral consisting of Stock, Limited Liability Company Interests or
Partnership Interests, such Pledgor as soon as practicable and at its expense
will cause such registration to be effected (and be kept effective) and will
cause such qualification and compliance to be declared effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Collateral, including, without limitation, registration
under the Securities Act, as then in effect (or any similar statute then in
effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other government
requirements, provided that the Collateral Agent shall furnish to such Pledgor
--------
such information regarding the Collateral Agent as such Pledgor may reasonably
request in writing and as shall be required in connection with any such
registration, qualification or compliance. Such Pledgor will cause the
Collateral Agent to be kept advised in writing as to the progress of each such
registration, qualification or compliance and as to the completion thereof, will
furnish to the Collateral Agent such number of prospectuses, offering circulars
or other documents incident thereto as the Collateral Agent from time to time
may reasonably request, and will indemnify the Collateral Agent, each other
Secured Creditor and all others participating in the distribution of such
Collateral against all claims, losses, damages and liabilities caused by any
untrue statement (or alleged untrue statement) of a material fact contained
therein (or in any related registration statement, notification or the like) or
by any omission (or alleged omission) to state therein (or in any related
registration statement, notification or the like) a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same may have been caused by an untrue statement or
omission based upon information furnished in writing to such Pledgor by the
Collateral Agent or such other Secured Creditor expressly for use therein.
(b) If at any time when the Collateral Agent shall determine to
exercise its right to sell all or any part of the Collateral pursuant to Section
3.10 hereof, and such Collateral or the part thereof to be sold shall not, for
any reason whatsoever, be effectively registered under the
32
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Securities Act, as then in effect, the Collateral Agent may, in its sole and
absolute discretion, sell such Collateral or part thereof by private sale in
such manner and under such circumstances as the Collateral Agent may deem
necessary or advisable in order that such sale may legally be effected without
such registration. Without limiting the generality of the foregoing, in any such
event the Collateral Agent, in its sole and absolute discretion (i) may proceed
to make such private sale notwithstanding that a registration statement for the
purpose of registering such Collateral or part thereof shall have been filed
under the Securities Act, (ii) may approach and negotiate with a single possible
purchaser to effect such sale, and (iii) may restrict such sale to a purchaser
who will represent and agree that such purchaser is purchasing for its own
account, for investment, and not with a view to the distribution or sale of such
Collateral or part thereof. In the event of any such sale, the Collateral Agent
shall incur no responsibility or liability for selling all or any part of the
Collateral at a price which the Collateral Agent, in its sole and absolute
discretion, in good faith deems reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration as aforesaid.
SECTION 4. MISCELLANEOUS
-------------
4.1. Notices, etc. All such notices and communications hereunder
-------------
shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
overnight courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when delivered to the telegraph company, cable company or
overnight courier, as the case may be, or sent by telex or telecopier and when
mailed shall be effective three Business Days following deposit in the mail with
proper postage, except that notices and communications to the Collateral Agent
or the respective Credit Party shall not be effective until received by the
Collateral Agent or the respective Credit Party, as the case may be. All
notices and other communications shall be in writing and addressed as follows:
(a) if to any Credit Party, at its address set forth opposite its
signature below;
(b) if to the Collateral Agent, at:
The Chase Manhattan Bank
Agency Plus
One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Daniella Cassognol
Telephone No.: (212) 552-7452
Facsimile No.: (212) 552-5701
(c) if to any Credit Facilities Creditor or IRL Creditor, either (x)
to the Administrative Agent, at the address of the Administrative Agent
specified in the Credit Agreement or to the IRL Administrative Agent at the
address of the IRL Administrative Agent specified in the IRL Agreement or
(y) at such address as such Credit Facility Creditor or IRL Creditor shall
have specified in the Credit Agreement or the IRL Agreement, as the case
may be; and
33
<PAGE>
(d) if to any Additional Debt Creditor of Other Debt Creditor at such
address as such Additional Debt Creditor or Other Debt Creditor shall have
specified in writing to the Pledgors and the Collateral Agent;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
4.2. Waiver; Credit Facility Amendment. None of the terms and
---------------------------------
conditions of this Agreement may be changed, waived, modified or varied in any
manner whatsoever unless in writing duly signed by each Credit Party directly
affected thereby and the Collateral Agent (with the written consent of (x) the
Required Lenders under the Credit Agreement (or all of the Lenders to the extent
required by Section 9.02 of the Credit Agreement) at all times prior to the date
on which all Credit Facility Obligations have been paid in full or (y) the
Required Lenders under the IRL Agreement (the "Required IRL Lenders") after the
- ---------------- --------------------
date clause (x) applies and prior to the date on which the Total Revolving Loan
Commitment and all Letters of Credit have been terminated and all IRL
Obligations have been paid in full; provided that any change, waiver,
--------
modification or variance affecting (A) any release of Guarantors of their
obligations under Section 2 shall require the consent of the Required Lenders
under the Credit Agreement (or all of the Lenders to the extent required by
Section 9.02 of the Credit Agreement) and the Required IRL Lenders (or all of
the IRL Lenders to the extent required by Section 9.02 of the IRL Agreement) and
(B) any change, waiver, modification or variance affecting the rights and
benefits of a single Class of Secured Creditors (and not all Secured Creditors
in a like or similar manner) shall also require the written consent of the
Requisite Creditors of such affected Class. For the purpose of this Agreement,
the term "Class" shall mean each class of Secured Creditors, i.e., whether (i)
----- ----
the Credit Facility Creditors as holders of the Credit Document Obligations,
(ii) IRL Creditors as holders of IRL obligations, (iii) Additional Debt
Creditors as holders of Additional Debt Obligations or (iv) the Other Debt
Creditors as the holders of the Other Debt Obligations. For the purpose of this
Agreement, the term "Requisite Creditors" of any Class shall mean each of (i)
-------------------
with respect to the Credit Facility Obligations, the Required Lenders under the
Credit Agreement, (ii) with respect to the IRL Obligations, the Required IRL
Lenders, (iii) with respect to the Additional Debt Obligations or IRL
Obligations, the required IRL Lenders and (iv) with respect to the Other Debt
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Additional Debt Agreements or Other Debt Agreements.
4.3. Assignment. This Agreement shall create a continuing security
----------
interest in the Collateral and shall (i) remain in full force and effect,
subject to release and/or termination as set forth herein, (ii) be binding upon
each Credit Party, its successors and assigns; provided, however, that no Credit
-------- -------
Party shall assign any of its rights or obligations hereunder without the prior
written consent of the Collateral Agent (and the prior written consent of the
Required Lenders under the Credit Agreement or, to the extent required by
Section 9.02 of the Credit Agreement, each of the Lenders), and (iii) inure,
together with the rights and remedies of the Collateral Agent hereunder, to the
benefit of the Collateral Agent, the other Secured Creditors and their
respective successors, transferees and assigns.
4.4. Section Headings. The headings of the several sections and
----------------
subsections in this Agreement are for purposes of reference only and shall not
limit or define the meaning hereof.
34
<PAGE>
4.5. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
4.6. Severability. In the event that any provision of this Agreement
------------
shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain binding
on all parties hereto.
4.7. Recourse. This Agreement is made with full recourse to the
--------
Credit Parties and pursuant to and upon all the representations, warranties,
covenants and agreements on the part of the Pledgors contained herein and in the
other Guaranteed Documents and otherwise in writing in connection herewith or
therewith.
4.8. Additional Guarantors and Pledgors. It is understood and agreed
----------------------------------
that any Subsidiary of the Borrower that is required to execute a counterpart of
this Agreement after the date hereof pursuant to the Credit Agreement shall
automatically become a Guarantor and/or Pledgor hereunder by executing an
Agreement Supplement indicating such designation and delivering same to the
Collateral Agent.
4.9. Termination; Release. (a) After the Termination Date (as
--------------------
defined below), this Agreement, the Guaranty and the security interests created
hereby shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 3.14 hereof shall survive any such
termination) the Collateral Agent, at the request and expense of any Pledgor,
will execute and deliver to such Pledgor a proper instrument or instruments
acknowledging the satisfaction and termination of this Agreement, including
without limitation, UCC termination statements and instruments of satisfaction,
discharge and/or reconveyance and will duly assign, transfer and deliver to such
Pledgor (without recourse and without any representation or warranty) such of
the Collateral as has not theretofore been sold or otherwise applied or released
pursuant to this Agreement, together with any moneys at the time held by the
Collateral Agent or any of its sub-agents hereunder and, with respect to any
Collateral consisting of an Uncertified Security (other than an Uncertificated
Security credited on the books of a Clearing Corporation), a Partnership
Interest or a Limited Liability Company Interest, a termination of the agreement
relating thereto executed and delivered by the issuer of such Uncertificated
Security pursuant to Section 3.3(a)(ii) hereof or by the respective partnership
or limited liability company pursuant to Section 3.2(a)(iv) hereof. As used in
this Agreement, "Termination Date" shall mean the date upon which the Total
----------------
Revolving Loan Commitment and all Letters of Credit have been terminated and all
Credit Facility Obligations and IRL Obligations have been paid in full; provided
that (i) if on the Termination Date, any Additional Debt Agreement or Other
Debt Agreements remain outstanding, or any Additional Debt Obligations or Other
Debt Obligations remain unpaid and (ii) the Borrower and the holders of any such
outstanding obligations described in clause (i) above appoint a replacement
Collateral Agent to act as such hereunder, the Termination Date shall be
extended to the date agreed to by the parties described in this clause (ii).
(b) In the event that (i) any part of the Collateral is subject to a
Disposition under the Credit Agreement (other than a Disposition to any
Pledgor), (ii) any Pledgor is merged with another Pledgor in accordance with the
Credit Agreement, (iii) any Collateral is required to be released to effectuate
the incurrence of Indebtedness permitted under Sections 6.02 and 6.03
35
<PAGE>
of the Credit Agreement or (iv) any Collateral is otherwise released at the
direction of the Required Lenders under the Credit Agreement (or all Lenders if
required by Section 9.02 of the Credit Agreement) and in the case of clauses
(i)-(iv) above, the proceeds of such Indebtedness or Disposition release shall
be applied in accordance with the provisions of the Credit Agreement, to the
extent required to be so applied, the Collateral Agent, at the request and
expense of any Pledgor, will duly assign, transfer and deliver to such Pledgor
(without recourse and without any representation or warranty) such of the
Collateral (and releases therefor) as is then being (or has been) so sold or
released and has not theretofore been released pursuant to this Agreement.
(c) At any time that a Pledgor desires that the Collateral Agent
assign, transfer and deliver Collateral (and releases therefor) as provided in
Section 4.9(a) or (b) hereof, such Pledgor or Borrower shall deliver to the
Collateral Agent a certificate signed by a principal executive officer of such
Pledgor stating that the release of the respective Collateral is permitted
pursuant to such Section 4.9(a) or (b).
(d) The Collateral Agent shall have no liability whatsoever to any
other Secured Creditor as the result of any release of Collateral by it in
accordance with this Section 4.9.
(e) In the event that all of the Equity Ownership Interests in one or
more Guarantors are sold or otherwise disposed of or liquidated in compliance
with the requirements of the Credit Agreement (or such sale or other disposition
has been approved in writing by the Required Lenders under the Credit Agreement
(or all of the Lenders required under Section 9.02 thereof)) and the proceeds of
such sale, disposition or liquidation are applied in accordance with the
provisions of the Credit Agreement, to the extent applicable, such Guarantor
shall be released from this Guaranty and this Guaranty shall, as to each such
Guarantor or Guarantors, terminate, and have no further force or effect (it
being understood and agreed that the sale of one or more Persons that own,
directly or indirectly, all of the Equity Ownership Interests of any Guarantor
shall be deemed to be a sale of such Guarantor for the purposes of this Section
4.9(e)).
4.10. GOVERNING LAW. (a) THIS AGREEMENT AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE SECURED CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Any legal action or proceeding with respect to this Agreement or any other
Guaranteed Document to which any Credit Party is a party may be brought in the
courts of the State of New York or of the United States of America for the
Southern District of New York, and, by execution and delivery of this Credit
Party, each Credit Party hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Credit Party hereby further irrevocably waives any claim that any
such courts lack jurisdiction over such Credit Party, and agrees not to plead or
claim in any legal action or proceeding with respect to this Credit Party or any
other Guaranteed Document to which such Credit Party is a party brought in any
of the aforesaid courts that any such court lacks jurisdiction over such Credit
Party. Each Credit Party further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
each Credit Party at its address set forth opposite its signature below, such
service to
36
<PAGE>
become effective 30 days after such mailing. Each Credit Party hereby
irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other Guaranteed Document to which such Credit
Party is a party that service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the Secured Creditors to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against each Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement or
any other Guaranteed Document to which such Credit Party is a party brought in
the courts referred to in clause (a) above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that such action or
proceeding brought in any such court has been brought in an inconvenient forum.
4.11. WAIVER OF JURY TRIAL. EACH CREDIT PARTY AND EACH SECURED
--------------------
CREDITOR (BY ITS ACCEPTANCE OF THE BENEFITS OF THIS AGREEMENT) HEREBY
IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGENT, THE OTHER GUARANTEED
DOCUMENTS TO WHICH SUCH CREDIT PARTY IS A PARTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
* * * *
37
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written by their respective duly authorized officers.
1500 CANAL STREET INVESTORS II, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
ALBUQUERQUE C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality Partnership,
L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
BJV REALTY, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
BOULDERS CAREFREE SEWER
CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
BOULDERS JOINT VENTURE,
as Pledgor and Guarantor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
BURRLLEN ENTERPRISES OF
MARYLAND,
as Pledgor and Guarantor
By: Patriot Grand Heritage, LLC, its General
Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
C.I. ALBUQUERQUE LESSEE GP, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
C.I. ALBUQUERQUE LESSEE, L.P.,
as Pledgor and Guarantor
By: C.I. Albuquerque Lessee GP, LLC, its
General Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
CAREFREE MANAGEMENT LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
CASA MARINA REALTY CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CHC HOTELS & RESORTS CORP.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
CHC LEASE PARTNERS,
as Pledgor and Guarantor
By: CHC REIT Management Corp., its
General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CHC REIT LESSEE CORP.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CHC REIT MANAGEMENT CORP.
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CHICAGO-ES HOLDING CORP.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CHMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
CLUBHOUSE INNS OF AMERICA, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
CRITERION HOTEL MANAGEMENT CORP.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CRITERION NY INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CROSSROADS DEVELOPMENT
COMPANY,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CSMC OF KALAMAZOO, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
DEUCE MANAGEMENT COMPANY, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
FAMILY SUITES CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
Title: Vice President
FAMILY SUITES MANAGEMENT
CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
FS DEVELOPMENT CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GH-ATLANTA, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
GH-CHICAGO, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
GH-DETROIT, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GH-GREENVILLE, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GH-PROVIDENCE, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GH-SAN DIEGO, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GH TRADEMARKS LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
GH-WICHITA, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GHMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
GHV-COLORADO, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GHV-GALVESTON, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GLENVIEW HOSPITALITY, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC,
its General Partner
By: Patriot American Hospitality Partnership,
L.P.,
its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
GRAND BAY MANAGEMENT COMPANY,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GRAND BAY MANAGEMENT LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
GRAND HERITAGE HOTELS, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GRAND HERITAGE LEASING, LLC,
as Pledgor and Guarantor
By: Patriot Grand Heritage, LLC, a Member
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
GRAND HERITAGE REAL ESTATE
GROUP LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
GRAND MANAGEMENT SERVICES, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
HMG BEVERAGE, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
IHC/BURLINGTON CORPORATION,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
IHC/CAPITAL CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
IHC/CONSHOHOCKEN PARTNERSHIP
L.P.,
as Pledgor and Guarantor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/DENVER PARTNERSHIP, L.P.,
as Pledgor and Guarantor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/FS DEVELOPMENT CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
Title: Vice President
IHC/HOUSTON PARTNERSHIP, L.P.,
as Pledgor and Guarantor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
IHC/INTERSTONE PARTNERSHIP II, LP,
as Pledgor and Guarantor
By: PAH-Interstone, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/JACKSONVILLE CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/JAMAICA CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/MARYVILLE HOTEL CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
Title: Vice President
IHC MEMBER CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/MIAMI BEACH CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
IHC MIAMI MORTGAGE CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/PARK WEST CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/REACH CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC REALTY CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC REALTY PARTNERSHIP, L.P.,
as Pledgor and Guarantor
By: IHC Realty Corporation,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/SANTA MARIA CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
IHC/TEXAS CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC TITLE AGENCY CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHP/CLASS B PARTNERSHIP, L.P.,
as Pledgor and Guarantor
By: IHC Realty Partnership, L.P., its General
Partner
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHP INVESTMENT COMPANY, L.L.C.,
as Pledgor and Guarantor
By: IHC Realty Partnership, L.P., a Member
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
IHP LESSEE, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
INTERSTATE/MONTOUR ASSOCIATES,
LTD.,
as Pledgor and Guarantor
BY: IHC/Park West Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
INTERSTONE/PAH PARTNERS, L.P.,
as Pledgor and Guarantor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
INTERSTONE THREE PARTNERS I L.P.,
as Pledgor and Guarantor
By: PAH Interstone, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
INTMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
KANSAS CITY HOSPITALITY, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
MARINA HOSPITALITY, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
MBAH, INC.,
as Pledgor and Guarantor
By /s/Richard L. Mahoney
---------------------
Title: Vice President & Treasurer
<PAGE>
MELBOURNE HOSPITALITY, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC,
its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
O-H ACQUISITION, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
P.H.G., LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PA HUNT VALLEY INVESTORS, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PA TROY HOSPITALITY, L.P.
as Pledgor and Guarantor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH ACQUISITION CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH ALLEN OPERATING CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH ASSET MANAGEMENT, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
PAH BATTERYMARCH OPERATING
COMPANY, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PAH BUTTES L.L.C.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-CAREFREE, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-CI HOLDING, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-COLUMBUS HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH DEUCE GP, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-DT PARK PLACE PARTNERS, L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-DT TALLAHASSEE PARTNERS, L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-DT MINNEAPOLIS SUITES
PARTNERS, L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-DT CHICAGO O'HARE PARTNERS,
L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-DT MIAMI AIRPORT PARTNERS,
L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH FF&E HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-FRANCHISE HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAHG FF&E HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH GAH HOLDINGS, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PAH GAH HOLDINGS, L.P.,
as Pledgor and Guarantor
By: PAH GAH Holdings, LLC, its General
Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PAH-GBM, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-GP ALLEN PARTNERS, L.P.,
as Pledgor and Guarantor
By: PAH-Allen Operating Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH GP, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-GRAND BAY MIAMI, L.P.,
as Pledgor and Guarantor
By: PAH-GBM, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-INTEREST HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-INTERSTONE, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-IP HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH LEASING LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PAH LP, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-MANAGEMENT CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAHP FF&E HOLDING, INC., as Pledgor and
Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-PITTSBURGH, LLC,
as Pledgor and Guarantor
By: PAR-Franchise Holding, Inc., its sole
Member
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-PITTSBURGH CI HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-REAL ESTATE MEMBER, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-RH, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-RIVER HOUSE, L.P.,
as Pledgor and Guarantor
By: PAH-RH, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH RIVER NORTH, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH STANLY HOLDING LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PAH-SUMMERFIELD HOLDING CORP.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-SUMMERFIELD LEASING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-SUMMERFIELD LLC,
as Pledgor and Guarantor
By: PAH-Summerfield Holding Corp., its sole
Member
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-T, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-TAMPA, L.P.,
as Pledgor and Guarantor
By: PAH-T, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH VENTANA CANYON, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-WMC HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-XERXES HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAHMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
PARK WEST HOTEL ASSOCIATES,
as Pledgor and Guarantor
By: PW Land Associated Limited Partnership,
a General Partner
By: IHC/Park West Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PATRIOT AMERICAN HOSPITALITY, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P., as Pledgor and
Guarantor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PATRIOT BOUGAINVILLEA
DEVELOPMENT COMPANY, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PATRIOT GRAND HERITAGE, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc.,
its General Partner
By /s/ John P. Bohlmann
Title: Sr. Vice President
<PAGE>
PATRIOT HOLDING LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PATRIOT LAND HOLDING LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PATRIOT MIAMI NOTE HOLDER, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PATRIOT RACETRACK LAND LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., a Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PSMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
--------------------
Title: Vice President & Treasurer
PW LAND ASSOCIATES LIMITED
PARTNERSHIP,
as Pledgor and Guarantor
By: IHC/Park West Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PWMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
<PAGE>
RICHARDSON C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SAVANNAH C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SFMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
SIERRA SUITES MARKETING
ASSOCIATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
ST. LOUIS C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SUMMERFIELD HOTEL COMPANY, L.P.,
as Pledgor and Guarantor
By: PAH-Summerfield LLC, its General
Partner
By: PAH-Summerfield Holding Corp., its sole
Member
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SUMMERFIELD HOTEL CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SUMMERFIELD SUITES MARKETING
ASSOCIATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
SYRACUSE ASSOCIATES CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SYRACUSE REALTY ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: Syracuse Associates Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
THE KEY WEST REACH LIMITED
PARTNERSHIP,
as Pledgor and Guarantor
By: IHC/Reach Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
THE PEAKS REAL ESTATE SERVICES,
INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
TOLEDO HOTEL INVESTORS, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC, its General
Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
TOPEKA C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality Partnership,
L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WATERFRONT MANAGEMENT
CORPORATION,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
<PAGE>
WATER STREET HOTEL, LTD.,
as Pledgor and Guarantor
By: IHC/Jacksonville Corporation, its General
Partner
By /s/ Richard L. Mahoney
--------------------
Title: Vice President & Treasurer
WH INTEREST, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
--------------------
Title: Vice President & Treasurer
WHC CHICAGO, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WHC FINANCE, L.P., as Pledgor and
Guarantor
By: O-H Acquisition, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WHC FRANCHISE CORPORATION,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
--------------------
Title: Vice President & Treasurer
<PAGE>
WHCMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
WHCMB OVERLAND PARK, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
Title: Vice President & Treasurer
WI OHIO INVESTORS, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WMC II, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WYN TRAVEL, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
WYNDHAM ATLANTA LESSEE, LLC,
as Pledgor and Guarantor
By: Wyndham International, Inc., its sole
member
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
WYNDHAM IP CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WYNDHAM INTERNATIONAL, INC., as
Pledgor and not as a Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
WYNDHAM INTERNATIONAL
OPERATING PARTNERSHIP, L.P.,
as Pledgor and Guarantor
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
WYNDHAM MANAGEMENT
CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WYNDHAM MANAGEMENT II, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
WYNDHAM SUMMERFIELD LESSEE, L.P.,
as Pledgor and Guarantor
By: Wyndham Summerfield Lessee, LLC, its
General Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
WYNDHAM SUMMERFIELD LESSEE,
LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
YO HOTEL INVESTORS, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
GAH-II, L.P., as Pledgor and Guarantor
By: GAH-II Corp., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
TCC VENEZUELA, L.C., as Pledgor and
Guarantor
By: CHC Hotels & Resorts Corp., its Member
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Collateral Agent
By /s/ Thomas H. Kozlark
---------------------
Title: Vice President
<PAGE>
SCHEDULE I
----------
THE COLLATERAL AGENT
--------------------
1. Appointment. The Secured Creditors by their acceptance of the
-----------
benefits of this Agreement, hereby irrevocably designate Chase as Collateral
Agent to act as specified herein and in this Agreement. Each Secured Creditor
hereby irrevocably authorizes the Collateral Agent to take such action on its
behalf under the provisions of this Agreement and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Collateral Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto.
2. The Collateral Agent in its Individual Capacity. The Collateral
-----------------------------------------------
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Collateral Agent, and such bank and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrower or
any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent
hereunder and may accept fees and other consideration from the Borrower or any
Subsidiary or other Affiliate thereof for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
3. Nature of Duties. The Collateral Agent shall have no duties or
----------------
responsibilities except those expressly set forth in this Agreement. Neither
the Collateral Agent nor any of its officers, directors, employees or agents
shall be liable for any action taken or omitted by it as such under this
Agreement or hereunder or in connection herewith or therewith, unless caused by
its or their gross negligence or willful misconduct. The duties of the
Collateral Agent shall be mechanical and administrative in nature; the
Collateral Agent shall not have by reason of this Agreement or any other
Guaranteed Document a fiduciary relationship in respect of any Secured Creditor;
and nothing in this Agreement, expressed or implied, is intended to or shall be
so construed as to impose upon the Collateral Agent any obligations in respect
of this Agreement except as expressly set forth herein.
4. Reliance. The Collateral Agent shall be entitled to rely upon,
--------
and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Collateral Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Collateral Agent may consult with
legal counsel (who may be counsel for the Borrower), independent accountants and
other experts selected by it, with respect to all legal matters pertaining to
this Agreement and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
5. Sub-Agents. The Collateral Agent may perform any and all its
----------
duties and exercise its rights and powers by or through any one or more sub-
agents appointed by the Collateral Agent. The Collateral Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
succeeding or preceding paragraphs shall apply to any such sub-agent and to the
<PAGE>
Schedule 1
Page 2
Related Parties of the Collateral Agent and any such sub-agent, and shall apply
to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Collateral Agent.
6. Resignation of the Collateral Agent. Subject to the appointment
-----------------------------------
and acceptance of a successor Collateral Agent as provided in this paragraph,
the Collateral Agent may resign at any time from the performance of all its
functions and duties hereunder by notifying the Required Secured Creditors.
Upon any such resignation, the Required Secured Creditors shall have the right,
in consultation with the Borrower, to appoint a successor. If no successor
shall have been so appointed by the Required Secured Lenders or shall have
accepted such appointment within 30 days after the retiring Collateral Agent
gives notice of its resignation, then the retiring Collateral Agent may, on
behalf of the Required Secured Creditors, appoint a successor Collateral Agent
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as Collateral Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Collateral Agent,
and the retiring Collateral Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Collateral Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Collateral
Agent's resignation hereunder, the provisions herein shall continue in effect
for the benefit of such retiring Collateral Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Collateral Agent.
7. Lack of Reliance on the Collateral Agent. Each Secured Creditor
----------------------------------------
acknowledges that it has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of each Credit Party and
each of their Subsidiaries in connection with the making and the continuance of
the Loans, participation in Letters of Credit and the taking or not taking of
any action in connection herewith and (ii) its own appraisal of the
creditworthiness of each Credit Party and each of their Subsidiaries and, except
as expressly provided in this Agreement, the Collateral Agent shall not have any
duty or responsibility, either initially or on a continuing basis, to provide
any Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or issuance of Letters
of Credit or at any time or times thereafter. The Collateral Agent shall not be
responsible to any Lender for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectability, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of any Credit Party or any of its Subsidiaries or be required to make
any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of any Loan Party or any of its Subsidiaries or the
existence or possible existence of any Default or Event of Default.
8. Certain Rights of the Collateral Agent. No Secured Creditor shall
--------------------------------------
have the right to cause the Collateral Agent to take any action with respect to
the Collateral, with only the Required Secured Creditors having the right to
direct the Collateral Agent to take any such action. If the Collateral Agent
shall request instructions from the Required Secured Creditors
<PAGE>
Schedule 1
Page 3
with respect to any act or action (including failure to act) in connection with
this Agreement, the Collateral Agent shall be entitled to refrain from such act
or taking such action unless and until it shall have received instructions from
the Required Secured Creditors, and to the extent requested, appropriate
indemnification in respect of actions to be taken; and the Collateral Agent
shall not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, no Secured Creditor shall have any right of action
whatsoever against the Collateral Agent as a result of the Collateral Agent
acting or refraining from acting (x) hereunder in accordance with the
instructions of the Required Secured Creditors or (y) under any Guaranteed
Document as provided for therein.
9. Indemnification. To the extent that the Collateral Agent is not
---------------
reimbursed and indemnified by the Borrower, the Secured Creditors will reimburse
and indemnify that the Collateral Agent, in proportion to their respective
principal amounts of Obligations for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Collateral Agent in performing its
respective duties hereunder, in any way relating to or arising out of this
Agreement; provided that no Secured Creditor shall be liable for any portion of
--------
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Collateral Agent's
gross negligence or willful misconduct.
<PAGE>
ANNEX A
-------
Pledgor: CHC Hotels & Resorts Corp.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Carnicon Holdings Corp. FL 100% 1,000 shares 100%
Common
- ----------------------------------------------------------------------------------------------------------------------------------
Carnicon-Venezuela Hotel FL 50% 50% 50%
Consultants, L.C.
- ----------------------------------------------------------------------------------------------------------------------------------
CHC REIT Lessee Corp. FL 100% 100 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
CHC REIT Management Corporation FL 100% 100 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
Criterion N.Y., Inc. FL 100% 1,000 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
Criterion Hotel Management Corp. FL 100% 1,000 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
CSMC of Kalamazoo, Inc. MI 100% 1,000 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
GB Hotel Management de Mexico S
de RI de C.V. Mexico 100% 35%
- ----------------------------------------------------------------------------------------------------------------------------------
Grand Bay Management Company FL 100% 1,000 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
TCC Venezuela, L.C. FL 50% 50%
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Pledgor: CHC Lease Partners
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Wyndham Peachtree Lessee Holding DE 100% 100 shares 100%
Corp.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Lessee Member LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: CHC REIT Management Corp.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
CHC Lease Partners FL 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
GAH-II Corporation DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
GAH-II, L.P. DE 49.5% 49.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: CHC REIT Lessee Corp.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
CHC Lease Partners FL 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-2-
<PAGE>
Pledgor: C.I. Albuquerque Lessee GP, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
C.I. Albuquerque Lessee, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Casa Marina Realty Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Casa Marina Realty Partnership, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Chicago-ES Holding Corp.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Chicago-ES Member Corp. DE 100% 100 shares 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Deuce Management Company LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
GAH-II, L.P. DE 0.48% 0.48% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-3-
<PAGE>
Pledgor: Family Suites Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Family Suites Limited Partnership DE GP GP GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Family Suites Management Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Family Suites Management DE GP GP GP
Partnership, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Glenview Hospitality, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DT Glenview, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC/Interstone Partnership II, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Interstone Three Partners I, L.P. DE 50.5% 50.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners II, L.P. DE 50.5% 50.5% LP 50.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners III, L.P. DE 50.5% 50.5% LP 50.5% LP
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Interstone Three Partners IV, L.P. DE 50.5% 50.5% LP 50.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC/Jacksonville Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Water Street Hotel, Ltd. DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC/Maryville Hotel Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Maryville Centre Hotel Joint Venture MO 50% 50% GP 50% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC Member Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC Realty Partnership, L.P. DE 1.0333% 1.0333% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Texas Corporation DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-5-
<PAGE>
Pledgor: IHC/Park West Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Interstate/Montour Associates, Ltd. PA 95.6075% 95.6075% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PW Land Associates Limited PA 99% 99% GP 99% GP
Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC/Reach Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
The Key West Reach Limited DE 1% 1% GP 1% GP
Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC Realty Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
ES Phoenix Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
ES Schaumburg Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Columbus Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Gateway Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-6-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Hilt-Hilt Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Conshohocken Partnership, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Denver Partnership, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Houston Partnership, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC Realty Partnership, L.P. DE 1.0333% 1.0333% GP 1.0333% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHP Investment Company, L.L.C. DE 1% 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone/CGL (WC) Partners LP DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone/PAH-Partners, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Parsippany Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
R-Lisle Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Rad-Burl. Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Rad-Jose Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC Realty Partnership, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Casa Marina Realty Partnership, L.P. DE 97.6063% 97.6063% LP
- -----------------------------------------------------------------------------------------------------------------------------------
ES Phoenix Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Columbus Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-7-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
H-Gateway Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Hunt-Hilt Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Denver Partnership, L.P. DE 89% 89% LP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Conshohocken Partnership, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
IHP/Class B Partnership, L.P. DE 98.7829% 98.7829% GP 98.7829% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHP Investment Company, L.L.C. DE 99% 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone/CGL (WC) Partners LP DE 64% 64% LP 64% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone/PAH-Partners L.P. DE 98% 98% LP
- -----------------------------------------------------------------------------------------------------------------------------------
The Key West Reach Limited DE 96.1194% 96.1194% LP 96.1194% LP
Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
PW Land Associates Limited PA 1% 1% LP 1% LP
Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Parsippany, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
R-Lisle, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Rad-Burlington, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Rad-Jose, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Swatara Associates PA 97.9636% 1.3350% GP
96.6286% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Syracuse Realty Associates DE 93% 93% LP 93% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Water Street Hotel, Ltd. DE 84% 84% LP 84% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-8-
<PAGE>
Pledgor: IHC/Santa Maria Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Santa Maria Joint Venture DE 50% 50% GP 50% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC/Texas Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Houston Partnership, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHP/Class B Partnership, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Chicago-ES, LLC DE 99% 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHP Investment Company, L.L.C.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHP Holdings Partnership, L.P. PA 19.8165% 19.8165% GP 19.8165% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-9-
<PAGE>
Pledgor: Interstate/Montour Associates, Ltd.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Park West Hotel Associates PA 50% 50% GP 50% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Interstone/PAH-Partners, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
ES Schaumburg Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Melbourne Hospitality, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
H-Melbourne, L.P. DE 99.5% 99.5% LP 99.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
H-Melbourne GP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: O-H Acquisition, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
WHC Finance, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-10-
<PAGE>
Pledgor: PA Troy Hospitality Investors, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Mar-Ty Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Allen Operating Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-GP Allen Partners, L.P. DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Buttes, L.L.C.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Buttes Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Carefree, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Resorts Limited Partnership II DE .1% .1% GP .1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Resorts Limited Partnership DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-11-
<PAGE>
Pledgor: PAH-CI Holdings, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Albuquerque C.I. Associates, L.P. KS 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
CI Holding, L.L.C. KS 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
Savannah C.I. Associates, L.P. GA 5% 5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Topeka C.I. Associates, L.P. KS 3.49% 3.49% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Columbus Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
WHC Columbus Corporation DE 100% 102 shares 100%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-DT Chicago O'Hare Partners, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DT-Des Plaines Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
DT-Des Plaines Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-12-
<PAGE>
Pledgor: PAH-DT Miami Airport Partners, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DT Miami LP Holding, L.L.C. DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
DT Miami LP Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-DT Tallahassee Partners, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DT Tallahassee LP Holding, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
DT Tallahassee LP Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
DT Tallahassee Mezz, L.P. DE 99.5% 99.5% LP 99.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Deuce GP, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Glenview Hospitality, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Kansas City Hospitality, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Marina Hospitality, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Melbourne Hospitality, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-13-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Toledo Hotel Investors, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
YO Hotel Investors, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Franchise Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Crossroads Development Company DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Don CeSar Holdings, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Don CeSar Resort Hotel, Ltd. FL 12% 12% LP 12% LP
- -----------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Ontario, L.P. DE 10% 10% LP 10% LP
- -----------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Manhattan Beach, L.P. DE 25% 25% LP 25% LP
- -----------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Waterford, L.P. DE 25% 25% LP 25% LP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Pittsburgh Partnership, L.P. DE 6.7673% 6.7673% LP 6.7673% LP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Santa Maria Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC Title Agency Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Real Estate Member, Inc. DE 100% 100 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-14-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Pittsburgh, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WHC Franchise Corporation DE 100% 102 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-GAH Holdings, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-GAH Holdings, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-GBM, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Grand Bay Miami, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH GP, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1500 Canal Street Investors II, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Boulders Joint Venture AZ .1% .1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-15-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Bourbon Orleans Investors II, L.P. DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Chicago-ES Holding Corp. DE 100% 100 shares
- -----------------------------------------------------------------------------------------------------------------------------------
DT Denver Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
DT Glenview Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Cleveland Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Delmar Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Melbourne Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
M-Troy Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PA Hunt Valley Investors, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PA Troy Hospitality Investors, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Carefree, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Ventana Canyon, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Miami Note Holder, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Hospitality VA 1% 1% GP
Partnership, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
R-Houston LP Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Tree-Mass Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Bel Age Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WCHNW Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Brookfield Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-16-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Buttes Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Charlotte Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Commerce Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Emerald Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Franklin L.P. Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Garden Atlanta Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Greenspoint Holding Corp. DE 100% 100 shares 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Indiana Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Miami Airport Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Richardson L.P. Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Tampa Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Holding Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-GP Allen Partners, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-DT Allen Partners, L.P. DE 85% 85% GP 85% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-17-
<PAGE>
Pledgor: PAH-IP Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Wyndham IP Corporation DE 100% 102 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Interest Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
WH Interest, Inc. TX 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Interstone, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Interstone Partnership II, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners I L.P. DE .5% .5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners II L.P. DE .5% .5% GP .5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners III L.P. DE .5% .5% GP .5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners IV L.P. DE .5% .5% GP .5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-18-
<PAGE>
Pledgor: PAH LP, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Patriot American Hospitality VA 91% 91% LP 73.6% LP
Partnership, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Leasing, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
BJV Realty, Inc. AZ 100% 1,000 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
The Boulders Carefree Sewer AZ 100% 1,000 shares
Corporation Common
- -----------------------------------------------------------------------------------------------------------------------------------
The Peaks Real Estate Services, Inc. AZ 66.66% 1,000 shares
Preferred
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Management Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DFW/H&R, Inc. TX 49% 490 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
HMG Beverage, Inc. TX 100% 400 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-19-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
INTMB, Inc. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Interstate Holdings, Inc. DE 46.721% 11,567.15 shares 46.721%
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Pittsburgh C.I. Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Pittsburgh C.I., Inc. KS 100% 102 shares 100%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Pittsburgh, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Pittsburgh Partnership, L.P. DE 92.2327% 92.2327% GP 92.2327% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-RH, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-River House, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-20-
<PAGE>
Pledgor: PAH-Real Estate Member, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Pittsburgh Partnership, L.P. DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-River House, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Miami Airport GP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Miami Airport, L.P. DE 99.5% 99.5% LP 99.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-River North, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Block 125 River North Hotel Venture, DE 19.9% 19.9% 19.9%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-21-
<PAGE>
Pledgor: PAH-Stanly Holding LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Stanly Ranch LLC DE 1% 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Summerfield Holding Corp.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Summerfield LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Company, L.P. KS 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Corporation DE 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Summerfield, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Summerfield Hotel Company L.P. KS 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-22-
<PAGE>
Pledgor: PAH-Summerfield Leasing, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Summerfield Hotel Leasing Corporation KS 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-T, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Tampa, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Tampa, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Tampa, GP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Tampa, L.P. DE 99.5% 99.5% 99.5%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-WMC Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Wyndham Management Corporation DE 100% 102 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-23-
<PAGE>
Pledgor: PAH-Xerxes Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Xerxes Limited Jamaica 99.5% 199 shares 35%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PW Land Associates Limited Partnership
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Park West Hotel Associates PA 50% 50% GP 50% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Patriot American Hospitality, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Casa Marina Realty Corporation DE 98.6063% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Park West Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC Miami Mortgage Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Reach Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-24-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Jacksonville Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Maryville Hotel Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Capital Corporation DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC Member Corporation DE 100% 100 shares Class
A Common
12,075 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC Realty Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Miami Beach Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Interstate Hotels Corporation DE 3% 181,916 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-LP, Inc. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Allen Operating Corporation DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Acquisition Corp. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-GP, Inc. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-BV Holding Corp. DE 100% 1000 shares 100%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-25-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-CI Holding, LLC DE 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Franchise Holding, Inc. DE 94.3464% 20,071.2429
shares Class B
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-HVP Holding Corp. DE 100% 1,000 shares 100%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Interstate Holdings, Inc. DE 52.279% 12,943.34 shares 52.279%
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Management Corporation DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
Syracuse Associates Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
W-Novi Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Novi Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Pleasanton Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Pleasanton Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-26-
<PAGE>
Pledgor: Patriot American Hospitality Partnership, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1500 Canal Street Investors II, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Albuquerque C.I. Associates, L.P. KS 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Atlanta C.I. Associates II, L.P. KS 49% 49% LP 49% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Atlanta American Hotel Investors, DE 69% 69% LP 69% LP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Boulders Joint Venture AZ 99.9% 99.9% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Bourbon Orleans Investors II, L.P. DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Holding, L.L.C. KS 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. General L.L.C. KS 20% 20% 20%
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Wichita General, L.L.C. KS 20% 20% 20%
- -----------------------------------------------------------------------------------------------------------------------------------
City Centre Partnership, L.P. DE 92.5% 92.5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
CPHPAH-Dos Pueblos Associates, LLC DE 4% 4% 4%
- -----------------------------------------------------------------------------------------------------------------------------------
DT Denver Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
GHALP Partnership, L.P. DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Glenview Hospitality, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
H-Cleveland Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Delmar Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Hotel Venture Partners, Ltd. FL 88.39% 88.39% LP 88.39% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-27-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Kansas City Hospitality, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Marina Hospitality, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Melbourne Hospitality, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PA Ravinia Partners VA 4% 4% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PA Hunt Valley Investors, L.P. VA 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PA Troy Hospitality Investors, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Akron, L.L.C. DE 90% 90% 90%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Batterymarch Realty Company, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood II, LLC DE 90% 90% 90%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood I, LLC DE 90% 90% 90%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH Billerica Realty Company, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Buttes L.L.C. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-BV Palace, L.P. DE 99.5% 99.5% LP 99.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Carefree, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-CI Holding, LLC DE 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Columbus Holding, Inc. DE 99% 9,900 Shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Deuce GP, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-28-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-DT Chicago O'Hare Partners, L.P. DE 90% 90% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-DT Miami Airport Partners, L.P. DE 90% 90% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-DT Minneapolis Suites Partners, DE 90% 90% GP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-DT Park Place Partners, L.P. DE 90% 90% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-DT Tallahassee Partners, L.P. DE 90% 90% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-FF&E Holding, Inc. DE 99% 99 shares
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Franchise Holding, Inc. DE 4.6536% 9,900 Shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAHG FF&E Holding, Inc. DE 99% 99 shares
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-GBM, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-GP Allen Partners, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Grand Bay Miami, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Interest Holding, Inc. DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-IP Holding, Inc. DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAHP FF&E Holding, Inc. DE 99% 99 shares
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh CI Holding, Inc. DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-29-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH Ravinia, Inc. VA 99.04% Class B -
Non-Voting
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-RH, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-River House, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-River North, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Holding Corp. DE 9.09% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Leasing, Inc. DE 9.09% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-T, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Tampa, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Ventana Canyon, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Westlake LLC DE 90% 90% 90%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Westmont CI Holding, Inc. DE 99% 10,890 shares 99%
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Windwatch Partners DE 4% 4% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Windwatch, LLC DE 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-WMC Holding, Inc. DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Xerxes Holding, Inc. DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Bougainvillea, LLC DE 25% 25% 25%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-30-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Patriot Land Holding LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Miami Note Holder, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Racetrack Land LLC DE 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
Resorts Limited Partnership DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
R-Houston LP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Richardson C.I. Associates, L.P. TX 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Rose Hall Associates Limited TX 99% 99% LP
Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Savannah C.I. Associates, L.P. GA 95% 95% LP
- -----------------------------------------------------------------------------------------------------------------------------------
St. Louis C.I. Associates, L.P. MO 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Leasing Company, KS 99% 99% LP 99% LP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Summerfield HPT Lease Company, L.L.C. DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Summerfield HPT Lease Company, L.P. KS 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Toledo Hotel Investors, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Topeka C.I. Associates, L.P. KS 96.51% 96.51% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Travis Real Estate Group Joint TX 65.48% 65.48% 65.48%
Venture
- -----------------------------------------------------------------------------------------------------------------------------------
Tree-Mass Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Bel Age Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-31-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Brookfield, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Charlotte, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WCHNW, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Colinas LP Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Colinas Mezz LP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Commerce Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Emerald Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Franklin Mezz, LP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WG Member, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Garden Atlanta, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WHC Atlanta GP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WHC Chicago, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WHC Finance, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
WI Ohio Investors, Inc. DE 99%
- -----------------------------------------------------------------------------------------------------------------------------------
Wichita C.I. Associates III, L.P. KS 86.64% 86.64% LP 86.64% LP
- -----------------------------------------------------------------------------------------------------------------------------------
W-Indiana Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Member, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
YO Hotel Investors, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-32-
<PAGE>
Pledgor: Patriot Grand Heritage, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Burrllen Enterprises of Maryland MD 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
GH Trademarks, LLC MD 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Atlanta, LLC MD 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Leasing, LLC MD 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Real Estate MD 1% 1%
Group LLC
- -----------------------------------------------------------------------------------------------------------------------------------
P.H.G., LLC MD 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Patriot Land Holding LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Patriot Racetrack Land LLC DE 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Richardson C.I. Associates, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Richardson Mezz L.P., LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-33-
<PAGE>
Pledgor: Summerfield Hotel Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Sierra Suites Marketing KS 100% 100%
Association
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Marketing DE 100% 100%
Association
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Syracuse Associates Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Syracuse Realty Associates, DE 1% 1% GP 1% GP
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: TCC Venezuela, L.C.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
TCC Maturin, C.A. FL 100% 100% 35%
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-34-
<PAGE>
Pledgor: WHC Chicago, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Oxford Wyn 633 DE 50% 50% 50%
Investment Company,
L.L.C.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: WHCMB, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
CHMB, Inc. TX 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GHMB, Inc. TX 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
MBAH, Inc. TX 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PSMB, Inc. CA 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
WHCMB Overland Park, KS 100% 1,000 shares
Common
Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: WI Ohio Investors, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Akron, L.L.C. DE 10% 10% 10%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-35-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Beachwood II, LLC DE 10% 10% 10%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood I, LLC DE 10% 10% 10%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Westlake LLC DE 10% 10% 10%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Wyndham International, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
CHC Hotels & Resorts Corp. FL 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Lessee GP, Inc. DE 100% 100 shares 100%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GHALP Operating GP, Inc. DE 100% 100 shares 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH Ravinia, Inc. VA 1% [1%]
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American DE 100%
Hospitality, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Resorts Services, Inc. AZ 99% 622.50 shares
Non-voting
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Salt Lake City DE 100% 100 shares 100%
Operating GP, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Atlanta Lessee, DE 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-36-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Wyndham International DE 81% 80% LP
Operating Partnership, 1% GP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
WYN Travel, Inc. DE 100% 100 shares
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Wyndham International Operating Partnership, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Arcadian Hotels Limited UK 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Burrllen Enterprises of MD 99% 99% GP
Maryland
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Albuquerque DE 99% 99% LP
Lessee, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Wichita Lessee, DE 99% 99% LP 99% LP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Albuquerque Lessee DE 100% 100%
GP, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Overland Park DE 99% 99% LP 99% LP
Lessee, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Atlanta Lessee, DE 99% 99% LP 99% LP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Knoxville Lessee, DE 99% 99% LP 99% LP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Omaha Lessee, L.P. DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Carefree Management LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
CFMB, Inc. DE 100% 100 shares 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-37-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Deuce Management TX 100% 100%
Company LLC
- -----------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Member, DE 100% 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Holding DE 100% 100 shares 100%
Corp.
- -----------------------------------------------------------------------------------------------------------------------------------
Family Suites DE 100% 600 shares
Corporation
- -----------------------------------------------------------------------------------------------------------------------------------
Family Suites DE 100% 600 shares
Management Corporation
- -----------------------------------------------------------------------------------------------------------------------------------
FS Development DE 100% 600 shares
Corporation
- -----------------------------------------------------------------------------------------------------------------------------------
GAH-II, L.P. DE 48.34% 48.34% LP
- -----------------------------------------------------------------------------------------------------------------------------------
GH (Cayman) Limited Cayman 100% 999 shares 35%
Islands Common
- -----------------------------------------------------------------------------------------------------------------------------------
GH Trademarks, LLC MD 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Atlanta, LLC MD 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Chicago, Inc. IL 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Detroit, Inc. MI 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Greeneville, Inc. TN 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Providence, Inc. RI 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-38-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
GH-San Diego, Inc. DE 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Wichita, Inc. KS 100% 200 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GHALP Operating DE 99% 99% LP 99% LP
Partnership, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
GHV-Colorado, Inc. CO 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GHV-Galveston, Inc. TX 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Bay Management, FL 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Hotels, MD 100% 6,000 shares
Common
Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Leasing, MD 99% 99%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Real MD 99% 99%
Estate Group, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Management FL 100% 1,000 shares
Services, Inc. Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Interstone DE 99% 99% LP
Partnership II, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Burlington VT 100% 100 shares
Corporation Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/FS Development DE 100% 600 shares
Corporation
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-39-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Jamaica Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHP Lessee, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
L'Horizon Management Jersey 100% 100 shares 100%
(Jersey) Ltd. Common
- -----------------------------------------------------------------------------------------------------------------------------------
L'Horizon Hotel Jersey 100% 100%
(Jersey) Ltd.
- -----------------------------------------------------------------------------------------------------------------------------------
P.H.G. LLC MD 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
Malmaison Hotels Limited England & 100% 100%
Wales
- -----------------------------------------------------------------------------------------------------------------------------------
PAH Asset Management, DE 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Batterymarch DE 100% 100%
Operating Company, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Columbus Holding, DE 1% 100 shares
Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-FF&E Holding, Inc. DE 1% 1 share
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Franchise Holding, DE 1% 212.7398 shares
Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAHG FF&E Holding, Inc. DE 1% 1 share
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-GAH Holdings, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-GAH Holding, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-40-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Interest Holding, DE 1% 100 shares
Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Interstate DE 1% 247.58 shares 1%
Holdings, Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Interstone, Inc. DE 100% 100 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-IP Holding, Inc. DE 1% 100 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Leasing LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Management DE 1% 100 shares
Corporation Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAHMB Maryland, Inc. MD 100% 100 shares 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAHMB, Inc. TX 100% 100 shares
- -----------------------------------------------------------------------------------------------------------------------------------
PAHP FF&E Holding, Inc. DE 1% 1 share
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh CI DE 1% 100 shares
Holding, Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Stanly Holding LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Stanly Ranch LLC DE 99% 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-41-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Summerfield Holding DE 90.91% 2 shares
Corp. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield DE 90.91% 2 shares
Leasing, Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Westmont CI DE 1% 110 shares 1%
Holding, Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-WMC Holding, Inc. DE 1% 100 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Xerxes Holding, Inc. DE 1% 100 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Bougainvillea DE 100% 100%
Development Company, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Bougainvillea, DE 75% 75% 75%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Grand Heritage, DE 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Holding LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PWMB, Inc. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Reserve Collection DE 100% 100% 100%
Boulders, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Reserve Collection DE 100% 100% 100%
Peaks, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-42-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Salt Lake City DE 99% 99% LP 99% LP
Operating Partnership,
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
SFMB, Inc. DE 100% 100 shares
- -----------------------------------------------------------------------------------------------------------------------------------
WI Ohio Investors, Inc. DE 1% 100 shares
Class Common
- -----------------------------------------------------------------------------------------------------------------------------------
W-SSH, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham HPT Lessee LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham HPT Lessee, L.P. DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management II, DE 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham SN Lessee Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham SN Lessee, L.P. DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield DE 100% 100%
Lessee LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield DE 99% 99% LP
Lessee, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham UK Holdings England & 100% 100%
Limited Wales
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-43-
<PAGE>
Pledgor: Wyndham Management Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Clubhouse Inns of KS 100% 100 shares
America, Inc. Common
- -----------------------------------------------------------------------------------------------------------------------------------
Waterfront Management DE 100% 100 shares
Corporation Common
- -----------------------------------------------------------------------------------------------------------------------------------
WHC Caribbean Limited Jamaica .5% 1 share .5%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
WHCMB Toronto, Inc. Canada 100% 1 share 35%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
WHCMB Utah Private Club UT 100% 100%
Corporation
- -----------------------------------------------------------------------------------------------------------------------------------
WHCMB, Inc. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Hotels & Bermuda 100% 12,000 shares 35%
Resorts Management, Ltd. Common
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Hotels & Aruba 100% 10 shares 35%
Resorts (Aruba) N.V. Common
- -----------------------------------------------------------------------------------------------------------------------------------
Xerxes Limited Jamaica .5% 1 share .5%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Wyndham Management II, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
WMC II, Inc. DE 100% 100 shares
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-44-
<PAGE>
Pledgor: Wyndham Summerfield Lessee LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Wyndham Summerfield DE 1% 1% GP
Lessee, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-45-
<PAGE>
The following Pledgors hold no Securities:
1. 1500 Canal Street Investors II, L.P.
2. Albuquerque C.I. Associates, L.P.
3. BJV Realty, Inc.
4. Boulders Carefree Sewer Corporation
5. Boulders Joint Venture
6. Burrllen Enterprises of Maryland
7. CHMB, Inc.
8. C.I. Albuquerque Lessee, L.P.
9. Carefree Management LLC
10. Clubhouse Inns of America, Inc.
11. Criterion Hotel Management Corp.
12. Criterion NY Inc.
13. Crossroads Development Company
14. CSMC of Kalamazoo, Inc.
15. FS Development Corporation
16. GAH-II, L.P.
17. GHMB, Inc.
18. GH-Atlanta, LLC
19. GH-Chicago, Inc.
20. GH-Detroit, Inc.
21. GH-Greeneville, Inc.
22. GH-Providence, Inc.
-46-
<PAGE>
23. GH-San Diego, Inc.
24. GH Trademarks, LLC
25. GH-Wichita, Inc.
26. GHV-Colorado, Inc.
27. GHV-Galveston, Inc.
28. Grand Bay Management Company
29. Grand Bay Management, LLC
30. Grand Heritage Hotels, Inc.
31. Grand Heritage Leasing LLC
32. Grand Heritage Real Estate Group LLC
33. Grand Management Services, Inc.
34. HMG Beverage, Inc.
35. IHC/Burlington Corporation
36. IHC/Capital Corporation
37. IHC/Conshohoken Partnership, L.P.
38. IHC/Denver Partnership, L.P.
39. IHC/FS Development Corporation
40. IHC/Houston Partnership, L.P.
41. IHC/Jamaica Corporation
42. IHC/Miami Beach Corporation
43. IHC/Miami Mortgage Corporation
44. IHC/Title Agency Corporation
45. IHP Lessee, LLC
46. INTMB, Inc.
-47-
<PAGE>
47. Interstone Three Partners I, L.P.
48. Kansas City Hospitality, L.P.
49. Key West Reach Limited Partnership
50. MBAH, Inc.
51. Marina Hospitality, L.P.
52. P.H.G. LLC
53. PA Hunt Valley Investors, L.P.
54. PAH-Acquisition Corporation
55. PAH Asset Management, LLC
56. PAH-Batterymarch Operating Company, LLC
57. PAH-DT Minneapolis Suites Partners, L.P.
58. PAH-DT Park Place Partners, L.P.
59. PAH-FF&E Holding, Inc.
60. PAH-GAH Holdings, L.P.
61. PAH-Grand Bay Miami, L.P.
62. PAHG FF&E Holding, Inc.
63. PAHMB, Inc.
64. PAHP FF&E Holding, Inc.
65. PAH-Ventana Canyon, L.P.
66. Park West Hotel Associates
67. Patriot Bougainvillea Development Company, LLC
68. Patriot Holding LLC
69. Patriot Miami Note Holder, L.P.
70. Patriot Racetrack Land LLC
-48-
<PAGE>
71. The Peaks Real Estate Services, Inc.
72. PSMB, Inc.
73. PWMB, Inc.
74. SFMB, Inc.
75. Savannah C.I. Associates, L.P.
76. Sierra Suites Marketing Association
77. St. Louis C.I. Associates, L.P.
78. Summerfield Hotel Company, L.P.
79. Summerfield Suites Marketing Association
80. Syracuse Realty Associates, L.P.
81. Toledo Hotel Investors, L.P.
82. Topeka C.I. Associates, L.P.
83. Water Street Hotel, Ltd.
84. Waterfront Management Corporation
85. WH Interest, Inc.
86. WHC Finance, L.P.
87. WHC Franchise Corporation
88. WHCMB Overland Park, Inc.
89. WMC II, Inc.
90. WYN Travel, Inc.
91. Wyndham Atlanta Lessee, LLC
92. Wyndham IP Corporation
93. Wyndham Summerfield Lessee, L.P.
94. YO Hotel Investors, L.P.
-49-
<PAGE>
Annex B
List of Notes
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American William W. Evans, III $424,375 Non-recourse loan (1998) for assistance with
Hospitality, Inc. (as of 6/25/99) payment of income taxes in connection with the
vesting of shares of paired common stock. Due on
November 27, 2003 or 60 days after termination of
employment, if earlier (7.5% interest per annum)
and secured by 53,667 shares of paired common
stock.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Lawrence S. Jones $779,524 Non-recourse loan (1998). Due on October 5, 2001
Inc. (as of 5/31/99) (7.0% interest per annum). Mr. Jones' Employment
(includes Agreement provides that a portion of the loan may
interest, be forgiven upon Mr. Jones' termination of
$750,000 note) employment.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Anne Raymond $5,196,959 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Raymond Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount the loan amount due exceeds the value of the
$4,417,588. shares (the "Raymond Debt Forgiveness") will be
forgiven.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American James Carreker $5,769,861 Loan (due July 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Carreker Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount the loan amount due exceeds the value of the
$4,904,573. shares (the "Carreker Debt Forgiveness") will be
forgiven.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American James Carreker $696,214 Note (related to 12/97 salary advance); matures
Hospitality Partnership, (as of 12/31/98) July 2003 (interest at Company's revolver rate)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Leslie Bentley $2,123,607 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Bentley Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount the loan amount due exceeds the value of the
$1,805,133. shares (the "Bentley Debt Forgiveness") will be
forgiven.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Stanley M. Koonce, Jr. $2,163,455 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Koonce Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount the loan amount due exceeds the value of the
$1,839,006. shares (the "Koonce Debt Forgiveness") will be
forgiven.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Company Leslie Bentley $430,000 Note; matures April 2002 (7% interest per annum)
(as of 5/31/99)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham Management Company Dave Johnson $200,000 Note (related to margin call response); matures
(as of 5/31/99) April 2002 (7% interest per annum)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Leslie Ng $63,133 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per annum)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Terry Hunzicker $37,880 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per annum)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Diane Golden $8,820 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per annum)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Deborah Gray $6,113 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per annum)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. David Lee $8,696 Note related to taxes on vested restricted stock.
(as of 5/31/99)
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American NorthCoast Hotels, LLC $2,000,000 Secured by pledge of equity interests in entity
Hospitality Partnership, (as of 6/25/99) owning WestCoast Roosevelt, Gateway and Wenatchee
L.P. hotels. Interest: 8.5% per annum.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management WHC-LG Hotel Partners, $1,993,887 Secured by pledge of equity interests in WHC-LG.
Corporation L.P. (as of 6/25/99) Interest: 9.0% per annum.
(includes
interest)
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Bluewater Palmas Ltd. $5,165,300 Secured by Mortgage and Pledge Agreement on
Hospitality, Inc. (as of 6/25/99) Palmas del Mar. Interest: 10.0% per annum.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham Management Dublin Inn, Ltd. $2,619,127 Secured by pledge of partnership interests in
Corporation (as of 6/25/99) Wyndham Dublin (Columbus), OH. Interest: 13.5%
(includes per annum.
interest)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management San Juan Associates, $2,095,987 and Secured by pledge of partnership interests in Old
Corporation L.P., S.E. $473,450 San Juan Hotel. Two loans - for San Juan
(as of 6/25/99) construction and San Juan operations.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American John L. Hopkins III and $2,150,000 Wyndham Garden -Richmond Airport
Hospitality, Inc. Robert N. Prager (as of 6/25/99)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Aruba Hotel Enterprises N.V. $1,941,815 Wyndham-Aruba Beach Resort & Casino
Corporation Alfonso Riveroll Estrada, (as of 6/25/99)
Pres.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Boulders Carefree Sewer $487,850 The Boulders - Grand Bay
Hospitality Partnership, Corporation (as of 5/31/99)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American City Centre Partnership, Approximately Wyndham City Center
Hospitality Partnership, L.P. $25,819,456
L.P. (as of 6/30/99)
(includes
interest)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American PAH-GP Allen Partners $35,819,456 Doubletree - Allen Center
Hospitality Partnership, (as of 6/30/99)
L.P. (includes
interest)
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Ravinia, Inc. 41,220,562 Crowne Plaza - Ravinia
Hospitality Partnership, (as of 5/31/99)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Windwatch LLC 31,343,070 Wyndham - Windwatch
Hospitality Partnership, (as of 5/31/99)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Leasing LLC 9,000,000 Carefree Resorts
Hospitality Partnership, (as of 5/31/99)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Dublin Inn Ltd. $1,278,260 Wyndham Garden - Dublin
Hospitality Partnership, (as of 5/31/99)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Patriot American $119,250,000 Interstate Acquisition
Inc. Hospitality, Inc. (as of 5/31/99)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $24,179,761 Patriot/Wyndham Merger
Operating Partnership, Hospitality Partnership, (as of 6/30/99)
L.P. L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham International Partnership, L.P. $4,057,323 Subscription Note issued by paired share company
Operating Partnership, (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the Summerfield transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $1,758,555 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the Summerfield transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Patriot American $34,591,050 Subscription Note issued by paired share company
Inc. Hospitality, Inc. (as of 6/25/99) to other paired share company which did not
receive assets in the Interstate transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $9,086,559 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the CF Asset transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $21,448,837 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the Wyndham transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Wyndham International $2,465,909 Subscription Note issued by paired share company
Hospitality Partnership, Operating Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the Kaufman transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $4,564,980 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the UBS transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham International Patriot American $6,091,313 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the Nations transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $6,955,397 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the PaineWebber transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Patriot American Hospitality $258,572 Subscription Note issued by paired share company
Inc. Partnership, L.P. (as of 6/25/99) to other paired share company which did not
receive assets in the PAH LP transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Wyndham International $37,310 Subscription Note issued by paired share company
Inc. Operating Partnership, L.P. (as of 6/25/99) to other paired share company which did not
receive assets in the WI transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Wyndham International, Inc. $133,669,014 Subscription Note issued by paired share company
Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the WHG transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Owners of the Wyndham LAX $4,237,000 had In connection with the Los Angeles Airport
Inc. been funded as Wyndham, $4,560,000 promissory note; continuing
of 12/31/98 obligation to fund the unadvanced portion the
note.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American Anatole Hotel Investors, L.P. $10,000,000, Unsecured construction loan agreement (1997).
Hospitality, Inc. plus $197,267
accrued interest
(as of 6/30/99)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
8
<PAGE>
ANNEX C
-------
ADDRESSES
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1. 1500 Canal Street Investors II, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
2. Albuquerque C.I. Associates, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
3. BJV Realty, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
4. Boulders Carefree Sewer Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
5. Boulders Joint Venture 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
6. Burrllen Enterprises of Maryland 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
7. C.I. Albuquerque Lessee GP, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
8. C.I. Albuquerque Lessee, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
9. Carefree Management LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
10. Casa Marina Realty Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
11. CHC Hotels & Resorts Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
12. CHC Lease Partners 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
13. CHC REIT Lessee Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
14. CHC REIT Management Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
15. Chicago-ES Holding Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
16. CHMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
17. Clubhouse Inns of America, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
18. Criterion Hotel Management Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
19. Criterion NY Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
20. Crossroads Development Company Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
21. CSMC of Kalamazoo, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
22. Deuce Management Company LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
23. Family Suites Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
24. Family Suites Management Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
25. FS Development Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
26. GAH-II, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
27. GH-Atlanta, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
28. GH-Chicago, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
29. GH-Detroit, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
30. GH-Greeneville, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
31. GH-Providence, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
32. GH Trademarks LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
33. GH-Wichita, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
34. GH-San Diego, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
35. GHMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
36. GHV-Colorado, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
37. GHV-Galveston, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
38. Glenview Hospitality, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
39. Grand Bay Management Company 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
40. Grand Bay Management LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
41. Grand Heritage Hotels, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
42. Grand Heritage Leasing, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
43. Grand Heritage Real Estate Group LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
44. Grand Management Services, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
45. HMG Beverage, Inc. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
46. IHC/Burlington Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
47. IHC/Capital Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
48. IHC/Conshohocken Partnership, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
49. IHC/Denver Partnership, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
50. IHC/FS Development Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
51. IHC/Houston Partnership, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
52. IHC/Interstone Partnership II, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
53. IHC/Jacksonville Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
54. IHC/Jamaica Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
55. IHC/Maryville Hotel Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
56. IHC Member Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
57. IHC/Miami Beach Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
58. IHC Miami Mortgage Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
59. IHC/Park West Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
60. IHC/Reach Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
61. IHC Realty Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
62. IHC Realty Partnership, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
63. IHC/Santa Maria Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
64. IHC/Texas Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
65. IHC Title Agency Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
66. IHP/Class B Partnership, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
67. IHP Investment Company, L.L.C. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
68. IHP Lessee, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
69. Interstate/Montour Associates, Ltd. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
70. Interstone Three Partners I, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
71. Interstone/PAH Partners, L.P. 1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
72. INTMB, Inc. 1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
73. Kansas City Hospitality, L.P. 1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
74. Key West Reach Limited Partnership Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
75. Marina Hospitality, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
76. MBAH, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
77. Melbourne Hospitality, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
78. O-H Acquisition, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
79. P.H.G., LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
80. PA Hunt Valley Investors, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
81. PA Troy Hospitality Investors, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
82. PAH Acquisition Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
83. PAH Allen Operating Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
84. PAH Asset Management, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
85. PAH Batterymarch Operating Company, 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
LLC
- ------------------------------------------------------------------------------------------------------------
86. PAH Deuce GP, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
87. PAH GAH Holdings, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
88. PAH GAH Holding, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
89. PAH GP, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
90. PAH Leasing LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
91. PAH LP, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
92. PAH-River House, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
93. PAH River North, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
94. PAH Stanly Holding LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
95. PAH Ventana Canyon, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
96. PAH Buttes L.L.C. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
97. PAH-Carefree, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
98. PAH-CI Holding, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
99. PAH-Columbus Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
100. PAH-DT Chicago O'Hare Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
101. PAH-DT Miami Airport Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
102. PAH-DT Minneapolis Suites Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
103. PAH-DT Park Place Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
104. PAH-DT Tallahassee Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
105. PAH-Franchise Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
106. PAH FF&E Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
107. PAHG FF&E Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
108. PAH-GBM, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
109. PAH-GP Allen Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
110. PAH-Grand Bay Miami, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
111. PAH-Interest Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
112. PAH-Interstone, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
113. PAH-IP Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
114. PAH Management Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
115. PAHP FF&E Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
116. PAH-Pittsburgh CI Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
117. PAH-Pittsburgh, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
118. PAH-Real Estate Member, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
119. PAH-RH, LLC 1950 Stemmons Freeway, Suite 6001,Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
120. PAH-Summerfield Holding Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
121. PAH-Summerfield Leasing, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
122. PAH-Summerfield LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
123. PAH-T, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
124. PAH-Tampa, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
125. PAH-WMC Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
126. PAH-Xerxes Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
127. PAHMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
128. Park West Hotel Associates Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
129. Patriot Bougainvillea Development 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
Company, LLC 11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
130. Patriot Grand Heritage, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
131. Patriot Holding LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
132. Patriot Land Holding LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
133. Patriot Miami Note Holder, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
134. Patriot Racetrack Land LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
135. Peaks Real Estate Services, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
136. PSMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
137. PW Land Associates Limited Partnership Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
138. PWMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
139. Richardson C.I. Associates, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
140. Savannah C.I. Associates, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
141. SFMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
142. Sierra Suites Marketing Association 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
143. St. Louis C.I. Associates, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
144. Summerfield Hotel Company, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
145. Summerfield Hotel Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
146. Summerfield Suites Marketing Association 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
147. Syracuse Associates Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
148. Syracuse Realty Associates, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
149. TCC Venezuela, L.C. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
150. Toledo Hotel Investors, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
151. Topeka C. I. Associates, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
152. Waterfront Management Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
153. Water Street Hotel, Ltd. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
154. WH Interest, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
155. WHC Chicago, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
156. WHC Finance, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
157. WHC Franchise Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
158. WHCMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
159. WHCMB Overland Park, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
160. WI Ohio Investors, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
161. WMC II, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
162. WYN Travel, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
163. Wyndham Atlanta Lessee, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
164. Wyndham IP Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
165. Wyndham Management Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
166. Wyndham Management II, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
167. Wyndham Summerfield Lessee, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
168. Wyndham Summerfield Lessee, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
169. YO Hotel Investors, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
8
<PAGE>
Annex D
[Conformed as Executed]
Agreement Regarding Uncertificated Securities, Limited Liability
----------------------------------------------------------------
Company Interests and Partnership Interests
-------------------------------------------
AGREEMENT (as amended, modified or supplemented from time to time,
this "Agreement"), dated as of June 30, 1999, among each of the undersigned
pledgors (each a "Pledgor" and, collectively, the "Pledgors"), THE CHASE
MANHATTAN BANK, not in its individual capacity but solely as Collateral Agent
and Wyndham International, Inc. as the issuer of the Uncertificated Securities,
Limited Liability Company Interests and/or Partnership Interests (each as
defined below) (the "Issuer").
W I T N E S S E T H :
--------------------
WHEREAS, each Pledgor and the Collateral Agent are entering into a
Guaranty and Collateral Agreement, dated as of June 30, 1999 (as amended,
amended and restated, modified or supplemented from time to time, the "Guaranty
and Collateral Agreement"), under which, among other things, in order to secure
the payment of the Obligations (as defined in the Guaranty and Collateral
Agreement), each Pledgor will pledge to the Collateral Agent for the benefit of
the Secured Creditors (as defined in the Guaranty and Collateral Agreement), and
grant a security interest in favor of the Collateral Agent for the benefit of
the Secured Creditors in, all of the right, title and interest of such Pledgor
in and to any and all (1) "uncertificated securities" (as defined in Section 8-
102(a)(18) of the Uniform Commercial Code, as adopted in the State of New York)
("Uncertificated Securities"), (2) Partnership Interests (as defined in the
Guaranty and Collateral Agreement) and (3) Limited Liability Company Interests
(as defined in the Guaranty and Collateral Agreement), in each case issued from
time to time by the Issuer, whether now existing or hereafter from time to time
acquired by such Pledgor (with all of such Uncertificated Securities,
Partnership Interests and Limited Liability Company Interests being herein
collectively called the "Issuer Pledged Interests"); and
WHEREAS, each Pledgor desires the Issuer to enter into this Agreement
in order to perfect the security interest of the Collateral Agent under the
Guaranty and Collateral Agreement in the Issuer Pledged Interests, to vest in
the Collateral Agent control of the Issuer Pledge Interests and to provide for
the rights of the parties under this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Each Pledgor hereby irrevocably authorizes and directs the Issuer,
and the Issuer hereby agrees after the occurrence and continuance of an Event of
Default, to comply with any and all instructions and orders originated by the
Collateral Agent (and its successors and assigns) regarding any and all of the
Issuer Pledged Interests that are consistent and in compliance with the relevant
operating agreements, related documents and applicable law without the further
consent of respective Pledgor), and not to comply with any instructions or
orders regarding any or all of the Issuer Pledged
<PAGE>
Interests originated by any person or entity other than the Collateral Agent
(and its successors and assigns) or a court of competent jurisdiction.
2. The Issuer hereby certifies that (i) no notice of any security
interest, lien or other encumbrance or claim affecting the Issuer Pledged
Interests (other than the security interest of the Collateral Agent) has been
received by it, and (ii) the security interest of the Collateral Agent in the
Issuer Pledged Interests has been registered in the books and records of the
Issuer.
3. The Issuer hereby represents and warrants that (i) the pledge by
the Pledgors of, and the granting by the Pledgors of a security interest in, the
Issuer Pledged Interests to the Collateral Agent, for the benefit of the Secured
Creditors, does not violate the charter, by-laws, partnership agreement,
membership agreement or any other agreement governing the Issuer or the Issuer
Pledged Interests, and (ii) the Issuer Pledged Interests are fully paid and
nonassessable.
4. All notices, statements of accounts, reports, prospectuses,
financial statements and other communications to be sent to any Pledgor by the
Issuer in respect of the Issuer will also be sent to the Collateral Agent at the
following address:
The Chase Manhattan Bank
Agency Plus
One Chase Manhattan Plaza
8th Floor
New York, NY 10081
Attention: Daniella Cassognol
Tel: (212) 552-7425
Fax: (212) 552-5901
5. After the occurrence and continuance of an Event of Default, until
the Collateral Agent shall have delivered written notice to the Issuer that all
of the Obligations have been paid in full and this Agreement is terminated, the
Issuer will send any and all redemptions, distributions, interest or other
payments in respect of the Issuer Pledged Interests from the Issuer for the
account of the Pledgor only by wire transfers to the following address:
_____________________
_____________________
_____________________
_____________________
[Account Information]
ABA No.: __________________________
Account in the Name of: ___________
Account No.: ______________________
6. Except as expressly provided otherwise in Sections 4 and 5, all
notices, instructions, orders and communications hereunder shall be sent or
delivered by mail, telex, telecopy or overnight courier service and all such
notices and communications shall, when mailed, telexed, telecopied or sent by
overnight courier, be effective when deposited in the mails or
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<PAGE>
delivered to the overnight courier, prepaid and properly addressed for delivery
on such or the next Business Day, or sent by telex or telecopier, except that
notices and communications to the Collateral Agent shall not be effective until
received by the Collateral Agent. All notices and other communications shall be
in writing and addressed as follows:
(a) if to any Pledgor, at:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Tx 75207
Attention: _____________________
Tel: __________________
Fax: (214) 863-1527
(b) if to the Collateral Agent, at:
The Chase Manhattan Bank
Agency Plus
One Chase Manhattan Plaza
8th Floor
New York, NY 10081
Attention: Daniella Cassognol
Tel: (212) 552-7425
Fax: (212) 552-5901
(c) if to the Issuer, at:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Tx 75207
Attention: _____________________
Tel: ____________________
Fax: (214) 863-1527
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder. As used in this
Section 6, "Business Day" means any day other than a Saturday, Sunday, or other
day in which banks in New York are authorized to remain closed.
7. This Agreement shall be binding upon the successors and assigns of
each Pledgor and the Issuer and shall inure to the benefit of and be enforceable
by the Collateral Agent and its successors and assigns. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall constitute one instrument. In the event that any provision
of this Agreement shall prove to be invalid or unenforceable, such provision
-3-
<PAGE>
shall be deemed to be severable from the other provisions of this Agreement
which shall remain binding on all parties hereto. None of the terms and
conditions of this Agreement may be changed, waived, modified or varied in any
manner whatsoever except in writing signed by the Collateral Agent, the Issuer
and any Pledgor which at such time owns any Issuer Pledged Interests.
8. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its principles of
conflict of laws.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written by their respective duly authorized
officers.
WYNDHAM INTERNATIONAL, INC.
as Issuer
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
1500 CANAL STREET INVESTORS II, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
ALBUQUERQUE C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
BJV REALTY, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-5-
<PAGE>
BOULDERS CAREFREE SEWER
CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
BOULDERS JOINT VENTURE,
as Pledgor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
BURRLLEN ENTERPRISES OF
MARYLAND,
as Pledgor
By: Patriot Grand Heritage, LLC, its
General Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-6-
<PAGE>
C.I. ALBUQUERQUE LESSEE GP, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
C.I. ALBUQUERQUE LESSEE, L.P.,
as Pledgor
By: C.I. Albuquerque Lessee GP, LLC,
its General Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
CAREFREE MANAGEMENT LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-7-
<PAGE>
CASA MARINA REALTY CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CHC HOTELS & RESORTS CORP.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CHC LEASE PARTNERS,
as Pledgor
By: CHC REIT Management Corp., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CHC REIT LESSEE CORP.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CHC REIT MANAGEMENT CORP.
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CHICAGO-ES HOLDING CORP.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-8-
<PAGE>
CHMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
CLUBHOUSE INNS OF AMERICA, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CRITERION HOTEL MANAGEMENT CORP.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CRITERION NY INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CROSSROADS DEVELOPMENT COMPANY,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CSMC OF KALAMAZOO, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-9-
<PAGE>
DEUCE MANAGEMENT COMPANY, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
FAMILY SUITES CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
FAMILY SUITES MANAGEMENT CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
FS DEVELOPMENT CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-10-
<PAGE>
GH-ATLANTA, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH-CHICAGO, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH-DETROIT, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH-GREENVILLE, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH-PROVIDENCE, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-11-
<PAGE>
GH-SAN DIEGO, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH TRADEMARKS LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH-WICHITA, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GHMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
GHV-COLORADO, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-12-
<PAGE>
GHV-GALVESTON, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GLENVIEW HOSPITALITY, L.P.,
as Pledgor
By: PAH Deuce GP, LLC,
its General Partner
By: Patriot American Hospitality
Partnership, L.P.,
its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GRAND BAY MANAGEMENT COMPANY,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GRAND BAY MANAGEMENT LLC,
Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-13-
<PAGE>
GRAND HERITAGE HOTELS, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GRAND HERITAGE LEASING, LLC,
as Pledgor
By: Patriot Grand Heritage, LLC,
a Member
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GRAND HERITAGE REAL ESTATE GROUP LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GRAND MANAGEMENT SERVICES, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-14-
<PAGE>
HMG BEVERAGE, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
IHC/BURLINGTON CORPORATION,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
IHC/CAPITAL CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/CONSHOHOCKEN PARTNERSHIP L.P.,
as Pledgor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/DENVER PARTNERSHIP, L.P.,
as Pledgor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-15-
<PAGE>
IHC/FS DEVELOPMENT CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/HOUSTON PARTNERSHIP, L.P.,
as Pledgor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/INTERSTONE PARTNERSHIP II, LP,
as Pledgor
By: PAH-Interstone, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/JACKSONVILLE CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/JAMAICA CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-16-
<PAGE>
IHC/MARYVILLE HOTEL CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC MEMBER CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/MIAMI BEACH CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC MIAMI MORTGAGE CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/PARK WEST CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/REACH CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-17-
<PAGE>
IHC REALTY CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC REALTY PARTNERSHIP, L.P.,
as Pledgor
By: IHC Realty Corporation,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/SANTA MARIA CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/TEXAS CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC TITLE AGENCY CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-18-
<PAGE>
IHP/CLASS B PARTNERSHIP, L.P.,
as Pledgor
By: IHC Realty Partnership, L.P., its
General Partner
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHP INVESTMENT COMPANY, L.L.C.,
as Pledgor
By: IHC Realty Partnership, L.P.,
a Member
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHP LESSEE, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-19-
<PAGE>
INTERSTATE/MONTOUR ASSOCIATES, LTD.,
as Pledgor
BY: IHC/Park West Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
INTERSTONE/PAH PARTNERS, L.P.,
as Pledgor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
INTERSTONE THREE PARTNERS I L.P.,
as Pledgor
By: PAH Interstone, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
INTMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
-20-
<PAGE>
KANSAS CITY HOSPITALITY, L.P.,
as Pledgor
By: PAH Deuce GP, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
MARINA HOSPITALITY, L.P.,
as Pledgor
By: PAH Deuce GP, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
MBAH, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
-21-
<PAGE>
MELBOURNE HOSPITALITY, L.P.,
as Pledgor
By: PAH Deuce GP, LLC,
its General Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
O-H ACQUISITION, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
P.H.G., LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PA HUNT VALLEY INVESTORS, L.P.,
as Pledgor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-22-
<PAGE>
PA TROY HOSPITALITY, L.P.
as Pledgor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH ACQUISITION CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH ALLEN OPERATING CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH ASSET MANAGEMENT, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-23-
<PAGE>
PAH BATTERYMARCH OPERATING COMPANY, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH BUTTES L.L.C.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-CAREFREE, L.P.,
as Pledgor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-24-
<PAGE>
PAH-CI HOLDING, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-COLUMBUS HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH DEUCE GP, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-DT PARK PLACE PARTNERS, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-25-
<PAGE>
PAH-DT TALLAHASSEE PARTNERS, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-DT MINNEAPOLIS SUITES
PARTNERS, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-DT CHICAGO O'HARE PARTNERS, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-26-
<PAGE>
PAH-DT MIAMI AIRPORT PARTNERS, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH FF&E HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-FRANCHISE HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAHG FF&E HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-27-
<PAGE>
PAH GAH HOLDINGS, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PAH GAH HOLDINGS, L.P.,
as Pledgor
By: PAH GAH Holdings, LLC, its General
Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PAH-GBM, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-28-
<PAGE>
PAH-GP ALLEN PARTNERS, L.P.,
as Pledgor
By: PAH-Allen Operating Corporation,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH GP, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-GRAND BAY MIAMI, L.P.,
as Pledgor
By: PAH-GBM, LLC, its General Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-INTEREST HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-INTERSTONE, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-29-
<PAGE>
PAH-IP HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH LEASING LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PAH LP, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-MANAGEMENT CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAHP FF&E HOLDING, INC., as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-30-
<PAGE>
PAH-PITTSBURGH, LLC,
as Pledgor
By: PAH-Franchise Holding, Inc., its
sole Member
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-PITTSBURGH CI HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-REAL ESTATE MEMBER, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-RH, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-31-
<PAGE>
PAH-RIVER HOUSE, L.P.,
as Pledgor
By: PAH-RH, LLC, its General Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH RIVER NORTH, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH STANLY HOLDING LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PAH-SUMMERFIELD HOLDING CORP.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-32-
<PAGE>
PAH-SUMMERFIELD LEASING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-SUMMERFIELD LLC,
as Pledgor
By: PAH-Summerfield Holding Corp.,
its sole Member
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-T, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-TAMPA, L.P.,
as Pledgor
By: PAH-T, LLC, its General Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-33-
<PAGE>
PAH VENTANA CANYON, L.P.,
as Pledgor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-WMC HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-XERXES HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAHMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
PARK WEST HOTEL ASSOCIATES,
as Pledgor
By: PW Land Associated Limited
Partnership, a General Partner
By: IHC/Park West Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-34-
<PAGE>
PATRIOT AMERICAN HOSPITALITY, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P., as Pledgor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PATRIOT BOUGAINVILLEA
DEVELOPMENT COMPANY, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PATRIOT GRAND HERITAGE, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-35-
<PAGE>
PATRIOT HOLDING LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PATRIOT LAND HOLDING LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PATRIOT MIAMI NOTE HOLDER, L.P.,
as Pledgor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-36-
<PAGE>
PATRIOT RACETRACK LAND LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PSMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
PW LAND ASSOCIATES LIMITED
PARTNERSHIP,
as Pledgor
By: IHC/Park West Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PWMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
-37-
<PAGE>
RICHARDSON C.I. ASSOCIATES, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SAVANNAH C.I. ASSOCIATES, L.P.,
as Pledgor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SFMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treausrer
SIERRA SUITES MARKETING
ASSOCIATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-38-
<PAGE>
ST LOUIS C.I. ASSOCIATES, L.P.
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SUMMERFIELD HOTEL COMPANY, L.P.
as Pledgor
By: PAH-Summerfield LLC, its General
Partner
By: PAH-Summerfield Holding Corp., its
sole Member
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SUMMERFIELD HOTEL CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SUMMERFIELD SUITES MARKETING
ASSOCIATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-39-
<PAGE>
SYRACUSE ASSOCIATES CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SYRACUSE REALTY ASSOCIATES, L.P.,
as Pledgor
By: Syracuse Associates Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
THE KEY WEST REACH LIMITED
PARTNERSHIP,
as Pledgor
By: IHC/Reach Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
THE PEAKS REAL ESTATE SERVICES,
INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-40-
<PAGE>
TOLEDO HOTEL INVESTORS, L.P.,
as Pledgor
By: PAH Deuce GP, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
TOPEKA C.I. ASSOCIATES, L.P.,
as Pledgor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WATERFRONT MANAGEMENT
CORPORATION,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
-41-
<PAGE>
WATER STREET HOTEL, LTD.,
as Pledgor
By: IHC/Jacksonville Corporation, its
General Partner
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
WH INTEREST, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
WHC CHICAGO, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WHC FINANCE, L.P., as Pledgor
By: O-H Acquisition, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WHC FRANCHISE CORPORATION,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
-42-
<PAGE>
WHCMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
WHCMB OVERLAND PARK, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
WI OHIO INVESTORS, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WMC II, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WYN TRAVEL, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
WYNDHAM ATLANTA LESSEE, LLC,
as Pledgor
By: Wyndham International, Inc., its
sole member
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-43-
<PAGE>
WYNDHAM IP CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WYNDHAM INTERNATIONAL, INC., as
Pledgor and not as a Guarantor
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
WYNDHAM INTERNATIONAL
OPERATING PARTNERSHIP, L.P.,
as Pledgor
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
WYNDHAM MANAGEMENT
CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WYNDHAM MANAGEMENT II, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-44-
<PAGE>
WYNDHAM SUMMERFIELD LESSEE, L.P.,
as Pledgor
By: Wyndham Summerfield Lessee, LLC, its
General Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham INternational, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
WYNDHAM SUMMERFIELD LESSEE,
LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
YO HOTEL INVESTORS, L.P.,
as Pledgor
By: PAH Deuce GP, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-45-
<PAGE>
GAH-II, L.P., as Pledgor
By: GAH-II Corp., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
TCC VENEZUELA, L.C., as Pledgor
By: CHC Hotels & Resorts Corp., its
Member
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-46-
<PAGE>
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Collateral Agent
By /s/ Thomas H. Kozlark
--------------------------------
Title: Vice President
-47-
<PAGE>
Annex E
FORM OF AGREEMENT SUPPLEMENT
AGREEMENT SUPPLEMENT (this "Agreement"), dated as of ___________, made
by _____________________, a ___________ corporation (the "New Subsidiary").
Unless otherwise defined herein, capitalized terms used herein and defined in
the Credit Agreement referred to below are used herein as so defined.
W I T N E S S E T H :
-------------------
WHEREAS, Wyndham International, Inc., a Delaware corporation (the
"Borrower"), the Lenders party thereto from time to time, Chase Securities Inc.
("CSI"), as Lead Arranger and Book Manager, NationsBank, N.A., and Bankers Trust
Company as Syndication Agents (each a "Syndication Agent," together the
"Syndications Agents"), and Credit Lyonnais New York Branch, as Documentation
Agent, Bear Stearns Corporate Lending Inc., as Co-Documentation Agent (each a
"Documentation Agent, together the Documentation Agents") and the Chase
Manhattan Bank ("Chase"), as Administrative Agent, have entered into a Credit
Agreement, dated as of June 30, 1999 (as amended, modified or supplemented to
the date hereof, the "Credit Agreement");
WHEREAS, Wyndham International, Inc., a Delaware corporation (the
"Borrower"), the Lenders Party thereto from time to time (the "IRL Lenders")
CSI, as Lead Arranger and Book Manager (the "IRL Lead Arranger"), Bear, Stearns
Co. Inc. ("BSC"), as Co-Arranger and Syndication Agent (the "IRL Co-Arranger"),
Bankers Trust Company, as Syndication Agent (the "IRL Syndication Agent") and
Chase, as Administrative Agent (the "IRL Administrative Agent"), have entered
into an Increasing Rate Note Purchase and Loan Agreement, dated as of June 30,
1999 (as amended, modified or supplemented to the date hereof, the "IRL
Agreement");
WHEREAS, in connection with the Credit Agreement, certain Subsidiaries
of the Borrower have entered into a Guaranty and Collateral Agreement, dated as
of June 30, 1999 (as amended, modified or supplemented to the date hereof, the
"Guaranty and Collateral Agreement");
WHEREAS, pursuant to Section 5.10 of the Credit Agreement and Section
5.9 of the IRL Agreement, the New Subsidiary is required to become a party to
the Guaranty and Collateral Agreement; and
WHEREAS, the New Subsidiary desires to execute and deliver this
Agreement in order to become a party to the Guaranty and Collateral Agreement;
<PAGE>
Annex E
Page 2
NOW, THEREFORE, IT IS AGREED:
1. Guaranty and Collateral Agreement. (a) By executing and
---------------------------------
delivering this Agreement, the New Subsidiary hereby becomes a party to the
Guaranty and Collateral Agreement, as a "Guarantor" thereunder, and hereby
expressly and jointly and severally assumes all obligations and liabilities of a
"Guarantor" thereunder. The New Subsidiary hereby makes each of the
representations and warranties contained in Section 2.10 of the Guaranty and
Collateral Agreement on the date hereof, after giving effect to this Agreement.
[(b) By executing and delivering this Agreement, the New Subsidiary
hereby (i) becomes a party to the Guaranty and Collateral Agreement as a
"Pledgor" thereunder, (ii) expressly assumes all obligations and liabilities of
a "Pledgor" thereunder and (iii) pledges and grants to the Collateral Agent (as
defined in the Guaranty and Collateral Agreement) for the benefit of the Secured
Creditors, as collateral security for the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of all of the
Obligations (as defined in the Guaranty and Collateral Agreement), a security
interest in and to all of the New Subsidiary's right, title and interest in, to
and under the Collateral (as defined in the Guaranty and Collateral Agreement).
The Annexes to the Guaranty and Collateral Agreement are each hereby amended as
necessary by supplementing such Annexes with the information contained in the
attached schedule to this Agreement. The New Subsidiary hereby makes each of
the representations and warranties contained in Sections 3.6 and 3.19 of the
Guaranty and Collateral Agreement on the date hereof, after giving effect to
this Agreement.
3. Pledged Securities; Financing Statements. By executing and
----------------------------------------
delivering this Agreement, the New Subsidiary hereby agrees to deposit as
security with the Collateral Agent the Security/1/ (as defined in the Guaranty
and Collateral Agreement) owned by the New Subsidiary on the date hereof, and
deliver to the Collateral Agent certificates or instruments therefor, duly
endorsed in blank by the New Subsidiary in the case of Notes (as defined in the
Guaranty and Collateral Agreement) and accompanied by undated stock or other
powers duly executed in blank by the New Subsidiary in the case of Stock (as
defined in the Guaranty and Collateral Agreement), or such other instruments of
transfer as are acceptable to the Pledgee.]/2/
4. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
- -----------------------------------
/1/ If any Securities owned by the New Subsidiary are uncertificated or the New
Subsidiary itself has issued uncertificated Securities, a control agreement
in the form of Annex G to the Guarantee and Collateral Agreement will be
required.
/2/ Applicable only to the extent that the New Subsidiary is required to pledge
Collateral pursuant to the Guaranty and Collateral Agreement.
<PAGE>
Annex E
Page 3
5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
* * *
<PAGE>
Annex E
Page 4
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
Address:
- -------
[NAME OF NEW SUBSIDIARY]
By
---------------------------------
Name:
Title:
ACKNOWLEDGED AND ACCEPTED:
THE CHASE MANHATTAN BANK,
as Administrative Agent for the Lenders
and as Collateral Agent
for the Secured Creditors
By
---------------------------
Name:
Title:
<PAGE>
EXHIBIT D
FORM OF
PREPAYMENT OPTION NOTICE
Attention of [ ]
Telecopy No. [ ]
[Date]
Ladies and Gentlemen:
The undersigned, The Chase Manhattan Bank, as Administrative Agent (in
such capacity, the "Administrative Agent") for the Lenders, refers to the Credit
Agreement, dated as of June 30, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Wyndham
International, Inc., a Delaware corporation (the "Borrower"), the Lenders party
thereto from time to time, Chase Securities Inc., as Lead Arranger and Book
Manager, NationsBank, N.A. and Bankers Trust Company, as Syndication Agents
(each a "Syndication Agent," together the Syndication Agents"), Credit Lyonnais
New York Branch, as Documentation Agent, Bear Stearns Corporate Lending Inc. as
Co-Documentation Agent (each a "Documentation Agent," together the Documentation
Agents"), and The Chase Manhattan Bank, as Administrative Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Administrative Agent hereby
gives notice of an offer of prepayment made by the Borrower pursuant to Section
2.18(c) of the Credit Agreement of the Term Loan Prepayment Amount. Amounts
applied to prepay the Term Loans shall be applied pro rata to the Term Loan held
by you. The portion of the prepayment amount to be allocated to the Term Loan
held by you and the date on which such prepayment will be made to you (should
you elect to receive such prepayment) are set forth below:
(A) Total Term Loan Prepayment Amount
_____________
(B) Portion of Term Loan Prepayment Amount to be received
by you _____________
(C) Prepayment Date (10 Business Days after the date of
this Prepayment Option Notice) _____________
<PAGE>
EXHIBIT D
Page 2
IF YOU DO NOT WISH TO RECEIVE ALL OF THE TERM LOAN PREPAYMENT AMOUNT
TO BE ALLOCATED TO YOU ON THE PREPAYMENT DATE INDICATED IN PARAGRAPH (B) ABOVE,
please sign this notice in the space provided below and indicate the percentage
of the Term Loan Prepayment Amount otherwise payable which you do not wish to
receive. Please return this notice as so completed via telecopy to the
attention of [_______________] at ____________, no later than 12:00 noon, New
York City time, on the Prepayment Date, at Telecopy No.[_______________]. IF
YOU DO NOT RETURN THIS NOTICE BY THE PREPAYMENT DATE IN PARAGRAPH (C) ABOVE,
YOU WILL RECEIVE 100% OF THE TERM LOAN PREPAYMENT ALLOCATED TO YOU ON THE
PREPAYMENT DATE.
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: _____________________________
Name:
Title:
[Lender]
By: _____________________________
Name:
Title:
Percentage of
Prepayment Amount
Declined: _____%
<PAGE>
Exhibit E
FORM OF CLOSING CERTIFICATE
[NAME OF LOAN PARTY]
I, the undersigned, the [Trustee] [Secretary/Assistant Secretary] of
[NAME OF LOAN PARTY] [NAME OF GENERAL PARTNER OF THE APPLICABLE PARTNERSHIP LOAN
PARTY, the General Partner of _____________], a [trust] [corporation]
[partnership] [limited liability company] organized and existing under the laws
of the State of ________ (the "Company"), DO HEREBY CERTIFY that:
1. This Certificate is furnished pursuant Section 4.01(f) to Credit
Agreement, dated as of June 30, 1999, among Wyndham International, Inc., a
Delaware corporation (the "Borrower"), the Lenders Party hereto from time to
time, Chase Securities ("CSI"), as Lead Arranger and Book Manager, NationsBank,
N.A., and Bankers Trust Company, as Syndication Agents (each a "Syndication
Agent," together the Syndication Agents"), Credit Lyonnais New York Branch, as
Documentation Agent, Bear Stearns Corporate Lending Inc., as Co-Documentation
Agent (each a "Documentation Agent," together the "Documentation Agents") and
The Chase Manhattan Bank ("Chase"), as Administrative Agent (such Credit
Agreement as in effect on the date of this Certificate, being herein called the
"Credit Agreement"). Unless otherwise defined herein, capitalized terms used in
this Certificate shall have the meanings set forth in the Credit Agreement.
2. The following named individuals are presently the elected officers
of the Company. Each holds the office of the Company set forth opposite his or
her name below and has held such office as of the date of signing of any Loan
Document. The signature written opposite the name and title of each such
officer below is his or her correct signature.
Name/1/ Office Signature
_________________________ _____________________ ________________________
_________________________ _____________________ ________________________
_________________________ _____________________ ________________________
_________________________ _____________________ ________________________
___________________
/1/ Include name, office and signature of each officer who will sign any Loan
Document.
<PAGE>
EXHIBIT E
Page 2
3. Attached hereto as Exhibit A is a true and correct copy of the
[Declaration of Trust] [Certificate of Incorporation of the Company]
[Certificate of Partnership of the Company] [Certificate of Limited Partnership
of the Company] [Certificate of Limited Liability Company] as filed in the
Office of the Secretary of State of the State of its formation, together with
all amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the
[Trust Agreement] [By-Laws of the Company] [Partnership Agreement of the
Company] [Limited Liability Company Agreement], together with all amendments
thereto, which were duly adopted and are in full force and effect on the date
hereof.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions which were duly adopted on __________, 1999 by [the Trustee]
[unanimous written consent of the Board of [Directors] [Managers] of the
Company] [the written consent of [the required percentage] of the Partners of
the Company] [the written consent of the General Partner of the Company], and
said resolutions have not been rescinded, amended or modified. Except as
attached hereto as Exhibit C, no resolutions have been adopted by the Company
which deal with the execution, delivery or performance of any of the Loan
Documents to which the Company is party.
6. I know of no proceeding for the dissolution or liquidation of the
Company or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of June,
1999.
[NAME OF LOAN PARTY]
By:
-------------------------------
Name:
Title:
<PAGE>
Exhibit F
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
599 LEXINGTON AVENUE
NEW YORK, NY 10022
TELEPHONE (212) 813-8800
TELECOPIER (212) 355-3333
June 30, 1999
The Chase Manhattan Bank
380 Madison Avenue
New York, New York 10017
Each of the Lenders
(as defined in the
Credit Agreements)
Re: $1,800,000,000 Senior Credit Facility and
$650,000,000 Increasing Rate Note Facility
in favor of Wyndham International, Inc.
------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Wyndham International, Inc., a Delaware
corporation (the "Borrower"), in connection with the preparation, execution and
delivery of the Credit Agreement dated as of June 30, 1999 (the "Senior Credit
Agreement") among the Borrower, the Lenders party thereto, NationsBank, N.A., as
Syndication Agent, Bankers Trust Company, as Syndication Agent, Credit Lyonnais
New York Branch, as Documentation Agent, Bear Stearns Corporate Lending Inc., as
Co-Documentation Agent, The Chase Manhattan Bank, as Administrative Agent. We
have also acted as special counsel to the Borrower in connection with the
preparation, execution and delivery of the Increasing Rate Note Purchase and
Loan Agreement dated as of June 30, 1999 (the "IRN Agreement"; together with the
Senior Credit Agreement, the "Credit Agreements") among the Borrower, the
Lenders party thereto, Bear Stearns Corporate Lending Inc., as Co-Arranger and
Syndication Agent, Bankers Trust Company, as Syndication Agent, and The Chase
Manhattan Bank, as Administrative Agent. We have also acted as special counsel
to those certain affiliates of the Borrower listed on Schedule I hereto (the
----------
"Affiliate Guarantors") and on Schedule II hereto (the "Affiliate Pledgors";
-----------
together with the Borrower and the Affiliate Guarantors, the "Borrower Parties")
in connection with the preparation, execution and delivery of the Guaranty and
Collateral Agreement (as defined in the Credit Agreements).
All capitalized terms used herein which are not otherwise defined herein
and which are defined in the Senior Credit Agreement shall have the meanings
assigned to such terms in the Senior Credit Agreement. This opinion is delivered
to you pursuant to Section 4.01(g) of the Credit Agreements.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 2
In connection with the transactions contemplated by the Credit Agreements, we
have reviewed and relied solely upon originals, or copies certified or otherwise
authenticated to our satisfaction, of the following documents, each dated on or
as of June 30, 1999, except as otherwise indicated:
A. The Senior Credit Agreement;
B. The IRN Agreement;
C. The Guaranty and Collateral Agreement (the "Guaranty and Collateral
Agreement") by the Affiliate Guarantors and the Affiliate Pledgors in favor
of The Chase Manhattan Bank, as Collateral Agent (in such capacity,
"Collateral Agent");
D. UCC-1 Financing Statements (the "Financing Statements"), each naming
an Affiliate Pledgor as debtor and Collateral Agent as secured party, which
are to be filed in the appropriate filing offices (the "UCC Filing Offices")
with respect to the Collateral (as defined in the Guaranty and Collateral
Agreement) of each Affiliate Pledgor;
E. Copies of the certificates of incorporation and by-laws, limited
liability company agreements, partnership agreements, certificates of
partnership and other organizational documents (collectively, the
"Organizational Documents"), as the case may be, of each of the Borrower
Parties;
F. Copies of resolutions of the respective directors, members and
general partners, as the case may be, of each of the Borrower Parties
authorizing the transactions contemplated by the Credit Agreements; and
G. Copies of the certificates listed on Schedule III hereto issued by
appropriate officials of the jurisdictions of organization of each of the
Borrower Parties.
The documents identified under items A through D above are collectively
referred to herein as the Credit Documents".
In rendering the opinions set forth below, we have assumed, without
independent investigation or verification, (i) the authenticity of all documents
submitted to us as originals, the conformity to authentic original documents of
all documents submitted to us as certified, conformed or photostatic copies, the
genuineness, accuracy, authenticity, and completeness of all signatures on all
documents submitted to us as executed and the legal capacity of all natural
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 3
persons executing all documents submitted to us as executed, and (ii) that the
execution, delivery and performance by each of the Borrower Parties of each of
the Credit Documents to which such corporation, partnership or limited liability
company is a party do not contravene or constitute a breach of or default under
any applicable provision of the laws of any jurisdiction other than the laws of
the United States, the laws of the State of New York, the Delaware General
Corporation Law, the Delaware Revised Uniform Limited Partnership Act or the
Delaware Limited Liability Company Act, or any applicable regulations thereunder
or under any judgment, injunction, order, decree or other instrument binding
upon any of the Borrower Parties.
You have also authorized us to assume, and we have done so without
undertaking any independent investigation, that: (i) the Lenders have all
requisite power and authority and are validly existing and in good standing
under their organizational documents and under the laws of the state of their
organization, to enter into, execute and deliver the Credit Documents and
otherwise to assume and perform the obligations on their part to be assumed and
performed as contemplated by the Credit Documents and that no consent, approval
or authorization by the Lenders or any governmental authority is required in
connection therewith; (ii) the Credit Documents are valid and binding agreements
of the Lenders, enforceable in accordance with their respective terms; (iii) the
execution, delivery and performance by the Lenders of the Credit Documents and
the transactions contemplated therein have been duly authorized, executed and
delivered by each of the Lenders; (iv) there are no agreements or understandings
among the parties, written or oral, and there is no usage of trade or course of
prior dealing among the parties that would, in either case, define, supplement,
or qualify the terms of the Credit Documents; and (v) the Collateral exists, the
Affiliate Pledgors have sufficient rights in the Collateral for a security
interest to attach, and the Lenders acquired the security interests in the
Collateral in good faith, for value and without notice of any adverse claims (in
each case, as such terms are defined for purposes of the Uniform Commercial
Code).
We have also assumed, with your permission (even though the assumptions in
this paragraph are known to us and to you to be contrary to fact), that each
Affiliate Pledgor and each issuer of Collateral consisting of stock, membership
interests in limited liability companies or partnership interests is organized
under the laws of, and has its chief executive office and principal place of
business in, the State of New York.
Whenever a statement herein is qualified by "known to us," "to our
knowledge," or any similar phrase, it is intended to be limited to the present
conscious awareness of the lawyers in this firm who had active involvement in
negotiating the Credit Documents or preparing this opinion. We have not
undertaken any independent investigation to determine the accuracy of any such
statement, and any limited inquiry undertaken by us during preparation of this
opinion
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 4
letter should not be regarded as such an investigation; no inference as to our
knowledge of any matters bearing on the accuracy of any such statement should be
drawn from the fact of our representation of the Borrower Parties.
With respect to our opinion in paragraph 1 below regarding the existence
and good standing of the Borrower Parties, we have relied solely on the
certificates listed on Schedule III hereto.
------------
We express no opinion as to compliance with any environmental, gaming or
liquor laws, rules and regulations.
Members of our firm are admitted to the bar of the State of New York and we
express no opinion other than as to the laws of the United States and the State
of New York, the Delaware General Corporation Law, the Delaware Revised Uniform
Limited Partnership Act, and the Delaware Limited Liability Company Act.
Based upon and subject to the foregoing and to the matters set forth below,
we are of the opinion that:
1. Each of the Borrower Parties is a corporation, partnership or limited
liability company (as the case may be), validly existing in good standing under
the laws of its jurisdiction of organization (except as otherwise indicated on
Annex III hereto), with corporate, partnership and limited liability company
power (as the case may be) adequate for the execution and delivery of the Credit
Documents to which it is a party and the performance of the transactions
contemplated thereby.
2. The execution and delivery by each of the Borrower Parties of the Credit
Documents to which it is a party and the performance of the transactions
contemplated therein are within its corporate, partnership or limited liability
company authority (as the case may be), have been duly authorized by all
necessary corporate, partnership or limited liability company action (as the
case may be) and do not contravene any provision of the Organizational Documents
of such Borrower Party.
3. Each of the Credit Documents have been duly executed and delivered by
each of the Borrower Parties which is a party thereto.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 5
4. The Credit Documents constitute valid and binding obligations of
Borrower Parties party thereto, and are enforceable against such Borrower
Parties in accordance with their respective terms. The opinion expressed in this
paragraph 4 is subject to the following further qualifications:
(i) Our opinion is subject to the effect of bankruptcy, insolvency,
fraudulent transfer, reorganization, arrangement, moratorium or other
similar laws relating to or affecting the rights of creditors generally.
(ii) The enforceability of the Credit Documents is subject to
limitations imposed by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(iii) Certain remedies, waivers, and other provisions of the Credit
Documents may not be enforceable, but such unenforceability does not render
the Credit Documents invalid as a whole or preclude the practical
realization of the principal benefits intended to be provided by the Credit
Documents.
5. The Guaranty and Collateral Agreement creates in favor of the
Collateral Agent a security interest in the Collateral (as defined therein) as
security for the Obligations (as defined therein). With respect to that portion
of the Collateral that consists of shares of stock evidenced by certificates or
that consists of Pledged Notes, upon the delivery of the original stock
certificates, duly endorsed in blank or accompanied by an undated duly endorsed
in blank stock power thereto, and the original Pledged Notes, duly endorsed in
blank, to the Collateral Agent in New York, the security interest in such shares
and Pledged Notes will be perfected. With respect to that portion of the
Collateral that consists of membership interests in limited liability companies
or partnership interests that, in either case, are not evidenced by
certificates, upon the filing of the applicable Financing Statements, in each
case naming the applicable Affiliate Pledgor as debtor and describing the
applicable membership interest or partnership interest, in the appropriate
filing offices under the Uniform Commercial Code, the security interest in such
interests will be perfected.
6. (i) No registration with, consent or approval of, notice to, or other
action by, any governmental entity is required for the execution, delivery or
performance of the Credit Documents by the Borrower Parties party thereto; and
(ii) the execution and delivery of the Credit Documents by the Borrower Parties
party thereto and the performance of their respective obligations thereunder
will not (a) violate or result in any breach of any of the terms, conditions or
provisions of or constitute a default under any contract, indenture or other
agreement known to
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 6
us, or (b) result in the creation of any lien, charge or encumbrance on any
property or assets of any Borrower Party, contrary or pursuant to the terms of
any contract, indenture or other agreement known to us, or (c) violate any
existing law or regulation that we have, in the exercise of customary
professional diligence, recognized as applicable to the Borrower Parties or to
transactions of the type contemplated by the Credit Documents, or any order
known to us of any court or administrative agency by which any Borrower Party is
bound or to which it is subject.
7. The payment by the Borrower, and the receipt by the Lenders, of all
principal, interest and other amounts to be paid pursuant to the Credit
Documents will not violate the usury laws of the State of New York.
8. In any proceedings duly taken in the courts of the State of New York
(or a Federal court sitting in New York), the choice of New York law as the
substantive law governing the Credit Documents would be recognized and such law
would be applied. However, we express no opinion as to the law that would govern
the perfection, the effect or perfection or non-perfection, or the priority, of
any security interests.
For purposes of the opinions set forth in paragraph 6 above, we have
assumed, with your permission, that any contract, indenture or other agreement
known to us which by its terms prohibits or restricts the "transfer", "sale" or
"assignment" (in those terms or by similar terms of like import) by any Borrower
Party of any membership interest or partnership interest or stock (but which
does not expressly prohibit or restrict the pledge, hypothecation, or grant of a
security interest in, such membership interest or partnership interest or stock)
would not be construed to prohibit or restrict the ability of such Borrower
Party to pledge and grant a security interest in such membership interest or
partnership interest or stock to secure the Obligations, as provided in the
Guaranty and Collateral Agreement. We express no opinion as to whether the
foreclosure of any such security interest would (a) violate or result in any
breach of any of the terms, conditions or provisions of or constitute a default
under any contract, indenture or other agreement, (b) result in the creation of
any lien, charge or encumbrance on any property or assets of any Borrower Party,
contrary or pursuant to the terms of any contract, indenture or other
agreement, or (c) violate any existing law or regulation, or any order of any
court or administrative agency by which any Borrower Party is bound or to which
it is subject.
Also for purposes of the opinions set forth in paragraph 6 above, we have
assumed, with your permission, that the consents delivered with respect to the
agreements identified on Annex A hereto are sufficient to cure any violations,
breaches of or defaults under such agreements arising from any of the
transactions contemplated under the Credit Documents, which could be cured by a
consent from the Person giving the same. We express no opinion
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 7
herein as to whether such assumption is reasonable. Also, excluded from the
scope of the opinions set forth in paragraphs 2 and 6 above are any
contraventions of the Organizational Documents of any Borrower Party and any
violations, breaches of or defaults under any contract, indenture or other
agreement known to us which, in any case, would be cured by consents that could
be given or other actions that could be taken by Persons controlled by the
Borrower, to the extent that such consents have not been given or other actions
taken on the date hereof.
Our opinions set forth herein are limited to the matters expressly set
forth in this opinion letter, and no opinion is implied or may be inferred
beyond the matters expressly so stated. The opinions rendered herein may not be
used or relied upon by any person or entity other than the addressees hereof,
any permitted assignee of any Lender who becomes a party to any Credit Agreement
and any participant of any Lender in the Loans under any Credit Agreement, for
any purpose whatsoever without our prior written consent in each instance.
This opinion speaks as of the date hereof, and we undertake no, and hereby
disclaim any, obligation to advise you of any change in any matter set forth
herein.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 8
SCHEDULE I
Affiliate Guarantors
--------------------
1500 Canal Street Investors II, L.P.
Albuquerque C.I. Associates, L.P.
BJV Realty, Inc.
Boulders Carefree Sewer Corporation
Boulders Joint Venture
Burrllen Enterprises of Maryland
C.I. Albuquerque Lessee GP, LLC
C.I. Albuquerque Lessee, L.P.
Carefree Management LLC
Casa Marina Realty Corporation
CHC Hotels & Resorts Corp.
CHC Lease Partners
CHC REIT Lessee Corp.
CHC REIT Management Corp.
Chicago-ES Holding Corp.
CHMB, Inc.
Clubhouse Inns of America, Inc.
Criterion Hotel Management Corp.
Criterion NY Inc.
Crossroads Development Company
CSMC of Kalamazoo, Inc.
Deuce Management Company LLC
Family Suites Corporation
Family Suites Management Corporation
FS Development Corporation
GAH-II, L.P.
GH-Atlanta, LLC
GH-Chicago, Inc.
GH-Detroit, Inc.
GH-Greeneville, Inc.
GH-Providence, Inc.
GH Trademarks LLC
GH-Wichita, Inc.
GH-San Diego, Inc.
GHMB, Inc.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 9
GHV-Colorado, Inc.
OH V-Galveston, Inc.
Glenview Hospitality, L.P.
Grand Bay Management Company
Grand Bay Management LLC
Grand Heritage Hotels, Inc.
Grand Heritage Leasing, LLC
Grand Heritage Real Estate Group LLC
Grand Management Services, Inc.
HMG Beverage, Inc.
IHC/Burlington Corporation
IHC/Capital Corporation
IHC/Conshohocken Partnership, L.P.
IHC/Denver Partnership, L.P.
IHC/FS Development Corporation
IHC/Houston Partnership, L.P.
IHC/Interstone Partnership II, L.P.
IHC/Jacksonville Corporation
IHC/Jamaica Corporation
IHC/Maryville Hotel Corporation
IHC Member Corporation
IHC/Miami Beach Corporation
IHC Miami Mortgage Corporation
IHC/Park West Corporation
IHC/Reach Corporation
IHC Realty Corporation
IHC Realty Partnership, L.P.
IHC/Santa Maria Corporation
IHC/Texas Corporation
IHC Title Agency Corporation
IHP/Class B Partnership, L.P.
IHP Investment Company, L.L.C.
IHP Lessee, LLC
Interstate/Montour Associates, Ltd.
Interstone Three Partners I L.P.
Interstone/PAH Partners, L.P.
INTMB, Inc.
Kansas City Hospitality, L.P.
Key West Reach Limited Partnership
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 10
Marina Hospitality, L.P.
MBAH, Inc.
Melbourne Hospitality, L.P.
O-H Acquisition, Inc.
P.H.G., LLC
PA Hunt Valley Investors, L.P.
PA Troy Hospitality Investors, L.P.
PAH Acquisition Corporation
PAH Allen Operating Corporation
PAH Asset Management, LLC
PAH Batterymarch Operating Company, LLC
PAH Deuce GP, LLC
PAH GAH Holdings, LLC
PAH GAH Holding, L.P.
PAH GP, Inc.
PAH Leasing LLC
PAH LP, Inc.
PAH-River House, L.P.
PAH River North, LLC
PAH Stanly Holding LLC
PAH Ventana Canyon, L.P.
PAH Buttes L.L.C.
PAH-Carefree, L.P.
PAH-CI Holding, LLC
PAH-Columbus Holding, Inc.
PAH-DT Chicago O'Hare Partners, L.P.
PAH-DT Miami Airport Partners, L.P.
PAH-DT Minneapolis Suites Partners, L.P.
PAH-DT Park Place Partners, L.P.
PAH-DT Tallahassee Partners, L.P.
PAH-Franchise Holding, Inc.
PAH FF&E Holding, Inc.
PAHG FF&E Holding, Inc.
PAH-GBM, LLC
PAH-GP Allen Partners, L.P.
PAH-Grand Bay Miami, L.P.
PAH-Interest Holding, Inc.
PAH-Interstone, Inc.
PAH-IP Holding, Inc.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 11
PAH-Management Corporation
PAHP FF&E Holding, Inc.
PAH-Pittsburgh CI Holding, Inc.
PAH-Pittsburgh, LLC
PAH-Real Estate Member, Inc.
PAH-RH, LLC
PAH-Summerfield Holding Corp.
PAH-Summerfield Leasing, Inc.
PAH -Summerfield LLC
PAH-T, LLC
PAH-Tampa, L.P.
PAH-WMC Holding, Inc.
PAH-Xerxes Holding, Inc.
PAHMB, Inc.
Park West Hotel Associates
Patriot American Hospitality, Inc.
Patriot American Hospitality Partnership, Inc.
Patriot Bougainvillea Development Company, LLC
Patriot Grand Heritage, LLC
Patriot Holding LLC
Patriot Land Holding LLC
Patriot Miami Note Holder, L.P.
Patriot Racetrack Land LLC
Peaks Real Estate Services, Inc.
PSMB, Inc.
PW Land Associates Limited Partnership
PWMB, Inc.
Richardson C.I. Associates, L. P.
Savannah C.I. Associates, L.P.
SFMB, Inc.
Sierra Suites Marketing Association
St. Louis C.I. Associates, L.P.
Summerfield Hotel Company, L.P.
Summerfield Hotel Corporation
Summerfield Suites Marketing Association
Syracuse Associates Corporation
Syracuse Realty Associates, L.P.
TCC Venezuela, L.C.
Toledo Hotel Investors, L.P.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 12
Topeka C. I. Associates, L.P.
Waterfront Management Corporation
Water Street Hotel, Ltd.
WH Interest, Inc.
WHC Chicago, LLC
WHC Finance, L.P.
WHC Franchise Corporation
WHCMB, Inc.
WHCMB Overland Park, Inc.
WI Ohio Investors, Inc.
WMC II, Inc.
WYN Travel, Inc.
Wyndham Atlanta Lessee, LLC
Wyndham International Operating Partnership, L.P.
Wyndham IP Corporation
Wyndham Management Corporation
Wyndham Management II, LLC
Wyndham Summerfield Lessee, L.P.
Wyndham Summerfield Lessee, LLC
YO Hotel Investors, L.P.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 13
SCHEDULE II
Affiliate Pledgors
------------------
1500 Canal Street Investors II, L.P.
Albuquerque C.I. Associates, L.P.
BJV Realty, Inc.
Boulders Carefree Sewer Corporation
Boulders Joint Venture
Burrllen Enterprises of Maryland
C.I. Albuquerque Lessee GP, LLC
C.I. Albuquerque Lessee, L.P.
Carefree Management LLC
Casa Marina Realty Corporation
CHC Hotels & Resorts Corp.
CHC Lease Partners
CHC REIT Lessee Corp.
CHC REIT Management Corp.
Chicago-ES Holding Corp.
CHMB, Inc.
Clubhouse Inns of America, Inc.
Criterion Hotel Management Corp.
Criterion NY Inc.
Crossroads Development Company
CSMC of Kalamazoo, Inc.
Deuce Management Company LLC
Family Suites Corporation
Family Suites Management Corporation
FS Development Corporation
GAH-II, L.P.
GH-Atlanta, LLC
GH-Chicago, Inc.
GH-Detroit, Inc.
GH-Greeneville, Inc.
GH-Providence, Inc.
GH Trademarks LLC
GH-Wichita, Inc.
GH-San Diego, Inc.
GHMB, Inc.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 14
GHV-Colorado, Inc.
GHV-Galveston, Inc.
Glenview Hospitality, L.P.
Grand Bay Management Company
Grand Bay Management LLC
Grand Heritage Hotels, Inc.
Grand Heritage Leasing, LLC
Grand Heritage Real Estate Group LLC
Grand Management Services, Inc.
HMG Beverage, Inc.
IHC/Burlington Corporation
IHC/Capital Corporation
IHC/Conshohocken Partnership, L.P.
IHC/Denver Partnership, L.P.
IHC/FS Development Corporation
IHC/Houston Partnership, L.P.
IHC/Interstone Partnership II, L.P.
IHC/Jacksonville Corporation
IHC/Jamaica Corporation
IHC/Maryville Hotel Corporation
IHC Member Corporation
IHC/Miami Beach Corporation
IHC Miami Mortgage Corporation
IHC/Park West Corporation
IHC/Reach Corporation
IHC Realty Corporation
IHC Realty Partnership, L.P.
IHC/Santa Maria Corporation
IHC/Texas Corporation
IHC Title Agency Corporation
IHP/Class B Partnership, L.P.
IHP Investment Company, L.L.C.
IHP Lessee, LLC
Interstate/Montour Associates, Ltd.
Interstone Three Partners I L.P.
Interstone/PAH Partners, L.P.
INTMB, Inc.
Kansas City Hospitality, L.P.
Key West Reach Limited Partnership
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 15
Marina Hospitality, L.P.
MBAH, Inc.
Melbourne Hospitality, L.P.
O-H Acquisition, Inc.
P.H.G., LLC
PA Hunt Valley Investors, L.P.
PA Troy Hospitality Investors, L.P.
PAH Acquisition Corporation
PAH Allen Operating Corporation
PAH Asset Management, LLC
PAH Batterymarch Operating Company, LLC
PAH Deuce GP, LLC
PAH GAH Holdings, LLC
PAH GAH Holding, L.P.
PAH GP, Inc.
PAH Leasing LLC
PAH LP, Inc.
PAH-River House, L.P.
PAH River North, LLC
PAH Stanly Holding LLC
PAH Ventana Canyon, L.P.
PAH Buttes L.L.C.
PAH-Carefree, L.P.
PAH-CI Holding, LLC
PAH-Columbus Holding, Inc.
PAH-DT Chicago O'Hare Partners, L.P.
PAH-DT Miami Airport Partners, L.P.
PAH-DT Minneapolis Suites Partners, L.P.
PAH-DT Park Place Partners, L.P.
PAH-DT Tallahassee Partners, L.P.
PAH-Franchise Holding, Inc.
PAH FF&E Holding, Inc.
PAHG FF&E Holding, Inc.
PAH-GBM, LLC
PAH-GP Allen Partners, L.P.
PAH-Grand Bay Miami, L.P.
PAH-Interest Holding, Inc.
PAH-Interstone, Inc.
PAH-IP Holding, Inc.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 16
PAH-Management Corporation
PAHP FF&E Holding, Inc.
PAH-Pittsburgh CI Holding, Inc.
PAH-Pittsburgh, LLC
PAH-Real Estate Member, Inc.
PAH-RH, LLC
PAH-Summerfield Holding Corp.
PAH-Summerfield Leasing, Inc.
PAH-Summerfield LLC
PAH-T, LLC
PAH-Tampa, L.P.
PAH-WMC Holding, Inc.
PAH-Xerxes Holding, Inc.
PAHMB, Inc.
Park West Hotel Associates
Patriot American Hospitality, Inc.
Patriot American Hospitality Partnership, Inc.
Patriot Bougainvillea Development Company, LLC
Patriot Grand Heritage, LLC
Patriot Holding LLC
Patriot Land Holding LLC
Patriot Miami Note Holder, L.P.
Patriot Racetrack Land LLC
Peaks Real Estate Services, Inc.
PSMB, Inc.
PW Land Associates Limited Partnership
PWMB, Inc.
Richardson C.I. Associates, L.P.
Savannah C.I. Associates, L.P.
SFMB, Inc.
Sierra Suites Marketing Association
St. Louis C.I. Associates, L.P.
Summerfield Hotel Company, L.P.
Summerfield Hotel Corporation
Summerfield Suites Marketing Association
Syracuse Associates Corporation
Syracuse Realty Associates, L.P.
TCC Venezuela, L.C.
Toledo Hotel Investors, L.P.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 17
Topeka C. I. Associates, L.P.
Waterfront Management Corporation
Water Street Hotel, Ltd.
WH Interest, Inc.
WHC Chicago, LLC
WHC Finance, L.P.
WHC Franchise Corporation
WHCMB, Inc.
WHCMB Overland Park, Inc.
WI Ohio Investors, Inc.
WMC II, Inc.
WYN Travel, Inc.
Wyndham Atlanta Lessee, LLC
Wyndham International, Inc.
Wyndham International Operating Partnership, L.P.
Wyndham IP Corporation
Wyndham Management Corporation
Wyndham Management II, LLC
Wyndham Summerfield Lessee, L.P.
Wyndham Summerfield Lessee, LLC
YO Hotel Investors, L.P.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 18
SCHEDULE III
Certificates Issued by Officials of the
Jurisdictions of Organization of the Borrower Parties
-----------------------------------------------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American Hospitality, Inc. DE Y-5/28/99 Yes 6/29/99
- -----------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. DE Y-5/28/99 Yes 6/29/99
- -----------------------------------------------------------------------------------------------------------------
1500 Canal Street Investors II, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Albuquerque C.I. Associates, L.P. KS Y-6/25/99 Yes 6/29/99
- -----------------------------------------------------------------------------------------------------------------
BJV Realty, Inc. AZ Not in Good Standing Not in Good Standing
- -----------------------------------------------------------------------------------------------------------------
Boulders Carefree Sewer Corporation AZ Y-6/23/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
C.I. Albuquerque Lessee GP, LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
C.I. Albuquerque Lessee, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Carefree Management LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Casa Marina Realty Corporation DE Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
CHC Hotels & Resorts Corp. FL Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
CHC REIT Lessee Corp. FL Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
CHC REIT Management Corporation FL Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Chicago-ES Holding Corp. DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
CHMB, Inc. TX Y-6/7/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Clubhouse Inns of America, Inc. KS Y-5/28/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Criterion Hotel Management Corp. FL Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Criterion NY Inc. FL Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Crossroads Development Company DE Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
CSMC of Kalamazoo, Inc. MI Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 19
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Deuce Management Company LLC TX Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Family Suites Corporation DE Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Family Suites Management Corporation DE Y-6/3/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
FS Development Corporation DE Y-6/3/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-II, LP DE Y-6/3/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-Atlanta, LLC MD Y-6/3/99 Not in Good Standing
- -------------------------------------------------------------------------------------------------------
GH-Chicago, Inc. IL Y-6/23/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-Detroit, Inc. MI Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-Greeneville, Inc. TN Y-6/2/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-Providence, Inc. RI Y-6/3/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH Trademarks LLC MD Y-6/25/99 Bring down not
available
- -------------------------------------------------------------------------------------------------------
GH-Wichita, Inc. KS Y-5/28/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-San Diego, Inc. DE Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GHMB, Inc. TX Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GHV-Colorado, Inc. CO Y-6/9/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GHV-Galveston, Inc. TX Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Glenview Hospitality, L.P. DE Y-6/3/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Grand Bay Management Company FL Y-6/2/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Grand Bay Management LLC DE Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Grand Heritage Hotels, Inc. MD Y-6/3/99 Not in Good Standing
- -------------------------------------------------------------------------------------------------------
Grand Heritage Leasing, LLC MD Y-6/3/99 Not in Good Standing
- -------------------------------------------------------------------------------------------------------
Grand Heritage Real Estate Group LLC MD Y-6/25/99 Bring down not
available
- -------------------------------------------------------------------------------------------------------
Grand Management Services, Inc. FL Y-6/2/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
HMG Beverage, Inc. TX Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 20
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
IHC/Burlington Corporation VT Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Capital Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Conshohoken Partnership, L.P. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Denver Partnership, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/FS Development Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Houston Partnership, L.P. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Interstone Partnership II, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Jacksonville Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Jamaica Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Maryville Hotel Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC Member Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Miami Beach Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC Miami Mortgage Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Park West Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Reach Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC Realty Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC Realty Partnership, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Santa Maria Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Texas Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC Title Agency Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHP/Class B Partnership, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHP Investment Company, L.L.C. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHP Lessee, L.L.C. DE Y-6/16/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
Interstate/Montour Associates, Ltd. PA Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
Interstone/PAH Partners L.P. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 21
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Interstone Three Partners I L.P. DE Y-6/2/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
INTMB, Inc. DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Kansas City Hospitality, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Marina Hospitality, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
MBAH, Inc. TX Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Melbourne Hospitality, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
O-H Acquisition, Inc. DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
P.H.G., LLC MD Y-6/3/99 Not in Good Standing
- ----------------------------------------------------------------------------------------------------------------------------
PA Hunt Valley Investors, L.P. VA Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PA Troy Hospitality Investors, L.P. DE Y-6/28/99 Yes 6/29/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Acquisition Corporation DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Allen Operating Corporation DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Asset Management, LLC DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Batterymarch Operating Company, LLC DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Deuce GP, LLC DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH GAH Holdings, LLC DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH GAH Holdings, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH GP, Inc. DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Leasing LLC DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH LP, Inc. DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH River House, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH River North, LLC DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Stanly Holding LLC DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Ventana Canyon, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH-Buttes L.L.C. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 22
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PAH-Carefree, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-CI Holding, LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Columbus Holding, Inc. DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-DT Chicago O'Hare Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-DT Miami Airport Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-DT Minneapolis Suites Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-DT Park Place Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-DT Tallahassee Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Franchise Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH FF&E Holding, Inc. DE Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAHG FF&E Holding, Inc. DE Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-GBM, LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-GP Allen Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Grand Bay Miami, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Interest Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Interstone, Inc. DE Y-6/15/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-IP Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Management Corporation DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAHP FF&E Holding, Inc. DE Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh CI Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh, LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Real Estate Member, Inc. DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-RH, LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Holding Corp. DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Leasing, Inc. DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 23
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PAH-Summerfield LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PAH-T, LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PAH-Tampa, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PAH-WMC Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PAH-Xerxes Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PAHMB, Inc. TX Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot American Hospitality
Partnership, L.P. VA Y-6/1/99 Yes 6/29/99
- ---------------------------------------------------------------------------------------------------------
Patriot Bougainvillea Development
Company, LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot Grand Heritage, LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot Holding LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot Land Holding LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot Miami Note Holder, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot Racetrack Land LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PSMB, Inc. CA Y-6/8/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PW Land Associates Limited Partnership PA Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PWMB, Inc. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Richardson C.I. Associates, L.P. TX Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Savannah C.I. Associates, L.P. GA Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
SFMB, Inc. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Sierra Suites Marketing Association KS Y-5/28/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
St. Louis C.I. Associates, L.P. MO Y-6/7/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Summerfield Hotel Company, L.P. KS Y-6/7/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Summerfield Hotel Corporation DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Summerfield Suites Marketing Association DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Syracuse Associates Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 24
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
TCC Venezuela, LC FL Y - 6/2/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Syracuse Realty Associates, L.P. DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
The Key West Reach Limited Partnership DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
The Peaks Real Estate Services, Inc. AZ Y - 6/2/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Toledo Hotel Investors, L.P. DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Topeka C. I. Associates, L.P. KS Delinquent Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Waterfront Management Corporation DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WH Interest, Inc. TX Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHC Chicago, LLC DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHC Columbus Corporation DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHC Finance, L.P. DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHC Franchise Corporation DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHCMB, Inc. DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHCMB Overland Park, Inc. KS Y - 6/29/99 Bring Down not
available
- ----------------------------------------------------------------------------------------------------------------------------
WI Ohio Investors, Inc. DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WMC II, Inc. DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WYN Travel, Inc. KS Y - 6/14/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Atlanta Lessee, LLC DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham International Operating Partnership, L.P. DE Y - 6/3/99 Yes 6/29/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Management Corporation DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Management II, LLC DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield Lessee, L.P. DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield Lessee, LLC DE Y - 6/3/99 Yes 6/28/99
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 25
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
YO Hotel Investors, L.P. DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 26
Annex A
Certain Agreements
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Entity Property Agreement Franchisor/Third
Party
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham International Embassy Suites North Embassy Suites Embassy Suites
Operating Partnership, Phoenix License Agreement (PROMUS Hotels, Inc.)
L.P. dated November 1,
1996.
- -----------------------------------------------------------------------------------------------------------------------
Wyndham International Schaumberg Embassy Embassy Suites Embassy Suites
Operating Partnership, Suites License Agreement (PROMUS Hotels, Inc.)
L.P. dated October 14,
1998.
- -----------------------------------------------------------------------------------------------------------------------
CHC Lease Partners Four Points by ITT Sheraton ITT Sheraton
(licensee) Sheraton, Saginaw, Corporation License Corporation
Michigan Agreement dated
January 15, 1996.
- -----------------------------------------------------------------------------------------------------------------------
CHC Lease Partners Holiday Inn, Lenox Conversion License Holiday Inns
(franchisee) (a/k/a PAH Atlanta Agreement dated Franchising, Inc.
Buckhead), Atlanta, December 22, 1993.
Georgia
- -----------------------------------------------------------------------------------------------------------------------
CHC Lease Partners Holiday Inn, North Holiday Inn Change Holiday Inns
West Houston, Texas of Ownership Franchising,
License Agreement Inc.
dated September 28,
1990, as amended by
Amendment to
License Agreement
dated October 2,
1995.
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 27
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Entity Property Agreement Franchisor/Third
Party
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CHC Lease Holiday Inn Holiday Inn License Agreement (Change Holiday Inns
Partners Northwest Plaza, of Ownership and Renewal) dated January Franchising, Inc.
Austin, Texas 30, 1992 between Holiday Inns Franchising,
Inc. and Travis Real Estate Group Joint
Venture and Amendment to License
Agreement effective October 2, 1995 among
Holiday Inns Franchising, Inc., Travis
Real Estate Group Joint Venture and CHC
Lease Partners.
- ---------------------------------------------------------------------------------------------------------
CHC Lease Holiday Inn Holiday Inn Conversion License Agreement Holiday Inns
Partners Select, North dated August 13, 1993; Amendment to Franchising, Inc.
(licensee) Dallas, Texas Holiday Inn License Agreement for Brand
Conversion to Holiday Inn Select dated
June 16, 1995; Amendment to License
Agreement dated October 2, 1995 between
Holiday Inns Franchising, Inc., and CHS
Lease Partners.
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTOR & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 28
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Entity Property Agreement Franchisor/Third
Party
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CHC Lease Partners Holiday Inn YO, Holiday Inn Holidays Inns
Kerville, Texas Conversion License Franchising, Inc.
Agreement dated
March 30, 1993.
- ---------------------------------------------------------------------------------------------------------
PAH Leasing, LLC Grand Bay Carmel Operating Lease CV Ranch, L.P.
(lessee) Valley Ranch, Carmel, dated January 7,
California 1997, as amended on
January 31, 1998
and June 30, 1998.
- ---------------------------------------------------------------------------------------------------------
PAH Leasing, LLC Courtyard by Marriott Courtyard by Marriott International,
(lessee) Beachwood, Ohio Marriott Franchise Inc.
Agreement dated
November 2, 1992,
as amended by
Amendment One to
Franchise
Agreement dated
November 2, 1992
as assigned by
Assignment of
Franchise
Agreement dated
July 1, 1997.
- ---------------------------------------------------------------------------------------------------------
PAH Leasing, LLC Holiday Inn, Westlake, Franchise Holiday Hospitality
Westlake, Ohio Agreement dated Franchising, Inc.
July 1, 1997.
- ---------------------------------------------------------------------------------------------------------
PAH-Management Chicago Embassy License Agreement Embassy Suites
Corporation Suites (PROMUS) Hotels, Inc.
- ---------------------------------------------------------------------------------------------------------
CHC Lease Partners Radisson Hotel and License Agreement Radisson Hotels
Suites T&C, Radisson Hotels International, Inc.
Houston, TX International, Inc.
effective October
2, 1995 and
Addendum
(undated)
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTOR & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 29
- --------------------------------------------------------------------------------
Entity Property Agreement Franchisor/Third
Party
- --------------------------------------------------------------------------------
Kansas City Radisson Kansas Amended and Radisson Hotels
Hospitality, L.P. City, Kansas City, Restated License International, Inc.
MO Agreement date
April 13, 1995
- --------------------------------------------------------------------------------
1500 Canal Street Radisson New License Agreement Radisson Hotels
Investors II, LP Orleans, Northboro dated January 12, International, Inc.
LA 1995
- --------------------------------------------------------------------------------
GAH II, LP Radisson Northbrook, Agreement Radisson Hotels
Northbrook, IL Amending and International, Inc.
Restating Radisson
License
Agreement, First
and Second
Addenda to
License Agreement
(each dated April
30, 1997), Letter
Agreement
granting consent to
Amendment
- --------------------------------------------------------------------------------
CHC Lease Partners Radisson Overland Agreement Radisson Hotels
Park, Overland Park, Amending and International, Inc.
KS Restating Radisson
License
Agreement dated
April 30, 1997
- --------------------------------------------------------------------------------
Marina Hospitality, Radisson Riverwalk Radisson License Radisson Hotels
L.P. Hotel, Jacksonville, Agreement dated International, Inc.
FL November 27,
1995
- --------------------------------------------------------------------------------
<PAGE>
GOODWIN, PROCTOR & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 30
- --------------------------------------------------------------------------------
Entity Property Agreement Franchisor/Third
Party
- --------------------------------------------------------------------------------
CHC Lease Partners Radisson Suites License Ageement Radisson Hotels
Dallas, Dallas, TX dated October 2, International, Inc.
1995
- --------------------------------------------------------------------------------
PAH RSI, LLC Radisson Akron, Agreement Radisson Hotels
Akron, OH Assigning, International, Inc.
Amending, and
Restating Radisson
License Agreement
dated July 1, 1997
- --------------------------------------------------------------------------------
PAH RSI, LLC Radisson Beachwood, Agreement Radisson Hotels
Beachwood, OH Assigning, International, Inc.
Amending, and
Restating Radisson
License Agreement
dated July 1, 1997
<PAGE>
EXHIBIT G
FORM OF OFFICER'S SOLVENCY CERTIFICATE
I, the undersigned, the [Chairman][President][Chief Financial Officer]
[Treasurer][Chief Accounting Officer] of Wyndham International, Inc., a
corporation organized and existing under the laws of the State of Delaware (the
"Borrower"), do hereby certify on behalf of the Borrower that:
1. This Certificate is furnished pursuant to Section 4.01(j) of the
Credit Agreement, dated as of June 30, 1999, among Wyndham International, Inc.,
a Delaware corporation (the "Borrower"), the Lenders party hereto from time to
time, Chase Securities Inc. ("CSI"), as Lead Arranger and Book Manager,
NationsBank, N.A. and Bankers Trust Company, as Syndication Agents (each a
"Syndication Agent," together the Syndication Agents"), Credit Lyonnais New York
Branch, as Documentation Agent, Bear Stearns Corporate Lending Inc., as Co-
Documentation Agent (each a "Documentation Agent," together the "Documentation
Agents") and The Chase Manhattan Bank ("Chase"), as Administrative Agent (such
Credit Agreement as in effect on the date of this Certificate being called
herein the "Credit Agreement"). Unless otherwise defined herein, capitalized
terms used in this Certificate shall have the meanings set forth in the Credit
Agreement.
2. For purposes of this Certificate, the terms below shall have the
following definitions:
(a) "Fair Value"
The amount at which the assets, in their entirety, of each of (i) the
Borrower and the Subsidiary Guarantors (taken as a whole) and (ii) the
Borrower (on a stand-alone basis) would change hands between a willing
buyer and a willing seller, within a commercially reasonable period of
time, each having reasonable knowledge of the relevant facts, with
neither being under any compulsion to act.
(b) "Present Fair Salable Value"
The amount that could be obtained by an independent willing seller
from an independent willing buyer if the assets of each of (i) the
Borrower and the Subsidiary Guarantors (taken as a whole) and (ii) the
Borrower (on a stand-alone basis) are sold with reasonable promptness
under normal selling conditions in a current market.
(c) "New Financing"
The indebtedness incurred or to be incurred by the Borrower and the
Subsidiary Guarantors under the Loan Documents and all other financing
contemplated by the Loan Documents.
(d) "Stated Liabilities"
The recorded liabilities (including Contingent Liabilities that would
be recorded in accordance with GAAP consistently applied) of the
Borrower and the Subsidiary
<PAGE>
EXHIBIT G
Page 2
Guarantors at June 30, 1999, together with (i) the net change in
long-term debt (including current maturities) between June 30, 1999
and the date hereof and (ii) without duplication, the amount of all
New Financing.
(e) "Contingent Liabilities"
The maximum estimated amount of liability reasonably likely to result
from pending litigation, asserted claims and assessments, guaranties,
uninsured risks and other contingent liabilities of the Borrower and
the Subsidiary Guarantors (exclusive of such Contingent Liabilities to
the extent reflected in Stated Liabilities).
(f) "Will be able to pay its Stated Liabilities, including Contingent
Liabilities, as they mature."
For the period from the date hereof through the stated maturity of all
New Financing, each of (i) the Borrower and the Subsidiary Guarantors
(taken as a whole) and (ii) the Borrower (on a stand-alone basis) will
have sufficient assets and cash flow to pay their respective Stated
Liabilities and Contingent Liabilities as those liabilities mature or
otherwise become due.
(g) "Does not have Unreasonably Small Capital"
For the period from the date hereof through the stated maturity of all
New Financing, each of (i) the Borrower and the Subsidiary Guarantors
(taken as a whole) and (ii) the Borrower (on a stand-alone basis),
after consummation of all Indebtedness (including the Loans) being
incurred or assumed and Liens created by the [Borrower] Subsidiary
Guarantors in connection therewith, is a going concern and has
sufficient capital to ensure that it will continue to be a going
concern for such period and to remain a going concern despite
moderately negative deviations from the Projections discussed below.
3. For purposes of this Certificate, I, or officers of the Borrower
under my direction and supervision, have performed the following procedures as
of and for the periods set forth below.
(a) I have reviewed the financial statements referred to in Section 3.01
of the Credit Agreement.
(b) I have read:
1. the Loan Documents and the respective Schedules and Exhibits
thereto.
(c) With respect to Contingent Liabilities, I:
1. have inquired of certain officials of the Borrower and the
Subsidiary Guarantors who have responsibility for legal,
financial and accounting matters as to the existence and
estimated liability with respect to all Contingent Liabilities
known to them;
<PAGE>
EXHIBIT G
Page 3
2. have confirmed with senior officers of the Borrower and the
Subsidiary Guarantors that, to the best of such officers'
knowledge, (i) all appropriate items were included in Stated
Liabilities or Contingent Liabilities made known to me in the
course of my inquiry and that (ii) the amounts relating thereto
were the estimated amount of liability reasonably likely to
result therefrom as of the date hereof;
3. hereby certify that, to the best of my knowledge, all material
Contingent Liabilities have been considered in making the
certification set forth in paragraph 4 below, and with respect to
each such Contingent Liability the estimated amount of liability
reasonably likely to result therefrom was used in making such
certification.
(d) I have made inquiries of certain officers of the Borrower and the
Subsidiary Guarantors which have responsibility for financial
reporting and accounting matters regarding whether they were aware of
any events or conditions that, as of the date hereof, would cause each
of (i) the Borrower and the Subsidiary Guarantors (taken as whole) or
(ii) the Borrower (on a stand-alone basis) after giving effect to the
financing transactions (including the incurrence of the New
Financing), to (x) have assets with a Fair Value or Present Fair
Salable Value that are less than the sum of Stated Liabilities and
Contingent Liabilities; (y) have Unreasonably Small Capital; or (z)
not be able to pay its Stated Liabilities and Contingent Liabilities
as they mature or otherwise become due.
4. Based on and subject to the foregoing, I hereby certify on behalf
of the Borrower that, after giving effect to the financing transactions
(including the New Financing), it is my informed opinion that as of the date
hereof (x) the Fair Value and Present Fair Salable Value of the assets of each
of (i) the Borrower and the Subsidiary Guarantors (taken as a whole) and (ii)
the Borrower (on a stand-alone basis) exceed their respective Stated Liabilities
and Contingent Liabilities; (y) each of (i) the Borrower and the Subsidiary
Guarantors (taken as a whole) and (ii) the Borrower (on a stand-alone basis)
will not have Unreasonably Small Capital; and (z) each of (i) the Borrower and
the Subsidiary Guarantors (taken as a whole) and (ii) the Borrower (on a stand-
alone basis) will be able to pay its respective Stated Liabilities and
Contingent Liabilities as they mature or otherwise become due.
* * *
<PAGE>
EXHIBIT G
Page 4
IN WITNESS WHEREOF, Wyndham International, Inc. has caused its duly
authorized chief accounting officer to execute and deliver this Certificate this
_____ day of June, 1999.
WYNDHAM INTERNATIONAL, INC.
By:
----------------------------------
Name:
Title:
<PAGE>
EXHIBIT 10.2
[CONFORMED COPY with
EXHIBIT C, ANNEX D THERETO and
EXHIBIT D CONFORMED AS EXECUTED]
================================================================================
CHASE
INCREASING RATE NOTE PURCHASE AND LOAN AGREEMENT
dated as of
JUNE 30, 1999
among
WYNDHAM INTERNATIONAL, INC.,
The Lenders Party Hereto,
BEAR STEARNS CORPORATE LENDING INC.
as Co-Arranger and Syndication Agent,
BANKERS TRUST COMPANY,
as Syndication Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$650,000,000
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
Definitions....................................................................... 1
SECTION 1.01 Defined Terms............................................................... 1
SECTION 1.02 Classification of Loans and Borrowings...................................... 27
SECTION 1.03 Terms Generally............................................................. 27
ARTICLE II
The Credits....................................................................... 27
SECTION 2.01 Commitments................................................................. 27
SECTION 2.02 Loans and Borrowings........................................................ 27
SECTION 2.03 Requests for Borrowings..................................................... 28
SECTION 2.04 Funding of Borrowings....................................................... 29
SECTION 2.05 Interest Elections.......................................................... 29
SECTION 2.06 Evidence of Debt............................................................ 30
SECTION 2.07 Termination of Commitments.................................................. 31
SECTION 2.08 Prepayment of Loans......................................................... 31
SECTION 2.09 Mandatory Applications and Prepayments...................................... 31
SECTION 2.10 Interest; Fees.............................................................. 33
SECTION 2.11 Alternate Interest.......................................................... 33
SECTION 2.12 Increased Costs............................................................. 34
SECTION 2.13 Break Funding Payments...................................................... 35
SECTION 2.14 Taxes....................................................................... 36
SECTION 2.15 Payments Generally; Pro Rata Treatment; Sharing of Set-offs................. 36
SECTION 2.16 Mitigation Obligations, Replacement of Lenders.............................. 38
ARTICLE III
Representations and Warranties.................................................... 38
SECTION 3.01 Financial Condition......................................................... 39
SECTION 3.02 No Change................................................................... 39
SECTION 3.03 Company Existence; Compliance with Law...................................... 39
SECTION 3.04 Company Power; Authorization; Enforceable Obligations....................... 40
SECTION 3.05 No Violation................................................................ 40
SECTION 3.06 Litigation.................................................................. 40
SECTION 3.07 No Default.................................................................. 41
SECTION 3.08 Intellectual Property....................................................... 41
SECTION 3.09 Taxes....................................................................... 41
SECTION 3.10 Federal Regulations......................................................... 41
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
SECTION 3.11 Labor Matters............................................................... 41
SECTION 3.12 ERISA....................................................................... 42
SECTION 3.13 Investment Company Act; Other Regulations................................... 42
SECTION 3.14 Public Utility Holding Company Act.......................................... 42
SECTION 3.15 Subsidiaries; Joint Ventures................................................ 42
SECTION 3.16 Use of Proceeds; Margin Regulations......................................... 43
SECTION 3.17 Hotels...................................................................... 43
SECTION 3.18 Environmental Matters....................................................... 44
SECTION 3.19 Accuracy of Information, etc................................................ 45
SECTION 3.20 Security Documents.......................................................... 45
SECTION 3.21 Solvency.................................................................... 46
SECTION 3.22 Existing Indebtedness....................................................... 46
SECTION 3.23 Year 2000 Matters........................................................... 46
SECTION 3.24 Transaction................................................................. 46
ARTICLE IV
Conditions Precedent.............................................................. 47
SECTION 4.01 Conditions to Initial Loan.................................................. 47
ARTICLE V
Affirmative Covenants............................................................. 49
SECTION 5.01 Financial Statements........................................................ 49
SECTION 5.02 Certificates; Other Information............................................. 50
SECTION 5.03 Payment of Obligations...................................................... 51
SECTION 5.04 Maintenance of Existence; Compliance........................................ 52
SECTION 5.05 Maintenance of Property; Insurance.......................................... 52
SECTION 5.06 Inspection of Property; Books and Records; Discussions...................... 52
SECTION 5.07 Notices..................................................................... 52
SECTION 5.08 Environmental Laws.......................................................... 53
SECTION 5.09 Additional Collateral; New Subsidiaries, etc................................ 53
SECTION 5.10 Year 2000 Compliance........................................................ 54
SECTION 5.11 Maintenance of Separateness.................................................. 55
SECTION 5.12 Registration Rights Agreement............................................... 55
ARTICLE VI
Negative Covenants................................................................ 56
SECTION 6.01 Financial Covenants......................................................... 56
SECTION 6.02 Indebtedness................................................................ 57
SECTION 6.03 Liens....................................................................... 59
SECTION 6.04 Fundamental Changes......................................................... 61
SECTION 6.05 Disposition of Assets or Equity Ownership Interests......................... 62
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
SECTION 6.06 Investments................................................................. 63
SECTION 6.07 Dividends................................................................... 64
SECTION 6.08 Payments and Modifications of Certain Debt Instruments and Preferred Stock.. 65
SECTION 6.09 Transactions with Affiliates................................................ 66
SECTION 6.10 Clauses Restricting Subsidiary Distributions................................ 66
SECTION 6.11 Changes in Fiscal Periods................................................... 67
SECTION 6.12 Negative Pledge Clauses..................................................... 67
SECTION 6.13 Lines of Business........................................................... 67
SECTION 6.14 Subsidiary Stock............................................................ 67
SECTION 6.15 Derivatives Obligations..................................................... 67
ARTICLE VII
Events of Default................................................................. 68
SECTION 7.01 Payments.................................................................... 68
SECTION 7.02 Representations, etc........................................................ 68
SECTION 7.03 Covenants................................................................... 68
SECTION 7.04 Default Under Other Agreements.............................................. 68
SECTION 7.05 Bankruptcy, etc............................................................. 69
SECTION 7.06 ERISA....................................................................... 69
SECTION 7.07 Judgments................................................................... 70
SECTION 7.08 Security Documents.......................................................... 70
SECTION 7.09 Change of Control........................................................... 70
ARTICLE VIII
The Administrative Agent.......................................................... 70
SECTION 8.01 Appointment................................................................. 70
SECTION 8.02 The Administrative Agent in its Individual Capacity......................... 71
SECTION 8.03 Nature of Duties............................................................ 71
SECTION 8.04 Reliance.................................................................... 71
SECTION 8.05 Resignation or Removal of the Administrative Agent.......................... 72
SECTION 8.06 Lack of Reliance on the Administrative Agent................................ 72
SECTION 8.07 Certain Rights of the Administrative Agent.................................. 72
SECTION 8.08 Indemnification............................................................. 73
SECTION 8.09 Other Agents................................................................ 73
ARTICLE IX
Miscellaneous..................................................................... 73
SECTION 9.01 Notices..................................................................... 73
SECTION 9.02 Waivers; Amendments......................................................... 74
</TABLE>
(iii)
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
SECTION 9.03 Expenses; Indemnity; Damage Waiver.......................................... 75
SECTION 9.04 Successors and Assigns...................................................... 76
SECTION 9.05 Survival.................................................................... 78
SECTION 9.06 Counterparts................................................................ 79
SECTION 9.07 Severability................................................................ 79
SECTION 9.08 Right of Setoff............................................................. 79
SECTION 9.09 Governing Law, Jurisdiction; Consent to Service of Process.................. 79
SECTION 9.10 WAIVER OF JURY TRIAL........................................................ 80
SECTION 9.11 Headings.................................................................... 80
SECTION 9.12 Confidentiality............................................................. 80
SECTION 9.13 Effectiveness............................................................... 81
SECTION 9.14 Domicile of Loans........................................................... 81
SECTION 9.15 Calculations; Computations.................................................. 81
</TABLE>
(iv)
<PAGE>
SCHEDULES
Schedule I - Approved Procurement Savings
Schedule II - Certain Non-Core Assets
Schedule III - Commitments
Schedule IV - Sponsors
Schedule V - Subsidiaries; Joint Ventures and Equity Ownership Interests
Schedule VI - Unrestricted Assets and Unrestricted Subsidiaries
Schedule VII - Existing Letters of Credit
Schedule VIII - Consents
Schedule IX - Litigation
Schedule X - Real Property; Hotels
Schedule XI - Existing Indebtedness
Schedule XII - Investments
Schedule XIII - Existing Restrictions on Subsidiaries
EXHIBITS
Exhibit A - Assignment and Acceptance
Exhibit B - Compliance Certificate
Exhibit C - Guaranty and Collateral Agreement
Exhibit D - Registration Rights Agreement
Exhibit E - Closing Certificates
Exhibit F - Opinion of Goodwin, Procter & Hoar
Exhibit G - Solvency Certificate
(v)
<PAGE>
INCREASING RATE NOTE PURCHASE AND LOAN AGREEMENT dated as of June 30,
1999 among WYNDHAM INTERNATIONAL, INC., a Delaware corporation (the "Borrower"),
the LENDERS party hereto from time to time, CHASE SECURITIES INC. ("CSI"), as
Lead Arranger and Book Manager, BEAR STEARNS CORPORATE LENDING INC. as Co-
Arranger and Syndication Agent, BANKERS TRUST COMPANY, as Syndication Agent and
THE CHASE MANHATTAN BANK ("Chase"), as Administrative Agent (all capitalized
terms used herein and defined in Section 1 are used herein as therein defined.)
The parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01 Defined Terms. As used in this Agreement, the following
-------------
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
---
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acquired Business" has the meaning as provided in the term "Permitted
-----------------
Acquisitions."
"Additional Basket Amount" has the meaning provided in Section
------------------------
6.02(i).
"Additional Interest" has the meaning provided in Section 4 of the
-------------------
Registration Rights Agreement.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
------------------
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
--------------------
as administrative agent for the Lenders hereunder, and shall include any
successor to the Administrative Agent appointed pursuant to Section 8.01.
"Administrative Questionnaire" means an Administrative Questionnaire
----------------------------
in a form supplied by the Administrative Agent.
"Affected Eurodollar Loans" has the meaning provided in Section 2.13.
-------------------------
"Affiliate" means, with respect to any Person, any other Person that,
---------
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, either to (a) vote 10% or more
of the securities having ordinary voting power for the election of directors
<PAGE>
(or persons performing similar functions) of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by contract
or otherwise.
"Agreement" means this Increasing Rate Note Purchase and Loan
---------
Agreement, as amended, modified or supplemented from time to time.
"Allocation Percentage" means (i) with respect to the Borrower or
---------------------
any Wholly-Owned Subsidiary of any Borrower, 100% and (ii) for any other Person,
with respect to such Person's Subsidiaries and Joint Ventures, the percentage
that the Equity Ownership Interest held by such Person in such Subsidiary or
Joint Venture represents of the entire Equity Ownership Interest of such
Subsidiary or Joint Venture, respectively.
"Alternate Base Rate" means, for any day, a rate per annum equal to
-------------------
the greatest of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" means the percentages set forth below during the
-----------------
periods set forth opposite such period:
<TABLE>
<CAPTION>
Applicable
Eurodollar Applicable ABR
Period Margin Margin
---------------------------------------------- -------------- ----------------
<S> <C> <C>
Effective Date until September 30, 1999 3.50% 2.50%
October 1, 1999 until December 31, 1999 4.00% 3.00%
January 1, 2000 until March 31, 2000 4.50% 3.50%
April 1, 2000 and thereafter 4.75% 3.75%
</TABLE>
"Approved Procurement Savings" means savings reasonably anticipated to
----------------------------
be reflected through procurements which have been approved by the Administrative
Agent prior to the Effective Date in the amounts reflected in Schedule I.
"Asset Disposition" means any sale, conveyance, transfer, assignment,
-----------------
lease or other disposition (including, without limitation, by merger or
consolidation, and dispositions or transfers arising out of, or in connection
with, a Recovery Event and excluding Exchanges and Dispositions of Unrestricted
Assets) by the Borrower, or any of its Subsidiaries or Joint Ventures to any
Person (other than to the Borrower, or any of its Subsidiaries or Joint
Ventures) of any Equity Ownership Interest (other than new issuances of Equity
Ownership Interests) of any of its Subsidiaries or Joint Ventures or any Hotel
or any other properties and assets, or group of related properties and assets,
in each case other than (i) sales, dispositions leases, and transfers of
inventory, obsolete personal property and fixtures, furniture and equipment,
time share units and residential lots, terminations of franchise and management
agreements, licensing of intellectual property, sales of inventory and (ii)
other sales, dispositions leases, and transfers which generate
-2-
<PAGE>
net proceeds and/or other consideration the fair market value of which is less
than $7,500,000 in the aggregate in any fiscal year of the Borrower.
"Assignment and Acceptance" means an assignment and acceptance entered
-------------------------
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Assumed Indebtedness" means Indebtedness assumed in connection with a
--------------------
Permitted Acquisition or assumed in connection with an Exchange of the type
defined in Sections 6.05(c)(i) and (ii), provided that (a) such Indebtedness is
--------
outstanding at the time of such acquisition and was not incurred in connection
therewith or in contemplation thereof and (b) in the event that such Permitted
Acquisition constitutes an acquisition of assets other than Equity Ownership
Interest, such Indebtedness was incurred in order to acquire or improve such
asset (or refinancing of such Indebtedness whether in connection with the
original acquisition or improvement or the Permitted Acquisition).
"Board" means the Board of Governors of the Federal Reserve System of
-----
the United States of America (or any successor).
"Borrower" means Wyndham International, Inc., a Delaware corporation.
--------
"Borrowing" means Loans of the same Type, made, converted or continued
---------
on the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for the initial
-----------------
Borrowing of Loans in accordance with Section 2.03.
"Business" has the meaning provided in Section 3.18(b).
--------
"Business Day" means any day that is not a Saturday, Sunday or other
------------
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, with respect to notices and determinations in
--------
connection with and payments of principal and interest on, Eurodollar Loans,
such day is also a day for trading by and between banks in dollar deposits in
the interbank London Eurodollar market.
"Buy/Sell Arrangement" means an agreement among owners of Equity
--------------------
Ownership Interests in another Person pursuant to which an owner has the option
to sell his Equity Ownership Interest or to buy the Equity Ownership Interests
of other owners, and in response to which offer, the offerees in turn have the
option to accept such offer, or to require the initial offeror in the case of an
initial offer to sell, to instead buy the Equity Ownership Interests of the
offerees, or in the case of an initial offer to buy, to instead sell the Equity
Ownership Interest of the offeror to the offerees.
"Calculation Period" means the period of four consecutive Fiscal
------------------
Quarters last ended before the date of the respective event or incurrence which
requires calculations to be made on a Pro Forma Basis.
-3-
<PAGE>
"Capital Expenditures" means for any period, with respect to any
--------------------
Person, the aggregate of all expenditures (other than those made pursuant to
Permitted Acquisitions or in connection with a Reinvestment Event) by such
Person and its Subsidiaries for the acquisition or leasing (pursuant to a lease
giving rise to Capital Lease Obligations) of fixed or capital assets or
additions to equipment (including replacements, capitalized repairs and
improvements during such period but excluding merchandise inventory acquired
during such period) that should be capitalized under GAAP on a consolidated
balance sheet of such Person and its Subsidiaries.
"Capital Lease Obligations" of any Person means the obligations of
-------------------------
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and for the purposes of this Agreement, the amount of such obligations, shall be
the capitalized amount thereof, at such time determined in accordance with GAAP.
"Cash Equivalents" means (a) marketable direct obligations issued by,
----------------
or unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by Standard & Poor's Ratings Services ("S&P") or P-1 by Moody's
---
Investors Service, Inc. ("Moody's"), or carrying an equivalent rating by a
-------
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; or (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"Change in Law" means (a) the adoption of any law, rule or regulation
-------------
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.11(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
-4-
<PAGE>
"Change of Control" means (i) the acquisition, directly or indirectly,
-----------------
by any one "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) (other than the Sponsors, whether collectively or individually
(other than Permitted Third Party Transferees as defined in the Securities
Purchase Agreement)) of beneficial ownership of more than 30% of the Common
Stock of the Borrower on a fully diluted basis; (ii) during any period of 24
consecutive calendar months after the Effective Date, individuals who at the
beginning of such period constituted the Board of Directors of the Borrower
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the stockholders or members, as the case may
be, of the Borrower was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of such Board of Directors then in office;
or (iii) any "Change of Control" or similar event shall occur under the Senior
Notes (or any other unsecured Indebtedness issued or incurred in connection with
an Offering in aggregate principal amount in excess of $100,000,000 issued or
incurred by the Borrower in compliance with this Agreement) or New Preferred
Stock.
"Chase" means The Chase Manhattan Bank.
-----
"Class A Common Stock" means the Class A Common Stock of the Borrower.
--------------------
"Class B Stock" means, collectively, the Class B Common Stock of the
-------------
Borrower and the Series B Convertible Preferred Stock of the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time.
"Collateral" means all assets of the Loan Parties, now owned or
----------
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Collateral Agent" means The Chase Manhattan Bank, in its capacity as
----------------
Collateral Agent for the Secured Parties under the Loan Documents, and shall
include any successor to the Collateral Agent.
"Commitment" means, with respect to any Lender, the obligation of such
----------
Lender to make Loans in an aggregate principal amount not to exceed the amount
set forth opposite such Lender's name on Schedule IV.
"Common Stock" means, with respect to the Borrower, (a) for so long as
------------
the Class A Common Stock remains a separate class of the Borrower's common stock
and the special voting provisions available to the Class B Stock apply, the
shares of Class A Common Stock then outstanding, on a fully diluted basis,
including, without limitation, any shares of Class A Common Stock issuable upon
the conversion of any securities (including the Series A Convertible Preferred
Stock of the Borrower and the Class B Stock) then outstanding which are or may
be convertible, directly or indirectly, into Class A Common Stock, and (b)
thereafter, all securities of any class of common stock, on a fully diluted
basis, entitling the holders thereof (whether at all times or by reason of the
happening of any contingency) to vote in the election of the members of the
board of directors of the Borrower.
-5-
<PAGE>
"Commonly Controlled Entity" means an entity, whether or not
--------------------------
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Company" means any corporation, limited liability company,
-------
partnership or other business entity (or the adjectival form thereof, where
appropriate).
"Company Document" means the operative organizational documents of a
----------------
Company, such as the certificate of incorporation, by-laws, partnership
agreement, certificate of partnership and limited liability company agreement.
"Compliance Certificate" means a certificate duly executed by the
----------------------
Responsible Officer substantially in the form of Exhibit B.
"Contingent Purchase Obligations" means (i) obligations for the
-------------------------------
purchase of assets, including Equity Ownership Interests, to be acquired in the
future, unless upon satisfaction of any applicable conditions to closing, the
seller may maintain a suit for the full purchase price thereof; (ii) contingent
deferred obligations for the purchase of assets, including "earn-out" payments,
for property or assets owned, unless and until the amount is then determinable
and satisfaction of the conditions to payment thereof is probable, in Borrower's
reasonable determination, (iii) obligations under options held by others to
compel the purchase of assets in the future, including puts or buy-sell options,
unless and until such option is exercised and (iv) obligations under Buy/Sell
Arrangements unless and until such obligations are non-contingent.
"Contractual Obligation" means, as to any Person, any material
----------------------
provision of any material security issued by such Person or of any material
agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its assets are bound.
"Control Investment Affiliate" means, as to any Person, any other
----------------------------
Person that (a) directly or indirectly, is in control of, is controlled by, or
is under common control with, such Person and (b) is organized by such Person
primarily for the purpose of making equity or debt investments in one or more
companies. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
"Core Assets" means Hotels (or Equity Ownership Interest in Persons
-----------
owning such Hotels) branded as Wyndham Hotels, Wyndham Garden Hotels, Wyndham
Resorts and Wyndham Grand Heritage Hotels, or Hotels which will be branded as
such within one year after acquisition thereof (so long as such Hotels are so
branded within such time period); provided, that notwithstanding anything to the
--------
contrary, the Hotels described in Schedule II and Unrestricted Assets shall not
be included in this definition of Core Assets.
"Credit Agreement" means the Credit Agreement, dated as of the date
----------------
hereof, among the Borrower, the lenders from time to time parties thereto, and
Chase, as administrative
-6-
<PAGE>
agent for such lenders, as such agreement may be amended, modified or
supplemented from time to time.
"Default" means any of the events specified in Article VII, whether or
-------
not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Derivatives Counterparty" has the meaning provided in Section 6.07.
------------------------
"Derivatives Obligations" of any Person means all Interest Rate
-----------------------
Protection Agreements and all other obligations of such Person in respect of any
interest rate swap transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, forward equity transaction,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"Determination Date" has the meaning provided in the definition of Pro
------------------
Forma Basis.
"Disposition" means with respect to any asset, any sale, lease, sale
-----------
and leaseback, assignment, conveyance, transfer or other disposition thereof.
The terms "Dispose" and "Disposed of" shall have correlative meanings.
------- -----------
"Dividends" has the meaning provided in Section 5.07.
---------
"Documents" means the Transaction Documents and the Loan Documents.
---------
"Dollars" or "$" refers to lawful money of the United States of
-------
America.
"Domestic Subsidiary" means any Subsidiary of the Borrower that is
-------------------
incorporated or organized under the laws of the United States of America or any
State thereof.
"EBITDA" means for any Person for any period, the net income of such
------
Person for such period, plus (a) the sum of the following amounts of such Person
for such period determined in conformity with GAAP to the extent included in the
determination of such net income: (i) depreciation expense, (ii) amortization
expense and all other non-cash expenses and charges, (iii) interest expense,
(iv) income tax expense, (v) extraordinary losses (and other losses on sales or
other dispositions of assets not otherwise included in extraordinary losses
determined in conformity with GAAP), (vi) all minority interests, including
minority interests attributable to the OP Units and (vii) commencing with the
first Fiscal Quarter in 1999, Non-Recurring Identified Charges, less (b)
extraordinary gains of such Person determined in conformity with GAAP to the
extent included in the determination of such net income (and other gains on
sales or other dispositions of assets not otherwise included in extraordinary
gains determined in conformity with GAAP) and equity earnings attributable to
all minority interests, including equity earnings attributable to minority
interests in the OP Units.
-7-
<PAGE>
"Effective Date" has the meaning provided in Section 9.13.
--------------
"Environmental Laws" means any and all foreign, Federal, state, local
------------------
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"Equity Ownership Interest" means any and all shares, interests,
-------------------------
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation), including partnership interest and limited liability company
membership interest, and any and all warrants, rights or options to purchase any
of the foregoing (excluding Buy/Sell Arrangements so long as the obligations to
purchase the interests in respect thereof are contingent).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"Eurodollar" when used in reference to any Loan or Borrowing, refers
----------
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate
"Event of Default" means any of the events specified in Article VII,
----------------
provided that any requirement for the giving of notice, the lapse of time, or
- --------
both, has been satisfied.
"Exchange Act" means the Securities Exchange Act of 1934, and the
------------
regulations promulgated thereunder.
"Exchange Notes" means the Exchange Notes as defined in Section 2 of
--------------
the Registration Rights Agreement.
"Exchange Notes Indenture" has the meaning provided in Section 5.12.
------------------------
"Exchanges" has the meaning provided in Section 6.05(c).
---------
"Excluded Foreign Subsidiary" means any Foreign Subsidiary in respect
---------------------------
of which either the pledge of more than 65% of the capital stock of such
Subsidiary as Collateral or the guaranteeing by such Subsidiary of the
Obligations, would, in the good faith judgment of the Borrower, result in
adverse tax consequences to the Borrower.
"Excluded Taxes" means, with respect to the Administrative Agent, any
--------------
Lender, or any other recipient of any payment to be made by or on account of any
obligation of the Borrower
-8-
<PAGE>
hereunder, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.16(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section 2.14(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.14(a).
"Existing Credit Agreement" means that certain Credit Agreement, dated
-------------------------
as of July 18, 1997, as amended through the Effective Date, among Old Patriot,
Chase, as administrative agent, and others.
"Existing Equity Forwards" means the forward equity transactions
------------------------
entered into by the Borrower with certain counterparties, as in effect
immediately prior to the Effective Date.
"Existing Indebtedness" has the meaning provided in Section 6.02(d).
---------------------
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiscal Quarters" means the fiscal quarters of the Borrower ending
---------------
March 31, June 30, September 30 and December 31.
"Foreign Lender" means any Lender that is organized under the laws of
--------------
a jurisdiction other than that of the United States of America, each State
thereof and the District of Columbia.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is not
------------------
a Domestic Subsidiary.
"Forward Purchase Obligations" means obligations to purchase Hotels
----------------------------
(or an Equity Ownership Interest in a Person which owns such a Hotel) and
related assets, including obligations in the form of take-out financings, upon
the completion of construction or renovation thereof, or upon the occurrence of
another future contingency (excluding obligations under purchase, sale and
acquisition agreements entered into in the ordinary course of business).
-9-
<PAGE>
"GAAP" means generally accepted accounting principles in the United
----
States of America consistently applied throughout the periods involved.
"Governmental Authority" means any nation or government, any state or
----------------------
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Guarantee Obligation" means as to any Person (the "guaranteeing
-------------------- ------------
person"), any obligation of (a) the guaranteeing person or (b) another Person
- ------
(including any bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
-------------------
of any other third Person (the "primary obligor") in any manner, whether
---------------
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
asset constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase asset, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not include
-------- -------
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or then determinable, in which
case the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guaranty and Collateral Agreement" means the Guaranty and Collateral
---------------------------------
Agreement to be executed and delivered by the Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit C, as the same may be amended,
supplemented or otherwise modified from time to time.
"HIA Reserve Amount" means a hotel improvement allowance reserve
------------------
amount which initially shall be zero, and (i) which may be increased (and
reincreased after any decrease in clause (ii) below) by the Borrower in
accordance with Section 2.11, not to exceed $300,000,000 at any time, and (ii)
which shall be decreased by the amount of Capital Expenditures together with
investments made in or improvements made to Hotels, by the Borrower and its
Subsidiaries.
-10-
<PAGE>
"Hospitality/Leisure-Related Business" means the hotel, resort
------------------------------------
(whether or not incorporating hospitality), extended stay lodging, other
hospitality, vacation or timeshare business or any casino (but only if part of a
Hotel and not as a stand-alone or primary business), senior living (excluding
congregate care), leisure or recreational business and other businesses
incidental to, or in support of such business, including without limitation, (i)
developing, managing, operating, improving or acquiring lodging facilities,
restaurants and other food-service facilities, golf facilities or other leisure
or entertainment facilities or club, convention or meeting facilities and
marketing services or reservation systems related thereto, and (ii) acquiring,
developing, managing or improving any real estate ancillary or connected to any
hotel, resort, extended stay lodging, other hospitality-related business, casino
(but only if a part of a Hotel and not as a stand-alone or primary business),
senior living (excluding congregate care) or recreational business or
reservation system constructed, leased, owned, managed or operated (or proposed
to be constructed, leased, owned, managed or operated) by the Borrower or any of
its Subsidiaries at any time.
"Hotel" means any Real Property (including Improvements thereon and
-----
any retail, golf, tennis, spa or other resort amenities appurtenant thereto)
comprising an operating facility offering hotel or lodging services.
"Improvements" means all buildings, structures, fixtures, tenant
------------
improvements and other improvements of every kind and description now or
hereafter located in or on or attached to any Real Property, including all
building materials, water, sanitary and storm sewers, drainage, electricity,
steam, gas, telephone and other utility facilities, parking areas, roads,
driveways, walks and other site improvements; and all additions and betterments
thereto and all renewals, substitutions and replacements thereof.
"Indebtedness" means as to any Person, without duplication, (i) all
------------
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money or for the deferred purchase price of any asset (including
Forward Purchase Obligations but excluding Contingent Purchase Obligations) or
services; (ii) the maximum amount available to be drawn under all letters of
credit issued for the account of such Person and all unpaid drawings in respect
of such letters of credit, (iii) all Indebtedness of the types described in
clause (i), (ii), (iv), (v), (vi) or (vii) of this definition secured by any
Lien on any asset owned by such Person, whether or not such Indebtedness has
been assumed by such Person, (iv) Capital Lease Obligations, (v) all obligations
of such person to pay a specified purchase price for goods or services, whether
or not delivered or accepted, i.e., take-or-pay and similar obligations, (vi)
----
all Guarantee Obligations of such Person, and (vii) solely for purposes of
Sections 6.03 and 7.04, all net exposure of Derivative Obligations, including
obligations under any Interest Rate Protection Agreement, Other Hedging
Agreements or under any similar type of agreement or arrangement calculated in
accordance with GAAP; provided, that Indebtedness shall not include (a) trade
--------
payables incurred in the ordinary course of business, (b) operating lease
obligations (including, without limitation, the lessee's obligations under (i)
the eleven Lease Agreements dated as of May 2, 1996 and/or May 3, 1996
originally between HPTWN Corporation, as lessor, and Garden Hotel Associates Two
LP, as lessee (subsequently assigned to GHALP Corporation, as lessee), (ii) the
Lease dated as of January 8, 1997 originally between HPTSLC Corporation, as
lessor, and WHC Salt Lake City Corporation, as lessee, and (iii) any other
operating lease pursuant to which the Borrower, or any of its Subsidiaries or
Joint Ventures, as lessee, leases all or any portion of a Hotel from the
-11-
<PAGE>
holder of an ownership or leasehold interest in such Hotel, as lessor), (c)
short term notes evidencing earnest money deposits until delivered to the payee
and (d) at the time of determination of outstanding Indebtedness at any time,
the aggregate amount of Forward Purchase Obligations not in excess of
$400,000,000 then outstanding.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Indemnitee" has the meaning as provided in Section 9.03(b).
----------
"Information" has the meaning as provided in Section 9.12.
-----------
"Information Memorandum" means the Confidential Information Memorandum
----------------------
relating to the Borrower and the Transactions.
"Insolvency" means, with respect to any Multiemployer Plan, the
----------
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Intellectual Property" means the collective reference to all rights,
---------------------
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to sue at law or in
equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Interest Coverage Ratio" means, for any Test Period, the ratio of (i)
-----------------------
Total Adjusted EBITDA for such Test Period to (ii) Total Cash Interest Expense
for such Test Period; provided that for the first three Test Periods ending
after the Effective Date, the Total Cash Interest Expense shall be calculated
from July 1, 1999 through the end of the period ending on each such date (taken
as one accounting period) multiplied by 4, 2 and 4/3, respectively.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Borrowing in accordance with Section 2.05
"Interest Payment Date" means (a) with respect to any ABR Loan,
---------------------
monthly in arrears on the tenth day of each calendar month and (b) with respect
to any Eurodollar Loan on the tenth day of each calendar month.
"Interest Period" means with respect to any Eurodollar Borrowing, the
---------------
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three, six months or,
if available from each Lender required to make Loans under such Borrowing, nine
or twelve months thereafter, as the Borrower may elect; provided, that (i) if
--------
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall
-12-
<PAGE>
end on the last Business Day of the last calendar month of such Interest Period.
For purposes hereof, the date of a Borrowing initially shall be the date on
which such Borrowing is made and thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.
"Interest Rate Protection Agreement" means any interest rate swap
----------------------------------
agreement, interest rate cap agreement, interest rate collar agreement
(including costless collars), interest rate hedging agreement, interest rate
floor agreement or other similar agreement or arrangement.
"Investment" has the meaning provided in Section 6.06. In the event
----------
the Borrower or any of its Subsidiaries creates or forms a Subsidiary ("New
Entity") and contemporaneously sells or issues Equity Ownership Interests in the
New Entity to any Person other than to the Borrower and its Subsidiaries such
that after giving effect to such sale or issuance, such New Entity constitutes a
Joint Venture, the Borrower or such Subsidiary shall be deemed to have made an
Investment in the New Entity valued at an amount equal to the lesser of (x) the
fair market value (as determined in good faith by the Borrower) of the Equity
Ownership Interest retained by the Borrower or such Subsidiary in the New Entity
and (y) the aggregate amount of all Investments made by the Borrower and its
Subsidiaries in such New Entity prior to such sale or issuances of Equity
Ownership Interests.
"Investment Returns" means, with respect to any Investment, the sum of
------------------
the aggregate amount of cash repayments or returns of principal or capital on
such Investment, cash interest or cash distributions or dividends thereon, and
any other cash returns in respect thereof.
"Issuer" has the meaning provided in the Guaranty and Collateral
------
Agreement.
"Joint Venture" means with respect to any Person, at any date, any
-------------
other Person in whom such Person directly or indirectly holds an Investment, and
whose financial results would not be consolidated under GAAP with the financial
results of such Person on the consolidated financial statements of such Person,
if such statements were prepared as of such date; provided further, that any
-------- -------
Joint Venture of a Person which is an Unrestricted Subsidiary shall not be
treated as a Joint Venture hereunder for so long as such Person is an
Unrestricted Subsidiary.
"Lead Arranger and Book Manager" means Chase Securities Inc.
------------------------------
"Leasehold" means, as to any Person, all of the right, title and
---------
interest of such Person as lessee or licensee in, to and under any lease or
license of land, improvements and/or fixture.
"Lenders" means on the Effective Date the Persons listed on Schedule
-------
III and thereafter any other Person that shall have become a party hereto
pursuant to a fully executed Assignment and Acceptance, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations
-13-
<PAGE>
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
---------
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other) or other security agreement
or any preferential arrangement in the nature of the foregoing (including,
without limitation, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any other
similar recording or notice statute, and any capital lease having substantially
the same effect as any of the foregoing and excluding any equipment operating
leases and any precautionary filings related thereto).
"Loan" has the meaning provided in Section 2.01.
----
"Loan Documents" means this Agreement, the Registration Rights
--------------
Agreement after the execution and delivery thereof, any Notes and the Security
Documents.
"Loan Parties" means the Borrower and each Subsidiary of the Borrower
------------
that is a party to a Loan Document.
"Margin Stock" has the meaning provided in Regulation U.
------------
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, properties, prospects, operations, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries taken as a whole
or (b) the validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
"Materials of Environmental Concern" means any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Maturity Date" means, with respect to all Loans, June 30, 2004.
-------------
"Minimum Borrowing Amount" means, for each Loan, $5,000,000.
------------------------
"Multiemployer Plan" means a plan that is a multiemployer plan as
------------------
defined in Section 4001(a)(3) of ERISA.
-14-
<PAGE>
"Net Cash Proceeds" means (a) for any Asset Disposition or
-----------------
Reinvestment Event, the gross cash proceeds (including any cash received by way
of deferred payment pursuant to a promissory note, receivable or otherwise, but
only as and when received) received by Borrower or any of its Subsidiaries from
any Asset Disposition or Reinvestment Event, net of (i) reasonable transaction
costs (including, without limitation, any underwriting, brokerage or other
customary selling commissions and reasonable legal, advisory, professional and
other fees and expenses, including title and recording expenses, surveys,
insurance premiums and similar costs associated therewith) and payments of
unassumed liabilities relating to the assets sold at the time of, or within 90
days after, the date of such sale, (ii) the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Lenders pursuant to this Agreement) which is secured by any of the respective
assets which were the subject of such Asset Disposition or Reinvestment Event,
including any premium, make-whole or breakage amount related thereto, (iii) the
estimated marginal increase in income taxes which will be payable by the
Borrower's consolidated group with respect to the fiscal year in which the sale
occurs or deferred payment is received as a result of such sale, and (iv) all
contractually required distributions and other payments made to other interest
holders of the Borrower or any of its Subsidiaries or Joint Ventures in
connection with such Asset Disposition or Reinvestment Event; provided, however,
-------- -------
that (x) such gross proceeds shall not include any portion of such gross cash
proceeds which the Borrower determines in good faith should be reserved for
post-closing adjustments (including indemnification payments and purchase price
adjustments, to the extent the Borrower delivers to the Lenders a certificate
signed by a Responsible Officer of such Borrower officer as to such
determination), it being understood and agreed that on the day that all such
post-closing adjustments have been determined (which shall not be later than one
year following the date of the respective Asset Disposition or Reinvestment
Event provided, however, such one year period shall be extended to the extent
-------- -------
any amount of such proceeds is subject to a good faith dispute or claim), the
amount (if any) by which the reserved amount in respect of such sale or
disposition exceeds the actual post-closing adjustments payable by the Borrower
or any of its Subsidiaries shall constitute Net Cash Proceeds on such date
received by the Borrower and/or any of its Subsidiaries from such sale, lease,
transfer or other disposition, and (y) with respect to any Asset Disposition or
Recovery Event relating to the assets of a Joint Venture, such Net Cash Proceeds
shall only include the portion of such Net Cash Proceeds received by the
Borrower or any of its Subsidiaries; and (b) in connection with any incurrence
or issuance of Indebtedness, the cash proceeds received from such issuance or
incurrence, net of (i) if such Indebtedness is incurred to refinance other
Indebtedness permitted under Section 6.02, the amount necessary to repay such
other Indebtedness, including, without limitation, accrued but unpaid interest,
any breakage costs, penalties, premium, and any other reasonable fees and
expenses incurred in connection therewith, (ii) attorneys' fees, investing
banking fees, accountants' fees, underwriting discounts and commissions and
(iii) other customary fees and expenses actually incurred in connection
therewith.
"New Hotel" shall mean any Hotel owned by the Borrower, its
---------
Subsidiaries or Joint Ventures which is being or has been newly constructed, or
substantially refurbished or rebuilt (so long as any such Hotel is or was
substantially closed while being refurbished or rebuilt); provided that any New
Hotel shall cease to be treated as a New Hotel from and after the earlier of (x)
the first day of the Fiscal Quarter occurring after 18 months from the date such
New
-15-
<PAGE>
Hotel opened or reopened for business and (y) the Fiscal Quarter in which the
ratio of Total Adjusted EBITDA to Total Cash Interest Expense attributable to
such New Hotel equals or exceeds the Interest Coverage Ratio required to be
exceeded by the Borrower under Section 6.01(c) for the most recent Fiscal
Quarter.
"New Hotel Indebtedness" means, with respect to any New Hotel, the sum
----------------------
of (a) all Indebtedness either secured by such New Hotel or incurred to finance
the construction, refurbishment or rebuilding of such New Hotel and (b) all
other cash outlays in respect of the construction, refurbishment or rebuilding
of such New Hotel; provided, that the interest rate associated with any amounts
--------
under this clause (b) shall be deemed to be the interest rate which would have
been applicable to Revolving Loans which are Eurodollar Loans having an Interest
Period of three months determined on the first day of the then most recently
ended Fiscal Quarter.
"New Preferred Stock" means newly issued shares of the Company's
-------------------
Series A Convertible Preferred Stock and Series B Convertible Preferred Stock,
issued on or after the Effective Date pursuant to the Securities Purchase
Agreement and the Certificate of Designation therefor as in effect on the
Effective Date.
"Non-Core Assets" means all assets (other than Unrestricted Assets)
---------------
which are not Core Assets, except that the Wyndham Franklin Plaza shall be
included in this definition of Non-Core Assets.
"Non-Recourse Indebtedness" means Indebtedness with respect to which
-------------------------
no portion is guaranteed by, and no recourse claim (other than claims in respect
of customary indemnities and non-recourse carveouts) can be made against, the
Borrower or any of its Subsidiaries (other than Special Purpose Subsidiaries).
"Non-Recurring Identified Charges" means certain identified non-
--------------------------------
recurring charges specifically identified in 5.2(d), Parts II (A)(1)(a)-(m) and
II (D)(4) of the disclosure letter to the Securities Purchase Agreement and
related to EBITDA as described therein.
"Note" has the meaning provided in Section 2.01.
----
"Obligations" means all amounts owing by any Loan Party to the
-----------
Administrative Agent, the Collateral Agent, the Lead Arranger and Book Manager
or any Lender pursuant to the terms of this Agreement or any other Loan
Document.
"Offering" means a (i) registered public offering of debt securities,
--------
(ii) sale or placement of debt securities pursuant to Rule 144A of the
Securities Act of 1933 ("Rule 144A") or (iii) private placement of debt
securities with a "qualified institutional buyer" as defined in Rule 144A.
"Old Patriot" means Patriot American Hospitality, Inc., prior to the
-----------
Effective Date a publicly traded real estate investment trust.
"OP Units" means Patriot OP Units and Wyndham Partnership OP Units.
--------
-16-
<PAGE>
"Other Hedging Agreement" means foreign exchange contracts, currency
-----------------------
swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency values.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participant" has the meaning provided in Section 9.04(e).
-----------
"Patriot OP" means Patriot American Hospitality Partnership, L.P., a
----------
Virginia limited partnership.
"Patriot OP Units" means the partnership units of Patriot OP which
----------------
remain outstanding immediately after the consummation of the Transaction.
"PBGC" means the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition" means any acquisition, consisting of a single
---------------------
transaction or a series of related transactions, by the Borrower or any one or
more of its Subsidiaries of all of the Equity Ownership Interests of, or all or
part of the assets of, or of a business, unit or division of, any Person
organized under the laws of the United States or any state thereof (such
business, unit or division, the "Acquired Business"), provided that (a) the
----------------- --------
consideration paid by the Borrower or such Subsidiary or Subsidiaries pursuant
to such acquisition shall be solely in a form referred to in clause (a), (b),
(c) or (d) of the definition of "Purchase Price" set forth in this Section 1.01
(or some combination thereof), (b) the Borrower shall be in compliance, on a Pro
Forma Basis with the covenants contained in Section 6.01, (c) no Default or
Event of Default shall have occurred and be continuing, or would occur after
giving effect to such acquisition and (d) all actions required to be taken with
respect to any acquired or newly formed Subsidiary or otherwise with respect to
the Acquired Business in such acquisition under Section 3.15 shall have been
taken.
"Permitted Encumbrances" means (i) those liens, encumbrances and other
----------------------
matters affecting title to any Real Property and found reasonably acceptable by
the Administrative Agent, (ii) as to any particular Real Property at any time,
such easements, encroachments, covenants, restrictions, rights of way, minor
defects, irregularities or other encumbrances that do not materially impair such
Real Property, (iii) zoning and other municipal ordinances which are not
violated in any material respect by the existing improvements and the present
use made by the mortgagor thereof of the premises, (iv) general real estate
taxes and assessments not yet delinquent, and (v) such other items as the
Administrative Agent may consent to (such consent not to be unreasonably
withheld).
"Permitted Liens" has the meaning as provided in Section 6.03.
---------------
-17-
<PAGE>
"Person" means any individual, partnership, limited liability company,
------
joint venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or instrumentality
thereof.
"Plan" means at a particular time any employee benefit plan that is
----
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledged Notes" has the meaning as provided in the Guaranty and
-------------
Collateral Agreement.
"Pledged Stock" has the meaning as provided in the Guaranty and
-------------
Collateral Agreement.
"Prepayment Date" has the meaning provided in Section 2.15(b).
---------------
"Prepayment Option Notice" has the meaning provided in Section
------------------------
2.15(b).
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Pro Forma Basis" means with respect to any incurrence of Indebtedness
---------------
or issuance of preferred stock by the Borrower or any of its Subsidiaries or
Joint Ventures or the acquisition or Disposition of a Hotel or other real
property or the consummation of a Permitted Acquisition (or acquisition of the
Equity Ownership Interest of the Person or Persons owning such Hotel or Acquired
Business which is the subject of a Permitted Acquisition), the calculation of
the consolidated results of the Borrower and its Subsidiaries and Joint Ventures
otherwise determined in accordance with this Agreement as if the respective
incurrence of Indebtedness, issuance of preferred stock, acquisition or
Permitted Acquisition or Disposition (and all other Indebtedness incurred, other
preferred stock issued or other such acquisitions or Permitted Acquisition or
Disposition effected during the respective Calculation Period or thereafter and
on or prior to the date of determination) (each such date, a "Determination
-------------
Date") had been effected on the first day of the respective Calculation Period;
provided that all such calculations shall take into account the following
- --------
assumptions:
(i) pro forma effect shall be given to (1) any Indebtedness incurred
--- -----
or preferred stock issued subsequent to the end of the Calculation Period
and prior to the date of determination, (2) any Indebtedness incurred or
preferred stock issued during such period to the extent such Indebtedness
or preferred stock is outstanding at the date of determination and (3) any
Indebtedness to be incurred or preferred stock to be issued on the date of
determination, in each case as if such Indebtedness had been incurred or
such preferred stock had been issued on the first day of such Calculation
Period and after giving effect to the application of the proceeds thereof;
-18-
<PAGE>
(ii) there shall be excluded from preferred stock dividends any
preferred stock dividends related to any preferred stock issued or
outstanding during such Calculation Period or thereafter but that is not
outstanding or is to be redeemed on the date of determination; and
(iii) pro forma effect shall be given to all sales and acquisitions or
--- -----
Dispositions of Hotels or other Real Property or Permitted Acquisitions
that occur during such Calculation Period or thereafter and on or prior to
the Determination Date (including any Indebtedness assumed or acquired in
connection therewith) as if they had occurred on the first day of such
Calculation Period, provided that in connection with any such acquisitions
or Dispositions, pro forma effect (for periods prior to such acquisition)
--- -----
shall be given to the management fees if any payable pursuant to the
respective management agreements as if such management fees had been
payable throughout the Calculation Period.
"Pro Forma Financial Statements" has the meaning as provided in
------------------------------
Section 3.01(a).
"Projections" has the meaning as provided in Section 5.02 (c).
-----------
"Properties" has the meaning provided in Section 3.18(a).
----------
"Purchase Price" means with respect to any Permitted Acquisition, the
--------------
sum (without duplication) of (a) the amount of cash paid by the Borrower and its
Subsidiaries in connection with such acquisition, (b) the value (as determined
for purposes of such acquisition in accordance with the applicable acquisition
agreement) of all capital stock or other equity interests of the Borrower or
Subsidiaries or Joint Ventures issued or given as consideration in connection
with such acquisition, (c) the Net Cash Proceeds of any equity issuance applied
to finance such acquisition and (d) the principal amount (or, if less, the
accreted value) at the time of such acquisition of all Assumed Indebtedness or
other Indebtedness permitted under Sections 6.02 (e), (i) and (j) and (l) with
respect thereto.
"Real Property" means for any Person, all the right, title and
-------------
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" means the actual receipt by the Borrower, any of its
--------------
Subsidiaries or any of their Joint Ventures of any insurance or condemnation
proceeds payable (i) by reason of theft, physical destruction or damage or any
other similar event with respect to any properties or assets of the Company or
any of its Subsidiaries or Joint Ventures, (ii) by reason of any condemnation,
taking, seizing or similar event with respect to any properties or assets of the
Company or any of its Subsidiaries or Joint Ventures and (iii) under any policy
of insurance required to be maintained under Section 5.05 of the Increasing Rate
Note Purchase and Loan Agreement (other than liability or business interruption
insurance).
"Register" has the meaning set forth in Section 9.04.
--------
"Registration Rights Agreement" means a registration rights agreement
-----------------------------
substantially in the form of Exhibit D, as such may be amended, supplemented or
modified from time to time with the consent of the Required Obligees.
-19-
<PAGE>
"Regulation D" means Regulation D of the Board as in effect from time
------------
to time.
"Regulation T" means Regulation T of the Board as in effect from time
------------
to time.
"Regulation U" means Regulation U of the Board as in effect from time
------------
to time.
"Regulation X" means Regulation X of the Board as in effect from time
------------
to time.
"Reinvestment Assets" means any assets useful in the Borrower's and
-------------------
its Subsidiaries' business.
"Reinvestment Deferred Amount" means with respect to any Reinvestment
----------------------------
Event, the aggregate Net Cash Proceeds received by the Borrower or any of its
Subsidiaries in connection therewith that are not applied pursuant to Section
2.09 as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event" means any Recovery Event or Exchange in respect
------------------
of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a Responsible
-------------------
Officer stating that no Event of Default has occurred and is continuing and that
the Borrower (directly or indirectly through a Subsidiary or a Joint Venture)
intends and expects to use all or a specified portion of the Net Cash Proceeds
of a Reinvestment Event to acquire assets useful in its business.
"Reinvestment Prepayment Amount" means with respect to any
------------------------------
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended or irrevocably committed pursuant to a binding agreement, prior
to the relevant Reinvestment Prepayment Date, to acquire assets useful in the
Borrower's business, provided that such acquisition made with the Net Cash
Proceeds of Dispositions of Core Assets shall be made in Core Assets.
"Reinvestment Prepayment Date" means with respect to any Reinvestment
----------------------------
Event, the date occurring twelve months after such Reinvestment Event (plus an
additional six months in the case of an Asset Disposition of Non-Core Assets for
Net Cash Proceeds of $50,000,000 or greater).
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents,
trustees and advisors of such Person and such Person's Affiliates.
"Related Fund" means, with respect to any Lender that is a fund that
------------
invests in bank loans, any other fund that invests in bank loans and is advised
or managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Reorganization" means, with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
-20-
<PAGE>
"Reportable Event" means any of the events set forth in Section
----------------
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or. 35 of
PBGC Reg. (S) 4043.
"Required Lenders" means the Lenders, the sum of whose outstanding
----------------
Loans (or, if prior to the Effective Date, Commitments) represent an amount
greater than 50% of the sum of all outstanding Loans (or, if prior to the
Effective Date, Commitments.)
"Required Obligees" means the (i) prior to the issuance of Exchange
-----------------
Notes under the Exchange Notes Indenture, the Required Lenders, and (ii) after
the issuance of Exchange Notes under the Exchange Notes Indenture, subject to
Section 9.02(c), the Lenders and the holders of Exchange Notes, collectively on
a combined basis, the sum of whose outstanding Loans and principal amount under
Exchange Notes, collectively on a combined basis, represent an amount greater
than 50% of the sum of all outstanding Loans and principal amounts under
Exchange Notes, collectively on a combined basis.
"Requirement of Law" means, with respect to any Person, any law,
------------------
treaty, rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its assets or to which such Person or any of its assets are subject.
"Responsible Officer" means the chief executive officer, president,
-------------------
chief financial officer or treasurer of the Borrower, but in any event, with
respect to financial matters, the chief financial officer or president of the
Borrower.
"Restricted Payment" means any dividend or other distribution (whether
------------------
in cash, securities or other assets) with respect to any shares of any class of
capital stock or other Equity Ownership Interest of the Borrower or any of its
Subsidiaries, or any payment (whether in cash, securities or other assets),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, defeasance, acquisition, cancellation or termination of
any such shares of capital stock of the Borrower or Subsidiary, or any option,
warrant or other right to acquire any such shares of capital stock of the
Borrower or such Subsidiary.
"Restructuring" means the Restructuring Plan as defined in the
-------------
Securities Purchase Agreement.
"Revolving Loans" means the revolving loans incurred under the Senior
---------------
Credit Facilities.
"SEC" means the Securities and Exchange Commission, any successor
---
thereto and any analogous Governmental Authority.
"Secured Parties" has the meaning provided in the Guarantee and
---------------
Collateral Agreement.
-21-
<PAGE>
"Securities Purchase Agreement" means the Securities Purchase
-----------------------------
Agreement, dated February 18, 1999 among the Company, Old Patriot, certain of
their Subsidiaries and the Sponsors, as amended by the First Amendment date on
or about June 29, 1999.
"Security Documents" means the collective reference to the Guaranty
------------------
and Collateral Agreement and all other security documents hereafter delivered to
the Collateral Agent granting a Lien on any asset of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.
"Senior Credit Facilities" means the collective reference to the
------------------------
Credit Agreement and any other related document.
"Senior Note Indenture" means any Indenture to be entered into by the
---------------------
Borrower in connection with the issuance of senior unsecured notes, together
with all instruments and other agreements entered into by the Borrower in
connection therewith, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with Section 5.08.
"Senior Notes" means the notes of the Company to be issued pursuant to
------------
any Senior Note Indenture.
"Senior Secured Leverage Ratio" means, on any date, the ratio of (i)
-----------------------------
Total Indebtedness on such date secured by a Lien on any asset of the Company,
its Subsidiaries or Joint Ventures to (ii) Total Adjusted EBITDA for the Test
Period most recently ended on or prior to such date. All calculations of the
Senior Secured Leverage Ratio shall be made on a Pro Forma Basis.
"Single Employer Plan" means any Plan that is covered by Title IV of
--------------------
ERISA, but that is not a Multiemployer Plan.
"Solvent" when used with respect to any Person, means that, as of any
-------
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured. It is understood that the representation and
warranty contained in Section 3.21 is made (a) without reliance upon, or the
benefit of, the services, analyses, opinions or conclusions of any appraiser or
valuation
-22-
<PAGE>
experts; (b) without investigation or inquiry other than (i) review of the
Borrower's consolidated financial statements and business plans, and (ii)
inquiry of the officers of the Borrower who have responsibility for financial
reporting and accounting matters as to the existence or any events or conditions
that, as of the Effective Date, would cause the representation and warranty
contained in Section 3.21 to be incorrect and (c) without inquiry as to the
legal meanings of the foregoing terms under any laws other than the laws of the
State of New York or federal laws.
"Special Purpose Subsidiary" means any Subsidiary of the Borrower
--------------------------
which is a special purpose entity in connection with any securitization or
similar financing in respect of Indebtedness permitted by Section 6.02 and whose
assets consist primarily of properties and assets subject to such securitization
or financing or the Equity Ownership Interest in any other Special Purpose
Subsidiary.
"Sponsors" means the collective reference to the Persons listed on
--------
Schedule IV hereto and their Permitted Assignees and Permitted Third Party
Transferees (as such terms are defined in the Security Purchase Agreement).
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"Subsidiary" means as to any Person, (i) any corporation more than 50%
----------
of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person and/or one or
more Subsidiaries of such person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more subsidiaries of such person has more than a 50% equity interest at
the time. Notwithstanding the foregoing, no Unrestricted Subsidiary shall be
considered a Subsidiary of the Borrower or its Subsidiaries for purposes of this
Agreement.
"Subsidiary Guarantor" means each Subsidiary of the Borrower (other
--------------------
than an Excluded Foreign Subsidiary) as set forth on Schedule V on the Effective
Date or which becomes a Subsidiary as required under Section 5.09 hereof.
"Swingline Loans" means the swingline loans incurred under the Senior
---------------
Credit Facilities.
-23-
<PAGE>
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loans" means the term loans incurred under the Senior Credit
----------
Facilities.
"Test Period" means, for any determination, the four consecutive
-----------
Fiscal Quarters then last ended, in each case taken as one accounting period.
"Total Adjusted EBITDA" means, for any period without duplication, (i)
---------------------
the product of (a) EBITDA of the Borrower and its Subsidiaries and Joint
Ventures all on a combined basis in accordance with GAAP for such period (b)
multiplied, in the case of each such Person, by the Allocation Percentage
applicable to such Person, plus (ii) the amount of Approved Procurement Savings
set forth on Schedule I for the Test Period ended on the date set forth thereon.
"Total Cash Interest Expense" means the sum of the total cash interest
---------------------------
expense in respect of Total Indebtedness for such period determined in
conformity with GAAP (excluding interest capitalized in accordance with GAAP,
amortization of deferred financing costs and other non-cash charges and
expenses); provided there shall be excluded from Total Cash Interest Expense the
cash interest expense (not to exceed $20 million for any applicable period of
calculation) attributable to New Hotel Indebtedness.
"Total Commitment" means, at any time, the aggregate amount of the
----------------
Commitments then in effect.
"Total Indebtedness" means the sum (without duplication) of all
------------------
Indebtedness of the Company plus the Allocation Percentage of Indebtedness of
all of the Subsidiaries and Joint Ventures of the Company (other than Guarantee
Obligations of the Company or any of its Subsidiaries and Joint Ventures in
respect of obligations of the Borrower or any of its Subsidiaries and Joint
Ventures which would otherwise not constitute Indebtedness), without
duplication, determined on a combined basis in accordance with GAAP (adjusted to
exclude the portion of Indebtedness of Subsidiaries and Joint Ventures in excess
of the Allocation Percentages of such Persons' Indebtedness).
"Total Leverage Ratio" means, on any date, the ratio of (i) Total
--------------------
Indebtedness on such date to (ii) Total Adjusted EBITDA for the Test Period most
recently ended on or prior to such date. All calculations of the Total Leverage
Ratio shall be made on a Pro Forma Basis.
"Transaction" means the transaction contemplated to occur on or prior
-----------
to the Effective Date, consisting of (i) the Restructuring, (ii) the issuance of
the New Preferred Stock, (iii) the initial borrowings under the Senior Credit
Facilities and the Increasing Rate Term Loan Facility, (iv) the refinancing of
the Existing Credit Agreement and other Indebtedness described in Section
4.01(b)(ii) of the Increasing Rate Note Purchase and Loan Agreement and (v) the
cash settlement of the Existing Equity Forwards, and all other transactions
contemplated by the Securities Purchase Agreement.
-24-
<PAGE>
"Transaction Documents" means the Securities Purchase Agreement, the
---------------------
New Preferred Stock, the documents evidencing the Senior Credit Facilities, the
documents evidencing or effectuating the Restructuring and all material
agreements relating to the foregoing.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"UCC" means Uniform Commercial Code as from time to time in effect in
---
the relevant jurisdiction.
"Unencumbered" means with respect to any Hotel, management agreements,
------------
franchise agreements or time share agreements, at any date of determination, the
circumstance that such Hotel or such agreement, as the case may be, on such
date:
(a) is not subject to any Liens (including restrictions on
transferability or assignability, other than commercially reasonable
restrictions in the Company Documents of any Subsidiary of the Borrower
which do not prohibit such Subsidiary from disposing or realizing the value
of, any Hotel owned by it, or the Equity Ownership Interest in such
Subsidiary (including any such Lien or restriction imposed by (i) any
agreement governing Indebtedness, and (ii) the Company Documents of the
Borrower or any of its Subsidiaries)) other than Permitted Liens, and, in
the case of any ground lease (to the extent permitted by the definition
thereof), restrictions on transferability or assignability in respect of
such ground lease;
(b) (x) is not subject to any agreement (including (i) any agreement
governing Indebtedness, and (ii) if applicable, the Company Documents of
the Borrower or any of its Subsidiaries) which prohibits or limits the
ability of such Person to create, incur, assume or suffer to exist any Lien
upon such Hotel or such agreement, as the case may be, other than Permitted
Liens (excluding any agreement or organizational document (x) which limits
generally the amount of Indebtedness which may be incurred by such Person
or (y) which limits the amount of obligations secured by Liens upon such
Hotel in a manner which would not prohibit a Lien securing Obligations in
an amount equal to such Person's pro rata share of the value of such
Hotel); and
(c) is not subject to any agreement (including any agreement governing
Indebtedness) which entitles any Person to the benefit of any Lien, other
than Permitted Liens, on such Hotel or such agreement, as the case may be,
or would entitle any Person to the benefit of any such Lien upon the
occurrence of any contingency (including, without limitation, pursuant to
an "equal and ratable" clause).
For the purposes of this Agreement, any Hotel owned by a Subsidiary of the
Borrower shall not be deemed to be Unencumbered unless both (i) such Hotel and
(ii) all Equity Ownership Interest owned directly or indirectly by the Borrower
in such Subsidiary is Unencumbered.
"United States" and "U.S." each mean the United States of America.
------------- ----
-25-
<PAGE>
"Unrestricted Assets" means those assets as described in Schedule VI,
-------------------
together with (i) any properties and assets acquired in consideration or
exchange for, or with the proceeds of, the sale, lease, conveyance, disposition
or other transfer of, or Recovery Event with respect to, any properties and
assets described Schedule VI or the proceeds thereof, and (ii) the proceeds of
the sale, lease, conveyance, disposition or other transfer of, or Recovery Event
with respect to, any properties and assets described Schedule VI or described in
clause (i) above.
"Unrestricted Subsidiary" means the Persons described on Schedule VII
-----------------------
on the Effective Date, and any other Subsidiary or Joint Venture of the Borrower
(whether existing on, or acquired or created after, the Effective Date) and
designated by the Borrower as an Unrestricted Subsidiary hereunder after the
Effective Date by written notice to the Administrative Agent, provided that the
--------
Borrower shall only be permitted to so designate a new Unrestricted Subsidiary
after the Effective Date and so long as (i) unless such Unrestricted Subsidiary
is capitalized through Investments by the Borrower or any of its Subsidiaries or
Joint Ventures consisting solely of Unrestricted Assets, no Default under
Sections 7.01 or Section 7.05 or Event of Default exists or would result
therefrom, (ii) such Unrestricted Subsidiary shall be capitalized (to the extent
capitalized by the Borrower or any of its Subsidiaries) through Investments as
permitted by, and in compliance with, Section 6.06, with any assets (other than
Unrestricted Assets) owned by any such Unrestricted Subsidiary at the time of
the initial designation thereof to be treated as Investments pursuant to Section
6.06, provided that at the time of the initial Investment by the Borrower or any
--------
Subsidiary in such Subsidiary, the Borrower shall designate such entity as an
Unrestricted Subsidiary in a written notice to the Administrative Agent and
(iii) no obligations of any Unrestricted Subsidiary shall be with recourse to,
or an obligation of, the Borrower or any of its Subsidiaries; provided further,
-------- -------
that each Subsidiary or Joint Venture of an Unrestricted Subsidiary shall also
be considered an Unrestricted Subsidiary for purposes of this Agreement (whether
or not such Subsidiary or Joint Venture shall have been so designated) and
shall also cease to be an Unrestricted Subsidiary upon such direct or indirect
parent Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary.
"Wholly-Owned Subsidiary" means, as to any Person, (i) any corporation
-----------------------
100% of whose capital stock (other than director's qualifying shares) is at the
time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such
Person (ii) any partnership, limited liability company, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% Equity Ownership Interest, at such time
and (iii) any Subsidiary of the Borrower shall also be considered a Wholly-Owned
Subsidiary of each such Person if (x) 100% of such Subsidiary's capital stock
(other than director's qualifying shares) is at the time owned by both such
Persons and/or one or more Wholly-Owned Subsidiaries of such Persons and (y) if
such Subsidiary is a partnership, limited liability company, association, joint
venture or any other non-corporate entity, both such Persons and/or one or more
Wholly-Owned Subsidiaries of such Persons hold 100% of the Equity Ownership
Interests in such Subsidiary at such time; provided, that notwithstanding the
--------
foregoing, each of Patriot OP and Wyndham Partnership OP shall be deemed to be a
Wholly-Owned Subsidiary except to the extent that Patriot OP Units or Wyndham
Partnership OP Units, as the case may be, are issued after the Effective Date to
Persons other than the Borrower and its Wholly-Owned Subsidiaries (giving effect
to this provision).
-26-
<PAGE>
"Wholly-Owned Subsidiary Guarantor" means any Subsidiary Guarantor
---------------------------------
that is a Wholly Owned Subsidiary of the Borrower.
"Wyndham Partnership" means Wyndham International Operating
-------------------
Partnership, L.P., a Delaware limited partnership.
"Wyndham Partnership OP Units" means the partnership units of Wyndham
----------------------------
Partnership.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of
--------------------------------------
this Agreement, Loans and Borrowings may be classified and referred to by Type
(e.g., "Eurodollar Loan" or "ABR Loan").
- -----
SECTION 1.03 Terms Generally. The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herewith), (b) any reference herein to any Person shall be construed
to include such Person's successors and assigns, (c) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement, and (d)
all reference herein to "assets" of any Person shall be construed to mean the
assets and properties of such Person.
ARTICLE II
The Credits
-----------
SECTION 2.01 Commitments. Subject to the terms and conditions set
-----------
forth herein, each Lender agrees to, at its option, either (a) make an
increasing rate term loan or increasing rate term loans (each a "Loan" and
collectively, the "Loans") to the Borrower or (b) purchase from the Borrower a
note or notes (each a "Note" and collectively, the "Notes"), in either case on
the Effective Date in an aggregate principal amount not to exceed such Lender's
Commitment. For purposes of this Agreement, the purchase of a Note by a Lender
shall be deemed to be the making of a Loan, and all amounts outstanding under
any Note shall be considered a Loan hereunder. Once repaid, Loans may not be
reborrowed.
SECTION 2.02 Loans and Borrowings. (a) Each Loan shall be made as
--------------------
part of a Borrowing made by the Lenders ratably in accordance with their
respective Commitments in effect on the Effective Date immediately prior to the
Borrowing on such date. The failure of any Lender to make any Loan required to
be made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be
- --------
responsible for any other Lender's failure to make Loans as required.
-27-
<PAGE>
(b) Each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance herewith. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
--------
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) The aggregate principal amount of each Borrowing shall not be
less than the Minimum Borrowing Amount. Borrowings of more than one Type may be
outstanding at the same time; provided that there shall not at any time be more
--------
than a total of ten Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing of Eurodollar Loans if the Interest Period requested with respect
thereto would end after the Maturity Date.
SECTION 2.03 Requests for Borrowings. To request a Borrowing, the
-----------------------
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of the proposed Borrowing and (b) in
the case of an ABR Borrowing, not later than noon, New York City time, one
Business Day before the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
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SECTION 2.04 Funding of Borrowings. (a) Each Lender shall make the
---------------------
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent designated by it for such purpose by notice to the
Lenders. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing.
SECTION 2.05 Interest Elections. (a) Each Borrowing initially shall
------------------
be of the Type specified in the initial Borrowing Request and, in the case of a
Eurodollar Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.02 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
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(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.06 Evidence of Debt. (a) Each Lender shall maintain in
----------------
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(b) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to paragraph
(a) or (b) of this Section shall be prima facie evidence of the existence and
----- -----
amounts of the obligations
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recorded therein; provided that the failure of any Lender or the Administrative
--------
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance with the
terms of this Agreement.
(d) On or after the Effective Date, any Lender may request that Loans
made by it be evidenced by a Note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a Note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such Note and interest thereon shall at all times (including after assignment
pursuant to Section 9.04(b)) be represented by one or more Notes in such form
payable to the order of the payee named therein (or, if such Note is a
registered Note, to such payee and its registered assigns).
SECTION 2.07 Termination of Commitments. Unless previously
--------------------------
terminated, the Total Commitment (and the Commitment of each Lender) shall
terminate on the Effective Date after giving effect to the Borrowing of Loans on
such date.
SECTION 2.08 Prepayment of Loans. The Borrower shall have the right
-------------------
to prepay the Loans on the following terms and conditions: (i) the Borrower
shall give the Administrative Agent (x) not later than 12:00 noon, New York City
time at least one Business Day before the date of prepayment of such Borrower's
intent to prepay ABR Loans and (y) not later than 12:00 noon, New York City time
at least three Business Days before the date of prepayment of such Borrower's
intent to prepay Eurodollar Loans, notice of the amount of such prepayment and
the Types of Loans to be prepaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings pursuant to which made, which notice the
Administrative Agent shall promptly transmit to each of the Lenders; (ii) each
prepayment of Loans shall be the lesser of (x) the total amount outstanding for
each Loan and (y) the Minimum Borrowing Amount, provided that if any partial
--------
prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the
outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less
than the Minimum Borrowing Amount applicable thereto, then such Borrowing may
not be continued as a Borrowing of Eurodollar Loans and any election of an
Interest Period with respect thereto given by the relevant Borrower shall have
no force or effect; (iii) each prepayment in respect of any Loans made pursuant
to a Borrowing shall be applied pro rata among the Lenders which made such Loans
--- ----
and (iv) prepayments of Loans shall be subject to Section 2.13.
SECTION 2.09 Mandatory Applications and Prepayments. (a)
--------------------------------------
Notwithstanding anything to the contrary contained in this Agreement or in any
other Loan Document all then outstanding Loans shall be repaid in full on the
Maturity Date.
(b) In addition to any other mandatory prepayments pursuant to this
Section 2.09,
(i) if the Borrower issues Senior Notes after the Effective Date and
the Net Cash Proceeds of any such issuance are greater than $250,000,000,
the full amount of any such issuance shall be applied as required in
accordance with clause (iv) below.
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<PAGE>
(ii) If the Borrower issues Senior Notes after the Effective Date and
the Net Cash Proceeds of any such issuance are less than or equal to
$250,000,000, the Borrower may retain up to $250,000,000 of all such
issuances, and shall apply all amounts in excess of $250,000,000 of all
such issuances in the aggregate as required in accordance with clause (iv)
below.
(iii) If the Borrower or any of its Subsidiaries incurs or issues
unsecured Indebtedness (other than Senior Notes) after the Effective Date
and the Net Cash Proceeds thereof are greater than (x) $100,000,000 per
incurrence or issuance or (y) $250,000,000 in the aggregate, such excess
amount shall be applied in accordance with clause (v) below.
(iv) All amounts required to be applied in accordance with this
clause (iv) shall be applied to repay outstanding Loans.
(v) All amounts required to be applied in accordance with this
clause (v) shall be applied (i) first, at the option of the Borrower, to
repay outstanding mortgage Indebtedness, (ii) second, to the extent the
Indebtedness which gives rise to such payment obligation is purchase money
Indebtedness (including Capital Lease Obligations) or Assumed Indebtedness,
to finance such acquisition, (iii) third, at the option of the Borrower, to
increase the HIA Reserve Amount, (iv) fourth, to repay outstanding
Swingline Loans and Revolving Loans (without any commitment reduction) and
(v) fifth, to repay Loans and Term Loans then outstanding pro rata (based
--- ----
on the principal amount of Loans and Term Loans then outstanding) which
give rise to such payment obligation.
(c) In addition to any other mandatory prepayments pursuant to this
Section 2.09, if on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Disposition or from any Reinvestment
Event (other than relating to Unrestricted Assets), then, unless a Reinvestment
Notice shall be delivered in respect of such Reinvestment Event (or such Net
Cash Proceeds are applied as permitted pursuant to Section 6.07(b)(iii)), a
prepayment of an amount equal to 100% of such Net Cash Proceeds (or the portion
thereof not subject to a Reinvestment Notice) shall be applied within five
Business Days following such date as follows: (i) first, at the option of the
Borrower, to repay mortgage Indebtedness, (ii) second, at the option of the
Borrower to increase the HIA Reserve Amount, (iii) third, to repay outstanding
Revolving Loans and Swingline Loans (without any commitment reduction) and (iv)
fourth, to repay Loans and Term Loans then outstanding pro rata (based on the
--- ----
principal amount of Loans and Term Loans outstanding). Additionally, on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment
Amount with respect to the relevant Reinvestment Event shall be applied as
required above.
(d) The application of any prepayment under this Section 2.09 shall be
made, (i) first to ABR Loans and, second, to Eurodollar Loans, (ii) pro rata
among the Lenders which made such Loans, and (iii) shall be subject to Section
2.13. Each prepayment of the Loans under this Section 2.09 shall be accompanied
by accrued interest to the date of such prepayment on the amount prepaid.
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SECTION 2.10 Interest; Fees. (a) The Loans comprising each ABR
--------------
Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Margin for ABR Loans.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Margin for Eurodollar Loans.
(c) Notwithstanding the foregoing, Additional Interest on each Loan
may accrue and be payable to the extent required pursuant to Section 4 of the
Registration Rights Agreement.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) to the extent permitted by applicable law in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
--------
to paragraph (c) of this Section shall be payable on demand and (ii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
(g) The Borrower agrees to pay to the Administrative Agent, for its
own account or for the account of the Lenders, fees payable in the amounts and
at the times separately agreed upon between the Borrower and the Administrative
Agent.
SECTION 2.11 Alternate Interest. If prior to the commencement of any
------------------
Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines in good faith (which
determination shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not
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<PAGE>
adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such Borrowing
for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective,
(ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing
shall be made as an ABR Borrowing.
SECTION 2.12 Increased Costs. (a) If any Change in Law shall:
---------------
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender (whether of principal, interest or otherwise), then
the Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines in good faith that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender to a level below that which such Lender or such Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy), then from time to time the Borrower will pay to such
Lender such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section including the calculation
thereof in reasonable detail shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
--------
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 270 days
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<PAGE>
prior to the date that such Lender, as the case may be, notifies the Borrower of
the Change in Law giving rise to such increased costs or reductions and of such
Lender's intention to claim compensation therefor; provided further, that, if
----------------
the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION 2.13 Break Funding Payments. In the event of (a) the payment
----------------------
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.08 and is revoked in accordance therewith), (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.16, then,
in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate (in the case of a Eurodollar Loan)
that would have been applicable to such Loan, for the period from the date of
such event to the last day of the then current Interest Period therefor (or, in
the case of a failure to borrow, convert or continue, for the period that would
have been the Interest Period for such Loan), over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period,
for dollar deposits of a comparable amount and period from other banks in the
eurodollar market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof. Notwithstanding the foregoing provisions
of this Section 2.13, if at any time the Borrower incurs breakage costs under
this Section 2.13 as a result of Eurodollar Loans being prepaid other than on
the last day of an Interest Period applicable thereto (the "Affected Eurodollar
Loans"), then the Borrower may in its sole discretion initially deposit a
portion (up to 100%) of the amounts that otherwise would have been paid in
respect of the Affected Eurodollar Loans with the Administrative Agent (which
deposit must be equal in amount to the amount of the Affected Eurodollar Loans
not immediately prepaid) to be held as security for the obligations of the
Borrower hereunder pursuant to a cash collateral agreement to be entered into in
form and substance reasonably satisfactory to the Administrative Agent and shall
provide for investments satisfactory to the Administrative Agent and the
Borrower, with such cash collateral to be directly applied upon the first
occurrence (or occurrences) thereafter of the last day of an Interest Period
applicable to the relevant Loans that are Eurodollar Loans (or such earlier date
or dates as shall be requested by the Borrower), to repay an aggregate principal
amount of such Loans equal to the Affected Eurodollar Loans not initially
prepaid pursuant to this sentence. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, all amounts deposited as cash
collateral pursuant to the immediately preceding sentence shall be held for the
sole benefit of the Lenders whose Loans would otherwise have been
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<PAGE>
immediately prepaid with the amounts deposited upon the taking of any action by
the Administrative Agent or the Lenders pursuant to the remedial provisions of
Article VIII and amounts held as cash collateral pursuant to this Section 2.13
shall, subject to the requirements of applicable law, be immediately applied to
the Loans.
SECTION 2.14 Taxes. (a) Any and all payments by or on account of
-----
any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
--------
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or by the Administrative Agent on its own
behalf or on behalf of a Lender shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such Jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law and reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.15 Payments Generally; Pro Rata Treatment; Sharing of Set-
------------------------------------------------------
offs. (a) The Borrower shall make each payment required to be made by it
- ----
hereunder (whether of amounts payable under Section 2.12, 2.13 or 2.14, or
otherwise) prior to 12:00 noon, New York City
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<PAGE>
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 270
Park Avenue, New York, New York, except that payments pursuant to Sections 2.12,
2.13, 2.14 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans, resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
--------
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(c) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
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<PAGE>
(d) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(b) or 2.15(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.16 Mitigation Obligations, Replacement of Lenders. (a) If
----------------------------------------------
any Lender requests compensation under Section 2.12, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.14, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.12 or 2.14, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.12, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.14,
in each case in an amount greater than that generally charged by the other
Lenders, or if any Lender refuses to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement or the other
Loan Documents which have been approved by the Required Lenders as provided in
Section 9.02(b), then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
--------
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, received and (ii) in the case of any such assignment
resulting from a claim for compensation under Section 2.12 or payments required
to be made pursuant to Section 2.14, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower makes the following
representations and warranties, to the Administrative Agent and each Lender, all
of which shall survive the execution and delivery of this Agreement and the
making of the Loans:
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<PAGE>
SECTION 3.01 Financial Condition. (a) The unaudited pro forma
------------------- --- -----
consolidated balance sheet and statement of operations of the Borrower and its
consolidated Subsidiaries as at March 31, 1999, or for the period of four
consecutive fiscal quarters ended, March 31, 1999 (the "Pro Forma Financial
Statements"), copies of which have heretofore been furnished to each Lender,
have been prepared giving effect (as if such events had occurred on such date or
at the beginning of such period, as the case may be) to (i) the consummation of
the Transaction, (ii) the Loans to be made, the initial borrowings to be made
under the Senior Credit Facilities and New Preferred Stock to be issued, in each
case, on the Effective Date and the use of proceeds thereof and (iii) the
payment of fees and expenses in connection with the foregoing. The Pro Forma
Financial Statements have been prepared based on the best information available
to the Borrower as of the date of delivery thereof, and present a good faith
estimate on a pro forma basis of the financial position of Borrower and its
--- -----
consolidated Subsidiaries as at, or for the period of four consecutive fiscal
quarters ended, March 31, 1999 assuming that the events specified in the
preceding sentence had actually occurred at such date or at the beginning of
such period, as the case may be.
(b) The audited consolidated balance sheets of the Borrower as at
December 31, 1996, December 31, 1997 and December 31, 1998, and the related
consolidated statements of operations, stockholder's equity and cash flows for
the fiscal years ended on such dates, present fairly the consolidated financial
condition of the Borrower as at such date, and the consolidated results of its
operations and its consolidated cash flows for the respective fiscal years then
ended. The unaudited consolidated balance sheet of the Borrower as at March 31,
1999, and the related unaudited consolidated statements of operations,
stockholder's equity and cash flows for the three-month period ended on such
date, present fairly the consolidated financial condition of the Borrower as at
such date, and the consolidated results of its operations and its consolidated
cash flows for the three-month period then ended (subject to normal year-end
audit adjustments). All such financial statements have been prepared in
accordance with GAAP applied consistently throughout the periods involved. The
Borrower and its Subsidiaries do not have any material contingent liabilities
and liabilities for taxes, or any long-term leases or unusual forward or long-
term commitments, including any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, all as
determined in accordance with GAAP, that are not reflected in the most recent
financial statements referred to in this paragraph. During the period from
December 31, 1998 to and including the date hereof there has been no Disposition
by the Borrower or any of its Subsidiaries of any material part of its business
or assets, other than has been disclosed to the Lenders prior to the Effective
Date.
SECTION 3.02 No Change. Since December 31, 1998 there has been no
---------
development or event that has had or would reasonably be expected to have a
Material Adverse Effect.
SECTION 3.03 Company Existence; Compliance with Law. Each of the
--------------------------------------
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the Company power and authority, and the legal right, to own and operate its
assets, to lease the assets it operates as lessee and to conduct the business in
which it is currently engaged, (c) is duly qualified as a foreign Company and in
good standing under the laws of each jurisdiction where its ownership, lease or
operation of assets
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<PAGE>
or the conduct of its business requires such qualification, except to the extent
that the failure to be so qualified and in good standing would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect, and (d) is
in compliance with all Requirements of Law except to the extent that the failure
to comply therewith would not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
SECTION 3.04 Company Power; Authorization; Enforceable Obligations.
-----------------------------------------------------
Each Loan Party has the Company power and authority, and the legal right to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of the Borrower, to borrow hereunder. Each Loan Party has taken all
necessary Company action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. All
consents or authorizations of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person required in
connection with the Transaction and the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents have been obtained and are in full force and
effect, except (i) consents, authorizations, filings and notices described in
Schedule VIII. Each Loan Document has been duly executed and delivered on
behalf of each Loan Party thereto. This Agreement constitutes, and each other
Loan Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party thereto, enforceable against each such Loan Party
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
SECTION 3.05 No Violation. The execution, delivery and performance
------------
of this Agreement and the other Loan Documents, the borrowings hereunder and
the use of the proceeds thereof (i) will not violate any Requirement of Law or
any material Contractual Obligation of the Borrower or any of its Subsidiaries,
(ii) will not conflict with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (other than pursuant to the Security Documents) upon any of the properties
or assets of the Borrower or any of its Subsidiaries, pursuant to the terms of
any indenture, mortgage, deed of trust, credit agreement or loan agreement, or
any other material agreement, contract or instrument, to which the Borrower or
any of its Subsidiaries, is a party or by which it or any of its property or
assets is bound or to which it may be subject, except to the extent that such
conflict or default would not reasonably be expected to have a Material Adverse
Effect or (iii) will not violate any provision of any Company Document of the
Borrower or any of its Subsidiaries. No Requirement of Law or Contractual
Obligation applicable to the Borrower or any of its Subsidiaries would
reasonably be expected to have a Material Adverse Effect.
SECTION 3.06 Litigation. No litigation, investigation or proceeding
----------
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or. against the Borrower or any of its
Subsidiaries or against any of their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions
<PAGE>
contemplated hereby or thereby or (b) except as set forth on Schedule IX, that
would reasonably be expected to have a Material Adverse Effect.
SECTION 3.07 No Default. Neither the Borrower nor any of its
----------
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 3.08 Intellectual Property. The Borrower and each of its
---------------------
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No claim has been
asserted and is pending by any Person challenging or questioning the use of any
Intellectual Property or the validity or effectiveness of any Intellectual
Property which would reasonably be expected to have a Material Adverse Effect,
nor does the Borrower know of any valid basis for any such claim. The use of
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person in any material respect, except to the extent that such
infringements would not, in the aggregate, be reasonably likely to have a
Material Adverse Effect.
SECTION 3.09 Taxes. Each of the Borrower and each of its
-----
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its assets and all other taxes, fees or other charges imposed on it or
any of its assets by any Governmental Authority to the extent due and payable
(other than any the amount or validity of that are currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or its
Subsidiaries, as the case may be or which would not reasonably be expected to
have a Material Adverse Effect); no material tax Lien has been filed, and, to
the knowledge of the Borrower, no claim is being asserted, with respect to any
such tax, fee or other charge, which claim would reasonably be expected to have
a Material Adverse Effect.
SECTION 3.10 Federal Regulations. No part of the proceeds of any
-------------------
Loans will be used for "buying" or "carrying" any "Margin Stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect or for any purpose that violates or is
inconsistent with the provisions of the Regulations T, U or X of the Board.
SECTION 3.11 Labor Matters. Except as, in the aggregate, would not
-------------
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against the Borrower or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened; (b) hours worked by
and payment made to employees of the Borrower and its Subsidiaries have not been
in violation of the Fair Labor Standards Act or any other applicable Requirement
of Law dealing with such matters; and (c) all payments due from the Borrower or
any of its Subsidiaries on account of employee health and welfare insurance have
been paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
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<PAGE>
SECTION 3.12 ERISA. Neither a Reportable Event nor an "accumulated
-----
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Single
Employer Plan which would reasonably be likely to have a Material Adverse
Effect, and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code, except to the extent that the failure to so
comply would not, in the aggregate, be reasonably likely to have a Material
Adverse Effect. No termination of a Single Employer Plan has occurred, and no
Lien against the Borrower or any Commonly Controlled Entity and in favor of the
PBGC or a Single Employer Plan has arisen, during such five-year period which
would reasonably be likely to have a Material Adverse Effect. The present value
of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by a material amount. Neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and based
on such information provided to the Borrower by the Sponsors of the
Multiemployer Plans, Borrower believes that neither the Borrower nor any
Commonly Controlled Entity would become subject to any material liability under
ERISA which would reasonably be likely to have a Material Adverse Effect if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made. To the knowledge of the
Borrower no such Multiemployer Plan is in Reorganization or in a state of
Insolvency.
SECTION 3.13 Investment Company Act; Other Regulations. No Loan
-----------------------------------------
Party is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law that limits
its ability to incur Indebtedness.
SECTION 3.14 Public Utility Holding Company Act. Neither Borrower
----------------------------------
nor its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
SECTION 3.15 Subsidiaries; Joint Ventures. (a) On the Effective
----------------------------
Date, Schedule VI sets forth the name and jurisdiction of formation of each
Subsidiary and Joint Venture owned directly or indirectly by the Borrower on
such date and, as to each such Subsidiary or Joint Venture, the percentage of
each class of Equity Ownership Interest therein owned by the Borrower or any of
its Subsidiaries, (b) Section 5.09(b)(C) shall have been complied with, to the
extent required thereby, in respect of each Subsidiary or Joint Venture of the
Borrower acquired or created after the Effective Date and (c) there are no
outstanding subscriptions, options, warrants, calls, rights or other agreements
or commitments (other than (i) stock options granted to employees or directors
and directors' qualifying shares and (ii) Buy/Sell Arrangements) of any nature
relating to any Equity Ownership Interests of the Borrower or any Equity
Ownership Interest in any Subsidiary, except as set forth on Schedule V.
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<PAGE>
SECTION 3.16 Use of Proceeds; Margin Regulations. (a) The proceeds
-----------------------------------
of the Loans shall be used by the Borrower, subject to the other restrictions
set forth in this Agreement, to fund the Transaction and related fees and
expenses.
(b) Neither the making of any Loan nor the use of the proceeds thereof
nor the occurrence of any other extension of credit under the Loan Documents
will violate or be inconsistent with the provisions of Regulation T, U or X of
the Board. At the time of the making of each Loan, and after giving effect
thereto and the use of the proceeds thereof, no more than 25% of the value (as
defined in Regulation U of the Board) of the assets of the Borrower, and of the
Borrower and its Subsidiaries on a consolidated basis, subject to the
restrictions in Section 6.03 and 6.05 shall constitute Margin Stock. If
requested by any Lender or the Administrative Agent, the Borrower will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form U-1 or FR Form G-3, as
applicable, referred to in Regulation U.
SECTION 3.17 Hotels. (a) The Borrower and each of its Subsidiaries,
------
and to the best knowledge of the Borrower, its Joint Ventures, has good and
marketable fee simple absolute title to all material Real Property purported to
be owned by them, and has good and marketable title to, or valid leasehold
interests in, all other material Real Property purported to be leased by them,
free and clear of all Liens, other than Permitted Liens. Schedule X contains a
true and complete list of each Hotel owned or leased by the Borrower, any of its
Subsidiaries, or any of its Joint Ventures on the Effective Date, and the type
of interest therein held by the Borrower or any of its Subsidiaries.
(b) All material Real Property leased on the Effective Date by the
Borrower or any of its Subsidiaries as tenant, or any of their Joint Ventures is
listed on Schedule X. To the best knowledge of the Borrower, each of such
leases is valid and enforceable in accordance with its terms and is in full
force and effect in all material respects. None of the Borrower, nor its
Subsidiaries, nor, to the best knowledge of the Borrower, any of its Joint
Ventures, or any other party to any such lease is in default of its obligations
thereunder or has delivered or received any notice of default under any such
lease, nor has any event occurred which, with the giving of notice, the passage
of time or both, would constitute a default under any such lease, except for
defaults which would not reasonably be expected to have a Material Adverse
Effect.
(c) Each ground lease with respect to any Hotel which is located on a
Leasehold is in full force and effect and no party thereto has denied or
disaffirmed any of its material obligations thereunder or has defaulted (beyond
applicable cure and notice periods) in the due performance or observance of any
material term, covenant or agreement on its part to be performed or observed
pursuant thereto, except in the case of any ground leases such denials,
disaffirmations and defaults as would not reasonably be expected to have a
Material Adverse Effect.
(d) Each Hotel complies in all material respects with (i) all
Requirements of Law, (ii) all material consents, licenses (including liquor
licenses), certificates and permits required by all Requirements of Law for the
operation of each Hotel have been obtained and are in full force and effect and
(iii) all utility services and facilities necessary for the operation of each
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<PAGE>
Hotel are available at such Hotel, except in the case of clauses (i), (ii) and
(iii) such non-compliances or failures to comply, obtain or have in full force
and effect and available as would not reasonably be expected to have a Material
Adverse Effect.
SECTION 3.18 Environmental Matters. Except as, in the aggregate,
---------------------
would not reasonably be expected to have a Material Adverse Effect:
(a) to the best knowledge of the Borrower, the facilities and
properties owned, leased or operated by the Borrower or any of its
Subsidiaries (the "Properties") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or
concentrations or under circumstances that constitute or constituted a
violation of, or could give rise to liability under, any Environmental Law;
(b) neither the Borrower nor any of its Subsidiaries has received or
is aware of any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties or
the business operated by the Borrower or any of its Subsidiaries (the
"Business"), nor does the Borrower have knowledge or reason to believe that
any such notice will be received or is being threatened;
(c) to the best knowledge of the Borrower, Materials of Environmental
Concern have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location that could give rise to
liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on
or under any of the Properties in violation of, or in a manner that could
give rise to liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or
the Business;
(e) to the best knowledge of the Borrower, there has been no release
or threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of the Borrower or
any Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law with respect to
the Properties or the Business; and
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<PAGE>
(g) neither the Borrower nor any of its Subsidiaries has assumed any
liability of any other Person under Environmental Laws.
SECTION 3.19 Accuracy of Information, etc. No statement or
-----------------------------
information contained in this Agreement, any other Loan Document, or any other
document, certificate or statement furnished by or on behalf of any Loan Party
(other than the Projections, pro forma financial information and forecasts) to
the Administrative Agent or the Lenders, or any of them, for use in connection
with the transactions contemplated by this Agreement or the other Loan
Documents, contained as of the date such statement, information, document or
certificate was so furnished, any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements contained herein or
therein not materially misleading in light of the circumstances in which such
statements are made. The Projections and pro forma financial information
--- -----
contained in the materials referenced above are based upon good faith estimates
and assumptions believed by management of the Borrower to be reasonable at the
time made, it being recognized by the Lenders that such Projections and
financial information as they relate to future events are not to be viewed as
fact, that such Projections and financial information are subject to significant
uncertainties and contingencies, many of which are beyond the control of the
Borrower and its Subsidiaries and that actual results during the period or
periods covered by such financial information may differ from the projected or
estimated results set forth therein by a material amount. As of the date
hereof, there is no fact known to any Loan Party that would reasonably be
expected to have a Material Adverse Effect that has not been expressly disclosed
herein, in the other Loan Documents, or in any other documents, certificates and
statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
SECTION 3.20 Security Documents. The Guaranty and Collateral
------------------
Agreement is, and after the execution and delivery thereof, each other Security
Document will be, effective to create in favor of the Collateral Agent, for the
benefit of the Secured Parties, a legal, valid and enforceable security interest
in the Collateral described therein. In the case of the certificated Pledged
Stock described in the Guaranty and Collateral Agreement, when stock
certificates representing such certificated Pledged Stock are delivered to the
Administrative Agent, in the case of Pledged Notes described in the Guaranty and
Collateral Agreement, when the intercompany promissory notes representing such
Pledged Notes and in the case of the other Collateral described in the Guaranty
and Collateral Agreement, when financing statements and other filings specified
in the opinion delivered pursuant to Section 4.01(g) (or otherwise notified to
the Administrative Agent) in appropriate form are filed in the offices specified
on Annex B to the Guaranty and Collateral Agreement (or otherwise notified to
the Administrative Agent), the Guaranty and Collateral Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Collateral and the proceeds thereof, as
security for the Obligations (as defined in the Guaranty and Collateral
Agreement), in each case prior and superior in right to any other Person except,
and subject to, Permitted Liens (except, in the case of Collateral consisting of
Pledged Stock or, Pledged Notes, subject only to Permitted Liens described in
Section 6.03).
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<PAGE>
SECTION 3.21 Solvency. The Loan Parties (taken as a whole) are, and
--------
after giving effect to the Restructuring and the incurrence of all Indebtedness
and obligations being incurred in connection herewith and therewith will be and
will continue to be, Solvent.
SECTION 3.22 Existing Indebtedness. Schedule XI sets forth a true
---------------------
and complete list of all Existing Indebtedness constituting borrowed money and
guarantees of same of the Borrower and its Subsidiaries in excess of $1,000,000
as of the Effective Date and intended to remain outstanding after such date, in
each case showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly guaranteed
such debt.
SECTION 3.23 Year 2000 Matters. Any reprogramming required to permit
-----------------
the proper functioning (but only to the extent that such proper functioning
would otherwise be impaired by the occurrence of the year 2000) in and following
the year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Borrower or any of its
Subsidiaries in the conduct of their business, and the testing of all such
systems and other equipment as so reprogrammed, will be completed by October 31,
1999, except to the extent that the failure to so reprogram and test would not
reasonably be expected to have a Material Adverse Effect. The costs to the
Borrower and its Subsidiaries that have not been incurred as of the date hereof
for such reprogramming and testing would not reasonably be expected to have a
Material Adverse Effect.
SECTION 3.24 Transaction. As of the Effective Date, (i) the
-----------
Transaction has been consummated in all material respects in accordance with the
terms of the respective Transaction Documents (except as approved by the
Administrative Agent, such approval not to be unreasonably withheld) and all
applicable laws, (ii) all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or
consummate the Transaction will have been obtained, given, filed or taken and
are or will be in full force and effect (or effective judicial relief with
respect thereto has been obtained), except where the failure to so obtain, give,
file or take would not be reasonably expected to have a Material Adverse Effect,
(iii) all applicable waiting periods with respect thereto have or, prior to the
time when required, will have, expired without, in all such cases, any action
being taken by any competent authority which restrains, prevents, or imposes
material adverse conditions upon the Transaction, (iv) there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon the Transaction, or any Loan or the performance by any Loan
Party of its obligations under the respective Documents, (v) all actions taken
by each Loan Party pursuant to or in furtherance of the Transaction have been
taken in material compliance with the respective Documents (except for
modifications and waivers consented to by the Administrative Agent pursuant to
Section 4.01(b)) and all applicable laws and (vi) all representations and
warranties of the Loan Parties contained in the Transaction Documents and made
(or deemed made) on the Effective Date shall be true and correct in all material
respects on such date.
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ARTICLE IV
Conditions Precedent
--------------------
SECTION 4.01 Conditions to Initial Loan. The agreement of each
--------------------------
Lender to make the initial Loan requested to be made by it is subject to the
satisfaction, prior to or concurrently with the making of such Loan on the
Effective Date, of the following conditions precedent:
(a) Increasing Rate Note Purchase and Loan Agreement; Guaranty and
--------------------------------------------------------------
Collateral Agreement. The Administrative Agent shall have received (i) this
- --------------------
Agreement, executed and delivered by the Administrative Agent, the Lenders and
the Borrower, (ii) the Guaranty and Collateral Agreement, executed and delivered
by the Borrower and each Subsidiary Guarantor and (iii) an Acknowledgment and
Consent in the form attached to the Guaranty and Collateral Agreement, executed
and delivered by each Issuer, if any, that is not a Loan Party.
(b) Transaction, etc. (i) On or prior to the Effective Date, there
-----------------
shall have been delivered to the Lenders copies of all Transaction Documents,
all of which shall be certified by a Responsible Officer of the Borrower and/or
its Subsidiaries as true and correct and be in full force and effect and shall
be in form and substance reasonably satisfactory to the Administrative Agent and
the Lenders. On the Effective Date, the Transaction shall have been consummated
in accordance with the Transaction Documents and all applicable laws. All
conditions to the consummation of the Transaction under the Transaction
Documents and related material agreements shall have been satisfied, without
waiver or modification (except with the consent of the Administrative Agent,
which consent shall not be unreasonably withheld).
(ii) In connection therewith, the transactions described below (and to
the extent any of the other transactions described on the Sources and Uses Table
attached to the Securities Purchase Agreement (and updated through the Effective
Date) are to be consummated with such transactions) shall have been consummated
prior to or concurrently with the funding of the initial Loans hereunder and
pursuant to documents, and in a manner, reasonably satisfactory to the
Administrative Agent and the Lenders:
(A) the Borrower shall have received at least $1,000,000,000 in gross
cash proceeds from the issuance of New Preferred Stock to the Sponsors,
provided that such amount may be reduced by (x) the excess cash proceeds of
dispositions of Arcadian Hotels (such reduction not to exceed $300,000,000)
as more fully described in the Securities Purchase Agreement, so long as
all proceeds thereof have been used to permanently repay outstandings under
the Existing Credit Agreement and (y) an amount not to exceed $45,000,000
so long as the Sponsor obligated to invest such amount shall be obligated
to do so within two days in a manner satisfactory to the Administrative
Agent (it being agreed and understood that the failure of the Borrower to
receive such amount shall be an Event of Default);
(B) the Borrower shall have received at least $1,300,000,000 in gross
cash proceeds from the incurrence of the Term Loans;
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(C) the Borrower shall have settled for cash its outstanding Existing
Equity Forwards (to the extent not previously settled by the sale of Old
Patriot common stock by any counterparty thereto) and repaid and/or
refinanced its Indebtedness (other than Existing Indebtedness); and
(D) (x) the Administrative Agent shall have received satisfactory
evidence that the Existing Credit Agreement shall have been terminated and
all amounts thereunder shall have been paid in full and (y) satisfactory
arrangements shall have been made for the termination of all Liens granted
in connection therewith.
(c) Pro Forma Financial Statements. The Lenders shall have received
------------------------------
the Pro Forma Financial Statements.
(d) Lien Searches. The Administrative Agent shall have received the
-------------
results of a recent lien search in each of the jurisdictions where the Borrower
and its material Subsidiaries are incorporated and to the extent requested by
the Administrative Agent, where material assets of the Loan Parties are located,
and such search shall reveal no liens on any of the assets of the Borrower or
its Subsidiaries, except for Permitted Liens and Liens discharged on or prior to
the Effective Date.
(e) Fees. The Lenders and the Administrative Agent shall have
----
received all fees required to be paid by the Borrower, and all expenses for
which invoices have been presented (including the reasonable fees and expenses
of legal counsel to the Administrative Agent), on or before the Effective Date.
All such amounts may be paid with proceeds of Loans made on the Effective Date
and, to the extent paid in such manner, will be reflected in the funding
instructions given by the Borrower to the Administrative Agent on or before the
Effective Date.
(f) Closing Certificate. The Administrative Agent shall have
-------------------
received, a certificate of each Loan Party, dated the Effective Date,
substantially in the form of Exhibit E with appropriate insertions and
attachments.
(g) Legal Opinions. The Administrative Agent shall have received the
--------------
legal opinion of Goodwin Procter & Hoar LLP, counsel to the Borrower and its
Subsidiaries, substantially in the form of Exhibit F.
(h) Pledged Stock; Stock Powers; Pledged Notes. The Administrative
------------------------------------------
Agent shall have received (i) the certificates representing the shares of
certificated capital stock pledged pursuant to the Guaranty and Collateral
Agreement, together with an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor thereof and (ii)
each promissory note pledged to the Administrative Agent pursuant to the
Guaranty and Collateral Agreement endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank) by the pledgor thereof.
(i) Filings, Registrations and Recordings. Each document (including
-------------------------------------
any Uniform Commercial Code financing statement) required by the Security
Documents or under law or reasonably requested by the Administrative Agent to be
filed, registered or recorded in order to
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<PAGE>
create in favor of the Administrative Agent, for the benefit of the Lenders, a
perfected Lien on the Collateral described therein, prior and superior in right
to any other Person (other than with respect to Permitted Liens), shall be in
proper form for filing, registration or recordation.
(j) Registration Rights Agreement. Chase, as Representative, shall
-----------------------------
have received an executed copy of the Registration Rights Agreement.
(k) Solvency Certificate. The Administrative Agent shall have
--------------------
received a solvency certificate from a member of senior management the Borrower
in the form of Exhibit G.
(l) Representations and Warranties. Each of the representations and
------------------------------
warranties made by any Loan Party in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of such date as if made on
and as of such date (unless such representations expressly relate to an earlier
date, in which case they shall be true and correct in all material respects on
and as of such earlier date).
(m) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
ARTICLE V
Affirmative Covenants
---------------------
The Borrower hereby agrees that, so long as any Loan or other amount
is owing to any Lender or the Administrative Agent hereunder, the Borrower shall
and shall cause each of its Subsidiaries (and each of its Unrestricted
Subsidiaries with respect to Section 5.11 described below) to:
SECTION 5.01 Financial Statements. Furnish to the Administrative
--------------------
Agent with sufficient copies for each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related audited consolidated statements of income
and of cash flows for such year, setting forth in each case in comparative
form the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising out
of the scope of the audit, by Ernst & Young LLP or other independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end
of such quarter,
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<PAGE>
setting forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments and the
notes thereto).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
SECTION 5.02 Certificates; Other Information. Furnish to the
-------------------------------
Administrative Agent with sufficient copies for each Lender (or, in the case of
clause (i), to the relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 5.01(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 5.01, (i) a certificate of a Responsible Officer
stating that, to the best of each such Responsible Officer's knowledge,
each Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained in
this Agreement and the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (ii) in the case of quarterly or annual
financial statements, (x) beginning with the Compliance Certificate for the
Fiscal Quarter ending September 30, 1999, a Compliance Certificate
containing all information and calculations necessary for determining
compliance by the Borrower and its Subsidiaries with the provisions of this
Agreement referred to therein as of the last day of the fiscal quarter or
fiscal year of the Borrower, as the case may be and (y) to the extent not
previously disclosed to the Administrative Agent pursuant to this clause
(y), a listing of each new Subsidiary of any Loan Party acquired or created
by any Loan Party since the date of the most recent list delivered pursuant
to this clause (y) (or, in the case of the first such list so delivered,
since the Effective Date);
(c) as soon as available, and in any event no later than 60 days after
the end of each fiscal year of the Borrower, a detailed consolidated budget
for the following fiscal year (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of the following
fiscal year, the related consolidated statements of projected cash flow,
projected changes in financial position and projected income and a
description of the underlying assumptions applicable thereto), and, as soon
as available, significant revisions, if any, of such budget and projections
with respect to such fiscal year (collectively, the "Projections"), which
Projections shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Projections are based on estimates,
information and assumptions believed by such Responsible Officer to be
reasonable;
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<PAGE>
(d) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, a narrative discussion and
analysis of the financial condition and results of operations of the
Borrower and its Subsidiaries for such fiscal quarter and for the period
from the beginning of the then current fiscal year to the end of such
fiscal quarter, as compared to the portion of the Projections covering such
periods and to the comparable periods of the previous year; provided that
--------
delivery of such narrative discussion and analysis on Form 10-Q filed with
the SEC with respect to such fiscal quarter shall be deemed to satisfy the
foregoing requirement;
(e) promptly after the receipt thereof by the Borrower, a copy of any
"management letter" addressed to the board of directors of the Borrower or
any of its Subsidiaries from its certified public accountants and any
internal control memoranda relating thereto;
(f) at the time of the delivery of the financial statements described
in Section 5.01, a certificate of the chief financial officer of the
Borrower, identifying all Asset Dispositions and Reinvestment Events made
during the fiscal quarter of the Borrower, and the proceeds thereof, and,
except as previously disclosed as having been reinvested or otherwise
applied as required by this Agreement, pursuant to this Section (f), the
information tracking all Asset Dispositions and Reinvestment Events made
prior such fiscal quarter as to the status of the proceeds, thereof,
including whether such proceeds were reinvested or otherwise used as
required under this Agreement;
(g) no later than five Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed amendment,
supplement, waiver or other modification with respect to the Senior Note
Indenture or the Senior Credit Facilities as to which the Senior Note
Indenture or the Senior Credit Facilities require the approval of any
percentage of the holders of Indebtedness thereunder;
(h) within five Business Days after the same are sent, copies of all
financial statements and reports that the Borrower sends to the holders of
any class of its debt securities or public equity securities and, within
five Business Days after the same are filed, copies of all financial
statements and reports that the Borrower may make to, or file with, the
SEC; and
(i) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
SECTION 5.03 Payment of Obligations. Pay, discharge or otherwise
----------------------
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except (i) where the amount
or validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or its Subsidiaries, as the case may be or
(ii) where the failure to pay, discharge or satisfy would not, in the aggregate,
be reasonably likely to have a Material Adverse Effect.
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SECTION 5.04 Maintenance of Existence; Compliance. (a) (i)
------------------------------------
Preserve, renew and keep in full force and effect its corporate existence and
(ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business, except,
in each case, as otherwise permitted by Section 6.04 and except, in the case of
clause (ii) above, to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law, except to the extent that failure to comply
therewith would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 5.05 Maintenance of Property; Insurance. (a) Keep all
----------------------------------
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted in accordance with industry standards
and (b) maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least such
risks (but including in any event public liability, product liability and
business interruption expense coverage) as are usually insured against in the
same general area by companies engaged in the same or a similar business.
SECTION 5.06 Inspection of Property; Books and Records; Discussions.
------------------------------------------------------
(a) Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and (b)
permit representatives of any Lender, upon reasonable prior notice, to visit and
inspect any of its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and employees
of the Borrower and its Subsidiaries and with its independent certified public
accountants.
SECTION 5.07 Notices. Promptly give notice to the Administrative
-------
Agent with sufficient copies for each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding that may exist at any time between the Borrower
or any of its Subsidiaries and any Governmental Authority, that in either
case would reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount claimed is $15,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought
which would reasonably be expected to have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof, to the
extent such events, in the aggregate, would be reasonably likely to have a
Material Adverse Effect: (i) the occur-
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<PAGE>
rence of any Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien in favor of
the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or
the Borrower or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Single Employer Plan or Multiemployer Plan; and
(e) any development or event that has had or would reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.07 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
SECTION 5.08 Environmental Laws. Except as would not reasonably be
------------------
expected to have a Material Adverse Effect:
(a) Comply with, and contractually require compliance by all tenants
and subtenants, if any, with, all applicable Environmental Laws, and obtain
and comply with and maintain, and contractually require that all tenants
and subtenants obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws.
SECTION 5.09 Additional Collateral; New Subsidiaries, etc. (a) At
---------------------------------------------
the expense of the Borrower, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time (subject to the rights and
interests in connection with Liens permitted by Section 6.03 (g)) such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, reports and
other assurances or instruments and take such further steps relating to the
Collateral covered by the Security Documents as the Collateral Agent may
reasonably require. Furthermore, the Borrower shall cause to be delivered to
the Collateral Agent such opinions of counsel from any foreign jurisdiction of
formation of any Issuer or Loan Party and other related documents as may be
reasonably requested by the Collateral Agent to assure itself that this Section
5.09 has been complied with.
(b) With respect to any new Subsidiary (other than an Excluded Foreign
Subsidiary) created or acquired after the Effective Date by the Borrower or its
Subsidiaries (which, for the purposes of this paragraph (b), shall include any
existing Subsidiary that ceases to be an Excluded Foreign Subsidiary), shall
promptly (and in any event within 30 days) (unless the Administrative Agent
otherwise consents, in its reasonable discretion, based on the economic or
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other burdens of effecting the following) (i) execute and deliver to the
Administrative Agent such amendments to the Security Documents as the
Administrative Agent deems necessary or advisable to grant to the Administrative
Agent, for the benefit of the Lenders, a perfected first priority security
interest in the Equity Ownership Interest of such new Subsidiary that is owned
by the Borrower or any of its Subsidiaries, (ii) to the extent such ownership
interest is evidenced by certificated capital stock, deliver to the
Administrative Agent the certificates representing such together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
the Borrower or such Subsidiary, as the case may be and (iii) cause such new
Subsidiary (A) to become a party to the Guaranty and Collateral Agreement, (B)
to take such actions necessary or advisable to grant to the Administrative Agent
for the benefit of the Lenders a perfected first priority security interest in
the Collateral described in the Guaranty and Collateral Agreement with respect
to such new Subsidiary, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guaranty
and Collateral Agreement or by law or as may be requested by the Administrative
Agent and (C) to deliver to the Collateral Agent a certificate of such
Subsidiary, substantially in the form of Exhibit H to the Guaranty and
Collateral Agreement, with appropriate insertions and attachments. With respect
to any new Joint Venture created or acquired after the Effective Date by the
Borrower or any Subsidiary Guarantor, the actions described in clauses (i) and
(ii) above shall be taken as if such Joint Venture were a Subsidiary and none of
the actions described in clause (iii) above shall be required to be taken.
Notwithstanding the foregoing provisions of this paragraph (b), none of the
actions described in clauses (i), (ii) and (iii) above shall be required to be
taken with respect to any Subsidiaries and Joint Ventures financed pursuant to
Section 6.02 (e) or with respect to Special Purpose Subsidiaries.
(c) With respect to any new Excluded Foreign Subsidiary created or
acquired after the Effective Date by the Borrower or any of its Subsidiaries,
promptly (unless the Administrative Agent otherwise consents, in its reasonable
discretion, based on the economic or other burdens of effecting the following)
(i) execute and deliver to the Administrative Agent such amendments to the
Guaranty and Collateral Agreement as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders,
a perfected first priority security interest in the Equity Ownership Interest of
such new Subsidiary that is owned by the Borrower or any of its Subsidiaries
(provided that in no event shall more than 65% of the total outstanding voting
Equity Ownership Interests of any such new Subsidiary be required to be so
pledged) and (ii) and in the case such Equity Ownership Interest is evidenced by
certificated capital stock, deliver to the Administrative Agent the certificates
representing such certificated capital stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Borrower or such Subsidiary, as the case may be, and take such other action as
may be necessary or, in the opinion of the Administrative Agent, desirable to
perfect the Administrative Agent's security interest therein.
SECTION 5.10 Year 2000 Compliance. Perform any reprogramming that
--------------------
the Borrower deems necessary to permit the proper functioning of the Borrower
and its Subsidiaries with minimal interruption, in and following the year 2000,
of (i) the Borrower's and each of its Subsidiaries' computer systems and (ii)
equipment containing embedded microchips and the testing of all such systems and
equipment, which reprogramming will be completed by October
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31, 1999, in each case, except to the extent that the failure to effect such
reprogramming and testing would not be reasonably expected to result in a
Material Adverse Effect.
SECTION 5.11 Maintenance of Separateness. Satisfy customary corporate
---------------------------
formalities including the holding of regular board of directors' and
shareholders' meetings and the maintenance of corporate offices and records.
None of the Borrower nor any of its Subsidiaries shall make any payment to a
creditor of any Unrestricted Subsidiary or Joint Venture in respect of any
liability of any Unrestricted Subsidiary or Joint Venture which is not a
liability of the Borrower or such Subsidiary (other than Guarantee Obligations
by the Borrower or any Subsidiary of the obligations of Joint Ventures permitted
hereunder), and no bank account of any Unrestricted Subsidiary or Joint Venture
shall be commingled with any bank account of the Borrower or any of its
Subsidiaries. Any financial statements distributed to any creditors of any
Unrestricted Subsidiary or Joint Venture shall, to the extent permitted by GAAP,
clearly establish the corporate separateness of such Unrestricted Subsidiary or
Joint Venture from the Borrower and its Subsidiaries. Finally, neither the
Borrower nor any of its Subsidiaries or Unrestricted Subsidiaries shall take any
action, or conduct its affairs in a manner, which could result in the corporate
existence of any Unrestricted Subsidiary being ignored, or in the assets and
liabilities of the Borrower or any of its Subsidiaries being substantively
consolidated with those of any Unrestricted Subsidiary or Joint Venture in a
bankruptcy, reorganization or other insolvency proceeding.
SECTION 5.12 Registration Rights Agreement. Without limiting the
-----------------------------
foregoing, in the circumstances contemplated by Section 2 of the Registration
Rights Agreement, but subject to the last proviso of Section 4(a) of the
Registration Rights Agreement, the Borrower shall enter into an indenture which
is identical in all material respects to the substantive terms of this Agreement
(other than (i) such changes to the indenture as are necessary to comply with
the express requirements of the Trust Indenture Act of 1940, as amended, (ii)
the holders of Exchange Notes shall not have the benefit of the "Guaranty" under
the Guaranty and Collateral Agreement or the pledge and security interests
granted by the Guarantors thereunder (and each Lender hereby acknowledges and
agrees that upon its acceptance of an Exchange Note in exchange for its Note, it
shall thereafter hold an unsecured obligation of the borrower which shall not
have the benefit of any guaranties or other credit support), (iii) the indenture
shall provide that, subject to Section 9.02(c), holders of Loans and holders of
Exchange Notes, collectively on a combined basis, will vote as one class (for
all purposes of this Agreement and the Exchange Notes Indenture) except as
mandated by the express requirements of the Trust Indenture Act) (with such
indenture being herein called the "Exchange Notes Indenture") and shall issue in
exchange for outstanding Notes, in accordance with the requirements of the
Registration Rights Agreement, Exchange Notes thereunder. Notwithstanding
anything to contrary contained elsewhere in this Agreement or in the
Registration Rights Agreement, the forms of the Exchange Notes and Exchange
Notes Indenture shall be required to be submitted in advance to the
Administrative Agent and shall be required to be reasonably satisfactory to it.
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ARTICLE VI
Negative Covenants
------------------
The Borrower hereby agrees that, so long as any Loan or other amount
is owing to any Lender or the Administrative Agent hereunder, the Borrower shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly:
SECTION 6.01 Financial Covenants.
-------------------
(a) Total Leverage Ratio. Permit the Total Leverage Ratio to exceed
--------------------
on the last day of any Test Period ending during any period set forth below to
exceed the ratio set forth below opposite such period.
Total
Period Leverage Ratio
------ --------------
September 30, 1999 until
December 31, 2000 6.50 to 1.00
January 1, 2001 until
December 31, 2001 6.25 to 1.00
January 1, 2002 until
December 31, 2002 6.00 to 1.00
January 1, 2003 until
December 31, 2003 6.00 to 1.00
January 1, 2004 until
December 31, 2004 5.75 to 1.00
Thereafter 5.75 to 1.00
(b) Senior Secured Leverage Ratio. Permit the Senior Secured Leverage
-----------------------------
Ratio on the last day of any Test Period ending during any period set forth
below to exceed the ratio set forth below opposite such period:
Senior
Period Secured Leverage Ratio
------ ----------------------
September 30, 1999 until
December 31, 2000 5.95 to 1.00
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Senior
Period Secured Leverage Ratio
------ ----------------------
January 1, 2001 until
December 31, 2001 5.75 to 1.00
January 1, 2002 until
December 31, 2002 5.50 to 1.00
January 1, 2003 until
December 31, 2003 5.25 to 1.00
January 1, 2004 until
December 31, 2004 5.00 to 1.00
Thereafter 4.75 to 1.00
(c) Interest Coverage Ratio. Permit the Interest Coverage Ratio to be
-----------------------
less than (x) for any Test Period ending after June 30, 1999 and on or prior to
December 31, 2001, 2.00 to 1.00, (y) for any Test Period ending after December
31, 2001 and on or prior to December 31, 2002, 2.10 to 1.00 and (z) for any Test
Period ending after December 31, 2002, 2.20 to 1.00.
SECTION 6.02 Indebtedness. Create, issue, assume, become liable in
------------
respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document or
pursuant to the Exchange Notes or Exchange Notes Indenture;
(b) Unsecured intercompany Indebtedness of the Borrower to any
Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary,
provided that (i) if the obligor under any such Indebtedness is a Loan
Party, such intercompany Indebtedness shall be subordinated to the
Obligations of such Loan Party and (ii) if the obligor thereunder is not a
Loan Party and the holder of such Indebtedness is a Loan Party, such holder
shall receive an intercompany note as evidence thereof and pledge the same
pursuant to the Security Documents;
(c) Guarantee Obligations (i) by the Borrower in respect of
obligations of its Subsidiaries or Joint Ventures, (ii) by any Wholly-Owned
Subsidiary Guarantor of any obligations of any other Wholly-Owned
Subsidiary Guarantor, (iii) by any Subsidiary of any obligations of any
Person acquired by it which Person becomes a Subsidiary after giving effect
to such acquisition so long as such acquisition is permitted under this
Agreement and (iv) by any Special Purpose Subsidiary of any obligations of
any other Special Purpose Subsidiary;
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(d) Existing Indebtedness outstanding on the date hereof (the
"Existing Indebtedness") and to the extent constituting borrowed money and
guarantees of same of the Borrower and its Subsidiaries in excess of
$1,000,000 as of the Effective Date and intended to remain outstanding
after such date (excluding the Loans and intercompany Indebtedness between
or among the Borrower and its Wholly-Owned Subsidiaries) and listed on
Schedule XI and any refinancings, refundings, renewals or extensions
thereof (without increasing, or shortening the maturity of, the principal
amount thereof or securing such Indebtedness with Liens on assets not
otherwise securing such Indebtedness on the Effective Date);
(e) Indebtedness (including, without limitation, Capital Lease
Obligations and refinancings of such Indebtedness) secured by Liens
permitted by Section 6.03 (g); provided that (i) such Indebtedness shall be
--------
incurred without recourse to any Subsidiary of the Borrower other than the
Subsidiary incurring such Indebtedness, (ii) such Indebtedness may be
incurred with recourse to the Borrower (or supported by an unsecured
guaranty by the Borrower) and (iii) the principal amount of such
Indebtedness used to acquire Equity Ownership Interests shall not exceed
$150,000,000 in the aggregate;
(f) Indebtedness of the Borrower and its Subsidiaries in respect of
the Senior Credit Facilities or (ii) Indebtedness of the Borrower in
respect of any Senior Notes issued after the Effective Date, the proceeds
of which are applied as required in Section 2.09;
(g) Assumed Indebtedness incurred pursuant to Permitted Acquisitions
(including refinancings, refundings, renewals or extensions thereof) or
Exchanges permitted under Section 6.05(c)(i) or (ii); provided that (i)
--------
such Indebtedness shall be incurred without recourse to any Subsidiary of
the Borrower other than the Subsidiary making such Permitted Acquisition
and any Person that becomes a Subsidiary as a result of such Permitted
Acquisition and (ii) such Indebtedness may be incurred with recourse to the
Borrower (or supported by an unsecured guarantee by the Borrower);
(h) Indebtedness (x) in an aggregate amount not to exceed at any time
$200,000,000 with respect to construction loans, completion guarantees,
performance bonds, surety bonds or customs bonds required in the ordinary
course of business or (y) in an aggregate principal amount not to exceed at
any time $15,000,000 in connection with appeal bonds or the enforcement of
rights or claims of the Borrower or any of its Subsidiaries or in
connection with judgments that do not result in a Default under Section
7.07 or an Event of Default;
(i) No more than $200 million of additional secured Indebtedness
outstanding at any time (the "Additional Basket Amount") secured by the
assets owned or leased by the Borrower or its Subsidiaries on the Effective
Date (or Reinvestment Assets to the extent acquired with the proceeds of
the Disposition of such assets or pursuant to an Exchange in respect or
such assets (but excluding Unrestricted Assets)); provided, that (i) such
--------
Additional Basket Amount may be reduced or increased (but not above $200
million (or $400 million if no Loans are outstanding)), as such amount may
be increased under clause (ii) below) as follows: (A) such amount shall be
increased by an amount
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equal to the product of (1) the then existing Additional Basket Amount
multiplied by (2) a fraction, the numerator of which is (I) (x) 70% of the
fair market value (determined in good faith by the senior management of the
Borrower) of assets which are acquired and are Unencumbered after the
Effective Date or become Unencumbered after the Effective Date as a result
of the repayment of Indebtedness and (y) 70% of the amount invested in
Unencumbered assets (other than investments consisting of maintenance
Capital Expenditures) and the denominator of which is (II) 70% of the fair
market value (determined in good faith by the senior management of the
Borrower) of all assets which are Unencumbered immediately prior to giving
effect to such acquisition, repayment and investment and (B) such amount
shall be decreased by an amount equal to the product of (1) the then
existing Additional Basket Amount multiplied by (2) a fraction, the
numerator of which is (I) 70% of the fair market value (determined in good
faith by the senior management of the Borrower) of Unencumbered assets
which are disposed of after the Effective Date, or assets which were
Unencumbered prior to the determination of the status thereof, and no
longer are Unencumbered as a result of the incurrence of Indebtedness
secured by such asset or the Equity Ownership Interest of the Subsidiary
which owns such asset and the denominator of which is (II) 70% of the fair
market value (determined in good faith by the senior management of the
Borrower) of all assets which are Unencumbered at the time of such
determination, immediately prior to giving effect to such disposition and
incurrence, (ii) from and after the first time the Senior Secured Leverage
Ratio (calculated on a Pro Forma Basis) at the time of incurrence of such
Indebtedness is less than (x) 3.5 to 1.0, such amount of additional
Indebtedness shall be increased to $375 million and (y) 3.0 to 1.0, such
amount of additional Indebtedness shall be increased to $550 million and
(iii) the loan to value ratio of any such Indebtedness to the assets so
encumbered shall not be less than 50%;
(j) Additional unsecured Indebtedness of the Borrower and its
Subsidiaries, provided, that such Indebtedness is not of the type described
--------
in clauses (b), (e), (f), (h) or (k) of this Section 6.02;
(k) Indebtedness under Forward Purchase Obligations not to exceed $200
million at any time outstanding; and
(l) Indebtedness in an aggregate principal amount not to exceed
$15,000,000 at any time outstanding secured by Liens under the Security
Documents on a pari passu basis with the Obligations as set forth therein.
SECTION 6.03 Liens. Create, incur, assume or suffer to exist any Lien
-----
upon any of its assets, whether now owned or hereafter acquired, except
("Permitted Liens"):
(a) Liens for taxes, assessments or governmental charges or levies not
yet due or that are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are
--------
maintained on the books of the Borrower or its Subsidiaries, as the case
may be, in conformity with GAAP;
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(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that do not
in the aggregate materially detract from the value of the assets of the
Borrower and its Subsidiaries taken as a whole or materially impair the use
thereof in the operation of the business of the Borrower or such Subsidiary
or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, purchase contracts, construction
contracts, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that do not in any
case materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(f) Liens in existence on the date of this Agreement securing Existing
Indebtedness (including refinancings thereof permitted under Section
6.02(d), provided that no such Lien is spread to cover any additional
--------
assets after the Effective Date (other than "products" and "proceeds"
thereof or customary after acquired property, as each such term is defined
in the Uniform Commercial Code of the State of New York) and that the
amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness (including refinancings of such
Indebtedness) of the Borrower or any other Subsidiary incurred pursuant to
Section 6.02(e) to finance the acquisition of or improvement to fixed or
capital assets or the acquisition or creation after the Effective Date of
Equity Ownership Interests in Subsidiaries and/or Joint Ventures, provided
--------
that (i) such Liens shall be created substantially simultaneously with (or
within 90 days after) the acquisition or creation of or improvement to such
fixed or capital assets or such Equity Ownership Interests (or refinancings
thereof subject to clauses (ii) and (iii) below), (ii) such Liens do not at
any time encumber any assets other than the assets or such Equity Ownership
Interests financed or improved by such Indebtedness (including the
"products" and "proceeds" thereof or customary after acquired property, as
each such term is defined in the Uniform Commercial Code of the State of
New York) and (iii) with respect to refinancings thereof, the amount of
Indebtedness secured thereby is not increased;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor or licensor under any lease or
license (including subleases or sublicenses) entered into by the Borrower
or any other Subsidiary in the ordinary course of its business and covering
only the assets so leased;
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(j) Liens securing Assumed Indebtedness and Exchanges permitted
pursuant to Section 6.05(c)(i) and (ii) (or refinancings thereof), provided
--------
that such Liens (i) were not incurred in contemplation of the Permitted
Acquisition consummated in conjunction with the assumption of such Assumed
Indebtedness (or refinancing thereof) and (ii) do not encumber any assets
other than the assets acquired pursuant to such acquisition;
(k) Liens securing Indebtedness of the Borrower or any Subsidiary
incurred pursuant to Sections 6.02(h), (i) and (j);
(l) Liens arising from judgments, decrees or attachments or securing
appeal bonds in circumstances not constituting a Default under Section 7.07
or an Event of Default, provided that the amount of cash and assets
--------
(determined on a fair market value basis) deposited or delivered to secure
the respective judgment or decree or subject to attachment or appeal bond
shall not exceed $15,000,000 at any time outstanding;
(m) (i) Liens to secure the performance by the Borrower and its
Subsidiaries of leases of Real Property or personal property, to the extent
incurred or made in the ordinary course of business, (ii) licenses,
sublicenses, leases or subleases entered into the ordinary course of
business not interfering in any material respect with the business of the
Borrower and its Subsidiaries, (iii) Liens arising from precautionary
Uniform Commercial Code financing statements regarding operating leases,
and (iv) statutory and common law landlords' liens under leases to which
any of the Borrower and its Subsidiaries is a party;
(n) Permitted Encumbrances;
(o) Liens in favor of the Borrower or any of its Subsidiary Guarantors
granted by any Subsidiary; and
(p) Customary Liens encumbering the Equity Ownership Interests owned
by the Borrower, any of its Subsidiaries or any Joint Venture (which Equity
Ownership Interests are not required to be pledged pursuant to the
Guarantee and Collateral Agreement) granted in favor of any non-Affiliate
partners or members in any Joint Venture or non-Wholly Owned Subsidiary
owned by Borrower or any Subsidiary and for failure of such Person to
perform its obligations under the relevant Company Documents.
SECTION 6.04 Fundamental Changes. Enter into any merger,
-------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of, all or substantially all
of its assets, or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower (provided that the Borrower shall be the continuing or
--------
surviving corporation) or with or into any Subsidiary (provided that if any
--------
such Subsidiary is a Subsidiary Guarantor or Wholly-Owned Subsidiary
Guarantor, such Subsidiary Guarantor or Wholly- Owned Subsidiary Guarantor,
as the case may be, shall be the continuing or surviving corporation);
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(b) any Subsidiary of the Borrower may Dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or any
Subsidiary Guarantor; and
(c) any Permitted Acquisition or Exchange may be structured as a
merger with or into the Borrower (provided that the Borrower shall be the
--------
continuing or surviving corporation) or with or into any Subsidiary
(provided that if any such Subsidiary is a Subsidiary Guarantor or Wholly-
---------
Owned Subsidiary Guarantor, such Subsidiary Guarantor or Wholly-Owned
Subsidiary Guarantor, as the case may be, shall be the continuing or
surviving corporation); and
(d) the Borrower and its Subsidiaries may Dispose of Unrestricted
Assets.
SECTION 6.05 Disposition of Assets or Equity Ownership Interests.
---------------------------------------------------
Dispose of any of its assets, whether now owned or hereafter acquired, or, in
the case of any Subsidiary, issue or sell any Equity Ownership Interest of such
Subsidiary to any Person, except:
(a) the Disposition of (i) obsolete, damaged or worn out assets in the
ordinary course of business and (ii) Unrestricted Assets;
(b) the sale of inventory in the ordinary course of business;
(c) the following Dispositions (collectively "Exchanges") shall be
permitted: (i) like-kind exchanges pursuant to and in compliance with
Section 1031 of the Code (with any Net Cash Proceeds received in connection
therewith not subject to a Reinvestment Notice to be applied as required
under Section 2.09, (ii) a simultaneous exchange of assets for assets (with
any Net Cash Proceeds received in connection therewith not subject to a
Reinvestment Notice to be applied as required under Section 2.09) and (iii)
Dispositions of Non-Core Assets and Core Assets, for an amount equal to at
least the fair market value thereof (determined in good faith by the senior
management of the Borrower), for at least 75% cash consideration, provided
--------
that (A) on the date of consummation of any Exchange, the Borrower shall
deliver a Reinvestment Notice with respect thereto and any Reinvestment
Prepayment Amount in respect thereof is applied as required under Section
2.09 and (B) all Net Cash Proceeds of Exchanges resulting from Dispositions
of Core Assets shall be reinvested in Core Assets;
(d) Assets Dispositions (including pursuant to Buy/Sell Agreements)
consisting of (i) Non-Core Assets and (ii) Core Assets, the Net Cash
Proceeds of which shall not exceed $300,000,000 in the aggregate; in the
case of all Assets Dispositions pursuant to this clause (d), such
Disposition shall be for an amount equal to at least the fair market value
thereof (as determined by the senior management of the Borrower) for at
least 75% cash consideration; provided that on the date of consummation of
any such Asset Disposition, the Borrower shall apply the Net Cash Proceeds
thereof as required under Section 2.09 without the delivery of a
Reinvestment Notice;
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(e) the sale or issuance of the Equity Ownership Interest in any
Subsidiary or Joint Ventures (i) to the Borrower or any other Subsidiary
of the Borrower, provided that if the Equity Ownership Interests were owned
by the Borrower or a Wholly-Owned Subsidiary Guarantor, such sale or
issuance shall be to the Borrower or Wholly-Owned Subsidiary Guarantor, as
the case may be, or (ii) subject to the limitations in clause (d) above
(other than issuance of Equity Ownership Interests to any other Person
after giving effect to which and after giving effect to any Investment made
by other Persons in such Subsidiary or Joint Venture, the value of the
Investment (reasonably determined by Borrower) retained by the Borrower or
such Subsidiary has not been reduced) to any other Person;
(f) leases and licenses (and subleases and sublicenses) of real or
personal property in the ordinary course of business (so long as any such
lease does not create a Capital Lease Obligation except to the extent
permitted by Section 6.02);
(g) licenses and sublicenses of patents, trademarks, copyrights and
know-how to third Persons, in the ordinary course of business, and to one
another; and
(h) Investments permitted by Section 6.06 and as otherwise permitted
pursuant to Section 6.04.
SECTION 6.06 Investments. Make any advance, loan, extension of
-----------
credit (by way of guaranty or otherwise) or capital contribution to, or purchase
any Equity Ownership Interest, bonds, notes, debentures or other debt securities
of, or any assets constituting a business unit of, or make any other investment
in, any other Person (all of the foregoing, "Investments"), except:
(a) the Investments held on the Effective Date and identified on
Schedule XII;
(b) (i) extensions of trade credit in the ordinary course of business
or (ii) extensions of credit resulting from advances by the Borrower and
its Subsidiaries as a manager of a Hotel which will be reimbursed by the
owner thereof in the ordinary course of business;
(c) investments in Cash Equivalents;
(d) Guarantee Obligations permitted by Section 6.02 (c); provided that
any guaranty by the Borrower or any Wholly-Owned Subsidiary Guarantor of
the obligations of any non-Wholly-Owned Subsidiary, shall not be an
Investment in such non-Wholly Owned Subsidiary subject to clause (f) below;
(e) loans and advances to and guaranties for the benefit of employees
of the Borrower or any Subsidiary of the Borrower (i) in the ordinary
course of business for travel, entertainment, relocation expenses and
similar purposes or (ii) to enable such employee to exercise employee stock
options or stock grants or for other purposes in an aggregate amount not to
exceed $5,000,000;
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(f) Investments by the Borrower or any of its Subsidiaries in the
Borrower or any Person that, prior to, or after giving effect to, such
Investment, is a Subsidiary of the Borrower, provided that in the case of
--------
Investments in Subsidiaries the Equity Ownership Interests in which were
acquired with Indebtedness described in Section 6.02 (e), the net amount
(net of Investment Returns relating to Investments made or acquired
pursuant to this Clause (f)) of such Investments (when added to the
Investments in Joint Ventures described in the proviso in (g) below) shall
not exceed $150,000,000 at any time;
(g) Investments by the Borrower and its Subsidiaries in Joint Ventures
not to exceed $200,000,000 per fiscal year of the Borrower, provided that
in the case of Joint Ventures acquired with Indebtedness described in
Section 6.02 (e), the net amount (net of Investment Returns relating to
Investments made or acquired pursuant to this Clause (g)) of such
Investments (when added to the Investments in Subsidiaries described in the
proviso in (f) above) shall not exceed $150,000,000 at any time;
(h) Investments constituting Permitted Acquisitions and Exchanges;
(i) Investments in Unrestricted Subsidiaries from or consisting of
Unrestricted Assets; and
(j) Investments by the Borrower and its Subsidiaries received as non-
cash consideration for, or remaining after giving effect to, any
Disposition permitted by Section 6.05(a), (c), (d) and (e).
SECTION 6.07 Dividends. Declare or pay such dividend (other than
---------
dividends payable solely in (i) common stock of the Person making such dividend
or (ii) the same class of Equity Ownership Interest of the Person making such
dividend on which such dividend is being declared or paid) on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any Equity Ownership Interest of the Borrower or any Subsidiary, whether now or
hereafter outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or assets, or in obligations of the
Borrower or any Subsidiary or enter into or incur any Derivatives Obligations or
other transaction with any financial institution, commodities or stock exchange
(a "Derivatives Counterparty") obligating it to make payments to such
Derivatives Counterparty as a result of any change in market value of its Equity
Ownership Interests (collectively, "Dividends"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any
Subsidiary Guarantor;
(b) so long as no Default under Sections 7.01 and 7.05 or Event of
Default exists or would result therefrom, the Borrower may (i) pay
regularly accruing cash Dividends on the New Preferred Stock not to exceed
$29,250,000 per fiscal year of the Borrower, with such Dividends to be paid
in accordance with the terms of the certificate of designation therefor,
(ii) redeem up to $300 million of New Preferred Stock at the stated amount
thereof plus accrued but unpaid dividends thereon with the excess proceeds
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of a rights offering of additional shares of New Preferred Stock, plus pay
an associated premium of up to 2%, and (iii) redeem New Preferred Stock
with the proceeds of Asset Dispositions of Arcadian Hotels in accordance
with the requirements of the Securities Purchase Agreement;
(c) any non-Wholly-Owned Subsidiary of the Borrower may pay cash
Dividends to the holders of its Equity Ownership Interests generally, so
long as the Borrower or its respective Subsidiary which owns the Equity
Ownership Interest in the Subsidiary paying such Dividends receives at
least its proportionate share thereof (based upon its relative economic
holdings of equity interest in the Subsidiary paying such Dividends and
taking into account the relative preferences, if any, of the various
classes of equity interests in such Subsidiary or the terms of any
agreements applicable thereto);
(d) so long as no Default or Event of Default shall have occurred and
be continuing, the Borrower may purchase the Borrower's common stock or
common stock options from present or former officers or employees of the
Borrower or any Subsidiary upon the death, disability or termination of
employment of such officer or employee, provided, that the aggregate amount
--------
of payments under this paragraph (d) after the date hereof (net of any
proceeds received by the Borrower after the date hereof in connection with
resales of any common stock or common stock options so purchased) shall not
exceed $1,000,000; and
(e) Patriot OP and Wyndham Partnership may redeem outstanding OP
Units, provided that any such redemptions to be made in cash may only be
made so long as no Default under Sections 7.01 or 7.05 or Event of Default
exists or would result therefrom.
Notwithstanding the foregoing, any payments made in respect of
indemnity obligations, purchase price adjustments and other similar payments
pursuant to the Securities Purchase Agreement shall not be considered Dividends.
SECTION 6.08 Payments and Modifications of Certain Debt Instruments
------------------------------------------------------
and Preferred Stock. (a) Make or offer to make any payment, prepayment,
- -------------------
repurchase or redemption of or otherwise defease or segregate funds with respect
to Senior Notes or Term Loans under the Senior Credit Facilities, other than
interest payments expressly required by the terms thereof and pursuant to
mandatory prepayment provisions contained in the Senior Credit Facilities (and
as expressly permitted in this Agreement), (b) amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other
change to, any of the terms of any Senior Note Indenture (other than any such
amendment, modification, waiver or other change that (i) would extend the
maturity or reduce the amount of any payment of principal thereof or reduce the
rate or extend any date for payment of interest thereon and (ii) does not
involve the payment of a consent fee) or (c) amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other
change to any of the terms of the (A) New Preferred Stock in a manner which (x)
would increase the amount of Dividends or shorten the time of payments thereon,
shorten the time for any scheduled redemption, or increase the amount thereof or
add any additional rights to the holders thereof to receive mandatory
redemptions or add covenants restricting the operations of the Borrower and its
Subsidiaries or (y) would be reason-
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ably likely to be materially adverse to the Lenders or (B) the Securities
Purchase Agreement in a manner which would be reasonably likely to be materially
adverse to the Lenders.
SECTION 6.09 Transactions with Affiliates. Enter into any
----------------------------
transaction, including any purchase, sale, lease or exchange of assets, the
rendering of any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than the Borrower or any Subsidiary, or Joint
Ventures but including any Unrestricted Subsidiary) unless such transaction is
(a) otherwise permitted under this Agreement, (b) in the ordinary course of
business of the Borrower or such Subsidiary, as the case may be, and (c) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person that is not an Affiliate; provided that the following
--------
shall in any event be permitted: (i) the Transaction; (ii) intercompany
transactions among the Borrower and its Wholly-Owned Subsidiaries, and its other
Subsidiaries, and loans and advances to current and former employees, to the
extent expressly permitted by Sections 6.06 and 6.07, shall be permitted; (iii)
transaction fees and expenses contemplated to be paid under the Securities
Purchase Agreement; (iv) the Borrower and its Subsidiaries may enter into
employment arrangements with respect to the procurement of services with their
respective officers and employees in the ordinary course of business; (v) the
payment on the Effective Date of certain consulting and advisory fees to the
Sponsors pursuant to the Securities Purchase Agreement; (vi) the payment of
consulting or other fees to the Borrower by any of its Subsidiaries in the
ordinary course of business, and (vii) the Borrower may make payments in respect
of indemnity obligations, purchase price adjustments and other similar payments
pursuant to the Securities Purchase Agreement. In no event shall any
management, consulting or similar fee be paid or payable by the Borrower or any
of its Subsidiaries to any Person except as specifically provided in this
Section 6.09 other than pursuant to employment and severance agreements approved
by the compensation committee of Borrower's Board of Directors.
SECTION 6.10 Clauses Restricting Subsidiary Distributions. Enter
--------------------------------------------
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Borrower to (a) pay
Dividends in respect of any Equity Ownership Interest of such Subsidiary held
by, or pay any Indebtedness owed to, the Borrower or any other Subsidiary of the
Borrower, (b) make loans or advances to, or other Investments in, the Borrower
or any other Subsidiary of the Borrower or (c) transfer any of its assets to the
Borrower or any other Subsidiary of the Borrower, except for such encumbrances
or restrictions existing under or by reason of (i) any restrictions existing
under the Loan Documents or applicable law, (ii) restrictions in the Senior Note
Indenture (or similar restrictions in other documents evidencing Indebtedness
permitted hereunder) or the documents governing the Senior Credit Facilities,
and other restrictions in effect on the date hereof and listed on Schedule XIII,
(iii) in the case of clause (c) above, customary non-assignment clauses in
leases and other contracts entered into in the ordinary course of business and
restrictions in the Company Documents of non-Wholly-Owned Subsidiaries and Joint
Ventures imposing restrictions on the transfers of the Equity Ownership
Interests therein and (iv) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of the Equity Ownership Interest or
assets of such Subsidiary and (v) any restrictions with respect to a Special
Purpose Subsidiary imposed pursuant to the documents governing the related
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securitization or financing. It is understood and agreed that any asset that is
Unencumbered shall be deemed not in violation of this Section 6.10.
SECTION 6.11 Changes in Fiscal Periods. Permit the fiscal year of
-------------------------
the Borrower to end on a day other than December 31 or change the Borrower's
method of determining Fiscal Quarters.
SECTION 6.12 Negative Pledge Clauses. Enter into or suffer to exist
-----------------------
or become effective any agreement that prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its assets or revenues, whether now owned or hereafter
acquired, other than (a) this Agreement and the other Loan Documents, (b) any
agreements governing any secured Indebtedness (including in connection with
securitizations and similar financings) permitted hereby (in which case, any
prohibition or limitation shall only be effective against the Equity Ownership
Interests or assets financed or leased thereby) or leasing obligations, (c) the
Senior Note Indenture (or similar restrictions in other documents evidencing
Indebtedness permitted hereunder) or the documents evidencing the Senior Credit
Facilities, (d) customary negative pledge and assignment provisions in
agreements entered into in the ordinary course of business, including, without
limitation, agreements relating to joint venture interests (whether conducted as
a corporation, partnership, limited liability company or other legal entity or
through other legal or contractual arrangements), (e) any restrictions with
respect to assets imposed pursuant to an agreement that has been entered into in
connection with the Disposition of such assets and (f) any restrictions with
respect to a Special Purpose Subsidiary imposed pursuant to the documents
governing the related securitization or financing.
SECTION 6.13 Lines of Business. Enter into any business, either
-----------------
directly or through any Subsidiary, except for the Hospitality/Leisure-Related
Business.
SECTION 6.14 Subsidiary Stock. Permit any of its Subsidiaries to
----------------
issue any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and additional issuances which do
not decrease the percentage ownership of the Borrower or any of its Subsidiaries
in any class of the capital stock of such Subsidiaries, (iii) to qualified
directors to the extent required by applicable law and (iv) Subsidiaries formed
after the Effective Date may issue capital stock or other Equity Ownership
Interests to any Person so long as the Investments by the Borrower and its
Subsidiaries in such Subsidiaries are in accordance with the requirements of
Section 6.06(e). All capital stock issued in accordance with this Section 6.14
other than capital stock issued by a Special Purpose Subsidiary shall, to the
extent required by the Guaranty and Collateral Agreement, be delivered to the
Collateral Agent for pledge pursuant to the Guaranty and Collateral Agreement.
SECTION 6.15 Derivatives Obligations. Contract, create, incur,
-----------------------
assume or suffer to exist any Derivatives Obligations, except:
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(i) Interest Rate Protection Agreements may be entered into by the
Borrower and its Subsidiaries from time to time, so long as such Interest
Rate Protection Agreements are not speculative in nature; and
(ii) Other Hedging Agreements may be entered into by the Borrower and
its Subsidiaries, so long as such Other Hedging Agreements are for bona
fide foreign exchange currency hedging purposes and are not speculative in
nature.
ARTICLE VII
Events of Default
If any of the following events shall occur and be continuing:
SECTION 7.01 Payments. The Borrower shall fail to pay any principal
--------
of any Loan when due in accordance with the terms hereof; or the Borrower shall
fail to pay any interest on any Loan, or any other amount payable hereunder or
under any other Loan Document, within five Business Days after any such interest
or other amount becomes due in accordance with the terms hereof; or
SECTION 7.02 Representations, etc. Any representation or warranty
---------------------
made or deemed made by any Loan Party herein or in any other Loan Document or
that is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; or
SECTION 7.03 Covenants. (i) The Borrower shall default in the
---------
observance or due performance of any term, covenant or agreement contained in
Sections 4.01(b)(ii)(A)(y), 5.07(a), 5.13 and Article 6 of this Agreement; or
(ii) any Loan Party shall default in the observance or due performance of any
term, covenant or agreement contained in this Agreement or any other Loan
Document (other than as provided in 7.01, 7.02 or 7.03(i)), and such default
shall continue unremedied for a period of 30 days after notice to the Borrower
from the Administrative Agent or the Required Lenders; or
SECTION 7.04 Default Under Other Agreements. The Borrower or any of
------------------------------
its Subsidiaries shall (i) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation in respect of Indebtedness and
the loans under the Senior Credit Facilities, but excluding the Loans and
Exchange Notes and Non-Recourse Indebtedness) on the scheduled or original due
date with respect thereto beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (ii)
default in making any payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
beneficiary of such
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Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided, that a
default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (d) shall not at any time constitute a Default or an Event of Default
unless, at such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph (d) shall have
occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $15,000,000; or
SECTION 7.05 Bankruptcy, etc. (i) The Borrower or any of its
----------------
Subsidiaries shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication or
appointment which is not vacated, dismissed or stayed pending appeal within 60
days or (B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any
such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof, or (iv) the Borrower or
any of its Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or
SECTION 7.06 ERISA. Any Person shall engage in any non-exempt
-----
"prohibited transaction" (as defined in Section 406 and 408 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any "accumulated funding deficiency"
(as defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Single Employer Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled Entity,
(iii) a Reportable Event shall occur with respect to, or proceedings shall
commence under Title IV of ERISA to have a trustee appointed, or a trustee shall
be appointed under Title IV of ERISA, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, likely to result in the termination of such Plan
for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate
in a "distress termination" or an "involuntary terminations, as such terms are
defined in Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity
shall, or is likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any
other event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or condition, together
with all other
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such events or conditions, if any, would reasonably be expected to have a
Material Adverse Effect; or
SECTION 7.07 Judgments. One or more judgments or decrees shall be
---------
entered against the Borrower or any of its Subsidiaries involving in the
aggregate a liability (not paid or to the extent not covered by insurance) of
$15,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
SECTION 7.08 Security Documents. Any of the Security Documents shall
------------------
cease, for any reason, to be in full force and effect, or any Loan Party or any
Affiliate of any Loan Party shall so assert or any Lien created by any of the
Security Documents shall (except as expressly permitted therein) cease to be
enforceable and of the same effect and priority purported to be created thereby;
or
SECTION 7.09 Change of Control. A Change of Control shall occur;
-----------------
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of Section 7.05 above with respect to the
Borrower, automatically the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents shall
immediately become due and payable, and (B) if such event is any other Event of
Default, with the consent of the Required Obligees, the Administrative Agent
may, or upon the request of the Required Obligees, the Administrative Agent
shall, by notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the other
Loan Documents to be due and payable forthwith, whereupon the same shall
immediately become due and payable). Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind (other
than notices expressly required pursuant to this Agreement and any other Loan
Document) are hereby expressly waived by the Borrower.
ARTICLE VIII
The Administrative Agent
------------------------
SECTION 8.01 Appointment. The Lenders hereby designate Chase as
------------
Administrative Agent to act as specified herein and in the other Loan Documents
(for purposes of this Section 8, the term "Administrative Agent" shall mean
Chase in its capacity as Administrative Agent hereunder and Collateral Agent
pursuant to the Security Documents and Representative pursuant to the
Registration Rights Agreement). Each Lender hereby irrevocably authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement, the other Loan Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Administrative Agent
shall administer this Agreement and service the Loans with the same degree of
care as the Administrative Agent would use in servicing a loan of similar size
and type for its own account.
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SECTION 8.02 The Administrative Agent in its Individual Capacity.
----------------------------------------------------
The Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent hereunder and may accept fees and other consideration from
the Borrower or any Subsidiary or other Affiliate thereof for services in
connection with this Agreement and otherwise without having to account for the
same to the Lenders.
SECTION 8.03 Nature of Duties. The Administrative Agent shall not
-----------------
have any duties or obligations except those expressly set forth herein. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or a Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein, (iv) the validity, enforceability, effectiveness
or genuineness of this Agreement or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
SECTION 8.04 Reliance. The Administrative Agent shall be entitled to
---------
rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, with respect to all legal matters
pertaining to this Agreement and any other Loan Document and
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shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.
SECTION 8.05 Resignation or Removal of the Administrative Agent.
---------------------------------------------------
Subject to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time from
the performance of all its functions and duties hereunder and/or under the Loan
Documents by notifying the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as Administrative
Agent. Furthermore, the Administrative Agent may be removed by the Required
Lenders in the event that it has committed a willful breach of, or was grossly
negligent in the performance of, its material obligations hereunder.
SECTION 8.06 Lack of Reliance on the Administrative Agent. Each
---------------------------------------------
Lender acknowledges that it has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of each Loan
Party and each of their Subsidiaries in connection with the making and the
continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of each
Loan Party and each of their Subsidiaries and, except as expressly provided in
this Agreement, the Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect thereto, whether coming into
its possession before the making of the Loans or at any time or times
thereafter. The Administrative Agent shall not be responsible to any Lender for
any recitals, statements, information, representations or warranties herein or
in any document, certificate or other writing delivered in connection herewith
or for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Loan Document or the financial condition of any Loan Party or any of its
Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Loan Document, or the financial condition of any Loan
Party or any of its Subsidiaries or the existence or possible existence of any
Default or Event of Default.
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SECTION 8.07 Certain Rights of the Administrative Agent. If the
------------------------------------------
Administrative Agent shall request instructions from the Required Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Loan Document, the Administrative Agent shall be entitled
to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Lenders;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Lender shall have any
right of action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder or under any
other Loan Document in accordance with the instructions of the Required Lenders.
SECTION 8.08 Indemnification. To the extent that the Administrative
---------------
Agent is not reimbursed and indemnified by the Borrower, the Lenders will
reimburse and indemnify the Administrative Agent, in proportion to their
respective "percentages" as used in determining the Required Lenders, for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its respective duties hereunder or under any
other Loan Document, in any way relating to or arising out of this Agreement or
any other Loan Document; provided that no Lender shall be liable for any portion
--------
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
SECTION 8.09 Other Agents. Nothing in this Agreement shall impose on
------------
any Syndication Agent in such capacity any duties or obligations.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01 Notices. Except in the case of notices and other
-------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 1950 Stemmons Freeway, Suite 6001,
Dallas, Texas 75207, Attention: Chief Financial Officer (Telecopy No.
(214)-863-1527);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Manhattan Plaza, 8th Floor, New York,
New York 10081, Attention: Christine Gould (Telecopy No. (212) 552-5701),
with a copy to The Chase Manhattan Bank, 270 Park Avenue, New York 10017,
Attention: Alan Breindel (Telecopy No.(212) 270-3513);
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(c) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02 Waivers; Amendments. (a) Neither this Agreement nor
-------------------
any other Loan Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Loan Parties party thereto and the Required
Obligees, provided that no such change, waiver, discharge or termination shall,
--------
without the consent of each Lender with Obligations being directly modified
thereby, (i) extend the Maturity Date of any Loan, or reduce the rate or extend
the time of payment of interest (except in connection with a waiver of
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof (except to the extent repaid in cash), (ii) amend,
modify or waive any provision of this Section 9.02 or reduce the percentage
specified in the definition of Required Lenders or Required Obligees (it being
understood that, with the consent of the Required Lenders or Required Obligees,
additional extensions of credit pursuant to this Agreement, additional issuances
of notes under the Exchange Notes Indenture or the issuance of Registrable Notes
(as defined in the Registration Rights Agreement) pursuant to a Shelf
Registration (as defined in the Registration Rights Agreement) may be included
in the determination of the Required Lenders or Required Obligees, as the case
may be, or the provisions of this Section 9.02 on substantially the same basis
as the extensions of Loans are included on the Effective Date), (iii) consent to
the assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (iv) release all or substantially all of the Collateral
or Subsidiary Guarantors under this Agreement or any other Loan Document (except
as expressly provided in the Loan Documents); provided further, that no such
----------------
change, waiver, discharge or termination shall (x) increase the Commitments of
any Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default shall not constitute an
increase of the Commitment of any Lender, and that an increase in the available
portion of any Commitment of any Lender shall not constitute an increase in the
Commitment of such Lender), and (y) without the consent of the Administrative
Agent, amend, modify or waive any provision of Section 8 as the same applies to
the Administrative Agent or any other provision as same relates to the rights or
obligations of the Administrative Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination with respect to any of the provisions of this Agreement as
contemplated by clauses (i) through (iv), inclusive, of the first proviso to
Section 9.02(a), the consent of the Required Obligees is obtained but the
consent of one or more of such other Lenders or holders of Exchange Notes whose
consent is required is not obtained, then the Borrower shall have the right, so
long as all non-consenting Lenders or holders of Exchange Notes whose individual
consent is required are treated as described below, to replace each such non-
consenting Lender or Lenders with one or more replacement Lenders pursuant to
Section 2.16(b) so long as at the time of such replacement, each such
replacement Lender consents to the proposed change, waiver, discharge or
termination,
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provided, that in any event the Borrowers shall not have the right to replace a
- --------
Lender solely as a result of the exercise of such Lender's rights (and the
withholding of any required consent by such Lender) pursuant to the second
proviso to Section 9.02(a).
(c) For the avoidance of doubt, upon the issuance of Exchange Notes,
the holders of Loans and the holders of Exchange Notes, collectively on a
combined basis, shall all be treated as one class of holders of Loans for all
purposes of this Agreement and for all purposes of the Exchange Notes Indenture,
including, without limitation, for all matters relating to amendments approvals
or consents with respect thereto or any other changes, waivers, discharges or
terminations thereof, it being agreed that the holders of the Exchange Notes
shall not have any additional, distinct, separate or independent rights or
powers from the rights or powers of the holders of the Loans hereunder except as
mandated by the express requirements of the Trust Indenture Act of 1940, as
amended.
(d) Notwithstanding anything to the contrary in this Section 9.02
unless the Indebtedness under the Senior Credit Facilities has been repaid in
full, and the Total Revolving Loan Commitment thereunder terminated, upon any
change, waiver, discharge or termination by the requisite lenders under the
Credit Agreement of Sections 3, 5, 6 and 7 (other than Sections 7.01 and 7.05 or
any provision expressly related to the Registration Rights Agreement) of the
Credit Agreement, the corresponding Section under this Agreement shall be deemed
to be automatically changed, waived, discharged or terminated to permit,
restrict or modify the actions or events which are the subject of such change,
waiver, discharge or termination of the Credit Agreement. The Borrower and the
Administrative Agent are hereby authorized to execute amendments and waivers to
this Agreement to give effect to this clause (d) from time to time.
SECTION 9.03 Expenses; Indemnity; Damage Waiver. (a) The Borrower
----------------------------------
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of White & Case LLP as counsel for the Administrative Agent,
in connection with the syndication of the credit facilities provided for herein,
the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), and (ii) all
out-of-pocket expenses incurred by the Administrative Agent, or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
----------
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions
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contemplated hereby, (ii) any Loan, (iii) any actual or alleged presence or
release of Materials of Environmental Concern on or from any property owned or
operated by the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
--------
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and non-appealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent or the
Lead Arranger, as the case may be, such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
--------
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions or any Loan.
(e) All amounts due under this Section shall be payable not later than
5 days after written demand therefor.
SECTION 9.04 Successors and Assigns. (a) The provisions of this
----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) and any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment or the Loans at the time owing to it); provided that (i) except
--------
in the case of an assignment to a Lender, an Affiliate of a Lender or a Related
Fund of a Lender, each of the Borrower and the Administrative Agent must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender,
Affiliate of a Lender or a Related Fund of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Loans, the amount of the Loans
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such
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assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 (treating any fund that invests in bank loans and any other fund that
invests in bank loans and is managed by the same investment advisor of such fund
or by an affiliate of such fund as a single assignment for purposes of the
minimum amount) unless each of the Borrower and the Administrative Agent
otherwise consent (which consent shall not be unreasonably withheld), (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, (iv) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further, that
----------------
any consent of the Borrower or Administrative Agent otherwise required under
this paragraph shall not be required if a Default exists under Sections 7.01 or
7.05 or an Event of Default exists or results therefrom. Subject to acceptance
and recording thereof pursuant to paragraph (d) of this Section, from and after
the effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 9.03 as relating
to any period of time prior to the effectiveness of such assignment). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
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(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment or the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
--------
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
--------
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(a) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 9.08
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.15(b) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.12 or 2.14 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 2.14 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.14(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, (or in the case of a Lender that is an investment fund, to
the trustee under the indenture to which such fund is a party) and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
- --------
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
SECTION 9.05 Survival. All covenants, agreements, representations
--------
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding
-78-
<PAGE>
and unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.12, 2.13, 2.14 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06 Counterparts. This Agreement may be executed in
------------
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 9.07 Severability. Any provision of this Agreement held to
------------
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof, and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default shall have
---------------
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09 Governing Law, Jurisdiction; Consent to Service of
--------------------------------------------------
Process. (a) This Agreement shall be construed in accordance with and governed
- -------
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its assets, to the nonexclusive jurisdiction of the Supreme Court of
the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that the Administrative Agent or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any Jurisdiction.
-79-
<PAGE>
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
--------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of
--------
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality. Each of the Administrative Agent and
---------------
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority (including the National Association
of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (ii) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (h) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" means
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent or any Lender on a
-80-
<PAGE>
nonconfidential basis prior to disclosure by the Borrower; provided that, in the
--------
case of information received from the Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13 Effectiveness. This Agreement shall become effective on
-------------
the date (the "Effective Date") when (i) the Borrowers and each of the Lenders
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile) the same
to the Administrative Agent and (ii) the Lenders shall have received the fees
described to them in writing by the Administrative Agent and (iii) the
Administrative Agent shall have received any fees agreed between itself and the
Borrowers which are then due and owing.
SECTION 9.14 Domicile of Loans. Each Lender may transfer and carry
-----------------
its Loans and/or Commitments at, to or for the account of any office, Subsidiary
or Affiliate of such Lender. Notwithstanding anything to the contrary contained
herein, to the extent that a transfer of Loans pursuant to this Section 9.14
would, at the time of such transfer, result in increased costs under Sections
2.12, 2.13 and 2.14 from those being charged by the respective Lender prior to
such transfer, then the Borrowers shall not be obligated to pay such increased
costs (although the Borrowers shall be obligated to pay any other increased
costs of the type described above resulting from changes after the date of the
respective transfer).
SECTION 9.15 Calculations; Computations. The financial statements to
--------------------------
be furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrowers to the
Lenders) ("GAAP"), except to the extent the definitions in this Agreement
expressly dictate different treatment; provided that, except as otherwise
--------
specifically provided herein (including in the definitions), all computations
determining compliance with Section 6.01 shall utilize accounting principles and
policies in conformity with those used to prepare the annual financial
statements first delivered to the Lenders pursuant to Section 5.01.
* * *
-81-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
WYNDHAM INTERNATIONAL, INC.,
By /s/ John P. Bohlmann
-----------------------------------------
Title: Senior Vice President
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent,
By /s/ Thomas H. Kozlark
-----------------------------------------
Title: Vice President
CHASE SECURITIES INC,
as Lead Arranger and Book Manager
By /s/ Thomas H. Kozlark
-----------------------------------------
Title: Vice President
BEAR STEARNS CORPORATE LENDING INC.
Individually and as Co-Arranger and
Syndication Agent
By /s/ Michael L. Offen
-----------------------------------------
Authorized Signatory
BANKERS TRUST COMPANY
Individually and as syndication Agent
By /s/ Garrett W. Thelander
-----------------------------------------
Title: Principal
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Andrea Griffis
-----------------------------------------
Title: Vice President
-82-
<PAGE>
NATIONSBANK, N.A.
By /s/ M. David Howard
-----------------------------------------
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
NEW YORK AGENCY
By /s/ Melvin J. Mendelbaum
-----------------------------------------
Title: Vice President
BANKBOSTON, N.A.
By /s/ E. Donald Besch, Jr.
-----------------------------------------
Title: Managing Director
SOCIETE GENERALE, SOUTHWEST AGENCY
By /s/ Carina T. Huynh
-----------------------------------------
Title: Vice President
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By /s/ Paul Travers
-----------------------------------------
Title: Authorized Signatory
DEBT STRATEGIES FUND II, INC.
By /s/ Paul Travers
-----------------------------------------
Title: Authorized Signatory
PILGRIM PRIME RATE TRUST
By /s/ Jason T. Groom
-----------------------------------------
Title: Assistant Vice President
-83-
<PAGE>
OCTAGON LOAN TRUST
By /s/ James P. Ferguson
-----------------------------------------
Title: Managing Director
LONGLANE MASTER TRUST IV
By: BankBoston, N.A., as its Trust
Administrator
By /s/ Renee A. Ross
-----------------------------------------
Title: Managing Director
Credit Derivatives
KZH ING-2 LLC
By /s/ Virginia Conway
-----------------------------------------
Title: Authorized Agent
KZH APPALOOSA LLC
By /s/ Virginia Conway
-----------------------------------------
Title: Authorized Agent
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC,
By: ING Capital Advisors LLC
As Investment Advisors
By /s/ Michael J. Campbell
-----------------------------------------
Title: Senior Vice President and
Portfolio Manager
ARCHIMEDES FUNDING, LLC
By: ING Capital Advisors LLC
as Collateral Manager
By /s/ Michael J. Campbell
-----------------------------------------
Title: Senior Vice President and
Portfolio Manager
-84-
<PAGE>
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors, LLC
As Collateral Manager
By /s/ Michael J. Campbell
-----------------------------------------
Title: Senior Vice President and
Portfolio Manager
SENIOR HIGH INCOME PORTFOLIO, INC.
By /s/ Paul Travers
-----------------------------------------
Title: Authorized Signatory
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By /s/ Paul Travers
-----------------------------------------
Name: Paul Travers
Title: Authorized Signatory
DEBT STRATEGIES FUND III, INC.
By /s/ Paul Travers
-----------------------------------------
Title: Authorized Signatory
-85-
<PAGE>
SCHEDULE I
----------
APPROVED PROCUREMENT SAVINGS
----------------------------
------------------------------------------------
Test Period
Ending
------
================================================
September 30, 1999 $ 40,000,000
------------------------------------------------
December 30, 1999 $ 34,300,000
------------------------------------------------
March 31, 2000 $ 28,600,000
------------------------------------------------
June 30, 2000 $ 22,900,000
------------------------------------------------
September 30, 2000 $ 17,200,000
------------------------------------------------
December 30, 2000 $ 11,500,000
------------------------------------------------
March 31, 2001 $ 5,800,000
------------------------------------------------
<PAGE>
Schedule II
Certain Non-Core Assets
1. Wyndham Franklin Plaza
<PAGE>
SCHEDULE III
COMMITMENTS
<TABLE>
<CAPTION>
Lender Commitment
------ ----------
<S> <C>
The Chase Manhattan Bank $207,875,000.00
Bear Stearns Corporate Lending Inc. 170,375,000.00
Bankers Trust Company 65,000,000.00
Credit Lyonnais New York Branch 16,250,000.00
NationsBank, N.A. 65,000,000.00
The Bank of Nova Scotia New York Agency 13,000,000.00
BankBoston, N.A. 17,000,000.00
Societe Generale, Southwest Agency 13,000,000.00
Merrill Lynch Senior Floating Rate Fund, Inc. 36,000,000.00
Debt Strategies Fund II, Inc. 6,500,000.00
Pilgrim Prime Rate Trust 5,000,000.00
Octagon Loan Trust 5,000,000.00
Longlane Master Trust IV 5,000,000.00
KZH ING-2 LLC 5,000,000.00
KZH Appaloosa LLC 5,000,000.00
ING High Income Principal Preservation Fund Holdings, LDC 5,000,000.00
Archimedes Funding, LLC 2,500,000.00
Archimedes Funding II, Ltd. 2,500,000.00
Senior High Income Portfolio, Inc. 2,000,000.00
Merrill Lynch Senior Floating Rate Fund II, Inc. 2,000,000.00
Debt Strategies Fund III, Inc. 1,000,000.00
- --------------------------------------------------------------------------------
Total $650,000,000.00
</TABLE>
<PAGE>
Schedule IV
Sponsors
Apollo Real Estate Investment Fund IV, L.P.
Apollo Investment Fund IV, L.P.
Apollo Overseas Partners IV, L.P.
Apollo Real Estate Investment Fund, III, L.P.
BCP Voting, Inc., as voting trustee
THL-CCI, Limited Partnership
Thomas H. Lee Equity Fund IV, L.P.
Thomas H. Lee Foreign Fund IV, L.P.
Thomas H. Lee Foreign Fund IV-B, L.P.
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 1998 Irrecovable Trust
Stephen Zachary Lee
Charles W. Robins as Custodian for Jesse Lee
Charles W. Robins
James Westra
Thomas H. Lee Charitable Investment Limited Partnership
Adam A. Abramson
Joanne M. Ramos
Wm. Matthew Kelly
Beacon Capital Partners, L.P.
Strategic Real Estate Investments I, LLC
<PAGE>
AIF/THL PAH LLC
Chase Equity Associates, L.P.
CMS Co-Investment Subpartnership
CMS Diversified Partners, L.P.
PW Hotel I, LLC
Guayacan Private Equity Limited Partnership
The Bonnybrook Trust
The Franklin Trust
The Dartmouth Trust
CKE Associates LLC
2
<PAGE>
Schedule V
Subsidiaries; Joint Ventures and Equity Ownership Interests
(Includes Unrestricted Subsidiaries)
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
SUBSIDIARIES: Wholly-Owned (Includes Unrestricted Subsidiaries)
- ------------------------------------------------------------------------------------------------------------------------------------
1500 Canal Street Investors II, L.P. DE 1% GP - PAH GP, Inc. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Albuquerque C.I. Associates, L.P. KS 1% GP - PAH-CI Holding, L.L.C. Y
99% LP - Patriot American Hospitality Partnership,
L.P. ("Patriot American Hospitality Partnership,
L.P.")
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian (UK) Developments Ltd. England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian France SA France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Group Services Limited England & Wales 99% economic interest - Arcadian International Limited N
100% Voting A Shares/1% economic interest -Wyndham
International Operating Partnership, L.P. ("Wyndham
OP")
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Hotel Bouffemont SARL France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian (Italy) Limited England & Wales 100% - Arcadian Group Services Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Hotels (UK) Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Hotels Limited England & Wales 100% - Wyndham International Operating Partnership, N
L.P. ("Wyndham OP")
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian International Limited England & Wales 100% - Patriot American UK Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian International Resorts, Limited England & Wales 100% - Arcadian Group Services Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Properties SNC France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Resorts Sarl France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Atlanta C. I. Associates II, L.P. KS 1% GP - C.I. General, L.L.C. N
50% LP - C.I. Holding, L.L.C.
49% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
BJV Realty, Inc. AZ 100% - PAH Leasing LLC Y
- ------------------------------------------------------------------------------------------------------------------------------------
Boulders Carefree Sewer Corporation AZ 100% - PAH Leasing LLC Y
- ------------------------------------------------------------------------------------------------------------------------------------
Boulders Joint Venture AZ 99.9% - Patriot American Hospitality Partnership Y
("Patriot American Hospitality Partnership, L.P.")
.1% - PAH GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Bourbon Orleans Investors II, L.P. DE 1% GP - PAH GP, Inc. N
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Burrllen Enterprises of Maryland MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
CFMB, Inc. DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Albuquerque Lessee GP, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
C.I. Albuquerque Lessee, L.P. DE 99% LP - Wyndham OP Y
1% GP - C.I. Albuquerque Lessee GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Atlanta Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP - C.I. Lessee GP, Inc
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. General, L.L.C. KS 20% - Patriot American Hospitality Partnership, L.P. N
80% - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Holding, L.L.C. KS 99% - Patriot American Hospitality Partnership, L.P. N
1% - PAH-CI Holding, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Knoxville Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP - C.I. Lessee GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Lessee GP, Inc. DE 100% - Wyndham N
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Omaha Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP - C.I. Lessee GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Overland Park Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP - C.I. Lessee GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Wichita General, L.L.C. KS 20% - Patriot American Hospitality Partnership, L.P. N
80% - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
C.I. Wichita Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP - C.I. Lessee GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Carefree Management LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Carnicon Holdings Corp. FL 100% - CHC Hotels & Resorts Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
Carnicon Puerto La Cruz Venezuela 100% - Carnicon Venezuela Hotel Consultants LC N
- ------------------------------------------------------------------------------------------------------------------------------------
Centralized Operations, Inc. AZ 100% - Resort Services, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
CHC Hotels & Resorts Corp. FL 100% - Wyndham Y
- ------------------------------------------------------------------------------------------------------------------------------------
CHC Lease Partners FL 99% - CHC REIT Lessee Corp. Y
1% - CHC REIT Management Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
CHC REIT Lessee Corp. FL 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
CHC REIT Management Corp. FL 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Chicago-ES Holding Corp. DE 100% - PAH GP, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Chicago-ES Member Corp. DE 100% - Chicago-ES Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
Chilston Park Limited England and 100% - Arcadian International Limited N
Wales
- ------------------------------------------------------------------------------------------------------------------------------------
CHMB, Inc. TX 100% - WHCMB, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Clipper Inns Limited England and 100% - Arcadian (Italy) Limited N
Wales
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Inns of America, Inc. KS 100% - Wyndham Management Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
Conquistador Holding, Inc. DE 1% - Patriot American Hospitality, Inc. N
99% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
Criterion Hotel Management Corp. FL 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Criterion NY Inc. FL 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads Development Company DE 100% - PAH Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CSMC of Kalamazoo, Inc. MI 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Deuce Management Company LLC TX 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Don CeSar Holdings, LLC DE 100% - PAH Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Denver, LLC DE 100% Member - DT-Denver Mezz, LLC N
0% Manager (no economic interest) - DT-Denver
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Denver Manager Corp. DE 100% - DT-Denver Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Denver Mezz, LLC DE 0% Manager (no economic interest) - DT-Denver Mezz N
Manager Corp.
100% Member - Patriot American Hospitality
Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Denver Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT Glenview, LLC DE 100% Member - Glenview Hospitality, L.P. N
0% Manager (no economic interest) - DT Glenview
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT Glenview Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
El Conquistador Ferryboat, Inc. Puerto Rico 100% - Williams Hospitality Group Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
El Conquistador Partnership L.P., S.E. DE 50% - WKA El Con Associates N
50% - Conquistador Holding, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
El San Juan Holding, Inc. DE 1% - Patriot American Hospitality, Inc. N
99% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
ES Phoenix, LLC DE 100% Member - ES Phoenix Mezz, LLC N
0% Manager (no economic interest) - ES Phoenix
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
ES Phoenix Manager Corp. DE 100% - ES Phoenix Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
ES Phoenix Mezz, LLC DE 0% Manager (no economic interest) - ES Phoenix N
Mezz Manager Corp.
100% Member - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
ES Phoenix Mezz Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
ES Schaumburg, LLC DE 100% Member - ES Schaumburg Mezz, LLC N
0% Manager (no economic interest) - ES
Schaumburg Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
ES Schaumburg Manager Corp. DE 100% - ES Schaumburg Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
ES Schaumburg Mezz, LLC DE 100% Member - Interstone/PAH Partners, L.P. N
0% Manager (no economic interest)- ES
Schaumburg Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
ES Schaumburg Mezz Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Holding Corp. DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Lessee, L.P. DE 99% LP - ESC Greenspoint Member, LLC N
1% GP - ESC Greenspoint Member, Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Member Corp. DE 100% - ESC Greenspoint Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Member, LLC DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
ESJ Hotel Corporation DE 100% - Posados de Puerto Rico Associates, Incorporated N
- ------------------------------------------------------------------------------------------------------------------------------------
Ettington Park Group Ltd. England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Ettington Park Hotel Limited England & Wales 100% - Arcadian Group Services Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
European New Timeshare Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Fair Oaks Sierra Associates, L.P. KS 1% GP - SFHC Holdings, LLC N
99% LP - Summerfield Hotel Company, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Family Suites Corporation DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Family Suites Limited Partnership DE 100% GP - Family Suites Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Family Suites Management Corporation DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Family Suites Management Partnership, L.P. DE 100% GP - Family Suites Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
FS Development Corporation DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GAH-II Corporation DE 100% - CHC REIT Management Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
GAH-II, L.P. DE 49.5% LP - CHC REIT Management Y
48.34% LP - Wyndham OP
1.0% GP - GAH-II Corporation
.48% GP - Deuce Management Company LLC
- ------------------------------------------------------------------------------------------------------------------------------------
GB Hotel Management de Mexico S. de RL de C.V. Mexico 100% - CHC Hotels & Resort Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
GH (Cayman) Limited Cayman Islands 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Atlanta, LLC MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Chicago, Inc. IL 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Detroit, Inc. MI 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Greeneville, Inc. TN 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Providence, Inc. RI 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GH Trademarks LLC MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
GH-Wichita, Inc. KS 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GH-San Diego, Inc. DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GHALP GP, Inc. DE 100% - PAH-Westmont CI N
Holding, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
GHALP Operating GP, Inc. DE 100% - Wyndham N
- ------------------------------------------------------------------------------------------------------------------------------------
GHALP Operating Partnership, L.P. DE 1% GP - GHALP Operating GP, Inc. N
99% LP - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
GHALP Partnership, L.P. DE 1% GP - GHALP GP, Inc. N
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
GHMB, Inc. TX 100% - WHCMB, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
GHV-Colorado, Inc. CO 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
GHV-Galveston, Inc. TX 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Glenview Hospitality, L.P. DE 1% GP - PAH Deuce GP, LLC Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay Management LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Grand Bay Management Company FL 100% - CHC Hotels & Resorts Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Hotels, Inc. MD 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Leasing, LLC MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Real Estate Group LLC MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Management Services, Inc. FL 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
H-Cleveland, LLC DE 100% Member - H-Cleveland Mezz, LLC N
0% Manager (no economic interest) - H-Cleveland
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Cleveland Manager Corp. DE 100% - H-Cleveland Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Cleveland Mezz, LLC DE 100% Manager - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) H-Cleveland Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Cleveland Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Columbus, LLC DE 100% Member - H-Columbus Mezz, LLC N
0% Manager (no economic interest) - H-Columbus
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Columbus Manager Corp. DE 100% - H-Columbus Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Columbus Mezz, LLC DE 0% Manager (no economic interest) - H-Columbus N
Mezz Manager Corp.
100% Member - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Columbus Mezz Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Delmar, LLC DE 100% Member - H-Delmar Mezz, LLC N
0% Manager (no economic interest) - H-Delmar
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Delmar Manager Corp. DE 100% - H-Delmar Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Delmar Mezz, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - H-Delmar Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Delmar Mezz Manager Corp. DE 100% PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Gateway, LLC DE 100% Member - H-Gateway Mezz, LLC N
0% Manager (no economic interest) - H-Gateway
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Gateway Manager Corp. DE 100% - H-Gateway Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Gateway Mezz, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - H-Gateway
Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Gateway Mezz Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
H-Melbourne GP, LLC DE 100% Member - Melbourne Hospitality, L.P. N
0% Manager (no economic interest) - H-Melbourne
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
H-Melbourne, L.P. DE 99.5% L.P. - Melbourne Hospitality, L.P. N
0.5% G.P. - H-Melbourne GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
H-Melbourne Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
HMG Beverage, Inc. TX 100% - PAH-Management Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Hilt-Hunt, LLC DE 100% Member - Hilt-Hunt Mezz, LLC N
0% Manager (no economic interest) - Hilt-Hunt
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Hilt-Hunt Manager Corp. DE 100% - Hilt-Hunt Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Hilt-Hunt Mezz, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - Hilt-Hunt
Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Hilt-Hunt Mezz Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Hotel Gressy SNC France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Hotel L'Horizon Limited Jersey 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Housemanor Limited England & Wales 100% - Arcadian (Italy) Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Burlington Corporation VT 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Capital Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Conshohocken Partnership, L.P. DE 1% GP - IHC Realty Corporation Y
99% LP - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/FS Development Corporation DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Houston Partnership, L.P. DE 1% GP - IHC Realty Corporation Y
99% LP - IHC Texas Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Interstone Partnership II, L.P. DE 1% GP - PAH-Interstone, Inc. Y
99% LP - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Jacksonville Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Jamaica Corporation DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Maryville Hotel Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Member Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Miami Beach Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Miami Mortgage Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Park West Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Pittsburgh Partnership, L.P. DE 1% GP-PAH - Real Estate Member, Inc. Y
92.2327% GP - PAH - Pittsburgh, LLC
6.7673% LP - PAH-Franchise Holding, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Reach Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Realty Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Realty Partnership, L.P. DE 1.0333% GP - IHC Realty Corporation Y
98.9667% LP - IHC Member Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Santa Maria Corporation DE 100% - PAH-Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Texas Corporation DE 100% - IHC Member Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Title Agency Corporation DE 100% - PAH-Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
IHP Investment Company, L.L.C. DE 1% GP - IHC Realty Corporation Y
99% LP - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
IHP Lessee LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Interstone/PAH Partners, L.P. DE 98% LP - IHC Realty Partnership, L.P. Y
1% GP - IHC Realty Corporation
1% LP - Patriot American Hospitality Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
INTMB, Inc. DE 100% - PAH-Management Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
Isla Verde Tourism Parking Corporation Puerto Rico 100% - Posados de San Juan Associates N
- ------------------------------------------------------------------------------------------------------------------------------------
Kansas City Hospitality, L.P. DE 99% LP - Patriot American Hospitality Partnership, Y
L.P.
1% GP - PAH Deuce GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Knoxville C.I. Associates, L.P. TN 1% GP - C.I. General, L.L.C. N
99% LP - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
L'Horizon Hotels Limited England & Wales 100% - Arcadian (Italy) Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
L'Horizon Hotel (Jersey) Limited Jersey 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
L'Horizon Management (Jersey) Limited Jersey 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison (ELL) Limited Scotland 100% Malmaison Resources Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Brand Ltd. Scotland 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Hotels Limited England & Wales 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Resources Limited England & Wales 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Mar-Ty, LLC DE 100% Member - Mar-Ty Mezz, LLC N
0% Manager (no economic interest) Mar-Ty
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Mar-Ty Manager Corp. DE 100% - Mar-Ty Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Mar-Ty Mezz, LLC DE 100% Member - PA Troy Hospitality Investors, L.P. N
0% Manager (no economic interest) Mar-Ty Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Mar-Ty Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Marina Hospitality, L.P. DE 99% LP - Patriot American Hospitality Partnership, Y
L.P.
1% GP - PAH Deuce GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
MBAH, Inc. TX 100% - WHCMB, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Melbourne Hospitality, L.P. DE 99% LP - Patriot American Hospitality Partnership, Y
L.P.
1% GP - PAH Deuce GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
The Mollington Banastre Hotel Limited England & Wales 100% - Arcadian Group Services Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
O-H Acquisition, Inc. DE 100% - PAH-Westmont CI Holding, Inc Y
- ------------------------------------------------------------------------------------------------------------------------------------
Omaha C.I. Associates, L.P. KS 1% GP - C.I. General, L.L.C. N
99% LP - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
Overland Park C.I. Associates, L.P. KS 1% GP - C.I. General, L.L.C. N
99% LP - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PA Hunt Valley Investors, L.P. VA 1% GP - PAH-GP, Inc. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PA Ravinia Partners VA 4% GP - Patriot American Hospitality Partnership, L.P. N
96% LP - Wyndham International, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PA Troy Hospitality Investors, L.P. DE 1% GP - PAH GP, Inc. Y
99%LP - Patriot American Hospitality Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Pagle Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Acquisition Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Allen Operating Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Asset Management, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Batterymarch Realty Company, LLC DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Batterymarch Operating Company, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Billerica Realty Company, LLC DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Buttes L.L.C. DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Deuce GP, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH (France) Sarl France 100% - PAH G.B., Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH GAH Holding, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH GAH Holdings, L.P. DE 99% LP - Wyndham OP Y
1% GP- PAH GAH Holdings, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
PAH GP, Inc. DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Leasing LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH LP, Inc. DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Ravinia, Inc. VA 99% - Patriot American Hospitality Partnership, L.P. N
(class B non-voting)
1% - PA Ravinia Partners
- ------------------------------------------------------------------------------------------------------------------------------------
PAH River House, L.P. DE 1% GP - PAH-RH, LLC Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH River North, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Stanly Ranch LLC DE 99% - Wyndham OP Y
1.00% - PAH-Stanly Holding LLC
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Stanly Holding LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Ventana Canyon, L.P. DE 1% GP - PAH GP, Inc. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Windwatch LLC DE 99% - Patriot American Hospitality Partnership, L.P. N
1% - PAH Windwatch Partners
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PAH Windwatch Partners DE 4% GP - Patriot American Hospitality Partnership, N
L.P.
96% LP Wyndham International, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Westlake LLC DE 90% - Patriot American Hospitality Partnership, L.P. N
10% - WI Ohio Investors, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Akron, L.L.C. DE 90% - Patriot American Hospitality Partnership, L.P. N
10% - WI Ohio Investors, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood I, L.L.C. DE 90% - Patriot American Hospitality Partnership, L.P. N
10% - WI Ohio Investors, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood II, L.L.C. DE 90% - Patriot American Hospitality Partnership, L.P. N
10% - WI Ohio Investors, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-BV Holding Corp. DE 100% - Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-BV Palace Corp. DE 100% - PAH-BV Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-BV Palace, L.P. DE .5% GP - PAH-BV Palace Corp. N
99.5% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Carefree, L.P. DE 1% GP - PAH GP, Inc. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-CI Holding, LLC DE 99% - Patriot American Hospitality Partnership, L.P. Y
1% - Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Columbus Holding, Inc. DE 1% - Wyndham OP Y
99% - Patriot American Hospitality Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Franchise Holding, Inc. DE 94.3464% - Patriot American Hospitality, Inc. Y
4.6536% - Patriot American Hospitality Partnership,
L.P.
1% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAH FF&E Holding, Inc. DE 99% - Patriot American Hospitality Partnership, L.P. Y
1% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAHG FF&E Holding, Inc. DE 99% - Patriot American Hospitality Partnership, L.P. Y
1% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-GBM, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-GP Allen Partners, L.P. DE 1% GP - PAH Allen Operating Corporation Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Grand Bay Miami, L.P. DE 1% GP - PAH-GBM, LLC Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-HVP General Partner Corp. DE 100% - PAH-HVP Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-HVP Holding Corp. DE 100% - Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Interest Holding, Inc. DE 1% - Wyndham OP (100 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(9,900 Class B Non-Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PAH-Interstate Holdings, Inc. DE 1% - Wyndham OP (247.58 Class A Voting) Y
52.279% - Patriot American Hospitality, Inc.
(12,943.34 Class B Non-Voting)
47.721% - PAH-Management Corporation (11,567.15 Class
B Non-Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Interstone, Inc. DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-IP Holding, Inc. DE 1% - Wyndham OP (100 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(9,900 Class B Non Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Management Corporation DE 99% - Patriot American Hospitality, Inc. Y
1% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAHP FF&E Holding, Inc. DE 99% - Patriot American Hospitality Partnership, L.P. Y
1% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh CI Holding, Inc. DE 1% - Wyndham OP (100 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(9,900 Class B Non Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh, LLC DE 100% - PAH-Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Real Estate Member, Inc. DE 100% - PAH-Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-RH, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Holding Corp. DE 9.09% - Patriot American Hospitality Partnership, L.P. Y
90.91% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Leasing, Inc. DE 9.09% - Patriot American Hospitality Partnership, L.P. Y
90.91% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield LLC DE 100% - PAH-Summerfield Holding Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-T, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Tampa, L.P. DE 1% GP - PAH-T, LLC Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Westmont CI Holding, Inc. DE 1% - Wyndham OP (110 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(10,890 Class B Non Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-WMC Holding, Inc. DE 1% - Wyndham OP (100 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(9,900 Class B Non Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Xerxes Holding, Inc. DE 1% - Wyndham OP (100 Class A Voting) Y
99% - Patriot American Hospitality Partnership, L.P.
(9,900 Class B Non Voting)
- ------------------------------------------------------------------------------------------------------------------------------------
PAHMB, Inc. TX 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
PAHMB Maryland, Inc. MD 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Parsippany, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - Parsippany
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Parsippany Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Hospitality, Inc. DE 100% - Wyndham International, Inc. ("Wyndham") Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American UK Limited England & Wales 100% - Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Bougainvillea Development Company, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Bougainvillea, LLC DE 75% - Wyndham OP Y
25% - Patriot American Hospitality Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Grand Heritage, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Holding LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Land Holding LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Miami Note Holder, L.P. DE 1% GP - PAH GP, Inc. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot Racetrack Land LLC DE 99% - Patriot American Hospitality Partnership, L.P. Y
1% - Patriot Land Holding LLC
- ------------------------------------------------------------------------------------------------------------------------------------
P.H.G., LLC MD 99% - Wyndham OP Y
1% - Patriot Grand Heritage LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Pittsburgh C.I., Inc. KS 100% - PAH-Pittsburgh C.I. Holding, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Polycourt Limited England & Wales 100% - Arcadian (Italy) Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Posadas de Puerto Rico Associates, Incorporated DE 100% - WHG Resorts and Casinos Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Posadas de Regency, Inc. DE 1% - Patriot American Hospitality, Inc. N
99% - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
Posadas de San Juan Associates (New York NY 50% - ESJ Hotel Corporation N
joint venture) 50% - Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Posadas Finance Corporation DE 100% - Posadas de Puerto Rico Associates, Incorporated N
- ------------------------------------------------------------------------------------------------------------------------------------
PSMB, Inc. CA 100% - WHCMB, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
PW Land Associates Limited Partnership PA 99% GP - IHC/Park West Corporation Y
1% LP - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PWMB, Inc. DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
R-Houston GP, LLC DE 100% Member - R-Houston LP, LLC N
0% Manager (no economic interest) - R-Houston GP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
R-Houston GP Manager Corp. DE 100% - R-Houston LP, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
R-Houston, L.P. DE 0.5% GP - R-Houston GP, LLC N
99.5% LP- R-Houston LP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
R-Houston LP, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - R-Houston LP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
R-Houston LP Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
R-Lisle, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - R-Lisle
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
R-Lisle Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Rad-Burl, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - Rad-Burl
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Rad-Burl Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Rad-Jose, LLC DE 100% Member - IHC Realty Partnership, L.P. N
0% Manager (no economic interest) - Rad-Jose
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Rad-Jose Manager Corp. DE 100% - IHC Realty Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Ravinia, LLC DE 100% Member - Ravinia Mezz, LLC N
0% Manager (no economic interest) - Ravinia
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Ravinia Manager Corp. DE 100% - Ravinia Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Ravinia Mezz, LLC DE 100% Member - PAH Ravinia, Inc. N
0% Manager (no economic interest) - Ravinia Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Ravinia Mezz Manager Corp. DE 100% - PAH Ravinia, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Resorts Limited Partnership DE 1% GP - PAH Carefree, L.P. N
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Resorts Limited Partnership II DE .1% GP - PAH Carefree, L.P. N
99.9% LP - Resorts Limited Partnership
- ------------------------------------------------------------------------------------------------------------------------------------
Richardson C.I. Associates, L.P. TX 1% GP - Patriot American Hospitality Partnership, L.P. Y
99% LP - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
Ronald Wilson Properties Limited England & Wales 100% - Arcadian (Italy) Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Rose Hall Associates Limited Partnership TX 99% LP - Patriot American Hospitality Partnership, N
L.P.
1% GP - WHC Caribbean, Ltd.
- ------------------------------------------------------------------------------------------------------------------------------------
Societe Anonyme du Chateau de Bessy France 100% - Arcadian Group Services Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Salt Lake City Operating GP, Inc. DE 100% - Wyndham N
- ------------------------------------------------------------------------------------------------------------------------------------
Salt Lake City Operating Partnership, L.P. DE 99% LP - Wyndham OP N
1% GP - Salt Lake City Operating GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Savannah C.I. Associates, L.P. GA 5% GP - PAH-CI Holding, L.L.C. Y
95% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
SFHC Holdings, LLC KS 100% - Summerfield Hotel Company, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
SFMB, Inc. DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Sierra Suites Marketing Association KS 100% - Summerfield Hotel Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
St. Louis C.I. Associates, L.P. MO 1% GP - Patriot American Hospitality Partnership, L.P. Y
99% LP - C.I. Holding, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
Stone Development Sarl France 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Company, L.P. KS 1% GP - PAH-Summerfield, LLC Y
99% LP - PAH-Summerfield Holding Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Corporation DE 100% - PAH-Summerfield Holding Corp. Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Summerfield Hotel Leasing Company, L.P. KS 1% GP - Summerfield Hotel Leasing Corporation N
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Leasing Corporation KS 100% - PAH-Summerfield Leasing, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield HPT Lease Company, L.L.C. DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield HPT Lease Company, L.P. KS 99% LP - Patriot American Hospitality Partnership, N
L.P.
1% - Summerfield HPT Lease Company, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Marketing Association DE 100% - Summerfield Hotel Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
Syracuse Associates Corporation DE 100% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
TCC Maturin, C.A. Venezuela 100% - TCC Venezuela, L.C. N
- ------------------------------------------------------------------------------------------------------------------------------------
TCC Venezuela, L.C. FL 50% - CHC Hotels & Resorts Corp. Y
50% - Carnicon Holdings Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison Company (Edinburgh) Ltd. England & Wales 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison Hotel (Glasgow) Ltd Scotland 100% - Malmaison Brand Ltd. N
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison Hotel (Leeds) Ltd. England & Wales 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison Hotel (Manchester) Ltd. England & Wales 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
The Malmaison Hotel (Newcastle) Ltd. England & Wales 100% - Malmaison Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
The Reserve Collection Boulders LLC DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
The Reserve Collection Peaks LLC DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Tillian Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Toledo Hotel Investors, L.P. DE 99% LP - Patriot American Hospitality Partnership, Y
L.P.
1% GP - PAH Deuce GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Topeka C. I. Associates, L.P. KS 96.51% LP - Patriot American Hospitality Partnership, Y
L.P.
3.49%GP - PAH-CI Holding, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Tree-Mass, LLC DE 100% Member - Tree-Mass Mezz, LLC N
0% Manager (no economic interest) - Tree-Mass Manager
Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Tree-Mass Manager Corp. DE 100% - Tree-Mass Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Tree-Mass Mezz, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - Tree-Mass Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Tree-Mass Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Bel Age, LLC DE 100% Member - W-Bel Age Mezz, LLC N
0% Manager (no economic interest) - W-Bel Age Manager
Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Bel Age Manager Corp. DE 100% - W-Bel Age Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
W-Bel Age Mezz, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Bel Age Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Bel Age Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Brookfield, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Brookfield
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Brookfield Manager Corp. DE 100% - PAH-GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Buttes, LLC DE 100% Member - W-Buttes Mezz, LLC N
0% Manager (no economic interest) - W-Buttes
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Buttes Manager Corp. DE 100% W-Buttes Mezz, LLC. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Buttes Mezz, LLC DE 100% Member - PAH Buttes L.L.C. N
0% Manager (no economic interest) - W-Buttes
Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Buttes Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Charlotte, LLC DE 100% - Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Charlotte
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Charlotte Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Colinas GP, LLC DE 100% Member - W-Colinas Mezz LP, LLC N
0% Manager (no economic interest) - W-Colinas GP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Colinas GP Manager Corp. DE 100% - W-Colinas Mezz LP, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Colinas, L.P. DE 0.5% GP - W-Colinas GP, LLC N
99.5% LP - W-Colinas Mezz LP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Colinas LP Manager Corp. DE 100% Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Colinas Mezz LP, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Colinas LP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Commerce, LLC DE 0% Manager (no economic interest) - W-Commerce N
Manager Corp.
100% Member - W-Commerce Mezz, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Commerce Manager Corp. DE 100% - W- Commerce Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Commerce Mezz, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Commerce
Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Commerce Mezz Manager Corp. DE 100% PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Emerald, LLC DE 100% Member - W-Emerald Mezz, LLC N
0% Manager (no economic interest) - W-Emerald
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Emerald Manager Corp. DE 100% - W-Emerald Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
14
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
W-Emerald Mezz, LLC DE 0% Manager (no economic interest) - W-Emerald N
Mezz Manager Corp.
100% Member - Patriot American Hospitality
Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Emerald Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Franklin GP, LLC DE 100% Member - W-Franklin Mezz L.P., LLC N
0% Manager (no economic interest) - W-Franklin GP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Franklin GP Manager Corp. DE 100% - W-Franklin Mezz, L.P., LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Franklin, L.P. DE 0.5% GP - W-Franklin GP, LLC N
95.5% LP - W-Franklin Mezz L.P., LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Franklin L.P. Manager Corp. DE 100% PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Franklin Mezz L.P., LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Franklin
L.P. Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Garden Atlanta, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - W-Garden
Atlanta Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Garden Atlanta Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Greenspoint Holding Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Greenspoint, L.P. DE 1% GP - W-Greenspoint Member Corp. N
99% LP-WG Member, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Greenspoint Member Corp. DE 100% - W-Greenspoint Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Indiana, LLC DE 100% Member - W-Indiana Mezz, LLC N
0% Manager (no economic interest) W-Indiana
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Indiana Manager Corp. DE 100% - W-Indiana Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Indiana Mezz, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) W-Indiana Mezz
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Indiana Mezz Manager Corp. DE 100% PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Miami Airport GP, LLC DE 0% Manager (no economic interest) - W-Miami Airport N
Manager Corp.
100% Member - PAH-River House, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Miami Airport, L.P. DE 0.5% GP - W- Miami Airport GP, LLC N
99.5% LP - PAH-River House, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Miami Airport Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Novi, LLC DE 0% Manager (no economic interest) - W-Novi N
Manager Corp.
100% Member - W-Novi Mezz, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Novi Manager Corp. DE 100% - W-Novi Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Novi Mezz, LLC DE 0% Manager (no economic interest) - W-Novi Mezz N
Manager Corp.
100% Member - Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Novi Mezz Manager Corp. DE 100% - Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
W-Pleasanton, LLC DE 100% Member - W-Pleasanton Mezz, LLC N
0% Manager (no economic interest) - W-Pleasanton
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Pleasanton Manager Corp. DE 100% - W-Pleasanton Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Pleasanton Mezz, LLC DE 100% - Member - Patriot American Hospitality, Inc. N
0% Manager (no economic value) - W-Pleasanton
Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Pleasanton Mezz Manager Corp. DE 100% - Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Richardson GP Corp. DE 100% - W-Richardson Mezz L.P., LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Richardson, L.P. DE 0.5% GP - W- Richardson GP Corp. N
99.5% LP - W-Richardson Mezz L.P., LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Richardson L.P. Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Richardson Mezz L.P., LLC DE 0% Manager (no economic interest) - W-Richardson L.P. N
Manager Corp.
100% Member - Richardson C.I. Associates, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg, LLC DE 0% Manager (no economic interest) - N
W-Schaumburg Manager Corp.
100% Member - W-Schaumburg Mezz, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg Manager Corp. DE 100% - W-Schaumberg Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg Mezz, LLC DE 0% Manager (no economic interest) - N
W-Schaumburg Mezz Manager Corp.
100% Member - Patriot American Hospitality
Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg Mezz Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-SSH, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
W-Tampa GP, LLC DE 0% Manager (no economic interest) - W-Tampa N
Manager Corp.
100% Member - PAH-Tampa, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Tampa, L.P. DE 0.5% GP - W- Tampa GP, LLC N
99.5% LP - PAH-Tampa, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Tampa Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale, LLC DE 0% Manager (no economic interest) - W-Wood Dale N
Manager Corp.
100% Member - W-Wood Dale Mezz, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale Manager Corp. DE 100% W-Wood Dale Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale Mezz, LLC DE 0% Manager (no economic interest) - W-Wood Dale Mezz N
Manager Corp.
100% Member - Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale Mezz Manager Corp. DE 100% Patriot American Hospitality, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
W& CP (Exeter) Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
W&C Estates Ltd. England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Waterfront Management Corporation DE 100% - Wyndham Management Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
WCHNW, LLC DE 100% Member - Patriot American Hospitality N
Partnership, L.P.
0% Manager (no economic interest) - WCHNW Manager
Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
WCHNW Manager Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Westminster & Country Construction Company England & Wales 100% - Arcadian (Italy) Limited N
Limited
- ------------------------------------------------------------------------------------------------------------------------------------
Westminster & Country Finance Limited England & Wales 100% - Arcadian (Italy) Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Westminster & Country Properties (Bicester) England & Wales 100% - Arcadian (Italy) Limited N
Limited
- ------------------------------------------------------------------------------------------------------------------------------------
Westminster & Country Properties (London) England & Wales 100% - Arcadian (Italy) Limited N
Limited
- ------------------------------------------------------------------------------------------------------------------------------------
WG Member, LLC DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
WH Interest, Inc. TX 100% - PAH-Interest Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Atlanta GP, LLC DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Caribbean, Ltd. Jamaica 1 Share (.5%) - Wyndham Management Corporation N
199 Shares (99.5%) - Xerxes Limited
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Chicago, LLC DE 100% - Patriot American Hospitality Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Columbus Corporation DE 100% - PAH-Columbus Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Finance, L.P. DE 1% GP - O-H Acquisition Corp. Y
99% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
WHC Franchise Corporation DE 100% - PAH-Franchise Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHCMB, Inc. DE 100% - Wyndham Management Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHCMB Overland Park, Inc. KS 100% - WHCMB, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
WHCMB Toronto, Inc. Canada 100% - Wyndham Management Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
WHCMB Utah Private Club Corporation (Utah UT 100% - Wyndham Management Corporation N
non-profit corporation)
- ------------------------------------------------------------------------------------------------------------------------------------
WHG El Con Corp. DE 100% - WHG Resorts and Casinos Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
WHG Resorts & Casinos Inc. DE 100% - Wyndham N
- ------------------------------------------------------------------------------------------------------------------------------------
WI Ohio Investors, Inc. DE 1% - Wyndham OP Y
99% - Patriot American Hospitality Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Wichita C.I. Associates III, L.P. KS 13.36% GP - C.I. Wichita General, L.L.C. N
86.64% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Williams Hospitality Group Inc. DE 62% - Posadas de Puerto Rico, Incorporated N
38% - El San Juan Holding, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
WKA Development S.E. Puerto Rico 2% - Williams Hospitality Group Inc. N
98% - WKA El Con Associates
- ------------------------------------------------------------------------------------------------------------------------------------
WKA El Con Associates NY 53.46% - Conquistador Holdings, Inc. N
46.54% - WHG El Con Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
WMC II, Inc. DE 100% - Wyndham Management II, LLC Y
- ------------------------------------------------------------------------------------------------------------------------------------
WYN Travel, Inc. DE 100% - Wyndham Y
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham Atlanta Lessee, LLC DE 100% - Wyndham Y
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham French Holdings Limited England & Wales 100% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Hotels & Resorts (Aruba) N.V. Aruba 100% - Wyndham Management Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Hotels & Resorts Management, Ltd. Bermuda 100% - Wyndham Management Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham HPT Lessee, L.P. DE 1% GP - Wyndham HPT Lessee LLC N
99% LP - Wyndham OP
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham HPT Lessee LLC DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Acquisition Subsidiary DE 100% - Wyndham N
Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation DE 100% - PAH-IP Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Corporation DE 100% - PAH-WMC Holding, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management II, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Holding Corp. DE 100% - PAH GP, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Lessee Holding Corp. DE 100% - CHC Lease Partners N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Lessee LLC DE 1% - Wyndham Peachtree Lessee Member Corp. N
99% - Wyndham Peachtree Lessee Member, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Lessee Member, LLC DE 100% - CHC Lease Partners N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Lessee Member Corp. DE 100% - Wyndham Lessee Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree LLC DE 1% - Wyndham Peachtree Member Corp. N
99% - Wyndham Peachtree Member, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Member Corp. DE 100% - Wyndham Peachtree Holding Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Member, LLC DE 100% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham SN Lessee Corp. DE 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham SN Lessee, L.P. DE 99% LP - Wyndham OP N
1% GP Wyndham SN Lessee Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield Lessee, L.P. DE 99% LP - Wyndham OP Y
1% GP - Wyndham Summerfield Lessee LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield Lessee, LLC DE 100% - Wyndham OP Y
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham UK Holdings Limited England & Wales 100% - Wyndham OP N
- ------------------------------------------------------------------------------------------------------------------------------------
Xerxes Limited Jamaica .5% - Wyndham Management Corporation (1 Share) N
99.5% - PAH-Xerxes Holding, Inc. (199 Shares)
- ------------------------------------------------------------------------------------------------------------------------------------
YO Hotel Investors, L.P. DE 99% LP - Patriot American Hospitality Partnership, Y
L.P.
1% GP - PAH Deuce GP, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
18
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
SUBSIDIARIES: Non-Wholly-Owned (Includes Unrestricted Subsidiaries)
- ------------------------------------------------------------------------------------------------------------------------------------
Atlanta American Hotel Investors, L.P. DE 1% GP - WHC Atlanta GP, LLC N
69% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Casa Marina Realty Partnership, L.P. DE 97.6063% LP - IHC Realty Partnership, L.P. N
1% GP - Casa Marina Realty Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
Casa Marina Realty Corporation DE 98.6063% - Patriot American Hospitality, Inc. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Chicago-ES, LLC DE 1% - Chicago-ES Member Corp. N
99% IHP/Class B Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
CHR Consulting Company, L.L.C. DE 99% - Colony Hotels and Resorts Company N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
CHR Services Company, L.L.C. DE 99% - Colony Hotels and Resorts Company N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Clipper Hotels Limited England & Wales 99% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
City Centre Partnership, L.P. DE 92.5% GP - Patriot American Hospitality Partnership, N
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Colony de Mexico, S.A. de C.V. Mexico .002% - Colony International Management Company, N
L.L.C.
99.998% - Colony Hotels and Resorts Company
- ------------------------------------------------------------------------------------------------------------------------------------
Colony Hotels and Resorts Company DE 100% - Interstate Hotels, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Colony International Management Company, L.L.C. DE 99% - Colony Hotels and Resorts Company N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Continental Design & Supplies Company, L.L.C. DE 99% - Interstate Hotels, LLC N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads Future Company, L.L.C. DE 1% - PAH-Crossroads Members, Inc. N
99% - Crossroads Hospitality Company, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads Future Financing Company, L.L.C. DE 100% - Crossroads Future Company, L.L.C. N
Future Financing Member Corporation (Special
Independent Member - no economic interest)
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads Hospitality Company, L.L.C. DE 99% - Interstate Hotels, LLC N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads Hospitality Tenant Company, L.L.C. DE 99% - Crossroads Hospitality Company, L.L.C. N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads/Memphis Company, L.L.C. DE 99% - Crossroads Hospitality Company, L.L.C. N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads/Memphis Financing Company, L.L.C. DE 100% - Crossroads/Memphis Partnership, L.P. N
Crossroads/Memphis Financing Corporation (Special
Independent Member - no economic interest)
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads/Memphis Financing Company II, L.L.C. DE 100% - Crossroads/Memphis Partnership, L.P. N
Crossroads/Memphis Financing II Corporation (Special
Independent Member - no economic interest)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
19
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Crossroads/Memphis Partnership, L.P. DE 83.2329% GP - Crossroads/ N
Memphis Company, L.L.C.
16.7671% LP - Crossroads Hospitality Company, L.L.C.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Des Plaines, LLC DE 100% Member - DT-Des Plaines Mezz, LLC N
0% Manager (no economic interest) - DT-Des
Plaines Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Des Plaines Manager Corp. DE 100% - DT-Des Plaines Mezz, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Des Plaines Mezz, LLC DE 100% Member - PAH-DT Chicago O'Hare N
Partners, L.P.
0% Manager (no economic interest) - DT-Des
Plaines Mezz Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Des Plaines Mezz Manager Corp. DE 100% - PAH-DT Chicago O'Hare Partners, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami GP, LLC DE 100% Member - DT-Miami Mezz, L.P. N
0% Manager (no economic interest) - DT Miami GP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami GP Manager Corp. DE 100% - DT-Miami Mezz, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami L.P. Manager Corp. DE 100% - PAH-DT Miami Airport Partners, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami, L.P. DE 0.5% GP - DT-Miami GP, LLC N
99.5% LP - DT-Miami Mezz, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami Mezz, L.P. DE 0.5% GP - DT-Miami L.P. Holding, LLC N
99.5% LP - PAH-DT Miami Airport Partners, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Miami L.P. Holding, LLC DE 100% Member - PAH-DT Miami Airport Partners, L.P. N
0% Manager (no economic interest) - DT-Miami LP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee GP, LLC DE 100% Member - DT-Tallahassee Mezz, L.P. N
0% Manager (no economic interest) - DT-Tallahassee GP
Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee GP Manager Corp. DE 100% - DT-Tallahassee Mezz, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee, L.P. DE 0.5% GP - DT-Tallahassee GP, LLC N
99.5% LP - DT-Tallahassee Mezz, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee L.P. Holding, LLC DE 100% Member - PAH-DT Tallahassee Partners, L.P. N
0% Manager (no economic interest) - DT-Tallahassee
L.P. Manager Corp.
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee L.P. Manager Corp. DE 100% - PAH-DT Tallahassee Partners, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
DT-Tallahassee Mezz, L.P. DE 99.5% LP - PAH-DT Tallahassee Partners, L.P. N
0.5% GP - DT-Tallahassee L.P. Holding, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Equity Bluefield, Inc. WV 100% - Crossroads/Memphis Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
Hilltop Equipment Leasing Company, L.P. DE 99% GP - PAH-Hilltop GP, LLC N
1% LP - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Hotel Venture Partners, Ltd. FL .5% GP - PAH-HVP General Partner Corp N
88.39% LP - Patriot American Hospitality Partnership,
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
IHC/Denver Partnership, L.P. DE 89% LP - IHC Realty Partnership, L.P. Y
1% GP - IHC Realty Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
IHC/Moscow Corporation DE 100% - Interstate Hotels, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
IHC Services Company, L.L.C. DE 99% - Interstate Hotels, LLC N
1% - Interstate Member, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
IHP/Class B Partnership, L.P. DE 98.7829% GP - IHC Realty Partnership, L.P. Y
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate Hotels, LLC DE 55% - PAH-Interstate Holdings, Inc. N
45% - Northridge Holdings, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate/Montour Associates, Ltd. PA 95.6075% GP - IHC/Park West Corporation Y
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners I L.P. DE 50.5% LP - IHC/Interstone Partnership II, L.P. Y
.5% GP - PAH Interstone, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners II L.P. DE 50.5% LP - IHC/Interstone Partnership II, L.P. N
.5% GP - PAH Interstone, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners III L.P. DE 50.5% LP - IHC/Interstone Partnership II, L.P. N
.5% GP - PAH Interstone, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners IV L.P. DE 50.5% LP - IHC/Interstone Partnership II, L.P. N
.5% GP - PAH Interstone, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone/CGL (WC) Partners LP DE 1% GP - IHC Realty Corporation N
64%LP - IHC Realty Partnership, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Oak Hill Catering Company, Inc. WV 100% - Crossroads/Memphis Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Cambridge Holdings, LLC DE 100% - Interstate Hotels, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Allen Partners, L.P. DE 85% GP - PAH-GP Allen N
Partners, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Chicago O'Hare Partners, L.P. DE 90% GP - Patriot American Hospitality Partnership, Y
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Miami Airport Partners, L.P. DE 90% GP - Patriot American Hospitality Partnership, Y
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Minneapolis Suites Partners, L.P. DE 90% GP - Patriot American Hospitality Partnership, Y
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Park Place Partners, L.P. DE 90% GP - Patriot American Hospitality Partnership, Y
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Tallahassee Partners, L.P. DE 90% GP - Patriot American Hospitality Partnership, Y
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Hilltop GP, LLC DE 100% - Interstate Hotels, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Park West Hotel Associates PA 50% Managing GP - PW Land Associates Limited Y
Partnership
50% GP -Interstate/
Montour Associates
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Hospitality Partnership, L.P. VA 91%LP - PAH LP, Inc. Y
1% GP - PAH GP, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Royal Palace Hotel Associates FL 55% - PAH-BV Palace, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
21
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Swatara Associates PA 1.3350% GP, 96.6286% LP - IHC Realty Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
Syracuse Realty Associates, L.P. DE 93% LP - IHC Realty Partnership, L.P. Y
1% GP - Syracuse Associates Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
The Key West Reach Limited Partnership DE 96.1194% LP - IHC Realty Partnership, L.P. Y
1% GP - IHC Reach Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
The Peaks Real Estate Services, Inc. AZ 1000 shares Preferred Voting (66.66%) - PAH Leasing Y
LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Transatlantic Hotel Co. Sarl France 100% - Arcadian (UK) Developments Ltd. N
- ------------------------------------------------------------------------------------------------------------------------------------
Travis Real Estate Group Joint Venture TX 65.48% - Patriot American Hospitality Partnership, N
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Water Street Hotel, Ltd. DE 84% LP - IHC Realty Partnership, L.P. Y
1% GP - IHC/Jacksonville Corporation
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Operating Partnership, DE 1% GP - Wyndham International, Inc. Y
L.P. 80% LP - Wyndham International, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
22
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
JOINT VENTURES (Includes Unrestricted Subsidiaries)
- ------------------------------------------------------------------------------------------------------------------------------------
Al Jarafe Golf SA Spain 10% - Arcadian Group Service Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Ambassador Hotels, Ltd. England & Wales 50% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Beleggingsmaat-Schappij Stako II BV Netherlands 18.2% - Arcadian Group Service Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Block 125 River North Hotel Venture, L.L.C. DE 19.9% - PAH River North, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Cambridge Hotel Associates PA 25% Voting GP (85.7% Dist.) - PAH-Cambridge Holdings, N
LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Carnicon Venezuela Hotel Consultants LC Florida 50% - CHC Hotels & Resorts Corp. N
- ------------------------------------------------------------------------------------------------------------------------------------
CPHPAH Dos Pueblos Associates, L.L.C. DE 4% - Patriot American Hospitality Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads/Memphis Financing Corporation DE 100% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Crossroads/Memphis Financing II Corporation DE 100% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
DFW/H&R, Inc. TX 49% - PAH-Management Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Don Ce Sar Resort Hotel Ltd. FL 12% LP - PAH-Franchise Holding, Inc. N
1% GP - Don CeSar Holdings, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Dublin Inn, Ltd. OH 30% - WHC Columbus Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Fattoria Villa Saletta Srl. Italy 9% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Future Financing Member Corporation DE 100% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Host/Interstate Partnership, L.P. DE 5% LP - IHC/Pittsburgh Partnership, L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Manhattan Beach, L.P. DE 25% LP - PAH-Franchise Holding, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Ontario, L.P. DE 10% LP - PAH-Franchise Holding, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Waterford, L.P. DE 25% LP - PAH-Franchise Holding, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
IHC II, LLC DE 99.99% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
IHP Holdings Partnership, L.P. PA 19.8165% Managing GP - IHP Investment Company, L.L.C. N
29.9299% GP - Chicago-ES, LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate Hotels Corporation MD 1% - PAH-Interstate Holdings, Inc. N
3% - Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate Member, Inc. DE 100% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Las Casitas Development Company Inc. (S.E.) Puerto Rico 50% LP - WKA El Con Associates N
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Management Limited England & Wales 50% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Marquis Hotel Associates PA 50% - Pittsburgh C.I., Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
23
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Maryville Centre Hotel Joint Venture MO 50% Managing GP - IHC/Maryville Hotel Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Meadows Beverage Company, LLC CA 50% - CFMB, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Mentmore Golf & Country Club Plc. England & Wales 10% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Northridge Holdings, Inc. DE 100% - Interstate Hotels Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Oxford Wyn 633 Investment Company, L.L.C. DE 50% - WHC Chicago, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
Resorts Services, Inc. AZ 99% - Wyndham (non-voting) N
- ------------------------------------------------------------------------------------------------------------------------------------
Santa Maria Joint Venture DE 50% - IHC/Santa Maria Corporation N
- ------------------------------------------------------------------------------------------------------------------------------------
Shula's Steak Houses, L.P. DE 49% - W-SSH, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
State College BBQ/Concord Joint Venture DE 50% - Crossroads/Memphis Partnership L.P. N
- ------------------------------------------------------------------------------------------------------------------------------------
The Great Eastern Hotel Company Ltd. England & Wales 50% - Arcadian International Limited N
- ------------------------------------------------------------------------------------------------------------------------------------
Westmont C.I. Associates, Limited Partnership IL 9.0909% GP - PAH-Westmont CI Holding, Inc. N
- ------------------------------------------------------------------------------------------------------------------------------------
Westshaw Associates DE 50% - Patriot Bougainvillea, LLC N
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
PAYROLL SUBSIDIARIES
(Includes Unrestricted Subsidiaries)
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
HEPC Anatole, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Andover, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Annapolis, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Aruba Beach, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Atlanta Gwinnett, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Atlanta Northlake, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Bel Age, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Bristol, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Brookfield, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Buckhead, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Burlington, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Cedar Rapids, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Charlotte, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Checkers, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Clubhouse, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Colorado Springs, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Columbus, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Commerce, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Copley, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Culver City, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Dallas Market Center, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Dedham, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Denver, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Detroit, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Elbow Beach, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Emerald Plaza, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Franklin Plaza, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Garden Albuquerque, Inc. (f/k/a WH Garden TX 100% - Wyndham Management Corporation N
Albuquerque, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------
HEPC GHALP, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Greenspoint, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Harbour Island, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Indianapolis, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
25
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
HEPC Kansas City, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Kingston, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC LaGuardia, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Las Colinas, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC LAX, Inc. (formerly WH LAX, Inc.) TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC LAX-U, Inc. (formerly WH LAX-U, Inc.) TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Lexington, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Long Term Stay, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Marietta, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Marin County, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Metrocenter, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Midtown Atlanta, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Milwaukee, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Monrovia, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Morgan Bay, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Mt. Olive, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC New Orleans, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Newark, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Northwest Chicago, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Novi, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Oakbrook Terrace, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC O'Hare, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Orange County, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Orlando, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Orlando Resort, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Overland Park, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Palm Springs, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Park Central, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Piscataway, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Pittsburgh, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Playhouse Square, Inc. TX 100% - Wyndham Management Corporation N
(formerly WH Playhouse Square, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Pleasanton, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Pruneyard, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Richmond, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Rose Hall, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
26
<PAGE>
<TABLE>
<CAPTION>
Entity Jurisdiction Wyndham Entities with Equity Ownership in the Guarantor
of Organization Scheduled Entity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
HEPC Salt Lake City, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Schaumburg, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Semi-Ah-Moo, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Sugar Bay Club, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Sugar Bay, Inc. TX 100% - Wyndham Management Corporation N
(formerly WH Sugar Bay, Inc.)
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Toronto, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Valley Forge, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC VF, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Vinings, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Waltham, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Warwick, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Windwatch, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Wood Dale, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
WIPC, LLC DE 100% - Wyndham OP N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Memphis, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Billerica, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
HEPC Miami Beach, Inc. TX 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
WIPC-Buena Vista Palace, LLC DE 100% - Wyndham OP N
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Management (Virgin Islands) Corporation DE 100% - Wyndham Management Corporation N
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
27
<PAGE>
Schedule V (continued):
-----------------------
Outstanding Subscriptions, Options, Warrants, Calls, Rights or Other
--------------------------------------------------------------------
Agreements/Commitments Relating to Equity Ownership Interests
-------------------------------------------------------------
of the Borrower and its Subsidiaries (except stock options to employees or
--------------------------------------------------------------------------
directors, directors' qualifying shares, or Buy/Sell Arrangements)
-------------------------------------------------------------------
A. Outstanding obligations to issue capital stock
----------------------------------------------
1. Preemptive Rights Agreement dated as of September 30, 1997 by and
among Patriot American Partnership, L.P., Wyndham International
Operating Partnership, L.P. and Karim Alibhai
2. Purchase Rights Agreement dated as of September 30, 1997 by and
among Patriot OP, Wyndham OP and each of the Holders (CMRR Eight,
Inc., CRMR Eight, Inc., Monique Weisfisch, Ryan Weisfisch, Cindy
Weisfisch, Richard Weisfisch, KC Eight CMRR, Inc. and KC Eight
CRMR, Inc.)
3. Transfer Restriction Agreement dated April 14, 1997 between
Wynopt Investment Partnership, L.P. and Patriot
B. Redemption Rights Agreements
----------------------------
1. Redemption Rights Agreement dated August 15, 1997 by and among
Wyndham and each of David Burrus, William F. Burruss, Jr., John W.
Cullen, IV and George Newton
2. Redemption Rights Agreement dated as of September 30, 1997 by
and among Karim Alibhai and Wyndham OP
3. Redemption Rights Agreement dated July 30, 1998 between Patriot
American Hospitality, Inc., Wyndham, Wyndham OP and Don Shula's
Steak Houses, Inc.
C. Voting Agreements
-----------------
1. Voting Agreements dated as of April 14, 1997 by and between
Patriot American Hospitality, Inc. and the following individuals:
(a) CF Securities, L.P.
(b) Paul A. Nussbaum
(c) William W. Evans III
(d) Leslie V. Bentley
(e) James D. Carreker
(f) Stanley M. Koonce, Jr.
(g) Anne L. Raymond
2. First Amendment to Stockholder Voting Agreement dated January 5,
1998 by and among Patriot American Hospitality, Inc., Wyndham and
Paul A. Nussbaum, William W. Evans III, Leslie V. Bentley, James D.
Carreker,
28
<PAGE>
Stanley M. Koonce, Jr. and Anne L. Raymond
3. Voting Agreement dated September 30, 1997 between Wyndham, Patriot
American Hospitality Operating Company Acquisition Subsidiary and
Patriot American Hospitality, Inc. and Sumner M. Redstone and
National Amusements, Inc.
4. Voting Agreement dated as of September 30, 1997 by and among
Wyndham and the CHCI Principal Stockholders (Carnival Corporation,
Sherwood Weiser and Donald Lefton)
5. Shareholders Agreement dated December 2, 1997 by and among Patriot
American Hospitality, Inc., Wyndham (f/k/a Patriot American
Hospitality Operating Company), Milton Fine and various Fine
trusts.
D. Option Agreements
-----------------
1. Option Agreement dated April 14, 1997 between Patriot OP and the
Grantors (James D. Carreker, Leslie V. Bentley, Stanley M. Koonce,
Jr. (individually), Anne L. Raymond, Crow Family Partnership L.P.,
Harlan R. Crow (through ISIS CRO, Inc.), Stanley M. Koonce (through
ISIS CRO, Inc.) and ISIS CRO, Inc.
2. Option Agreement dated April 14, 1997 between Patriot OP and the
Grantors (WH-MIS LP and James D. Carreker) and the Consenting
Partners (Trammell Crow Company, Kinetic Group I, Inc., Leslie V.
Bentley, James D. Carreker, Stanley M. Koonce, Jr., Anne L.
Raymond, George Lippe, Crow Family Partnership, L.P.
3. Option Agreement dated September 30, 1997 between Wyndham, Patriot
American Hospitality Operating Company Acquisition Subsidiary,
Patriot American Hospitality, Inc. and Louis J. Nicastro
4. Option Agreement dated March 31, 1998 between Posadas de Flamboyan,
L.P. and Patriot American Hospitality, Inc. relating to the
purchase of the Flamboyan Wing
5. Flamboyan Interests Option Agreement dated as of March 31, 1998
between Patriot American Hospitality, Inc., Marco Industrial, Inc.,
S.N.L. Realty Corp., Joseph Koffman, Martin Koffman, Debra Koffman,
David Koffman, Elizabeth Koffman, Steven Koffman and Jeffrey
Koffman
6. Stock Option Agreement dated January 17, 1997 by and among Thomas
W. Lattin, Rex E. Stewart, Michael Murphy and each of the Sellers
(Holtzman, Surguine, Nassikas, Goehring, Beckham and Lyon)
7. Non-Qualified Stock Option Agreements, dated as of January 15,
1997, entered into by Patriot American Hospitality, Inc. and each
of David Beckham; Michael
29
<PAGE>
J. Byrd; Bruce Campbell; Tom Dawson; William Gamble; Del Goehring;
Richard Holtzman; Kenneth B. Humes; Charles F. Kercheval; Scott
Lyons; William Nassikas; Richard Riess; and Michael Surguine
E. Subscription Agreements
-----------------------
1. Subscription Agreement dated November 3, 1997 by and between
Wyndham and Wyndham Hotel Corporation
2. Amendment No. 1 to Subscription Agreement dated January 5,
1998 by and between Wyndham and Wyndham Hotel Corporation
3. Subscription Agreement dated as of January 5, 1998 by and between
CF Securities, L.P., Patriot American Hospitality, Inc. and Wyndham
4. Subscription Agreement dated January 16, 1998 between WHG Resorts &
Casinos Inc., Patriot American Hospitality, Inc. and Wyndham
5. Subscription Agreement dated as of March 31, 1998 between
Patriot American Hospitality, Inc. and Wyndham
6. Omnibus Subscription and Exchange Agreement, dated June 4, 1998, by
and among Patriot OP, Patriot American Hospitality, Inc., Wyndham,
and the SFHC Partners' Representative, and the Designated SFHC
Partners regarding subscription by Designated SFHC Partners for
Paired Shares in Lieu of Paired Units
7. Subscription Agreement dated as of July 1, 1997 by and between
Patriot OP and Bay Meadows Operating Company
8. Subscription Agreement dated as of July 1, 1997 by and between
Patriot OP and Wyndham OP
9. Subscription Agreement dated as of June 2, 1998 among
Interstate, Wyndham and Patriot American Hospitality, Inc.
F. Patriot American Hospitality, Inc. Registration Rights Agreements
-----------------------------------------------------------------
1. Redemption and Registration Rights Agreement dated April 1,
1996 (WestCoast Portfolio)
2. Registration Rights Agreement dated May 1996 with LaSalle
Advisors Limited Partnership (Common Stock)
3. Registration Rights Agreement dated May 1996 with LaSalle
Advisors Limited Partnership (Units and Common Stock)
4. Registration Rights Agreement dated July 1996 with Houston
Greenspoint Hotel
30
<PAGE>
Associates (Wyndham Greenspoint Hotel)
5. Registration Rights Agreement dated November 15, 1996 with the
Sellers of the Tutwiler Hotel
6. Registration Rights Agreement dated January 16, 1997 with Lyon
RLP Investments Partnership (Carefree)
7. Registration Rights Agreement dated January 17, 1997 with
Morgan Stanley (Carefree)
8. Registration Rights Agreement dated July 24, 1997 (Wyndham Merger)
9. Registration Rights Agreement dated August 15, 1997 with
contributors of Grand Heritage
10. Registration Rights Agreement dated September 4, 1997 with
Metropolitan Tower Realty Company. Inc.
11. Registration Rights Agreement dated September 30, 1997 with
the Weisfisch Entities (Carnival/Gencom Merger)
12. Registration Rights Agreement dated September 30, 1997 with
Karim Alibhai (Carnival/Gencom Merger)
13. Registration Rights Agreement dated September 30, 1997 with
the Gencom Interests (Carnival/Gencom Merger)
14. Registration Rights Agreement dated October 1, 1997 with CHCI
Interests (Carnival/Gencom Merger)
15. Registration Rights Agreement dated December 2, 1997 with
Interstate Hotels Company
16. Registration Rights Agreement dated December 30, 1997 with
Contributors of Emerald Plaza
17. Registration Rights Agreement dated January 15, 1998 with
contributors of Buena Vista Hotel
18. Registration Rights Agreement dated March 31, 1998 with
Koffman (Williams Hotel Group)
19. Registration Rights Agreement dated as of April 1, 1998 with
Metro Hotels, Inc. and Metro Hotel Leasing Corporation
20. Registration Rights Agreement dated April, 1998 with the
Contributions of SF Hotel Company, L.P. (OP Unit Version)
31
<PAGE>
21. Registration Rights Agreement dated April, 1998 with the
Contributions of SF Hotel Company, L.P. (Paired Shares Version)
22. Registration Rights Agreement dated June 4, 1998 with certain
SFHC Partners (Paired Shares Version)
23. Registration Rights Agreement dated June 4, 1998 with certain
SFHC Partners (Paired Units Version)
24. Registration Rights Agreement dated June 30, 1998 with
certain CHCI Stockholders
25. Registration Rights Agreement dated July 30, 1998 with the
contributors of Shula's Steak House
26. Registration Rights Agreement dated July 15, 1998 with
McNeill Investment Co.
G. Approximately 427,000 shares to be issued to six Interstate vice
presidents in satisfaction of severance/retention obligations.
H. Le Manoir de Gressy re: Option to Put Shares/Guaranty
-----------------------------------------------------
Article Three of the Agreement (Protocole d'Accord) dated July 31, 1997, by
and between La Societe Arcadian International PLC ("Arcadian PLC"), La
Societe Arcadian Properties, La Societe Hoteliere de I'lle de France
("S.H.I.F."), La Societe W Finance Participation SARL ("SARL") and La
Societe COPARC ("COPARC") provides that Arcadian PLC will purchase all of
the interests held by S.H.I.F. (and/or SARL, as beneficiary) in SNC Gressy
(owner of the hotel) if the put option is exercised. The option may be
exercised one (1) time during the period from January 1, 1999 until January
31, 1999. (According to a memo attached to the Accord, the put option has
been exercised.) The option price is 40,000,000 french francs which may be
payable in shares (based on a formula linked to the average closing price
of shares over a 60 day period, as traded on the London stock exchange).
According to the correspondence in the file, the shares of Arcadian PLC are
no longer traded on the London market, and Arcadian has proposed to
S.H.I.F. Patriot shares in substitution (acceptance of this offer is being
confirmed by Arcadian). The memo indicates the outside closing date as
March 13, 1999. In addition, Article Four of the Agreement provides that in
the event S.H.I.F. and SARL exercise the put option set forth in Article
Three, Arcadian PLC agrees to guaranty the payment of all sums due COPARC
(under a 51,000,000 french franc credit facility made by COPARC to SNC
Gressy). As of 6/26/99, this transaction is in the process of closing. [See
also final Right of First Refusal/Options Chart below.]
I. Certain Obligations to Issue Company Stock
------------------------------------------
1. Executive Employment Agreement dated February 14, 1997, by and
between Patriot American Hospitality, Inc. and William W. Evans
III, as amended.
2. Severance Agreement between the Companies and Paul A. Nussbaum.
32
<PAGE>
J. Gencom Merger
-------------
Obligations to issue stock, registration rights, and other agreements and
commitments relating to Equity Ownership Interests (a) contained in and in
connection with Agreement and Plan of Merger dated as of June 29, 1999 by
and among Wyndham International, Inc., Gencom Interests, Inc., and each of
the Stockholders of Gencom Interests, Inc., or (b) in the alternative,
contained in and in connection with (i) Contribution Agreement (Baltimore
Omni Hotel) Phase II, dated as of September 30, 1997 between Patriot
American Hospitality Partnership, L.P. and Travis Real Estate Group, Inc.,
and (ii) Ancillary Contribution Agreement, dated September 30, 1997 by and
Among The Persons Named on Schedule A Attached Thereto, Patriot American
Hospitality Partnership, L.P. and Patriot American Hospitality Operating
Partnership, L.P. and the related contribution of interests in the
partnership owning related hotel assets in exchange for cash and/or Equity
Ownership Interests.
33
<PAGE>
Number of Outstanding Shares of Unvested
Restricted Stock: 381,670
Number of Outstanding Shares of Unvested
Restricted Paired Units: 1,128,612
Number of Outstanding Deferred Paired Units (for fees due
to Directors through 12/31/98 adjusted for 4th Quarter dividend): 37,255.99
34
<PAGE>
Summary of Options to Acquire Common Stock of Borrower Outstanding
After Exchange and With Stock Dividend
<TABLE>
<CAPTION> Total Number Common Stock Total Number
Long-Term Type of of Options Dividend @ Of Options
Incentive Plan Date of Grant Options Outstanding 7.333% Outstanding
1995 PAH Incentive Plan
<S> <C> <C> <C> <C> <C>
9/27/95 NQ** 60,286
10/25/95 ISO 216,967 15,910 232,877
10/25/95 NQ 250,044 18,336 268,380
4/19/96 ISO 23,656 1,735 25,391
4/19/96 NQ** 66,250
4/19/96 NQ 139,002 10,193 149,195
6/3/96 ISO 2,285 168 2,453
1/15/97 NQ 731,511 53,642 785,153
2/14/97 NQ** 57,216
4/1/97 NQ** 1,027,912
6/24/97 NQ* 23,889 1,752 25,641
Total 1995 PAH Incentive Plan 1,387,354 101,735 2,700,753
1997 OpCo Incentive Plan
10/1/97 NQ** 26,934
11/5/97 NQ 50,000 3,667 53,667
1/13/98 NQ 236,768 17,362 254,130
1/13/98 NQ 15,680 1,150 16,830
2/2/98 NQ* 242,348 17,771 260,119
2/6/98 NQ* 3,666 269 3,935
3/9/98 NQ* 18,000 1,320 19,320
5/19/98 NQ* 6,418 471 6,889
5/28/98 NQ 60,000 4,400 64,400
6/2/98 NQ 17,283 1,267 18,550
6/2/98 NQ 3,352 246 3,598
6/2/98 NQ 6,705 492 7,197
6/4/98 NQ* 94,113 6,901 101,014
6/12/98 NQ** 26,933
6/15/98 NQ* 433 32 465
6/19/98 NQ* 12,984 952 13,936
7/7/98 NQ* 822 60 882
7/27/98 NQ* 4,800 352 5,152
8/7/98 NQ* 1,778 130 1,908
8/17/98 NQ* 12,584 923 13,507
8/24/98 NQ* 8,223 603 8,826
10/13/98 NQ 3,500 257 3,757
11/13/98 NQ 30,000 2,200 32,200
12/11/98 NQ 50,000 3,667 53,667
3/25/99 NQ 892,080
4/19/99 NQ 5,600,000
4/21/99 NQ 12,000
5/7/99 NQ 850,000
Total 1997 OpCo Incentive Plan 879,457 64,491 8,351,894
</TABLE>
*These grants were eligible for the $8.10 option exchange program.
**These grants were eligible for the $5.1875 option exchange program.
NQ = Non-Qualified Options (no special tax treatment)
ISO = Incentive Stock Options (receive special capital gains tax treatment)
Page 1
<PAGE>
Summary of Options to Acquire Common Stock of Borrower Outstanding
After Exchange and With Stock Dividend
<TABLE>
<CAPTION> Total Number Common Stock Total Number
Long-Term Type of of Options Dividend @ Of Options
Incentive Plan Date of Grant Options Outstanding 7.333% Outstanding
<S> <C> <C> <C> <C> <C>
1997 REIT Incentive Plan
11/5/97 NQ 50,000 3,667 53,667
2/2/98 NQ* 37,334 2,738 40,072
5/28/98 NQ 60,000 4,400 64,400
6/15/98 NQ* 671 49 720
Total 1997 REIT Incentive Plan 148,005 10,853 158,858
Bay Meadows Opr Co 1988 Options
3/29/96 NQ 1,926 141 2,067
PAH Director's Plan
9/27/95 NQ 90,000 6,600 96,600
4/16/98 NQ 30,000 2,200 32,200
Total PAH Director''s Plan 120,000 8,800 128,800
Wyndham Int'l 1996 LTIP
5/21/96 NQ 303,199 22,234 325,433
11/1/96 NQ 27,440 2,012 29,452
11/4/96 NQ 4,116 302 4,418
1/15/97 NQ 20,000 1,467 21,467
1/21/97 NQ 378,328 27,743 406,071
6/18/97 NQ 7,409 543 7,952
10/23/97 NQ* 1,680 123 1,803
Total Wyndham Int'l 1996 LTIP 742,172 54,423 796,595
Grand Total 3,278,914 240,443 12,138,967
</TABLE>
*These grants were eligible for the $8.10 option exchange program.
**These grants were eligible for the $5.1875 option exchange program.
NQ = Non-Qualified Options (no special tax treatment)
ISO = Incentive Stock Options (receive special capital gains tax treatment)
Page 2
<PAGE>
Options to Purchase, Rights of First Refusal and Similar Rights in
Organizational Documents of Subsidiaries
PART I
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary Asset
from the percentages -----
Entity Name shown below based upon Name(s) Document ROFR/ROFO Put/Call
----------- economic performance.) ------- -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Swatara Associates IHC Realty Harrisburg Amended and Restated (S)9.4 - GP has None.
Partnership, L.P. Marriott Limited Partnership a Right of First
Pennsylvania (1.3350% GP; 96.6286 Joint Venture Offer ("ROFO")
(Term: December 31, 2078) LP) Agreement of Swatara upon a proposed
Milton Fine Revocable Associates dated as sale/transfer of
Trust and Edward A. of January 22, 1998. an LP interest
Perlow Testamentary in the entity.
Trust (2.0364% LP
agg.)
- ------------------------------------------------------------------------------------------------------------------------------------
Interstone/CGL (WC) IHC Realty Warner Interstone/CGL (WC) None. (S)8.1(e) - IHC
Partners L.P. Partnership, L.P. Center Partners L.P. Limited Realty Corporation
(64% LP) Marriott Partnership Agreement or any of its
Delaware IHC Realty dated as of January replacement
(Term: December 31, 2045) Corporation (1% GP) 1, 1999. Affiliates and IHC
Connecticut General Realty
Life Insurance Partnership, L.P.
Company (35% LP) have a right to
buy out CGL LP's
interests upon
certain
action/inaction by
CGL LP.
(S)9.1 - both the
IHC Parties, on
the one hand, and
CGL LP, on the
other, shall, at
any time, have the
right to purchase
or sell all of
their respective
interests in the
Partnership each
to the other
Group, in the
manner set forth
in (S)9.1.
- ------------------------------------------------------------------------------------------------------------------------------------
Park West Hotel Associates PW Land Associates Pittsburgh First Amended and (S)9.4 - Other None.
Limited Partnership Airport Restated Partnership partners have a
Pennsylvania (50% Managing GP) Marriott Agreement of Park ROFO upon a
(Term: December 31, 2085) Interstate/Montour West Hotel Associates proposed
Associates (50% GP) dated as of May 20, sale/transfer of
PW Land Associates 1997. an partnership
Limited Partnership interest in the
is 100% IHC owned. entity.
Interstate/Montour
Associates is owned
as follows:
IHC/Park West
Corporation 95.6075%
GP; Fine Associates
3.9607% LP; Milton
Fine .4318% LP.
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate/Montour IHC/Park West 50% GP in Second Amended and (S)9.4 - Other None.
Associates Corporation 95.6075% Park West Restated Agreement of partners have a
GP; Fine Associates Associates Limited Partnership ROFO upon a
Pennsylvania 3.9607% LP; Milton Owner of of Interstate/Montour proposed
(Term: December 31, 2085) Fine .4318% LP. Pittsburgh Associates, Ltd. sale/transfer of
Airport dated as of May 20, an partnership
Marriott 1997. interest in the
entity.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
37
<PAGE>
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary Asset
from the percentages -----
Entity Name shown below based upon Name(s) Document ROFR/ROFO Put/Call
----------- economic performance.) ------- -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
IHP/Class B Partnership, IHC Realty 99% Agreement of Limited (S)9.4 - GP has None.
L.P Partnership, L.P. Interest in Partnership of a ROFO upon a
(98.7829% GP) Chicago-ES, IHP/Class B proposed
Delaware Fine & Perlow LLC Partnership, L.P. sale/transfer of
(Term: December 31, 2085) Associates of Albany dated as of August an LP interest
(.3102% LP) 28, 1997, as amended in the entity.
Milton Fine Revocable by First Amendment to
Trust (.9069% LP) Agreement of Limited
Partnership of
IHP/Class B
Partnership, L.P.
dated as of March 3, 1998.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
38
<PAGE>
Options to Purchase, Rights of First Refusal and Similar Rights in
Organizational Documents
PART II
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary
from the percentages
Entity Name shown below based upon Document ROFR/ROFO Put/Call
----------- economic performance.) -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PAH-DT Miami Airport Patriot American Amended and Restated (S)8.8(a-c) - right of (S)8.5 Call Options
Partners, L.P. Hospitality Agreement of Limited first offer to the LP if provides that upon certain
Partnership, L.P. Partnership dated as the GP takes certain default/termination events,
(90% GP) of January 1, 1999 transfer actions. the GP has the right to
purchase or to cause the
DTR PAH Holding, Inc. After complying with the Partnership to purchase and
(10% LP) ROFO procedures, the GP require the LP to sell all
may enter into an of its interest at fair
exchange under Section market value.
1031 of the Code in lieu
of sale of the property. Upon certain other
defaults, the GP has the
(S)8.9 provides that if right (the "Default
the GP decides in its Option") to buy or cause
sole discretion to sell the Partnership to buy and
the property and elects require the LP to sell all
to transfer the property of its Partnership
by sale of all Interests at 90% of its
Partnership Interests, fair value.
the LP shall sell as
directed by the GP. The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after the certain
default/termination events,
the LP has right to sell
and require the Partnership
to purchase all of its
Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised.
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-DT Minneapolis Suites Patriot American Amended and Restated (S)8.8(a-c) - right of (S)8.5 Call Options
Partners, L.P. Hospitality Agreement of Limited first offer to the LP if provides that upon certain
Partnership, L.P. Partnership dated the GP takes certain default/termination events,
(90% GP) October 1, 1998 actions. the GP has the right to
purchase or to cause the
DTR PAH Holding, Inc. After complying with the Partnership to purchase and
(10% LP) ROFO procedures, the GP require the LP to sell all
may enter into an of its interest at fair
exchange under Section market value.
1031 of the Code in lieu
of sale of the property. Upon certain other
defaults, the GP has the
(S)8.9 provides that if right (the "Default
the GP decides in its Option") to buy or cause
sole discretion to sell the Partnership to buy and
the property and elects require the LP to sell all
to transfer the property of its Partnership
by sale of all Interests at 90% of its
Partnership Interests, fair value.
the LP shall sell as
directed by the GP. The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after the certain
default/termination events,
the LP has right to sell
and require the Partnership
to purchase all of its
Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
39
<PAGE>
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary
from the percentages
Entity Name shown below based upon Document ROFR/ROFO Put/Call
----------- economic performance.) -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PAH-Akron, L.L.C. Patriot American Operating Agreement (S)8.3 Automatic (S)8.5 Call Option: After
Hospitality dated as of June 30, Buyback: If (S)8.2 two years from the date of
[Currently wholly-owned] Partnership, L.P. 1997 (certain entities' the Agreement or in the
(90%) ("Managing non-affiliation with event of a certain
Member") Patriot/Managing Member) defaults, the Managing
is breached, the LLC Member and the Company can
WH Ohio Investors, must redeem (at fair purchase and require the
Inc. (10%) market value) the amount Minority Member to sell all
of the Minority Member's of the Minority Member's
Company Interest that is Company Interest at fair
necessary for compliance market value,
with (S)8.2.
(Note: an exercise of the
call option shall
automatically be deemed an
exercise of the
corresponding call options
in all of the other
operating agreements of the
other limited liability
companies formed by the
Managing Member with the
other Minority Members to
own hotel properties).
These options are in the
sole discretion of the
Managing Member, the
Company, or both.
(S)8.6 Put Option: From and
after 30 months from the
date of the Agreement, the
Minority Member has the
right (for 4 years) to sell
and require the Company to
purchase all of the
Minority Member's Company
Interest at fair market
value.
(S)8.9 Obligation to Sell
Company Interest: if
Managing Member decides to
sell the Property by means
of sale of all Company
Interests, the Minority
Member shall sell its
interest for a price
determined by a specific
formula.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood I, L.L.C. Patriot American Operating Agreement (S)8.3 Automatic (S)8.5 Call Option: After
Hospitality dated as of June 30, Buyback: If (S)8.2 two years from the date of
[Currently wholly-owned] Partnership, L.P. 1997 (certain entities' the Agreement or in the
(90%) ("Managing non-affiliation with event of a certain
Member") Patriot/Managing Member) defaults, the Managing
is breached, the LLC Member and the Company can
WH Ohio Investors, must redeem (at fair purchase and require the
Inc. (10%) ("Minority market value) the amount Minority Member to sell all
Member") of the Minority Member's of the Minority Member's
Company Interest that is Company Interest at fair
necessary for compliance market value,
with (S)8.2.
(Note: an exercise of the
call option shall
automatically be deemed an
exercise of the
corresponding call options
in all of the other
operating agreements of the
other limited liability
companies formed by the
Managing Member with the
other Minority Members to
own hotel properties).
These options are in the
sole discretion of the
Managing Member, the
Company, or both.
(S)8.6 Put Option: From and
after 30 months from the
date of the Agreement, the
Minority Member has the
right (for 4 years) to sell
and require the Company to
purchase all of the
Minority Member's Company
Interest at fair market
value.
(S)8.9 Obligation to Sell
Company Interest: if
Managing Member decides to
sell the Property by means
of sale of all Company
Interests, the Minority
Member shall sell its
interest for a price
determined by a specific
formula.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
40
<PAGE>
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary
from the percentages
Entity Name shown below based upon Document ROFR/ROFO Put/Call
----------- economic performance.) -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PAH-Beachwood II, L.L.C. Patriot American Operating Agreement (S)8.3 Automatic (S)8.5 Call Option: After
Hospitality dated June 30, 1997 Buyback: If (S)8.2 two years from the date of
[Currently wholly-owned] Partnership, L.P. (certain entities' the Agreement or in the
(90%) ("Managing non-affiliation with event of a certain
Member") Patriot/Managing Member) defaults, the Managing
is breached, the LLC Member and the Company can
26300 Chagrin Limited must redeem (at fair purchase and require the
Partnership (10%) market value) the amount Minority Member to sell all
("Minority Member") of the Minority Member's of the Minority Member's
Company Interest that is Company Interest at fair
necessary for compliance market value,
with (S)8.2.
(Note: an exercise of the
call option shall
automatically be deemed an
exercise of the
corresponding call options
in all of the other
operating agreements of the
other limited liability
companies formed by the
Managing Member with the
other Minority Members to
own hotel properties).
These options are in the
sole discretion of the
Managing Member, the
Company, or both.
(S)8.6 Put Option: From and
after 30 months from the
date of the Agreement, the
Minority Member has the
right (for 4 years) to sell
and require the Company to
purchase all of the
Minority Member's Company
Interest at fair market
value.
(S)8.9 Obligation to Sell
Company Interest: if
Managing Member decides to
sell the Property by means
of sale of all Company
Interests, the Minority
Member shall sell its
interest for a price
determined by a specific
formula.
- ------------------------------------------------------------------------------------------------------------------------------------
Atlanta American Hotel WHC Atlanta GP, Agreement of Limited (S)6.1 Purchase Option. (S)6.2 Put Option: Any time
Investors, L.P. L.L.C. (1% GP) Partnership dated as If certain events occur, after 5 years of the date
of December 19, 1997 any partner other than of the agreement (but no
Patriot American the Seller (the "Buyer") more than once a year),
Hospitality shall have the Americana has the right to
Partnership, L.P. continuing right to require the Wyndham
(69% LP) purchase the entire Partners to purchase all or
interest of the Seller, a portion of the PS
Atlanta Americana including all debts and interest of Americana,
Motor Hotel obligations of the PS including a pro rata
Corporation (30% LP) owing to the Seller, at portion of the debts and
fair market value. If obligations of the PS owing
the Seller is WHC and to Americana, at fair
Wyndham Hotel market value.
Corporation ("Wyndham
Partner"), the other
Wyndham Partners shall
have a preferential
right to purchase the
entire PS interest of
the Seller.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Allen Partners, L.P. PAH-GP Allen Amended and Restated (S)8.8(a-c) - ROFO to (S)8.5 Call Options
Partners, L.P. (85% Agreement of Limited the LP if the GP takes provides that upon certain
GP) Partnership dated as certain transfer actions. default/termination events,
DTR PAH Holding, Inc. of September 4, 1997 the GP has the right
(15% LP) After complying with the purchase or to cause the
ROFO procedures, the GP Partnership to purchase and
may enter into an require the LP to sell all
exchange under Section of its interest at fair
1031 of the Code in lieu market value.
of sale of the property.
Upon certain other
(S)8.9 provides that if defaults, the GP has the
the GP decides in its right (the "Default
sole discretion to sell Option") to buy or cause
the property and elects the Partnership to buy and
to transfer the property require the LP to sell all
by sale of all of its Partnership
Partnership Interests, Interests at 90% of its
the LP shall sell as fair value.
directed by the GP.
The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after certain
default/termination events,
the LP has the right to
sell and require the
Partnership to purchase all
of its Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
41
<PAGE>
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary
from the percentages
Entity Name shown below based upon Document ROFR/ROFO Put/Call
----------- economic performance.) -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PAH-DT Park Place Patriot American Amended and Restated (S)8.8(a-c) - ROFO to (S)8.5 Call Options
Partners, L.P. Hospitality Agreement of Limited the LP if the GP takes provides that upon certain
Partnership, L.P. Partnership dated as certain transfer actions. default/termination events,
(90% GP) of October 1, 1998 the GP has the right
After complying with the purchase or to cause the
DTR PAH Holding, Inc. ROFO procedures, the GP Partnership to purchase and
(10% LP) may enter into an require the LP to sell all
exchange under Section of its interest at fair
1031 of the Code in lieu market value.
of sale of the property.
Upon certain other
(S)8.9 provides that if defaults, the GP has the
the GP decides in its right (the "Default
sole discretion to sell Option") to buy or cause
the property and elects the Partnership to buy and
to transfer the property require the LP to sell all
by sale of all of its Partnership
Partnership Interests, Interests at 90% of its
the LP shall sell as fair value.
directed by the GP.
The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after certain
default/termination events,
the LP has the right to
sell and require the
Partnership to purchase all
of its Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-DT Tallahassee Patriot American Amended and Restated (S)8.8(a-c) - ROFO to (S)8.5 Call Options
Partners, L.P., Hospitality Agreement of Limited the LP if the GP takes provides that upon certain
Partnership, L.P. Partnership dated as certain transfer actions. default/termination events,
(90% GP) of January 1, 1999 the GP has the right
After complying with the purchase or to cause the
DTR PAH Holding, Inc. ROFO procedures, the GP Partnership to purchase and
(10% LP) may enter into an require the LP to sell all
exchange under Section of its interest at fair
1031 of the Code in lieu market value.
of sale of the property.
Upon certain other
(S)8.9 provides that if defaults, the GP has the
the GP decides in its right (the "Default
sole discretion to sell Option") to buy or cause
the property and elects the Partnership to buy and
to transfer the property require the LP to sell all
by sale of all of its Partnership
Partnership Interests, Interests at 90% of its
the LP shall sell as fair value.
directed by the GP.
The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after certain
default/termination events,
the LP has the right to
sell and require the
Partnership to purchase all
of its Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised
- ------------------------------------------------------------------------------------------------------------------------------------
PAH-Westlake, L.L.C. Patriot American Operating Agreement (S)8.3 Automatic (S)8.5 Call Option: After
Hospitality dated as of June 30, Buyback: If (S)8.2 two years from the date of
[Currently wholly-owned] Partnership, L.P. 1997 (certain entities' the Agreement or in the
(90%) non-affiliation with event of a certain
Patriot/Managing Member) defaults, the Managing
WH Ohio Investors, is breached, the LLC Member and the Company can
Inc. (10%) must redeem (at fair purchase and require the
market value) the amount Minority Member to sell all
of the Minority Member's of the Minority Member's
Company Interest that is Company Interest at fair
necessary for compliance market value,
with (S)8.2.
(Note: an exercise of the
call option shall
automatically be deemed an
exercise of the
corresponding call options
in all of the other
operating agreements of the
other limited liability
companies formed by the
Managing Member with the
other Minority Members to
own hotel properties).
These options are in the
sole discretion of the
Managing Member, the
Company, or both.
(S)8.6 Put Option: From and
after 30 months from the
date of the Agreement, the
Minority Member has the
right (for 4 years) to sell
and require the Company to
purchase all of the
Minority Member's Company
Interest at fair market
value.
(S)8.9 Obligation to Sell
Company Interest: if
Managing Member decides to
sell the Property by means
of sale of all Company
Interests, the Minority
Member shall sell its
interest for a price
determined by a specific
formula.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
42
<PAGE>
<TABLE>
<CAPTION>
Ownership
---------
(In certain instances, the
partnership interests
and/or distributions
attendant thereto may vary
from the percentages
Entity Name shown below based upon Document ROFR/ROFO Put/Call
----------- economic performance.) -------- --------- --------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PAH-DT Chicago O'Hare Patriot American Amended and Restated (S)8.8(a-c) - right of (S)8.5 Call Options
Partners, L.P. Hospitality Agreement of Limited first offer to the LP if provides that upon certain
Partnership, L.P. Partnership dated as the GP takes certain default/termination events,
(90% GP) of January 1, 1999 actions. the GP has the right to
purchase or to cause the
DTR PAH Holding, Inc. After complying with the Partnership to purchase and
(10% LP) ROFO procedures, the GP require the LP to sell all
may enter into an of its interest at fair
exchange under Section market value.
1031 of the Code in lieu
of sale of the property. Upon certain other
defaults, the GP has the
(S)8.9 provides that if right (the "Default
the GP decides in its Option") to buy or cause
sole discretion to sell the Partnership to buy and
the property and elects require the LP to sell all
to transfer the property of its Partnership
by sale of all Interests at 90% of its
Partnership Interests, fair value.
the LP shall sell as
directed by the GP. The Partnership and the GP
may exercise any of the
above options at GP's sole
discretion.
(S)8.11 Put Option provides
after the certain
default/termination events,
the LP has right to sell
and require the Partnership
to purchase all of its
Limited Partnership
Interest at fair market
determined on the date the
Put Option is exercised.
- ------------------------------------------------------------------------------------------------------------------------------------
Hotel Venture Partners, PAH-HVP General Amended & Restated None. (S)8.5 Call Options. From
Ltd. Partner Corp. (.5% GP) Agreement of Limited the earlier of the 37th
Partnership dated month after closing or an
Patriot American January 15, 1998 Event of Default by BVIF,
Hospitality the GP may purchase or
Partnership, L.P. cause the Partnership,
("Patriot LP") Patriot LP or the GP's
(88.39% LP) designee to purchase BVIF's
interest. The price shall
Buena Vista be paid by issuance of
Investment Fund, Ltd. Paired Partnership Units
(11.11% LP) having a REIT Shares Value
equal to an agreed price
(all capitalized terms as
defined in the Agreement).
(S)8.7 See the identical
provision below under
PAH-BV Palace, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
City Centre Partnership, Patriot American Agreement of Limited None. (S)8.5 Call Option. Four
L.P. Hospitality Partnership dated years from the date of the
Partnership, L.P. November 25, 1997 Agreement, the G.P. and the
(92.5% GP) Partnership shall have the
1143 Associates right but not the
Limited Partnership obligation to purchase and
(7.5% LP) to require the L.P. to sell
all of its Limited
Partnership Interest.
(S)8.6 Put Option. Two
years from the date of the
Agreement, the L.P. shall
have the right but not the
obligation to sell and to
require the Partnership to
purchase all of its Limited
Partnership Interest.
(S)8.3 Automatic Buy-Back.
In the event that Section
8.2 is breached at any time
when the G.P. would be
taxed as a corporation
under (S)7704 of the Code,
but for the application of
(S)7704(c), the Partnership
shall redeem for the
greater of $5,500,000.00 or
the Exercise Price of all
of the L.P.'s Partnership
Interest.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
43
<PAGE>
<TABLE>
<CAPTION>
PATRIOT AMERICAN
OPTIONS/RIGHTS OF FIRST REFUSAL PROVISIONS IN MANAGEMENT AGREEMENTS
Relating to Properties (Owned or Leased)
----------------------------------------
PROPERTY MANAGER DOCUMENT PATRIOT PARTY (S) REFERENCE
<S> <C> <C> <C> <C>
Crowne Plaza Ravinia, Holiday Inns, Inc. Management Agreement dated PAH Ravinia, Inc. Article 18 contains a right of
Atlanta, GA December 1, 1995, as ROFO in favor of Holiday Inns,
amended by a First Inc. The Memorandum of
Amendment to Management Management Agreement which was
Agreement dated as of April apparently executed and recorded
30, 1996 recites that the franchise
agreement (which is activated
upon termination of the
management agreement) also
contains a ROFO which runs
consecutively with the right of
first offer in the management
agreement.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
44
<PAGE>
<TABLE>
<CAPTION>
PATRIOT AMERICAN
OPTIONS/RIGHT OF FIRST REFUSAL PROVISIONS IN FRANCHISE AGREEMENTS
Relating to Properties (Owned or Leased)
----------------------------------------
PART I
FRANCHISOR FRANCHISEE HOTEL PROPERTY DOCUMENT (S) REFERENCE
- --------------------------------------------------------------------------------------------------------------------------------
MARRIOTT
<S> <C> <C> <C> <C>
Marriott International, Inc PAH-Management Corporation Colorado Springs Marriott Inn (S)40 - Franchisor has
as assignee of Interstate Marriott Franchise Agreement ROFR to purchase, lease
Hotels, LLC (100% Owned) dated July 20, 1987, or purchase
as amended. Franchisee's stock.
Owner Agreement dated
March 31, 1994. (S)8(G) of the Owner
Agreement obligates the
Owner to observe and be
bound by all terms,
conditions and
restrictions of (S)40
of the MIFA.
(S)11 of the Owner
Agreement provides for
waiver of the ROFR set
forth in the MIFA in
connection with a
transaction where The
Blackstone Group or
Interstate Hotels
Corporation, or their
affiliates, hold
controlling equity
interests in the owner
of the Inn.
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott International, PAH-Management Corporation St. Louis Marriott West Marriott Inn (S)15.3 - Franchisor
Inc. as assignee of Interstate (Joint Venture) Franchise Agreement has ROFR to purchase,
Hotels, LLC dated April 6, 1990, lease or purchase
as amended. Franchisee's stock.
Owner Agreement dated (S)1.6 of the Owner
April 6, 1990. Agreement modifies the
right of first refusal
to purchase as set
forth in (S)15.3 of the
MIFA to a right of
first or concurrent
good faith negotiation
in sale situations
where Franchisee,
Approved Substitute
Management or Marriott
will not continue to
manage the Inn.
(S)2.2 of the Owner
Agreement obligates the
Owner to fully observe
and be bound by all
terms, conditions and
restrictions set forth
in the MIFA to the
extent applicable to
the Owner in its
capacity as owner.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
45
<PAGE>
<TABLE>
<CAPTION>
FRANCHISOR FRANCHISEE HOTEL PROPERTY DOCUMENT (S) REFERENCE
- --------------------------------------------------------------------------------------------------------------------------------
NON MARRIOTT
<S> <C> <C> <C> <C>
Hilton Inns, Inc. Wyndham International Gateway Hilton Hilton Inns, Inc. (S)20(b) - Franchisor
Operating Partnership, (100% Owned) Amended and Restated has ROFR to purchase or
L.P. as assignee of IHC License Agreement lease.
Realty Partnership, L.P. dated August 20, 1997.
---------------------------------------------------------------------------------------------------------
Wyndham International Parsippany Hilton Hilton Inns, Inc. (S)20(c) - Franchisor
Operating Partnership, (100% Owned) Amended and Restated has ROFR to purchase or
L.P. as assignee of IHC License Agreement lease.
Realty Partnership, L.P. dated August 15, 1997.
---------------------------------------------------------------------------------------------------------
Wyndham International Denver Hilton South Hilton Inns, Inc. (S)9(b) - Franchisor
Operating Partnership, (Joint Venture) License Agreement has ROFR to purchase or
L.P. as assignee of dated December 14, lease.
IHC/Denver Partnership, 1994.
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Inns, Inc. (cont.) Wyndham International Columbus Hilton Hilton Inns, Inc. (S)9b - Franchisor has
Operating Partnership, (100% Owned) License Agreement ROFR to purchase or
L.P. as assignee of IHC dated June 12, 1981, lease. (An undated and
Realty Partnership, L.P. as amended. unexecuted amendment in
the file provides in
(S)3 thereof for ROFR
to purchase or lease.)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
46
<PAGE>
<TABLE>
<CAPTION>
PATRIOT AMERICAN
OPTIONS/RIGHT OF FIRST REFUSAL PROVISIONS IN FRANCHISE AGREEMENTS
Relating to Properties (Owned or Leased)
----------------------------------------
PART II
HOTEL PROPERTY FRANCHISOR FRANCHISEE DOCUMENT (S) REFERENCE
<S> <C> <C> <C> <C>
PAH Hilton Inn Cleveland Hilton Inns, Inc. CHC Lease Partners License Agreement dated (S) 9(b), 9(e) Transfer of a
South September 28, 1995 controlling interest in the
Licensee (gives rise to a
ROFR in favor of the Licensor.
- ------------------------------------------------------------------------------------------------------------------------------------
PAH Radisson Hotel & Radisson Hotels CHC Lease Partners License Agreement effective (S) 9(b), 9(e) Transfer of a
Suites T&C Houston International, Inc. 10/2/95 not available - controlling interest in the
Summary herein from Licensee gives rise to a ROFR
11/30/90 agreement) in favor of the Licensor.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
47
<PAGE>
<TABLE>
<CAPTION>
OPTIONS/RIGHT OF FIRST REFUSAL AND SIMILAR RIGHTS IN MISCELLANEOUS AGREEMENTS
PROPERTY/ENTITY DOCUMENT (S) REFERENCE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Golden Door Spa Amendment Number Three To Agreement of Purchase (S)9.2(a) If Purchasers desire to offer the Spa
and Sale dated May 28, 1998. or the Art (any of the items of art listed on
Exhibit 1D) for sale with any third party,
Amendment Number Two To Agreement of Purchase and Deborah Szekely and Alexandre Szekely must be
Sale dated May 28, 1998. given notice of such decision. During the thirty
day period following such notice, either Szekely
Amendment Number One To Agreement of Purchase and will attempt to negotiate a mutually satisfactory
Sale dated February 19, 1998. agreement for the purchase of the Spa or the Art.
After the expiration of such thirty day period,
Agreement of Purchase and Sale dated February 19, if a mutually acceptable agreement is not
1998. reached, Purchasers may freely sell the Spa or
the Art.
Purchasers: Patriot American Hospitality, Inc. and
Wyndham International, Inc. (S)9.2(b) The ROFO is to purchase only the
physical assets (and not the name "Golden Door
Sellers: Golden Door, LLC and Deer Springs Ranch, Spa" or related trademarks) located at the
LLC Escondido, CA location only, and shall only apply
if the Spa is sold separately, and not in
connection with (i) a transfer to any Affiliated
Company (any other entity which is, along with
any Seller, a member of a controlled group of
corporations or a controlled group of trades or
businesses as defined in (S)414(b) or (c) of the
Internal Revenue Code, any entity which along
with any Seller is included in an affiliated
service group as defined in (S)414(m) of the
Internal Revenue Code, and any other entity which
is required to be aggregated with any Seller
pursuant to Treasury Regulations under (S)414(o)
of the Internal Revenue Code), (ii) a corporate
transaction involving the concurrent sale of
other Golden Door Spa assets and/or locations, or
(iii) a multi-asset transaction. Any successor to
Purchasers shall be bound by ROFO.
(S)9.2(c) Terms of ROFO with respect to Art.
(S)9.2(d) ROFO is personal to each of the
Szekelys.
(S)9.1 of the Purchase and Sale Agreement states
that if any one of Deborah Szekely, Alexandre
Szekely or Sarah Livia Brightwood (each a "Rancho
Owner") decides to offer their ownership
interests in Rancho or in the name "Rancho La
Puerte Spa" for sale to a third party, such
Rancho Owners will give Purchaser (PAH
Acquisition Corporation) notice of such decision.
Exhibit 1C of the Purchase and Sale Agreement
(copy of the Exhibit not attached) refers to
non-compete agreements executed by each of the
officers, directors and shareholders or members
of each Seller (Golden Door, LLC, Golden Door,
and Deer Springs Ranch, LLC).
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
48
<PAGE>
SCHEDULE VI
UNRESTRICTED ASSETS AND UNRESTRICTED SUBSIDIARIES
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Unrestricted Asset Owner Unrestricted Subsidiaries/1/
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Villa Saletta development site Fattoria Villa Saletta SRL [100%] Fattoria Villa Saletta SRL
- ------------------------------------------------------------------------------------------------------------------------------------
Bessy I development site Chateau de Bessy SA [54.7%] Chateau de Bessy SA
- ------------------------------------------------------------------------------------------------------------------------------------
Bessy II development site The Transatlantic Hotel Company SARL [100%] The Transatlantic Hotel Company SARL
- ------------------------------------------------------------------------------------------------------------------------------------
Club Zaudin golf course Al Jarafe Golf, SA [10%] [Al Jarafe Golf, SA]
Interest held by Arcadian Group Services Limited [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Mentmore golf & country club Mentmore Golf & Country Club, Plc [10%] [Mentmore Golf & Country Club, Plc]
Interest held by Arcadian International Limited [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
European timeshare company Beleggingsmaat-Schappij Stako-II BV [18.6%] [Beleggingsmaat-Schappij Stako-II BV]
Interest held by Arcadian Group Services Limited [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Bouffemont development site Arcadian Hotel Bouffement SARL [100%] Arcadian Hotel Bouffement SARL
- ------------------------------------------------------------------------------------------------------------------------------------
DeGressy Hotel Hotel Gressy SNC [25%] Arcadian Properties SNC
Interest held by Arcadian Properties SNC [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
El Conquistador additional ESJ Hotel Corporation [100%] None
land
- ------------------------------------------------------------------------------------------------------------------------------------
Myrtle Beach additional land Patriot American Hospitality Partnership, LP [100%] None
- ------------------------------------------------------------------------------------------------------------------------------------
Border's leasehold Patriot American Hospitality, Inc. [100%] None
[landlord's interest]
- ------------------------------------------------------------------------------------------------------------------------------------
Boulders commercial access Boulders Joint Venture [100%] None
strip
- ------------------------------------------------------------------------------------------------------------------------------------
Stanly Ranch development site PAH Stanly Ranch LLC [100%] PAH Stanly Ranch LLC
- ------------------------------------------------------------------------------------------------------------------------------------
Meadows del Mar Westshaw Associates, LP [50%] Patriot Bougainvillea LLC [100% Sub]
Interest held by Patriot Bougainvillea LLC [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Dos Pueblos golf course, CPH-PAH Dos Pueblos Associates, LLC [4%] [CPH-PAH Dos Pueblos Associates, LLC]
Santa Barbara Interest held by Patriot American Hospitality Partnership,
LP [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Shula Steakhouse franchising Shula's Steak Houses, LP [49%] W-SSH, LLC
venture Interest held by W-SSH, LLC [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Unrestricted Asset Owner Unrestricted Subsidiaries/1/
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Bay Meadows contingent Patriot American Hospitality, Inc. [100%] None
deferred sale price
- ------------------------------------------------------------------------------------------------------------------------------------
Interstate assets and other Interstate Hotels, LLC [55%] PAH-Interstate Holdings, Inc.
businesses Interest held by PAH-Interstate Holdings, Inc. [100%] [Interstate Hotels Corporation]
Interstate Hotels Corporation [4%]
1% interest held by PAH-Interstate Holdings, Inc. [100%]
1% interest held by Patriot American Hospitality, Inc.
- ------------------------------------------------------------------------------------------------------------------------------------
Hyatt Lexington Patriot American Hospitality Partnership, LP [100%] None
- ------------------------------------------------------------------------------------------------------------------------------------
Redmont Hotel Patriot American Hospitality Partnership, LP [100%] None
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Mayfair Patriot American Hospitality Partnership, LP [100%] None
- ------------------------------------------------------------------------------------------------------------------------------------
Don Cesar Hotel Don Cesar Resort Hotel, Ltd. [13%] [Don Cesar Resort Hotel, Ltd.]
12% interest held by Don Cesar Holdings LLC [100%] Don Cesar Holdings LLC
1% interest held by PAH Franchise Holding, Inc. [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Manhattan Beach Marriott HMC/Interstate Manhattan Beach, LP [25%] [HMC/Interstate Manhattan Beach, LP]
Interest held by PAH Franchise Holding, Inc, [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Pittsburgh Marriott Center Host/Interstate Partnership, LP [5%] IHC Pittsburgh Partnership, LP
Interest held IHC Pittsburgh Partnership, LP [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Santa Maria Santa Maria Joint Venture [50%] IHC Santa Maria Corporation
Interest held by IHC Santa Maria Corporation [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Waterford Marriott Interstate/HMC Waterford, LP [25%] [Interstate/HMC Waterford, LP]
Interest held by PAH Franchise Holding, Inc. [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Ontario Marriott HMC/Interstate Ontario, LP [10%] [HMC/Interstate Ontario, LP]
Interest held by PAH Franchise Holding, Inc. [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Westmont Westmont CI Associates, LP [9.0909%] PAH-Westmont CI Holding, Inc.
Interest held by PAH-Westmont CI Holding, Inc. [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Pittsburgh Marquis Hotel Associates [50%] Pittsburgh CI, Inc.
Interest held by Pittsburgh CI, Inc. [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Columbus Dublin Inn, Ltd. [30%] WHC Columbus Corporation
Interest held by WHC Columbus Corporation [100%]
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Note 1 Entities shown in brackets in this column are "Joint Ventures" rather
than "Subsidiaries"
<PAGE>
Schedule VII - Existing Letters of Credit
-----------------------------------------
Letters of Credit
-----------------
<TABLE>
<CAPTION>
Issuer Amount Project Party Expires
- -------- ---------- ----------- --------------------------------------------------- --------
<S> <C> <C> <C> <C>
Chase 9,794,281 Vinings Wyndman Vinings Industrial Development Revenue Bond 2/15/00
Chase 6,319,000 Summerfield Innkeepers USA LP 6/18/00
Chase 4,600,000 Arcadian Lloyds Bank Plc 12/31/99
Chase 3,700,000 Arcadian Coutes & Co. 5/13/99
- -------- ---------- ----------- --------------------------------------------------- --------
Total: 24,413,281
</TABLE>
<PAGE>
Schedule VIII
Consents; Filing
None.
<PAGE>
LITIGATION
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Schedule IX - Litigation
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
ACTION CLAIMANT COURT OR DESCRIPTION DATE
AGENCY FILED/SERVED
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Charles Charles Court of Plaintiffs allege individual Defendants wrongfully acted in Filed 1/12/99
Fraschilla et Fraschilla Chancery of effectively selling control of the Company to the Apollo
al vs. PAH/WYN et al the State of Acquisition Group for grossly inadequate consideration (the
Delaware, New "Refinancing") without first having adequately considered or
*class action Castle County explored all other alternatives to this sale or having taken
lawsuit steps to have maximized shareholder value.
- ------------------------------------------------------------------------------------------------------------------------------------
Johnson, et al, Doris USDC-Northern Putative securities class action case filed on behalf of Filed 5/7/99
v. PAH/WYN Johnson, et District of class of former shareholders of Bay Meadows and California
al California Jockey Club who subsequently became shareholders of Patriot/
*Putative class Wyndham alleging securities fraud under Rule 106-B of the
action lawsuit 1934 act and violation of section 11 and section 12(2) of the
1933 act in connection with the acquisition of Bay Meadows
and California Jockey Club.
- ------------------------------------------------------------------------------------------------------------------------------------
Irene Ansell, Irene Ansell, USDC for Allegations similar to those in the Johnson putative class Filed 5/14/99
et al v. et. Al Northern action lawsuit. Same defendants, class, and court named.
PAH/WYN District of Plaintiff's claim as damages the loss of value in Patriot
California stock received by former Bay Meadows shareholders in exchange
*Putative class for their stock, as well as the loss of the valuable assets
action lawsuit previously owned by Bay Meadows, including the land and
racetracks.
- ------------------------------------------------------------------------------------------------------------------------------------
Constatine Constatine USDC for Allegations similar to those in the Johnson putative class Filed 6/11/99
Sola, et al Sola, et al. Northern action lawsuit. Same defendants, class, and court named.
v. PAH/WYN District of Plaintiff's claim as damages the loss of value in Patriot
California stock received by former Bay Meadows shareholders in exchange
*Putative class for their stock, as well as the loss of the valuable assets
action lawsuit previously owned by Bay Meadows, including the land and
racetracks.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
LITIGATION
- ----------------------------------------------------------------------------------------------------------------------------------
ACTION CLAIMANT COURT OR DESCRIPTION DATE
AGENCY FILED/SERVED
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Peter J. Susnow Peter J. Susnow USDC for Allegations similar to those of the Johnson putative class Filed
et al vs. et al Northern action lawsuit filed on behalf of class of former shareholders 6/15/99
PAH/WYN et al District of Bay Meadows and California Jockey Club and subsequently
of Texas - became shareholders of Patriot/Wyndham alleging securities
Dallas fraud under Rule 10-B of the 1934 act and violation of section
Division 11 and section 12(2) of the 1933 act in connection with the
acquisition of Bay Meadows and California Jockey Club.
- ----------------------------------------------------------------------------------------------------------------------------------
Dorothy Gallagher Dorothy USDC for The nature of this action is for false and misleading Filed
et al vs. PAH/WII Gallagher Northern statements made under the SEC Act of 1934. 6/23/99 -
and James District Serve
Carreker & Paul of Texas - 6/24/99
Nussbaum Dallas
Division
- ----------------------------------------------------------------------------------------------------------------------------------
Peter Levitch Peter USDC for The nature of this action is for false and misleading Filed
et al vs. Levitch Northern statements made under the SEC Act of 1934. 6/22/99 -
PAH/WII and District Serve
James Carreker of Texas - 6/24/99
& Paul Nussbaum Dallas
Division
- ----------------------------------------------------------------------------------------------------------------------------------
*The Borrower and the Lenders acknowledge that the aforementioned matters
are each in their preliminary stages, and therefore, the Company
acknowledges that this Schedule is without prejudice to the rights of the
Lenders under Section 4.02(a) with respect to the Company's
representations set forth in Section 3.02 (no Material Adverse Change).
Page 2
</TABLE>
<PAGE>
SCHEDULE X -- OWNED & LEASED HOTELS
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Arcadian Brandsthatch Place Arcadian Hotels (UK) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Chilston Park Chilston Park Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Ettington Park Ettington Park Group Limited Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Haycock Arcadian Hotels (UK) Limited & Tillion Limited Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian L'Horizon Hotel L'Horizon Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Manoir DeGressy Hotel Gressy SNC JV Fee 25.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Mollington Banastre The Mollington Banastre Hotel Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Nutfield Priory Arcadian Hotels (UK) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Priest House Arcadian International Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Rookery Arcadian Hotels (UK) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Wood Hall Arcadian International Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Arcadian Woodlands Park Arcadian Hotels (UK) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Albuquerque Albuquerque CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Atlanta Atlanta CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Nashville Airport Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Nashville Downtown Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Overland Park Overland Park CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Pittsburgh Marquis Hotel Associates JV Fee 50.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Savannah Savannah CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Topeka Topeka CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Valdosta Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Clubhouse Westmont Westmont CI Associates, LP JV Fee 9.0909
- ------------------------------------------------------------------------------------------------------------------------------------
Crowne Plaza Ravinia Ravinia, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Don Cesar Resort Don Cesar Resort Hotel, Ltd. JV Fee 13.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Allen Center PAH-DT Allen Partners, LP Sub Fee 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Anaheim PAH-DT Allen Partners, LP Sub Fee 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Denver/Boulder DT-Denver, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Des Plaines DT-Des Plaines , LLC Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Glenview DT-Glenview, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Luxeford PAH-DT Minneapolis Suites Partners, LP Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Miami Airport DT-Miami, LP Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Overland Park PAH-DT Allen Partners, LP Sub Fee 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Park Place PAH-DT Park Place Partners, LP Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Post Oak PAH-DT Allen Partners, LP Sub Lease 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree St. Louis PAH-DT Allen Partners, LP Sub Fee 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Tallahassee DT-Tallahassee, LP Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Doubletree Tulsa PAH-DT Allen Partners, LP Sub Fee 85.00
- ------------------------------------------------------------------------------------------------------------------------------------
Embassy Suites Chicago Chicago-ES, LLC Sub Lease 98.7951
- ------------------------------------------------------------------------------------------------------------------------------------
Embassy Suites Hunt Valley PA Hunt Valley Investors, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Embassy Suites Phoenix N ES Phoenix, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Embassy Suites Schaumburg ES Schaumburg, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Fort Magruder IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay, Carmel Valley CV Ranch, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay Chicago North Michigan [not yet open] Block 125 North Hotel Venture, LLC JV Fee 19.90
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay Golden Door Spa Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay Miami PAH-Grand Bay Miami, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay, Peaks at Telluride Telluride Resort & Spa, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay, The Boulders Boulders JV Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Bay, Ventana Canyon PAH Ventana Canyon, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Pickwick Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Redmont Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Hilton Cleveland South H-Cleveland, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Columbus H-Columbus, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Del Mar H-Delmar, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Denver IHC/Denver Partnership, LP Sub Fee 90.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Ft. Lauderdale Interstone/PAH Partners, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Huntington Hilt-Hunt, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Melbourne H-Melbourne, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Newark H-Gateway, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hilton Parsippany Parsippany, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn Aristocrat Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn Brentwood IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn Lenox Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn North Dallas Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn NW Houston Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn NW Plaza Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn San Angelo Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn San Francisco Airport Patriot American Hospitality, Inc. Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn Westlake PAH-Westlake, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Holiday Inn YO Ranch YO Hotel Investors, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hyatt Lexington Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Hyatt Newporter Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Edinburgh The Malmaison Company (Edinburgh) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Glasgow The Malmaison Hotel (Glasgow) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Leeds The Malmaison Hotel (Leeds) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison Manchester The Malmaison Hotel (Manchester) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Malmaison New Castle The Malmaison Hotel (New Castle) Limited Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Marriott Albany IHP Holdings Partnership, LP JV Fee 49.3858
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Andover [conversion to Wyndham] Interstone/PAH Partners, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Arlington [conversion to Wyndham] IHC Realty Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Atlanta IHC Realty Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Casa Marina [conversion to Wyndham Resort] Casa Marina Realty Partnership, LP Sub Fee 98.6063
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Colorado Springs IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Courtyard Beachwood [conversion to Wyndham] PAH Beachwood I, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Harrisburg Swatara Associates Sub Fee 97.9636
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Houston IHC/Houston Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Indian River IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Manhattan Beach HMC/Interstate Manhattan Beach, LP JV Fee 25.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Minneapolis IHP Holdings Partnership, LP JV Fee 49.3858
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Ontario Airport HMC/Interstate Ontario, LP JV Fee 10.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Philadelphia IHC/Conshohocken Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Pittsburgh Airport Park West Hotel Associates Sub Fee 97.8038
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Pittsburgh Center Host/Interstate Partnership, LP JV Lease 5.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Reach Resort Key West Reach Limited Partnership Sub Fee 97.1192
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Roanoke [conversion to Wyndham] IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott San Diego IHP Holdings Partnership, LP JV Fee 49.3858
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott St. Louis West [conversion to Wyndham] Maryville Center Hotel JV JV Fee 50.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Syracuse [conversion to Wyndham] Syracuse Realty Associates, LP Sub Fee 94.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Troy Mar-Ty, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Tysons Corner Interstone/PAH Partners, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Valley Forge Interstone/PAH Partners, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Warner Center [conversion to Wyndham] Interstone/CGL (WC) Partners, LP Sub Fee 65.00
- ------------------------------------------------------------------------------------------------------------------------------------
Marriott Waterford HMC/Interstate Waterford, LP JV Fee 25.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Marriott Westborough IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Newark Airport [closed] Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Omni Baltimore Travis Real Estate Group JV Sub Fee 65.48
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Akron PAH-Akron, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Beachwood PAH-Beachwood II, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Burlington Rad-Burl, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Dallas Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Englewood IHC Realty Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Houston West R-Houston, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Jacksonville Marina Hospitality, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Kansas City Kansas City Hospitality, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Lisle R-Lisle, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson New Orleans 1500 Canal Street Investors II, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Northbrook Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson Overland Park Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Radisson San Jose Rad-Jose, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Ramada Inn San Francisco Airport Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Santa Maria Hotel Santa Maria Joint Venture JV Fee 50.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sheraton Four Points Blacksburg IHC Realty Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sheraton Four Points Saginaw Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sierra Suites Atlanta Cumberland Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sierra Suites Fair Oaks Fair Oaks Sierra Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sierra Suites Phoenix Camelback Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sierra Suites Westborough Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Addison Summerfield Hotel Leasing Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Atlanta Buckhead Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Summerfield Suites Atlanta Perimeter Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Belmont Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Chatsworth Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Denver Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Dulles Airport Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites El Segundo Summerfield Hotel Leasing Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Hanover Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites International Drive Orlando Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Lake Buena Vista Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Las Colinas Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Malvern Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Miami Airport [not yet open] Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Morristown Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Mount Laurel Summerfield Hotel Leasing Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Plaza Park Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Princeton Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites San Francisco Airport Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites San Jose Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Schaumburg Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Somerset Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites St. Louis Westport Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Sunnyvale Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Torrance Summerfield HPT Lease Company, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Waltham Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites West Hollywood Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Sunrise Suites Tinton Falls Patriot American Hospitality Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
WestCoast Long Beach Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
WestCoast Park Shore Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
WestCoast Valley River Inn Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Atlanta American [not yet opened] Atlanta American Hotel Investors, LP Sub Fee 70.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Batterymarch [not yet opened] PAH Batterymarch Realty Company, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Bel Age Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Billerica PAH Billerica Realty Company, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Bristol Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Buttes W-Buttes, LLC Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Chicago St. Clair Oxford/Wyn 633 Investment Company, LLC JV Lease 50.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Columbus Dublin Inn, Ltd JV Fee 30.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Emerald Plaza W-Emerald, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Franklin Plaza W-Franklin, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Ft. Lauderdale Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Gateway Miami PAH-River House, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Greenspoint W-Greenspoint, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Harbour Island WH Interest, Inc. Sub CapLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Northwest Chicago WCHNW, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Wyndham Peachtree, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Riverfront Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Salt Lake City Salt Lake City Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Toledo Toledo Hotel Investors, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Washington City Centre City Centre Partnership, LP Sub Fee 92.50
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Washington DC IHC Realty Partnership, LP Sub Fe 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Westshore PAH-Tampa, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Windwatch PAH Windwatch, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Wyndham Garden Atlanta Midtown W-Garden Atlanta, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Atlanta Perimeter GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Bloomington GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Bothell GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Brookfield W-Brookfield, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Chandler GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Charlotte W-Charlotte, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Commerce W-Commerce, LLC Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Dallas Market Center Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Dallas Park Central Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Indianapolis W-Indiana, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Kansas City Airport Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Knoxville Knoxville CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden LaGuardia Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Las Colinas W-Colinas, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Naperville GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Nashville GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden North Phoenix GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Novi W-Novi, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Omaha Omaha CI Associates LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Overland Park Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Phoenix Airport GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Pleasanton W-Pleasanton, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Richardson W-Richardson, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Richmond Patriot American Hospitality Partnership, LP Sub CapLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden San Diego GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Schaumburg W-Schaumburg, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Wyndham Garden Sea-Tac GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden St. Louis St.Louis CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Sunnyvale GHALP Partnership, LP Sub OpLease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Vinings Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Wichita Wichita CI Associates, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Garden Wood Dale W- Wood Dale, LLC Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Ambassador West Patriot American Hospitality, Inc. Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Bourbon Orleans Bourbon Orleans Investors II, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Fairmont Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Mayfair Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Tremont House Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Tutwiler Patriot American Hospitality Partnership, LP Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Grand Heritage Union Station Patriot American Hospitality, Inc. Sub Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort Buena Vista Palace Royal Palace Hotel Associates Sub Lease 95.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort Condado Plaza Posadas de Puerto Rico Associates, Inc. Sub Fee & Lease 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort El Conquistador El Conquistador Partnership, LP Sub Fee & 100.00
Grand Bay Las Casitas Lease
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort El San Juan Posadas de San Juan Associates Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort Miami Beach IHC/Miami Beach Corporation Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort Myrtle Beach Patriot American Hospitality Partnership, LP Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort, Regency Hotel [closed] Posadas de Regency, Inc. Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Resort Rose Hall Rose Hall Associates Limited Partnership Sub Fee 100.00
- ------------------------------------------------------------------------------------------------------------------------------------
[Wyndham] Great Eastern [not yet opened] The Great Eastern Hotel Company Limited JV Lease 50.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Owned and leased real estate held by subsidiaries of Interstate Hotels, LLC
[Unrestricted Subsidiary] intentionally excluded.
"Primary Interest" reflects form of ownership of principal asset; facilities
leases and easement rights are excluded.
Lease = conventional ground lease or building lease. OpLease = operating lease.
CapLease = capital lease.
<PAGE>
SITES WITHOUT "HOTELS": DEVELOPMENT SITES & OTHER REAL PROPERTY INTERESTS
<TABLE>
<CAPTION>
Entity Primary Allocation
Hotel Name Owner/Lessee Type Interest %
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Arcadian Villa Saletta [development site] Fattoria Villa Saletta SRL Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
Border's site [ground lease to retail tenant] Patriot American Hospitality, Inc. Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
Bouffemont [development site] Arcadian Hotel Bouffemont SARL Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
Chateau de Bessy II [development site] The Transatlantic Hotel Company SARL Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
Chateau de Bessy I [development site] Chateau de Bessy SA Sub Fee 54.70
- -----------------------------------------------------------------------------------------------------------------------------
Club Zaudin [golf course] Al Jarafe Golf SA JV Fee 10.00
- -----------------------------------------------------------------------------------------------------------------------------
El Conquistador additional land ESJ Hotel Corporation Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
George Row Company [timeshare units] Beleggingsmaat-Schappij Stako JV JV Fee 18.60
- -----------------------------------------------------------------------------------------------------------------------------
Dos Pueblos Golf Course [under development] CPH-PAH Dos Pueblos Associates, LLC JV Fee 4.00
- -----------------------------------------------------------------------------------------------------------------------------
Meadows del Mar [lots, golf course & hotel site] Westshaw Associates, LP JV Fee 50.00
- -----------------------------------------------------------------------------------------------------------------------------
Mentmore Golf & Country Club Mentmore Golf & Country Club PLC JV Fee 10.00
- -----------------------------------------------------------------------------------------------------------------------------
Stanly Ranch [development site] PAH-Stanly Ranch, LLC Sub Fee 100.00
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Schedule XI - Existing Indebtedness
Lender Property / Facility Ownership % Borrower
<S> <C> <C> <C>
The Chase Manhattan Bank $600 MM Revolving Credit Facility 100.00% Wyndham International
The Chase Manhattan Bank $1.2 BB Term Loan Facility 100.00% Wyndham International
The Chase Manhattan Bank Increasing Rate Notes 100.00% Wyndham International, Inc.
Bank One Trustee, Public Debt Wyndham Senior Sub 100.00% Patriot American Hospitality, Inc.
Golden Door, LLC Golden Door Spa 100.00% Wyndham International, Inc.
Summerfield Associates, LP 100.00% Sierra Suites Marketing Association
Bear Stearns New Mortgage Pool I & II
Crowne Plaza Ravinia 100.00% Ravinia, LLC
Doubletree Club Hotel Chicago 90.00% DT-Des Plaines, LLC
Doubletree Club Hotel Miami 90.00% DT-Miami, LLC
Doubletree Hotel Boulder 100.00% DT-Denver, LLC
Doubletree Hotel Tallahassee 90.00% DT-Tallahassee, LLC
Embassy Suites Phoenix North 100.00% ES Phoenix, LLC
Embassy Suites Schaumburg 100.00% ES Schaumburg, LLC
Hilton Columbus 100.00% H-Columbus, LLC
Hilton Del Mar 100.00% H-Delmar, LLC
Hilton Huntington 100.00% Hilt-Hunt, LLC
Hilton Inn Cleveland 100.00% H-Clevleand, LLC
Hilton Newark Gateway 100.00% H-Gateway, LLC
Marriott Troy 100.00% Mar-Ty, LLC
Radisson Suites Houston 100.00% R-Houston, LP
Wyndham Buttes 100.00% W-Buttes, LLC
Wyndham Emerald Plaza 100.00% W-Emerald, LLC
Wyndham Franklin Plaza 100.00% W-Franklin, LLC
Wyndham Garden Indianapolis 100.00% W-Indiana, LLC
Wyndham Garden LA Commerce 100.00% W-Commerce, LLC
Wyndham Garden Las Colinas 100.00% W-Colinas, LLC
Wyndham Garden Novi 100.00% W-Novi, LLC
Wyndham Garden Pleasanton 100.00% W-Pleasanton, LLC
Wyndham Garden Richardson 100.00% W-Richardson, LLC
Wyndham Garden Schaumburg 100.00% W-Schaumburg, LLC
Wyndham Garden Wood Dale 100.00% W-Wood Dale, LLC
Lehman Brothers New Mortgage Pool III
Doubletree Guest Suites Glenview 100.00% DT-Glenview, LLC
Hilton Inn Melbourne Airport 100.00% H-Melbourne, LP
Hilton Inn Parsipanny 100.00% Parsippany, LLC
Radisson Hotel Burlington 100.00% Rad-Burl, LLC
Radisson Inn Napervilee-Lisle 100.00% R-Lisle, LLC
Radisson Plaza Hotel San Jose Airport 100.00% Rad-Jose, LLC
Wyndham Northwest Chicago 100.00% WCHNW, LLC
Wyndham Garden Brookfield 100.00% W-Brookfield, LLC
Wyndham Garden Charlotte 100.00% W-Charlotte, LLC
Wyndham Garden Midtown 100.00% W-Garden Atlant, LLC
Royal Bank of Scotland et al Arcadian 2/98 Facility 100.00% Arcadian International Ltd and
subsidiaries
Royal Bank of Scotland et al Arcadian Additional Loan 100.00% Arcadian International Ltd and
subsidiaries
Royal Bank of Scotland et al Arcadian Overdraft Facility 100.00% Arcadian International Ltd and
subsidiaries
Royal Bank of Scotland et al Arcadian Revolving Credit Facility 100.00% Arcadian International Ltd and
subsidiaries
Royal Bank of Scotland et al Arcadian Term Loan 100.00% Arcadian International Ltd and
subsidiaries
First National Bank of Commerce Bourbon Orleans 100.00% Bourbon Orleans Investors II, LP
Salomon Brothers Realty Corp. Clubhouse
Clubhouse Atlanta 100.00% Atlanta CI Associates, LP
Clubhouse Knoxville 100.00% Knoxville CI Associates, LP
Clubhouse Omaha 100.00% Omaha CI Associates, LP
Clubhouse Overland Park 100.00% Overland Park CI Associates, LP
Clubhouse Wichita 100.00% Wichita CI Associates, LP
LW - SP2, LP Clubhouse Pittsburgh 50.00% Marquis Hotel Associates
Posadas de Regency, Inc. and
Posadas de
Bank of Nova Scotia (refinancing 6/30/99) Condado & Regency (combined) 100.00% Puerto Rico Associates, Inc.
Metropolitan Life Doubletree
Doubletree Allen Center 85.00% PAH-DT Allen Partners, LP
Doubletree Anaheim 85.00% PAH-DT Allen Partners, LP
Doubletree Overland Park 85.00% PAH-DT Allen Partners, LP
Doubletree Post Oak 85.00% PAH-DT Allen Partners, LP
Doubletree St. Louis 85.00% PAH-DT Allen Partners, LP
Doubletree Tulsa 85.00% PAH-DT Allen Partners, LP
<CAPTION>
Secured /
Lender Maturity UnSecured Liability Guarantor
<S> <C> <C> <C> <C>
The Chase Manhattan Bank 6/30/05 S Recourse Subsidiaries with exceptions
The Chase Manhattan Bank 6/30/06 S Recourse Subsidiaries with exceptions
The Chase Manhattan Bank 6/30/04 S Recourse Subsidiaries with exceptions
Bank One Trustee, Public Debt 5/15/06 U Recourse N/A
Golden Door, LLC 6/1/01 U Recourse N/A
Summerfield Associates, LP None Recourse N/A
Bear Stearns 6/29/04 S Non-Recourse Wyndham International, Inc.
Crowne Plaza Ravinia
Doubletree Club Hotel Chicago
Doubletree Club Hotel Miami
Doubletree Hotel Boulder
Doubletree Hotel Tallahassee
Embassy Suites Phoenix North
Embassy Suites Schaumburg
Hilton Columbus
Hilton Del Mar
Hilton Huntington
Hilton Inn Cleveland
Hilton Newark Gateway
Marriott Troy
Radisson Suites Houston
Wyndham Buttes
Wyndham Emerald Plaza
Wyndham Franklin Plaza
Wyndham Garden Indianapolis
Wyndham Garden LA Commerce
Wyndham Garden Las Colinas
Wyndham Garden Novi
Wyndham Garden Pleasanton
Wyndham Garden Richardson
Wyndham Garden Schaumburg
Wyndham Garden Wood Dale
Lehman Brothers 6/29/02 S Non-Recourse
Doubletree Guest Suites Glenview
Hilton Inn Melbourne Airport
Hilton Inn Parsipanny
Radisson Hotel Burlington
Radisson Inn Napervilee-Lisle
Radisson Plaza Hotel San Jose Airport
Wyndham Northwest Chicago
Wyndham Garden Brookfield
Wyndham Garden Charlotte
Wyndham Garden Midtown
Royal Bank of Scotland et al 7/31/99 S Recourse Arcadian subsidiaries
Royal Bank of Scotland et al 7/31/99 S Recourse Arcadian subsidiaries
Royal Bank of Scotland et al 7/31/99 U Recourse Arcadian subsidiaries
Royal Bank of Scotland et al 11/14/01 S Recourse Arcadian subsidiaries
Royal Bank of Scotland et al 11/14/01 S Recourse Arcadian subsidiaries
First National Bank of Commerce 1/1/04 S Non-Recourse N/A
Salomon Brothers Realty Corp. 10/1/05 S Non-Recourse N/A
Clubhouse Atlanta
Clubhouse Knoxville
Clubhouse Omaha
Clubhouse Overland Park
Clubhouse Wichita
LW - SP2, LP 3/15/04 S Non-Recourse Pittsburgh CI, Inc.
Bank of Nova Scotia (refinancing 6/30/99) 6/22/04 S Recourse Wyndham International, Inc.
Metropolitan Life 10/1/07 S Non-Recourse N/A
Doubletree Allen Center
Doubletree Anaheim
Doubletree Overland Park
Doubletree Post Oak
Doubletree St. Louis
Doubletree Tulsa
<CAPTION>
Lender Comments Allocated Debt
<S> <C> <C>
The Chase Manhattan Bank 400,000,000
The Chase Manhattan Bank 1,200,000,000
The Chase Manhattan Bank 650,000,000
Bank One Trustee, Public Debt 1,510,000
Golden Door, LLC 4,000,000
Summerfield Associates, LP Cash Flow note. 313,200
Bear Stearns Non-recourse carve-outs. 340,000,000
Crowne Plaza Ravinia
Doubletree Club Hotel Chicago
Doubletree Club Hotel Miami
Doubletree Hotel Boulder
Doubletree Hotel Tallahassee
Embassy Suites Phoenix North
Embassy Suites Schaumburg
Hilton Columbus
Hilton Del Mar
Hilton Huntington
Hilton Inn Cleveland
Hilton Newark Gateway
Marriott Troy
Radisson Suites Houston
Wyndham Buttes
Wyndham Emerald Plaza
Wyndham Franklin Plaza
Wyndham Garden Indianapolis
Wyndham Garden LA Commerce
Wyndham Garden Las Colinas
Wyndham Garden Novi
Wyndham Garden Pleasanton
Wyndham Garden Richardson
Wyndham Garden Schaumburg
Wyndham Garden Wood Dale
Lehman Brothers Non-recourse carve-outs 235,000,000
Doubletree Guest Suites Glenview
Hilton Inn Melbourne Airport
Hilton Inn Parsipanny
Radisson Hotel Burlington
Radisson Inn Napervilee-Lisle
Radisson Plaza Hotel San Jose Airport
Wyndham Northwest Chicago
Wyndham Garden Brookfield
Wyndham Garden Charlotte
Wyndham Garden Midtown
Royal Bank of Scotland et al Secured by all Arcadian assets exc. Malmaison 5,650,050
Royal Bank of Scotland et al Secured by all Arcadian assets exc. Malmaison 6,400,700
Royal Bank of Scotland et al Secured by all Arcadian assets exc. Malmaison 2,573,203
Royal Bank of Scotland et al Secured by all Arcadian assets exc. Malmaison 29,057,400
Royal Bank of Scotland et al Secured by all Arcadian assets exc. Malmaison 20,178,750
First National Bank of Commerce 13,285,365
Salomon Brothers Realty Corp.
Clubhouse Atlanta 4,468,990
Clubhouse Knoxville 4,478,103
Clubhouse Omaha 5,542,293
Clubhouse Overland Park 4,780,686
Clubhouse Wichita 3,096,697
LW - SP2, LP $3.5 Million limited guarantee 2,648,232
$10 Million: $5 Million is secured pari pasu with
Bank of Nova Scotia (refinancing 6/30/99) The Chase Manhattan Bank Term Facility. 55,000,000
Metropolitan Life
Doubletree Allen Center
Doubletree Anaheim
Doubletree Overland Park
Doubletree Post Oak
Doubletree St. Louis
Doubletree Tulsa
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Schedule XI - Existing Indebtedness
Lender Property / Facility Ownership % Borrower
<S> <C> <C> <C>
CSFB Conduit Embassy Suites Chicago 98.80% Chicago-ES, LLC
NatWest Great Eastern 50.00% The Great Eastern Hotel Company Limited
COPARC Gressy Term Loan 25.00% Hotel Gressy SNC
Coutts Consortium Malmaison Facilities 100.00% The Malmaison Limited
Malmaison Leeds 100.00% The Malmaison Company (Leeds) Limited
Malmaison Edinburgh 100.00% The Malmaison Hotel (Edinburgh) Limited
Malmaison Glasgow 100.00% The Malmaison Hotel (Glasgow) Limited
Malmaison Manchester 100.00% The Malmaison Hotel (Manchester) Limited
Malmaison New Castle 100.00% The Malmaison Hotel (New Castle) Limited
Credit Lyonnais Marriott Casa Marina 100.00% Casa Marina Realty Partnership, LP
Mass Mutual Marriott Don Cesar Resort 13.00% Don Cesar Resort Hotel, Ltd.
Credit Lyonnais Marriott Harrisburg 97.96% Swatara Associates
Mass Mutual Marriott Pittsburgh Airport 97.80% Park West Hotel Associates
M. Fine/J. Meisel et al Marriott Reach Resort 97.12% Key West Reach Limited Partnership
Mass Mutual Marriott Reach Resort 97.10% Key West Reach Limited Partnership
Bank of the Keys Marriott Santa Maria 50.00% Santa Maria Joint Venture
Lincoln National Bank Marriott St. Louis West 50.00% Maryville Center Hotel JV
Mass Mutual Marriott Syracuse 94.00% Syracuse Realty Associates, LP
CIGNA Marriott Warner Center 65.00% Interstone/CGL (WC) Partners, LP
Bank One Arizona, NA Meadows Del Mar - Golf Course 50.00% Westshaw Associates, LP
Bank One Arizona, NA Meadows Del Mar - Residential 50.00% Westshaw Associates, LP
Lincoln National Bank Radisson Beachwood 100.00% PAH-Beachwood II, LLC
Cassa di Risparmia di Lucca Saletta Term Loan 100.00% Fattoria Villa Saletta SRL
Finova Capital The Lodge at Ventana Canyon 100.00% PAH Ventana Canyon, LP
GMAC Wyndham Atlanta American 70.00% Atlanta American Hotel Investors, LP
Beacon Capital Wyndham Batterymarch 100.00% PAH Batterymarch Realty Company, LLC
Nomura Asset Capital Corp. Wyndham Buena Vista Palace 95.00% Royal Palace Hotel Associates
Paine Webber Wyndham Chicago St. Claire 50.00% Oxford/WYN 633 Investment Compnay, LLC
Huntington Bank Wyndham Dublin (Columbus) 30.00% Dublin Inn, Ltd
Citibank Wyndham El Conquistador 100.00% El Conquistador Partnership, LP
Government Development Bank Wyndham El Conquistador 100.00% El Conquistador Partnership, LP
Bank of Nova Scotia Wyndham El San Juan 100.00% Posadas de San Juan Associates
CSFB Conduit Wyndham Greenspoint 100.00% W-Greenspoint, LP
CSFB Conduit Wyndham Peachtree 100.00% Wyndham Peachtree, LLC
Republic Bank Wyndham Garden Billerica 100.00% PAH Billerica Realty Company, LLC
Development Authority of Cobb County Wyndham Garden Vinings 100.00% Patriot American Hospitality Partnership, LP
Capital Leases
Harbour Island Capital Lease 100.00% WH Interest, Inc.
Richmond Garden Capital Lease 100.00% Patriot American Hospitality Partnership, LP
Other Capital Leases 100.00%
ISIS 100.00%
Letters of Credit
Arcadia
Arcadia
Summerfield
Vinings
<CAPTION>
Secured /
Lender Maturity Unsecured Liability Guarantor
<S> <C> <C> <C> <C>
CSFB Conduit 10/16/08 S Non-Recourse N/A
NatWest 10/15/10 S Recourse N/A
COPARC 2/1/07 S Non-Recourse N/A
Arcadian International Ltd and
Coutts Consortium 12/31/03 S Recourse Malmaison subsidiaries.
12/31/03
1231//03
12/31/03
12/31/03
12/31/03
Credit Lyonnais 3/31/01 S Non-Recourse N/A
Mass Mutual 7/1/06 S Non-Recourse N/A
Credit Lyonnais 3/31/01 S Non-Recourse N/A
Mass Mutual 4/1/02 S Non-Recourse N/A
Non-Recourse PAH Franchise Holding, Inc. and
M. Fine/J. Meisel et al 7/1/00 S PAH-Beachwood I, LLC
Mass Mutual 10/1/05 S Recourse N/A
Bank of the Keys 8/27/00 S Recourse
Lincoln National Bank 5/1/02 S Non-Recourse N/A
Mass Mutual 12/1/02 S Non-Recourse N/A
CIGNA 1/1/04 S Non-Recourse N/A
Bank One Arizona, NA 5/31/03 S Recourse Partiot American Hospitality, Inc.
Bank One Arizona, NA 5/31/02 S Recourse N/A
Lincoln National Bank 5/31/05 S Non-Recourse N/A
Cassa di Risparmia di Lucca 7/1/14 Recourse Arcadian International Ltd.
Finova Capital 3/1/05 S Non-Recourse N/A
GMAC 8/1/02 S Non-Recourse Patriot American Hospitality Partnership, LP
Wyndham International, Inc., and
Beacon Capital 12/31/99 S Recourse Patriot American Hospitality Partnership, LP
Nomura Asset Capital Corp. 12/11/15 S Non-Recourse N/A
Paine Webber 8/20/01 S Non-Recourse N/A
Huntington Bank 4/1/09 Non-Recourse N/A
Citibank 6/30/00 S Non-Recourse Partiot American Hospitality, Inc.
Government Development Bank 2/15/06 S Non-Recourse N/A
Bank of Nova Scotia 8/31/03 S Non-Recourse Partiot American Hospitality, Inc.
CSFB Conduit 10/16/08 S Non-Recourse N/A
CSFB Conduit 10/23/01 S Non-Recourse N/A
Wyndham International, Inc.,
Patriot American Hospitality
Partnership, LP and Patriot
Republic Bank 5/14/99 S Recourse American Hospitality, Inc.
Development Authority of Cobb County 2/1/23 U Recourse N/A
Capital Leases S Recourse
S Non-Recourse
Letters of Credit
Arcadia 5/13/99
Arcadia 12/31/99
Summerfield 6/18/00
Vinings 2/15/00
<CAPTION>
Lender Comments Allocated Debt
<S> <C> <C>
CSFB Conduit 40,269,405
NatWest 24,600,000
COPARC 2,448,000
Coutts Consortium
6,822,032
23,387,978
Credit Lyonnais 30,566,000
Mass Mutual 4,410,095
Credit Lyonnais 19,587,750
Mass Mutual 14,326,783
M. Fine/J. Meisel et al Mortgage on Marriott Courtyard Beachwood. 9,347,583
Mass Mutual 14,825,245
Bank of the Keys 2,000,000
Lincoln National Bank 8,203,722
Mass Mutual 9,672,449
CIGNA 32,167,982
Bank One Arizona, NA Completion Guarantee - up to $4 M 8,071,623
Bank One Arizona, NA 5,232,904
Lincoln National Bank 4,970,917
Cassa di Risparmia di Lucca
Finova Capital 28,488,769
GMAC 10% guarantee for 24 months 17,979,500
Beacon Capital Completion Guarantee 45,000,000
Nomura Asset Capital Corp. 7,872,941
Paine Webber 20,000,000
Huntington Bank 1,975,917
Citibank 90,000,000
Government Development Bank 25,000,000
Bank of Nova Scotia $7.5 Million guarantee. 42,100,000
CSFB Conduit 39,921,574
CSFB Conduit 37,113,331
Republic Bank 16,411,083
Development Authority of Cobb County 46,158,186
Capital Leases 19,415,738
4,347,431
5,630,786
1,018,285
Letters of Credit
Arcidia 3,700,000
Arcidia 4,600,000
Summerfield 6,319,000
Vinings 9,794,281
*In addition, certain inter-company Indebtedness is listed separately on Schedule XII
</TABLE>
<PAGE>
Schedule XII
Investments
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Paul Nussbaum $ 152,074 Outstanding invoices for personal use of
Hospitality Partnership, (as of 5/31/99) corporate jet services and hotel facilities.
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American William W. Evans, III $ 424,375 Non-recourse loan (1998) for assistance with
Hospitality, Inc. (as of 6/25/99) payment of income taxes in connection with the
vesting of shares of paired common stock. Due
on November 27, 2003 or 60 days after
termination of employment, if earlier (7.5%
interest per annum) and secured by 53,667 shares
of paired common stock.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Lawrence S. Jones $ 779,524 Non-recourse loan (1998). Due on October 5,
(as of 5/31/99) 2001 (7.0% interest per annum). Mr. Jones'
(includes Employment Agreement provides that a portion of
interest, the loan may be forgiven upon Mr. Jones'
$750,000 note) termination of employment.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Paul Nussbaum Up to Guaranty of loan from NationsBank (due 2005,
Hospitality, Inc. approximately 5.5% interest per annum). Commitment to
$7,794,268 refinance loan as Company loan.
(as of 5/31/99)
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Anne Raymond $ 5,196,959 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Raymond Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount $4,417,588. the loan amount due exceeds the value of the
shares (the "Raymond Debt Forgiveness") will be
forgiven.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Anne Raymond Amount of tax Commitment to make loan at time Raymond Secured
Hospitality Partnership, liability arising Loan is due to pay any tax liabilities resulting
L.P. from the Raymond from the Raymond Debt Forgiveness.
Debt Forgiveness
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American James Carreker $ 5,769,861 Loan (due July 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Carreker Secured Loan"). Repayment will
interest). Note be made by the security shares; any amount by
amount $4,904,573. which the loan amount due exceeds the value of
the shares (the "Carreker Debt Forgiveness")
will be forgiven.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American James Carreker Amount of tax Commitment to make loan at time Carreker Secured
Hospitality Partnership, liability arising Loan is due to pay any tax liabilities resulting
L.P. from the Carreker from the Carreker Debt Forgiveness.
Debt Forgiveness
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American James Carreker $ 696,214 Note (related to 12/97 salary advance); matures
Hospitality Partnership, (as of 12/31/98) July 2003 (interest at Company's revolver rate)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Leslie Bentley $ 2,123,607 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Bentley Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount $1,805,133. the loan amount due exceeds the value of the
shares (the "Bentley Debt Forgiveness") will be
forgiven.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Leslie Bentley Amount of tax Commitment to make loan at time Bentley Secured
Hospitality Partnership, liability arising Loan is due to pay any tax liabilities resulting
L.P. from the Bentley from the Bentley Debt Forgiveness.
Debt Forgiveness
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Stanley M. Koonce, Jr. $ 2,163,455 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Koonce Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount $1,839,006. the loan amount due exceeds the value of the
shares (the "Koonce Debt Forgiveness") will be
forgiven.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Stanley M. Koonce, Jr. Amount of tax Commitment to make loan at time Koonce Secured
Hospitality Partnership, liability arising Loan is due to pay any tax liabilities resulting
L.P. from the Koonce from the Koonce Debt Forgiveness.
Debt Forgiveness
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Company Leslie Bentley $ 430,000 Note; matures April 2002 (7% interest per annum)
(as of 5/31/99)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Company Dave Johnson $ 200,000 Note (related to margin call response); matures
(as of 5/31/99) April 2002 (7% interest per annum)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Leslie Ng $ 63,133 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per
annum)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Terry Hunzicker $ 37,880 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per
annum)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Diane Golden $ 8,820 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per
annum)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Deborah Gray $ 6,113 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per
annum)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Chief Operating Officer of $ 1,500,000 Present commitment; loan to be made in the
Wyndham future.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. David Lee $ 8,696 Note related to taxes on vested restricted stock.
(as of 5/31/99)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Debt Receivables
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American NorthCoast Hotels, LLC $ 2,000,000 Secured by pledge of equity interests in entity
Hospitality Partnership, (as of 6/25/99) owning WestCoast Roosevelt, Gateway and
L.P. Wenatchee hotels. Interest: 8.5% per annum.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Altamont Properties, LLC $ 6,250,000 Transaction has not closed and has not been
Hospitality Partnership, booked. Is in escrow pending sale of property.
L.P. Secured by leasehold mortgage on WestCoast Long
Beach Hotel. Interest: 10.5% per annum.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management WHC-LG Hotel Partners, L.P. $ 1,993,887 Secured by pledge of equity interests in WHC-LG.
Corporation (as of 6/25/99) Interest: 9.0% per annum.
(includes interest)
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Bluewater Palmas Ltd. $ 5,165,300 Secured by Mortgage and Pledge Agreement on
Hospitality, Inc. (as of 6/25/99) Palmas del Mar. Interest: 10.0% per annum.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Dublin Inn, Ltd. $ 2,619,127 Secured by pledge of partnership interests in
Corporation (as of 6/25/99) Wyndham Dublin (Columbus), OH. Interest: 13.5%
(includes per annum.
interest)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management San Juan Associates, L.P., S.E. $2,095,987 and Secured by pledge of partnership interests in
Corporation $ 473,450 Old San Juan Hotel. Two loans - for San Juan
(as of 6/25/99) construction and San Juan operations.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American John L. Hopkins III and Robert $ 2,150,000 Wyndham Garden -Richmond Airport
Hospitality, Inc. N. Prager (as of 6/25/99)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
Employee Loans/Investments
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Aruba Hotel Enterprises N.V. $ 1,941,815 Wyndham-Aruba Beach Resort & Casino
Corporation Alfonso Riveroll Estrada, Pres. (as of 6/25/99)
- -----------------------------------------------------------------------------------------------------------------------------------
Intercompany Loans
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Boulders Carefree Sewer $ 487,850 The Boulders - Grand Bay
Hospitality Partnership, Corporation (as of 5/31/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American City Centre Partnership, L.P. Approximately Wyndham City Center
Hospitality Partnership, $ 25,699,997
L.P. (as of 6/30/99)
(includes
interest)
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH-GP Allen Partners $ 35,819,456 Doubletree - Allen Center
Hospitality Partnership, (as of 6/30/99)
L.P. (includes interest)
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Ravinia, Inc. 41,220,562 Crowne Plaza - Ravinia
Hospitality Partnership, (as of 5/31/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Windwatch LLC 31,343,070 Wyndham - Windwatch
Hospitality Partnership, (as of 5/31/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Leasing LLC 9,000,000 Carefree Resorts
Hospitality Partnership, (as of 5/31/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Dublin Inn Ltd. $ 1,278,260 Wyndham Garden - Dublin
Hospitality Partnership, (as of 5/31/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Patriot American Hospitality, $119,250,000 Interstate Acquisition
Inc. (as of 5/31/99)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 24,179,761 Patriot/Wyndham Merger
Operating Partnership, Partnership, L.P. (as of 6/30/99)
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 4,057,323 Subscription Note issued by paired share
Operating Partnership, Partnership, L.P. (as of 6/25/99) company to other paired share company which
L.P. did not receive assets in the Summerfield
transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 1,758,555 Subscription Note issued by paired share
Operating Partnership, Partnership, L.P. (as of 6/25/99) company to other paired share company which
L.P. did not receive assets in the Summerfield
transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Patriot American Hospitality, $ 34,591,050 Subscription Note issued by paired share company
Inc. (as of 6/25/99) to other paired share company which did not
receive assets in the Interstate transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 9,086,559 Subscription Note issued by paired share company
Operating Partnership, Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the CF Asset transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 21,448,837 Subscription Note issued by paired share company
Operating Partnership, Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the Wyndham transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Wyndham International $ 2,465,909 Subscription Note issued by paired share company
Hospitality Partnership, Operating Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the Kaufman transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 4,564,980 Subscription Note issued by paired share company
Operating Partnership, Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the UBS transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 6,091,313 Subscription Note issued by paired share company
Operating Partnership, Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the Nations transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American Hospitality $ 6,955,397 Subscription Note issued by paired share company
Operating Partnership, Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the PaineWebber transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Patriot American Hospitality $ 258,572 Subscription Note issued by paired share company
Inc. Partnership, L.P. (as of 6/25/99) to other paired share company which did not
receive assets in the PAH LP transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Wyndham International $ 37,310 Subscription Note issued by paired share company
Operating Partnership, L.P. (as of 6/25/99) to other paired share company which did not
receive assets in the WI transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Wyndham International, Inc. $133,669,014 Subscription Note issued by paired share company
Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the WHG transaction.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Investing Party Borrower/Receiving Party Amount Outstanding Additional Information
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Other Investments
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Playhouse Square Hotel Limited No advances made Pursuant to Management Agreement, guaranty of
Partnership (whose owners as of 3/29/99 obligations of Playhouse Square Hotel Limited
include the Crow Family Partnership: up to $600,000 per year to the
Members and Wyndham Senior extent the Hotel Partnership experiences
Executive Officers) operating deficits, with maximum required
advances of $2.3 million over the term of the
guarantee extending from 1995 to 2000.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. Owners of the Wyndham LAX $4,237,000 had In connection with the Los Angeles Airport
been funded as of Wyndham, the obligation to fund the unadvanced
12/31/98 portion of a $4,560,000 promissory note.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American ISIS 2000 Aggregate Ownership interests in connection with the
Hospitality Partnership, exercise price of exercise (on May 7, 1999) of options to purchase
L.P. $3,073,000 ownership interests in ISIS 2000.
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Anatole Hotel Investors, L.P. $10,000,000, plus Unsecured construction loan agreement (1997).
Hospitality, Inc. $197,267 accrued
interest
(as of 6/30/99)
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham/Patriot Gencom/Travis Stock/OP Investment in Gencom Interests, Inc., Travis
Units/Cash Real Estate Group Joint Venture and/or related
entities as described on Schedule V.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Various Subsidiaries and Joint N/A See Schedule V list of Equity Ownership Interests
Inc. and its Subsidiaries Ventures
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
9
<PAGE>
Schedule XIII
Existing Restrictions on Subsidiaries
None.
<PAGE>
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Increasing Rate Note Purchase and Loan
Agreement, dated as of June 30, 1999 (as amended, supplemented or otherwise
modified from time to time, the "IRL Agreement"), among Wyndham International,
Inc., a Delaware corporation (the "Borrower"), the Lenders party hereto from
time to time, Chase Securities Inc. ("CSI"), as Lead Arranger and Book Manager,
Bear Stearns Corporate Lending Inc., as Co-Arranger and Syndication Agent,
Bankers Trust Company, as Syndication Agent and The Chase Manhattan Bank
("Chase"), as Administrative Agent. Unless otherwise defined herein, terms
defined in the IRL Agreement and used herein shall have the meanings given to
them in the IRL Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and the
Assignee identified on Schedule I hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule 1
hereto (the "Assigned Interest") in and to the Assignor's rights and obligations
under the IRL Agreement with respect to the credit facility contained in the IRL
Agreement (the "Assigned Facility"), in a principal amount as set forth on
Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the IRL Agreement or with respect
to the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the IRL Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; and (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Subsidiaries or any other
obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the IRL Agreement or any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto.
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the IRL Agreement, together with copies of the financial
statements delivered pursuant to Section 3.01 thereof and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent,
the Syndication Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the IRL Agreement, the
other Loan Documents or any other instrument or document
<PAGE>
Exhibit A
Page 2
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the IRL Agreement, the other Loan Documents or
any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the IRL Agreement and will perform in accordance with its terms
all the obligations which by the terms of the IRL Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to subsection
2.14(e) of the IRL Agreement.
4. The effective date of this Assignment and Acceptance shall be
the Effective Date of Assignment described in Schedule I hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the IRL Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the IRL Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the IRL
Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
<PAGE>
Exhibit A
Page 3
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
<PAGE>
Exhibit A
Page 4
Schedule I
to Assignment and Acceptance
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Credit Principal
Facility Assigned Amount Assigned Commitment Percentage Assigned
- ----------------- --------------- ------------------------------
[ASSIGNEE] [ASSIGNOR]
By: By:
---------------------------- ----------------------------
Title: Title:
<PAGE>
Exhibit A
Page 5
Consented to as of _____ ___, ___:
THE CHASE MANHATTAN BANK, AS
ADMINISTRATIVE AGENT
By:
-------------------------
Title:
WYNDHAM INTERNATIONAL, INC.
By:
-------------------------
Title: /+/
- -----------------
/+/ The consent of the Borrower and Administrative Agent are required for
assignments pursuant to Section 9.04 of the IRL Agreement except in the
case of an assignment to a Lender, an Affiliate of a Lender or a Related
Fund of a Lender
<PAGE>
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
Wyndham International, Inc.
1950 Stenirnons Freeway
Suite 6001
Dallas, Texas 75207
______ ___,____
The Chase Manhattan Bank,
as Administrative Agent
for the Lenders party
to the IRL Agreement referred to below
270 Park Avenue
New York. New York 10017
Attention: Alan Breindal
Re: COMPLIANCE CERTIFICATE
- ----------------------------
This COMPLIANCE CERTIFICATE is delivered pursuant to Sections 5.02(b)
and 5.02(f) of the Increasing Rate Note Purchase and Loan Agreement, dated as of
June 30, 1999 (the "IRL Agreement"), among Wyndham International, Inc., a
Delaware corporation (the "Borrower"), the Lenders party thereto from time to
time, Chase Securities Inc. ("CSI"), as Lead Arranger and Book Manager, Bear
Stearns Corporate Lending Inc., as Co-Arranger and Syndication Agent, Bankers
Trust Company, as Syndication Agent and The Chase Manhattan Bank ("Chase"), as
Administrative Agent. Capitalized terms not defined herein shall have the same
meanings ascribed thereto in the IRL Agreement.
1. The individual executing this Certificate is a duly qualified
Responsible Officer of the Borrower and is executing this Certificate on behalf
of the Borrower.
2. The undersigned has reviewed the terms of the IRL Agreement
and has made a review of the transactions, financial condition and other affairs
of the Borrower, its Subsidiaries and Joint Ventures as of, and during the
Fiscal Quarter ending [ ] and the undersigned has no knowledge of
the existence, as of the date hereof, of any condition or event which (i)
renders untrue or incorrect any of the covenants and, in all material respects,
the representations and warranties, contained in Articles III, V and VI of the
IRL Agreement (it being understood and agreed that any covenant, representation
or warranty which by its terms is made as of a specified date shall be required
to be true and correct only as of such specified date) or (ii) constitutes a
Default or Event of Default.
<PAGE>
EXHIBIT B
Page 2
3. Schedule I attached hereto accurately and completely sets
forth the financial data, computations and other matters required to establish
compliance with the following Sections of the IRL Agreement:
(a) Section 6.01(a) - Total Leverage Ratio;
(b) Section 6.01(b) - Senior Secured Leverage Ratio;
(c) Section 6.01(c) - Interest Coverage.
5. Schedule II attached hereto is a list of each new Subsidiary of
any Loan Party acquired or created by any Loan Party during the period covered
by this Certificate.
6. Schedule III attached hereto is a list (i) identifying all
Asset Dispositions, Reinvestment Events and the proceeds thereof made during the
period covered by this Certificate and (ii) all Asset Dispositions and
Reinvestment Events made prior to the period covered by this Certificate (except
as previously disclosed as required by the IRL Agreement) updated to reflect the
status of the proceeds thereof, including whether such proceeds were reinvested
or otherwise used as required under the IRL Agreement.
7. Schedule IV attached hereto is a list of any Hotel that is
owned by the Borrower, its Subsidiaries or Joint Ventures that is being or has
been newly constructed, or substantially refurbished or rebuilt and is being
designated by the Borrower as a New Hotel.
8. The covenants, and in all material respects the representations
and warranties, contained in Articles III, V and VI of the IRL Agreement and in
each of the other Loan Documents are true and correct as though made on and as
of such date (it being understood and agreed that any covenant, representation
or warranty which by its terms is made as of a specified date shall be required
to be true and correct only as of such specified date).
9. No Default or Event of Default has occurred and is continuing.
The Lenders and the Administrative Agent and their respective
successors and assigns may rely on the truth and accuracy of the foregoing in
connection with the extensions of credit to the Borrowers pursuant to the IRL
Agreement.
* * *
<PAGE>
EXHIBIT B
Page 3
IN WITNESS WHEREOF, the Borrowers have caused this Compliance
Certificate to be duly executed by their duly authorized Chief Financial
Officer on this ___ day of _____, _____.
Wyndham International, Inc.
By:
-----------------------------
Name:
Title:
<PAGE>
EXHIBIT B
Page 4
6.01(a) Total Leverage Ratio
Total Indebtedness as of __/__/____ __________
Total Adjusted EBITDA (Pro Forma)
Four Fiscal Quarters ended __/___/____ __________
Ratio ____________
(note to exceed 6.5:1.0 until 12/31/00;
6.25:1.00 from 1/01/01 until 12/31/01;
6.00:1.00 from 1/01/02 until 12/31/03;
5.75:1.00 thereafter)
6.01(b) Senior Secured Leverage Ratio
Total Indebtedness secured by a Lien
on any asset of the Borrower,
its Subsidiaries or Joint Ventures
as of __/___/____ ___________
Total Adjusted EBITDA (Pro Forma)
Four Fiscal Quarters ended __/___/___ ___________
Ratio ____________
(not to exceed 5.95:1.00 until 12/31/00;
5.75:1.00 from 1/01/01 until 12/31/01;
5.50:1.00 from 1/01/02 until 12/31/02;
5.25:1.00 from 1/01/03 until 12/31/03;
5.00 to 1.00 from 1/01/04 until 12/31/04;
4.75 to 1.00 thereafter)
<PAGE>
EXHIBIT B
Page 5
6.01(c) Interest Coverage
Total Adjusted EBITDA
Four Fiscal Quarters ended __/___/____ ___________
Total Cash Interest Expense
Four Fiscal Quarters ended __/___/____ ___________
Ratio __________
(not less than 2.00:1.00 prior to 12/31/01;
2.10:1.00 prior to 12/31/02;
2.2:1.0 thereafter)
<PAGE>
EXHIBIT C
[Conformed as Executed]
================================================================================
CHASE
GUARANTY AND COLLATERAL AGREEMENT
dated as of
JUNE 30, 1999
among
WYNDHAM INTERNATIONAL, INC.,
CERTAIN SUBSIDIARIES OF
WYNDHAM INTERNATIONAL, INC.
and
THE CHASE MANHATTAN BANK,
as Collateral Agent
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. DEFINED TERMS.......................................................... 2
1.1. Definitions............................................................. 2
SECTION 2. GUARANTY............................................................... 7
2.1. Guaranty................................................................ 7
2.2. Guaranty Absolute and Unconditional..................................... 8
2.3. Guaranty Exclusive and Independent...................................... 8
2.4. Notice.................................................................. 9
2.5. Amendments etc. with respect to Guaranteed Obligations.................. 9
2.6. Invalidity, Irregularity or Unenforceability of Guaranteed Obligations.. 10
2.7. Rights and Remedies Cumulative.......................................... 10
2.8. Subordination of Indebtedness........................................... 11
2.9. Waiver.................................................................. 11
2.10. Representations, Warranties and Covenants.............................. 12
2.11. Right of Set Off....................................................... 13
2.12. Repayment or Recovery.................................................. 13
2.13. Payments by any Guarantor.............................................. 14
2.14. Right of Contribution.................................................. 14
2.15. Designation of Additional Debt......................................... 15
2.16. Designation of Other Debt.............................................. 15
SECTION 3. PLEDGE OF SECURITY INTEREST, ETC....................................... 15
3.1. Security for Obligations................................................ 15
3.2. Pledge.................................................................. 17
3.3. Procedures.............................................................. 20
3.4. Subsequently Acquired Collateral........................................ 21
3.5. Transfer Taxes.......................................................... 22
3.6. Certain Representations and Warranties Regarding the Collateral......... 22
3.7. Appointment of Sub-Agents; Endorsements, etc............................ 22
3.8. Voting, etc., While No Event of Default................................. 22
3.9. Dividends and Distributions............................................. 23
3.10. Remedies in Case of an Event of Default................................ 23
3.11. Remedies, etc., Cumulative............................................. 24
3.12. Application of Proceeds................................................ 25
3.13. Purchasers of Collateral............................................... 27
3.14. Indemnity.............................................................. 27
3.15. Collateral Agent Not Bound............................................. 28
3.16. Further Assurances; Power-of-Attorney.................................. 28
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
3.17. The Collateral Agent as Collateral Agent............................... 29
3.18. Transfer by the Pledgors............................................... 29
3.19. Representations, Warranties and Covenants of the Pledgors.............. 29
3.20. Chief Executive Office; Records........................................ 31
3.21. Pledgors' Obligations Absolute, etc.................................... 31
3.22. Registration, etc...................................................... 32
SECTION 4. MISCELLANEOUS.......................................................... 33
4.1. Notices, etc............................................................ 33
4.2. Waiver; Credit Facility Amendment....................................... 34
4.3. Assignment.............................................................. 34
4.4. Section Headings........................................................ 34
4.5. Counterparts............................................................ 35
4.6. Severability............................................................ 35
4.7. Recourse................................................................ 35
4.8. Additional Guarantors and Pledgors...................................... 35
4.9. Termination; Release.................................................... 35
4.10. GOVERNING LAW.......................................................... 36
4.11. WAIVER OF JURY TRIAL................................................... 37
</TABLE>
SCHEDULE I The Collateral Agent
ANNEX A - List of Subsidiaries and Joint Ventures and Pledgors and Interests
Pledged and not Pledged
ANNEX B - List of Notes
ANNEX C - List of Chief Executive Offices
ANNEX D - Form of Agreement Regarding Uncertificated Securities, Limited
Liability Company Interests and Partnership Interests
ANNEX E - Form of Agreement Supplement
(ii)
<PAGE>
GUARANTY AND COLLATERAL AGREEMENT
GUARANTY AND COLLATERAL AGREEMENT, dated as of June 30, 1999, (as
amended, modified or supplemented from time to time, this "Agreement"), made by
---------
each of the undersigned (each a "Credit Party" and, together with any other
------------
entity that becomes a Credit Party hereto as provided herein, the "Credit
------
Parties") in favor of THE CHASE MANHATTAN BANK, as Collateral Agent (including
- -------
any successor collateral agent, the "Collateral Agent"), for the benefit of the
----------------
Secured Creditors (as defined below).
W I T N E S S E T H :
-------------------
WHEREAS, Wyndham International, Inc. (the "Borrower"), the Lenders
--------
Party thereto from time to time (the "Credit Facility Lenders"), Chase
-----------------------
Securities Inc. ("CSI"), as Lead Arranger and Book Manager (the "Lead
--- ----
Arranger"), NationsBank, N.A., and Bankers Trust Company, as Syndication Agents
(each as "Syndication Agent," together the "Syndication Agents"), Credit
Lyonnais New York Branch, as Documentation Agent and Bear Stearns Corporate
Lending Inc., as Co-Documentation Agent (each a "Documentation Agent," together
the "Documentation Agents") and The Chase Manhattan Bank ("Chase"), as
-----
Administrative Agent (the Administrative Agent, together with the Credit
Facility Lenders, the Lead Arranger and the Collateral Agent, the "Credit
------
Facility Creditors") have entered into a Credit Agreement, dated as of June 30,
- ------------------
1999 (as amended, modified or supplemented from time to time, the "Credit
------
Agreement") providing for the making of Loans to the Borrower and the issuance
- ---------
of, and participation in, Letters of Credit for the account of the Borrower as
contemplated therein;
WHEREAS, the Borrower, the Lenders Party thereto from time to time
(the "IRL Lenders"), CSI as Lead Arranger and Book Manager (the "IRL Lead
----------- --------
Arranger"), Bear, Stearns & Co., Inc. ("BSC"), as Co-Arranger and Syndication
- -------- ---
Agent (the "IRL Co-Arranger"), Bankers Trust Company, as Syndication Agent (the
---------------
"IRL Syndication Agent") and Chase, as the Administrative Agent (the "IRL
---
Administrative Agent," and together with the IRL Lenders, the IRL Lead Arranger
- --------------------
and the IRL Co-Arranger, the "IRL Creditors," and, the IRL Creditors, together
-------------
with the Credit Facility Creditors, the "Lender Creditors") have entered into an
----------------
Increasing Rate Note Purchase and Loan Agreement, dated as of June 30, 1999 (as
amended, modified or supplemented from time to time, the "IRL Agreement"),
-------------
providing for the making of Increasing Rate Term Loans to the Borrower;
WHEREAS, the Borrower from time to time, as permitted under the Credit
Agreement may enter into one or more agreements ("Additional Debt Agreements")
--------------------------
with one or more lenders to incur indebtedness in an amount not to exceed
$360,000,000 (the "Additional Debt Creditors");
-------------------------
WHEREAS, the Borrower may from time to time enter into one or more
Interest Rate Protection Agreements or Other Hedging Agreements with one or more
Credit Facility Lenders, IRL Lenders or any affiliate thereof (each such Credit
Facility Lender, IRL Lender or affiliate, even if the respective Lender or IRL
Lender subsequently ceases to be a Credit Facility
<PAGE>
Lender under the Credit Agreement or and IRL Lender under the IRL Agreement for
any reason, together with such Credit Facility Lenders, IRL Lenders, or their
affiliate's successors and assigns, if any, collectively, the "Other Creditors,"
---------------
and together with the Lender Creditors and the Additional Debt Creditors, the
"Secured Creditors");
-----------------
WHEREAS, each Guarantor (i) guaranties the obligations of the Borrower
under the Credit Agreement and the IRL Agreement pursuant to Section 2 of this
Agreement and (ii) may guaranty the obligations of the Borrower pursuant to
Additional Debt Agreements, Interest Rate Protection Agreements and/or Other
Hedging Agreements upon the execution and delivery to the Collateral Agent of an
Additional Debt Designation or Other Debt Designation, as the case may be,
appropriately completed and countersigned by the Borrower and each Guarantor;
WHEREAS, it is a condition precedent to (i) the making of Loans to the
Borrower and the issuance of, and participation in, Letters of Credit for the
account of the Borrower under the Credit Agreement and the making of Increasing
Rate Term Loans under the IRL Agreement that the Credit Parties shall have
executed and delivered this Agreement and (ii) to the extensions of credit under
the Additional Debt Agreements, Interest Rate Protection Agreements or Other
Hedging Agreements that the Borrower, and to the extent a Guarantor or Pledgor
with respect to such obligations and each other Credit Party shall have executed
and delivered this Agreement;
NOW, THEREFORE, in consideration of the foregoing and to induce the
Credit Facility Creditors to enter into the Credit Agreement, the IRL Creditors
to enter into the IRL Agreement, the Additional Debt Creditors to enter into
Additional Debt Agreements and the Other Creditors to enter into Interest Rate
Protection Agreements and/or Other Hedging Agreements, each Credit Party hereby
covenants and agrees with the Collateral Agent, for the benefit of the Secured
Creditors, as follows:
SECTION 1. DEFINED TERMS
-------------
1.1. Definitions. (a) Unless otherwise defined herein, all
-----------
capitalized terms used herein and defined in the Credit Agreement or the IRL
Agreement shall be used herein as therein defined. Reference to singular terms
shall include the plural and vice versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Additional Debt Agreements" has the meaning set forth in the
--------------------------
Recitals hereto.
"Additional Debt Creditors" has the meaning set forth in the Recitals
-------------------------
hereto.
"Additional Debt Designation" has the meaning set forth in Section
---------------------------
2.16 hereof.
"Additional Debt Documents" shall have the meaning provided in Section
-------------------------
2.1 hereof.
"Additional Debt Obligations" has the meaning set forth in Section
---------------------------
3.1(c) hereof.
2
<PAGE>
"Adjusted Net Worth" has the meaning set forth in Section 2.15 hereof.
------------------
"Administrative Agent" has the meaning set forth in the Recitals
--------------------
hereto.
"Adverse Claim" has the meaning given such term in Section 8-102(a)(1)
-------------
of the UCC.
"Aggregate Deficit Amount" has the meaning set forth in Section 2.15
------------------------
hereof.
"Aggregate Excess Amount" has the meaning set forth in Section 2.15
-----------------------
hereof.
"Agreement" has the meaning set forth in the first paragraph hereof.
---------
"Agreement Supplement" means an Agreement Supplement in the form of
--------------------
Annex E hereto, appropriately completed.
"Certificated Security" has the meaning given such term in Section 8-
---------------------
102(a)(4) of the UCC.
"Class" has the meaning set forth in Section 4.2 hereof.
-----
"Clearing Corporation" has the meaning given such term in Section 8-
--------------------
102(a)(5) of the UCC.
"Collateral" has the meaning set forth in Section 3.2 hereof.
----------
"Collateral Accounts" means any and all accounts established and
-------------------
maintained by the Collateral Agent in the name of any Credit Party to which
Collateral may be credited.
"Collateral Agent" has the meaning set forth in the first paragraph
----------------
hereof.
"Contribution Percentage" has the meaning set forth in Section 2.15
-----------------------
hereof.
"Control" has the meaning given such term in Section 8-106 of the UCC.
-------
"Credit Agreement" has the meaning set forth in the Recitals hereto.
----------------
"Credit Facility Creditors" has the meaning set forth in the Recitals
-------------------------
hereto.
"Credit Facility Lenders" has the meaning set forth in the Recitals
-----------------------
hereto.
"Credit Facility Obligations" has the meaning set forth in 3.1(a) of
---------------------------
this Agreement.
"Credit Party" has the meaning set forth in the first paragraph
------------
hereof.
"Event of Default" shall mean any "Event of Default" as defined in the
----------------
Credit Agreement and the IRL Agreement and any payment default under other
Guaranteed Documents,
3
<PAGE>
and shall include in any event any payment default on the Obligations, all after
giving effect to any applicable notice and cure period.
"Financial Asset" has the meaning given such term in Section 8-
---------------
102(a)(9) of the UCC.
"Foreign Company" has the meaning provided in Section 3.2 hereof.
---------------
"Guaranteed Additional Debt Obligations" has the meaning provided in
--------------------------------------
Section 2.1.
"Guaranteed Credit Facility Obligations" has the meaning provided in
--------------------------------------
Section 2.1 hereof.
"Guaranteed Documents" has the meaning set forth in Section 2.1
--------------------
hereof.
"Guaranteed IRL Obligations" has the meaning set forth in Section 2.1
--------------------------
hereof.
"Guaranteed Obligations" has the meaning set forth in Section 2.1
----------------------
hereof.
"Guaranteed Other Debt Obligations" has the meaning provided in
---------------------------------
Section 2.1 hereof.
"Guaranteed Parties" means (i) the Lender Creditors and (ii) to the
------------------
extent an Agreement Supplement is delivered to the Administrative Agent
entitling such Secured Creditors to the benefit of the guaranty set forth
herein, any Additional Debt Creditors and/or Other Creditors.
"Guarantor" means the collective reference to each Credit Party, other
---------
than the Borrower (including any such Credit Party which executes and delivers
an Agreement Supplement).
"Guaranty" shall mean the obligations of the Guarantors under Section
--------
2 hereof.
"Indemnitees" has the meaning set forth in Section 3.14 hereof.
-----------
"Instrument" has the meaning given such term in Section 9-105(1)(i) of
----------
the UCC.
"Investment Property" has the meaning given such term in Section 9-
-------------------
115(f) of the UCC.
"IRL Administrative Agent" has the meaning set forth in the Recitals
------------------------
hereto.
"IRL Agreement" has the meaning provided in the Recitals hereto.
-------------
"IRL Co-Arranger" has the meaning set forth in the Recitals hereto.
---------------
"IRL Creditors" has the meaning set forth in Recitals hereto.
-------------
4
<PAGE>
"IRL Loan Documents" shall have the meaning provided in Section 2.1
------------------
hereof.
"IRL Lead Arranger" has the meaning set forth in the Recitals hereto.
-----------------
"IRL Lenders" has the meaning set forth in the Recitals hereto.
-----------
"IRL Obligations" has the meaning set forth in Section 3.1(b) hereof.
---------------
"IRL Syndication Agent" has the meaning set forth in the Recitals
----------------------------------------------------------------
hereto.
- -------
"Lead Arranger" has the meaning set forth in the Recitals hereto.
-------------
"Lender Creditors" has the meaning set forth in the Recitals hereto.
----------------
"Limited Liability Company Assets" means all assets, whether tangible
--------------------------------
or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" means the entire limited
-----------------------------------
liability company membership interest at any time owned by any Pledgor in any
limited liability company that is a Subsidiary or Joint Venture of such Pledgor
(excluding Limited Liability Company Interests indicated on Annex A as not being
pledged, or otherwise determined by the Administrative Agent in its reasonable
discretion under Section 5.10(b) of the Credit Agreement, as not required to be
pledged).
"Net Worth" has the meaning set forth in Section 2.16 hereof.
---------
"Non-Voting Stock" means all capital stock which is not Voting Stock.
----------------
"Notes" means all intercompany promissory Notes at any time issued to
-----
any Pledgor.
"Obligations" has the meaning provided in Section 3.1 hereof.
-----------
"Other Creditors" has the meaning provided in the Recitals hereto.
---------------
"Other Debt Documents" has the meaning set forth in Section 2.1
--------------------
hereto.
"Other Debt Designation" has the meaning set forth in section 2.17
----------------------
hereof.
"Other Debt Obligations" has the meaning set forth in Section 3.1(d)
----------------------
hereof.
"Partnership Assets" means all assets, whether tangible or intangible
------------------
and whether real, personal or mixed (including, without limitation, all
partnership capital and interest in other partnerships), at any time owned or
represented by any Partnership Interest.
5
<PAGE>
"Partnership Interest" means the entire general partnership interest
--------------------
or limited partnership interest at any time owned by any Pledgor in any general
partnership or limited partnership that is a Subsidiary or Joint Venture of such
Pledgor (excluding Partnership Interests indicated on Annex A as not being
pledged, or otherwise determined by the Administrative Agent in its reasonable
discretion under Section 5.10(b) of the Credit Agreement, as not required to be
pledged).
"Pledged Equity Ownership Interest" means all Equity Ownership
---------------------------------
Interests (including Limited Liability Company Interests, Partnership Interests,
Notes and Stock) pledged or required to be pledged hereunder.
"Pledged Notes" means all Notes at any time pledged or required to be
-------------
pledged hereunder.
"Pledgor" means each Credit Party in its capacity as a Pledgor under
-------
Section 3 of this Agreement (excluding Guarantors indicated on Annex A, or
otherwise determined by the Administrative Agent in its reasonable discretion
under Section 5.10(b) of the Credit Agreement, as not required to be Pledgors
hereunder).
"Primary Obligations" has the meaning set forth in Section 3.12(b)
-------------------
hereof.
"Pro Rata Share" has the meaning set forth in Section 3.12(b) hereof.
--------------
"Proceeds" has the meaning given such term in Section 9-306(l) of the
--------
UCC.
"Relevant Payment" has the meaning set forth in Section 2.15 hereof.
----------------
"Representative" has the meaning set forth in Section 3.12(e) hereof.
--------------
"Required IRL Lenders" has the meaning set forth in Section 4.2
--------------------
hereof.
"Requisite Creditors" shall have the meaning provided in Section 4.2
-------------------
hereof.
"Required Secured Creditors" means (i) Required Lenders (under the
--------------------------
Credit Agreement) at all times prior to the date on which all Credit Facility
Obligations have been paid in full, (ii) the Required IRL Lenders at all times
after the date in clause (i) applies and prior to the date on which all IRL
Obligations have been paid in full and (iii) at any time thereafter the holders
of at least a majority of Additional Debt Obligations and Other Debt
Obligations.
"Secondary Obligations" has the meaning set forth in Section 3.12(b)
---------------------
hereof.
"Secured Creditors" has the meaning set forth in the Recitals hereto.
-----------------
"Securities Account" has the meaning given such term in Section 8-
------------------
501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended, as in
--------------
effect from time to time.
6
<PAGE>
"Security" and "Securities" has the meaning given such term in Section
-------- ----------
8-102(a)(15) of the UCC and shall in any event include all Stock and Notes (to
the extent same constitutes "Securities" under Section 8-102(a)(15)).
"Security Entitlement" has the meaning given such term in Section 8-
--------------------
102(a)(17) of the UCC.
"Stock" means all of the issued and outstanding shares of capital
-----
stock at any time owned by any Pledgor of any Foreign Corporation that is a
Subsidiary or Joint Venture of such Pledgor (excluding stock indicated on Annex
A as not being pledged, or otherwise determined by the Administrative Agent in
its reasonable discretion under Section 5.10(b) of the Credit Agreement as not
required to be pledged).
"Termination Date" has the meaning set forth in Section 3.23 hereof.
----------------
"UCC" means the Uniform Commercial Code as in effect in the State of
---
New York from time to time; provided that all references herein to specific
--------
sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"Uncertificated Security" has the meaning given such term in Section
-----------------------
8-102(a)(18) of the UCC.
"Voting Equity Ownership Interests" means all classes of Equity
---------------------------------
Ownership Interests of any Company entitled to vote.
SECTION 2. GUARANTY
--------
2.1. Guaranty. Each Guarantor, jointly and severally, absolutely,
--------
irrevocably and unconditionally guaranties to the applicable Guaranteed Parties,
as primary obligor and not merely as surety, the full and prompt payment when
due (whether at the stated maturity, by acceleration or otherwise) of (i) the
principal of, interest on and the Loans made to the Borrower under the Credit
Agreement and all reimbursement obligations and LC Obligations with respect to
Letters of Credit, together with all other obligations and liabilities owing by
the Borrower to the Credit Facility Creditors under the Credit Agreement and
each other Loan Document (including, without limitation, indemnities, Fees and
interest thereon), whether now existing or hereafter incurred under, arising out
of or in connection with, the Credit Agreement and each such other Loan
Document, and the due performance and compliance by the Borrower with all of the
terms, conditions and agreements contained in the Loan Documents (the
"Guaranteed Credit Facility Obligations"), (ii) the principal of, interest on
- ---------------------------------------
and Increasing Rate Term Loans made to the Borrower under the IRL Agreement and
the other loan documents related thereto (the "IRL Loan Documents") (including,
------------------
without limitation, indemnities, fees and interest thereon), whether now
existing or hereafter incurred under, arising out of or in connection with, the
IRL Agreement and IRL Loan Documents, and the due performance and compliance by
the Borrower with all of the terms, conditions and agreements contained in such
agreements (excluding Exchange Notes as defined in the IRL Agreement) (the
"Guaranteed IRL Obligations"), (iii) to the extent any
---------------------------
7
<PAGE>
Additional Debt Designation is executed by the Borrower and delivered to the
Collateral Agent entitling the Additional Debt Creditors to the benefit of this
Guaranty as permitted under the Credit Agreement, the principal of, interest on
and any loans made under any Additional Debt Agreement and any other loan
documents related thereto (the "Additional Debt Documents") (including, without
-------------------------
limitation, indemnities, fees and interest thereon), as and to the extent
designated by the Borrower in the Additional Debt Designation, whether now
existing or hereafter incurred under, arising out of or in connection with any
Additional Debt Agreement or Additional Debt Documents as permitted under the
Credit Agreement, and the due performance and compliance by the Borrower with
all of the terms, conditions and agreements contained in such agreements (the
"Guaranteed Additional Debt Obligations") and (iv) to the extent an Other Debt
--------------------------------------
Designation is executed and delivered by the Borrower to the Collateral Agent
entitling any Other Creditors to the benefits of this Guaranty, the obligations
made under any Interest Rate Protection Agreement with any of the Other
Creditors, Other Hedging Agreement with any of the Other Creditors and any other
documents related thereto (the "Other Debt Documents," and together with the
--------------------
Loan Documents, IRL Loan Documents, and the Additional Debt Documents, and this
Agreement, the "Guaranteed Documents") (including, without limitation,
--------------------
indemnities, fees and interest thereon), as and to the extent designated by the
Borrower in the Other Debt Designation whether now existing or hereafter
incurred arising out of or in connection with any Interest Rate Protection
Agreement with any of the Other Creditors, Other Hedging Agreement with any of
the Other Creditors or Other Debt Documents, and the due performance and
compliance by the Borrower with all of the terms, conditions and agreements
contained in such agreements (the "Guaranteed Other Debt Obligations," and all
---------------------------------
such obligations being herein collectively called the "Guaranteed Obligations"),
----------------------
in each case of the relevant Guaranteed Parties. Each Guarantor understands,
agrees and confirms that the Guaranteed Parties may enforce this Guaranty up to
the full amount of the Guaranteed Obligations against each Guarantor without
proceeding against any other Guarantor, against the Borrower, against any
security for the Guaranteed Obligations, or under any other guaranty covering
all or a portion of the Guaranteed Obligations.
2.2. Guaranty Absolute and Unconditional. Additionally, each
-----------------------------------
Guarantor, jointly and severally, absolutely, unconditionally and irrevocably,
guaranties the payment of any and all Guaranteed Obligations to the Guaranteed
Parties whether or not then due or payable by the Borrower upon the occurrence
in respect of the Borrower of any of the events specified in Section 7.05 of the
Credit Agreement, Section 7.05 of the IRL Agreement (or the comparable
provisions of any Additional Debt Agreement or Other Hedging Agreement with any
of the Other Creditors), and absolutely, unconditionally and irrevocably,
jointly and severally, promises to pay the Guaranteed Obligations to the
Guaranteed Parties, on order, on written demand, in lawful money of the United
States. This Guaranty shall constitute a guaranty of payment, and not of
collection.
2.3. Guaranty Exclusive and Independent. (a) The liability of each
----------------------------------
Guarantor hereunder is exclusive and independent of any security for or other
guaranty of the indebtedness of the Borrower, whether executed by such
Guarantor, any other Guarantor, any other guarantor or any other party, and the
liability of each Guarantor hereunder shall not be affected or impaired by any
circumstance or occurrence whatsoever, including, without limitation: (a) any
direction as to application of payment by the Borrower or by any other party,
(b) any other continuing or
8
<PAGE>
other guaranty, undertaking or maximum liability of a guarantor or of any other
party as to the indebtedness of the Borrower, (c) any payment on or in reduction
of any such other guaranty or undertaking except to the extent that any such
payment or reduction results in the actual permanent reduction of the Guaranteed
Obligations, (d) any dissolution, termination or increase, decrease or change in
personnel by the Borrower, (e) any payment made to any Guaranteed Party on the
indebtedness which any Secured Creditor repays the Borrower pursuant to a court
order in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding or
(f) any action or inaction by any Guaranteed Party as contemplated in Section
2.5 hereof.
(b) The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor, any other guarantor or the Borrower, and a
separate action or actions may be brought and prosecuted against each Guarantor
whether or not action is brought against any other Guarantor, any other
guarantor or the Borrower and whether or not any other Guarantor, any other
Guarantor or the Borrower be joined in any such action or actions. Any payment
by the Borrower or other circumstance which operates to toll any statute of
limitations as to the Borrower shall operate to toll the statute of limitations
as to each Guarantor.
2.4. Notice. Each Guarantor hereby waives, except as required by
------
applicable law and cannot be waived, notice of acceptance of this Agreement and
notice of any liability to which it may apply, and waives promptness, diligence,
presentment, demand of payment, protest, notice of dishonor or nonpayment of any
such liabilities, suit or taking of other action by the Collateral Agent or any
other Guaranteed Parties against, and any other notice to, any party liable
thereon (including such Guarantor, any other Guarantor or the Borrower).
2.5. Amendments etc. with respect to Guaranteed Obligations. Any
------------------------------------------------------
Guaranteed Party may at any time and from time to time without the consent of,
or notice to (except as required under applicable law and cannot be waived), any
Guarantor, and without impairing or releasing the obligations of such Guarantor
hereunder, from time to time and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increase or decrease in the rate
of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended, renewed
or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset there against;
9
<PAGE>
(c) exercise or refrain from exercising any rights against the
Borrower, any other Guarantor or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, Guarantors, other
Guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations or any
liability (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and may subordinate the payment of
all or any part thereof to the payment of any liability (whether due or
not) of the Borrower to creditors of the Borrower other than the Guaranteed
Parties;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Guaranteed Parties
regardless of what liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, the Guaranteed Documents or any of the instruments or agreements
referred to therein or otherwise amend, modify or supplement the Guaranteed
Documents or any of such other instruments or agreements; and
(h) take any other lawful action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of such Guarantor from its liabilities under this Guaranty.
2.6. Invalidity, Irregularity or Unenforceability of Guaranteed
----------------------------------------------------------
Obligations. No invalidity, irregularity or unenforceability of all or any part
- -----------
of the Guaranteed Obligations or of any security therefore shall affect, impair
or be a defense to this Guaranty, and this Guaranty shall be primary, absolute,
irrevocable and unconditional notwithstanding the occurrence of any event or the
existence of any other circumstances which might constitute a legal or equitable
discharge of a surety or Guarantor except payment in full of the Guaranteed
Obligations.
2.7. Rights and Remedies Cumulative. This Guaranty is a continuing
------------------------------
one and all liabilities to which it applies or may apply under the terms hereof
shall be conclusively presumed to have been created in reliance hereon. No
failure or delay on the part of any Guaranteed Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein expressly specified are cumulative
and not exclusive of any rights or remedies which any Guaranteed Parties would
otherwise have. No notice to or demand on any Guarantor in any case shall
entitle such Guarantor to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of any Guaranteed
Parties to any other or further action in any circumstances without notice or
demand. It is not necessary for any Guaranteed Parties to inquire into the
capacity or powers of the Borrower or the officers, directors, partners or
agents acting or purporting to act on their behalf, and any indebtedness
10
<PAGE>
made or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
2.8. Subordination of Indebtedness. Any indebtedness of the Borrower
-----------------------------
now or hereafter owing to any Guarantor is hereby subordinated to the
indebtedness of the Borrower to the Guaranteed Parties; and such indebtedness of
the Borrower to any Guarantor, if the Collateral Agent so requests at a time
when an Event of Default exists and is continuing and any Guaranteed Obligations
are outstanding, shall be collected, enforced and received by such Guarantor as
trustee for the Guaranteed Parties and be paid over to the Guaranteed Parties on
account of the indebtedness of the Borrower to the Guaranteed Parties, but
without affecting or impairing in any manner the liability of such Guarantor
under the other provisions of this Agreement. Prior to the transfer by any
Guarantor of any note or negotiable instrument evidencing any indebtedness of
the Borrower to such Guarantor, such Guarantor shall mark such note or
negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, each Guarantor
hereby agrees with the Guaranteed Parties that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this Guaranty
(whether contractual, under Section 509 of the Bankruptcy Code, or otherwise)
until all Guaranteed Obligations have been paid in full (it being understood
that each Guarantor is not waiving any right of subrogation that it may
otherwise have but is only waiving the exercise thereof as provided above).
2.9. Waiver. (a) Each Guarantor waives any right (except as shall
------
be required by applicable law and cannot be waived) to require the Guaranteed
Parties to: (i) proceed against the Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party; (ii) proceed against
or exhaust any security held from the Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party; or (iii) pursue any
other remedy in the Guaranteed Parties' power whatsoever. Each Guarantor waives
(except as shall be required by applicable law and cannot be waived) any defense
to the obligations of such Guarantor under this Guaranty based on or arising out
of any defense of the Borrower, such Guarantor, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party, other than payment
in full of the Guaranteed Obligations, including, without limitation, any
defense based on or arising out of the disability of the Borrower, such
Guarantor, any other Guarantor, any other guarantor of the Guaranteed
Obligations or any other party, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower, other than payment in full of the Guaranteed
Obligations. The Guaranteed Parties may, at their election, foreclose on any
security held by such Guaranteed Parties or the other Guaranteed Parties by one
or more judicial or non-judicial sales, whether or not every aspect of any such
sale is commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the Guaranteed Parties
may have against the Borrower or any other party, or any security, without
affecting or impairing in any way the liability of any Guarantor hereunder,
except to the extent the Guaranteed Obligations have been paid in full. Each
Guarantor waives any defense arising out of any such election by the Guaranteed
Parties, even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against
the Borrower or any other party or any security.
11
<PAGE>
(b) Each Guarantor waives, except as shall be required by applicable
law and cannot be waived, all presentments, demands for performance, protests
and notices, including, without limitation, notices of nonperformance, notices
of protest, notices of dishonor, notices of acceptance of this Guaranty, and
notices of the existence, creation or incurring of new or additional
indebtedness. Each Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that the Guaranteed Parties shall have
no duty to advise any Guarantor of information known to them regarding such
circumstances or risks.
2.10. Representations, Warranties and Covenants. In order to induce
-----------------------------------------
the Guaranteed Parties into (i) the making of Loans to the Borrower, and the
issuance of and participation in, Letters of Credit for the account of the
Borrower under the Credit Agreement, and the making of Increasing Rate Term
Loans under the IRL Agreement and (ii) to granting the extensions of credit
under the Additional Debt Agreements, and to the Other Creditors entering into
Interest Rate Protection Agreements or Hedging Agreements, each Guarantor
represents, warrants and covenants that, except as has been otherwise disclosed
in the Credit Agreement to the Collateral Agent,:
(a) Status. Such Guarantor (i) is a duly organized and validly
------
existing corporation, partnership or limited liability company, as the case
may be, in good standing (if applicable) under the laws of the jurisdiction
of its organization, (ii) has the corporate, partnership or limited
liability company power and authority, as the case may be, and legal right
to own and operate its assets, to lease the assets it operates as lessee
and to conduct the business in which it is currently engaged and (iii) is
duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the conduct of its business requires such
qualification, except for failures to be so qualified which, in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(b) Power and Authority. Such Guarantor has the corporate,
-------------------
partnership or limited liability company power and authority, as the case
may be, to make, deliver and perform the terms and provisions of this
Guaranty and each other Guaranteed Documents, to which it is a party and
has taken all necessary corporate, partnership or limited liability company
action to authorize the execution, delivery and performance by it of each
such Guaranteed Document. Except to the extent already obtained or made,
no consent or authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority or any other Person is required
in connection with the execution, delivery, performance, validity or
enforceability of this Guaranty or any such Guaranteed Documents. Such
Guarantor has duly executed and delivered this Guaranty and each other
Guaranteed Document to which it is a party and each such Guaranteed
Document constitutes the legal, valid and binding obligation of such
Guarantor enforceable in accordance with its terms, except to the extent
that the enforceability hereof and thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting the enforcement of creditors' rights generally and by
equitable principles (regardless of whether enforcement is sought in equity
or at law).
12
<PAGE>
(c) No Violation. The execution, delivery or performance by such
------------
Guarantor of this Guaranty or any other Guaranteed Document to which it is
a party, or compliance by it with the terms and provisions hereof and
thereof (i) will not violate any Requirement of Law or material Contractual
Obligation of such Guarantor, (ii) will not conflict with, or result in any
breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien (other than pursuant to the
Security Documents) upon any of the properties or assets of such Guarantor
or any of its Subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust, credit agreement or loan agreement or any other
material agreement, contract or instrument to which such Guarantor or any
of its Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it may be subject, except to the extent that
such conflict or default would not reasonably be expected to have a
Material Adverse Effect or (iii) will not violate any provision of any
Company Document of such Guarantor or any of its Subsidiaries. No
Requirement of Law or Contractual Obligation applicable to such Guarantor
or any of its Subsidiaries would reasonably be expected to have a Material
Adverse Effect.
(d) Each Guarantor represents, warrants, covenants and agrees that on
and after the Effective Date and until all commitments to extend credit
under the Guaranteed Documents have terminated and no Letter of Credit
remains outstanding and all Guaranteed Obligations have been paid in full,
such Guarantor shall, and shall cause each of its Subsidiaries to, take, or
refrain from taking, as the case may be, all actions that are necessary to
be taken or not taken to enable the Borrower to comply with all its
obligations, representations and covenants under the Guaranteed Documents,
and so that no violation of any provision, covenant or agreement contained
in Articles V and VI of the Credit Agreement, Articles V and VI of the IRL
Agreement, and so that no Event of Default, is caused by the actions of
such Guarantor or any of its Subsidiaries.
2.11. Right of Set Off. In addition to any rights now or hereafter
----------------
granted under applicable law (including, without limitation, Section 151 of the
New York Debtor and Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default,
each Guaranteed Party is hereby authorized at any time or from time to time,
without notice to any Guarantor or to any other Person, any such notice being
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or owing by
such Guaranteed Party to or for the credit or the account of such Guarantor,
against and on account of the obligations and liabilities of such Guarantor to
such Guaranteed Party under this Guaranty, irrespective of whether or not such
Guaranteed Party shall have made any demand hereunder and although said
obligations, liabilities, deposits or claims, or any of them, shall be
contingent or unmatured.
2.12. Repayment or Recovery. If claim is ever made upon any
---------------------
Guaranteed Party for repayment or recovery of any amount or amounts received in
payment or on account of any of the Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Borrower), then and in such event
13
<PAGE>
each Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon such Guarantor, notwithstanding any revocation
hereof or other instrument evidencing any liability of the Borrower, and such
Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
2.13. Payments by any Guarantor. All payments made by any Guarantor
-------------------------
hereunder will be made without setoff, counterclaim or other defense.
2.14. Right of Contribution. At any time a payment in respect of the
---------------------
Guaranteed Obligations is made under this Guaranty, the right of contribution of
each Guarantor against each other Guarantor shall be determined as provided in
the immediately following sentence, with the right of contribution of each
Guarantor to be revised and restated as of each date on which a payment (a
"Relevant Payment") is made on the Guaranteed Obligations under this Agreement.
- -----------------
At any time that a Relevant Payment is made by a Guarantor that results in the
aggregate payments made by such Guarantor in respect of the Guaranteed
Obligations to and including the date of the Relevant Payment exceeding such
Guarantor's Contribution Percentage (as defined below) of the aggregate payments
made by all Guarantors in respect of the Guaranteed Obligations to and including
the date of the Relevant Payment (such excess, the "Aggregate Excess Amount"),
-----------------------
each such Guarantor shall have a right of contribution against each other
Guarantor who has made payments in respect of the Guaranteed Obligations to and
including the date of the Relevant Payment in an aggregate amount less than such
other Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the
Guaranteed Obligations (the aggregate amount of such deficit, the "Aggregate
---------
Deficit Amount") in an amount equal to (x) a fraction the numerator of which is
- --------------
the Aggregate Excess Amount of such Guarantor and the denominator of which is
the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantor. A Guarantor's right of contribution
pursuant to the preceding sentences shall arise at the time of each computation,
subject to adjustment to the time of any subsequent computation; provided that
--------
no Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been paid in full and all commitments by the Guaranteed Parties
to extend credit under the Guaranteed Documents have been terminated, it being
expressly recognized and agreed by all parties hereto that any Guarantor's right
of contribution arising pursuant to this Section 2.15 against any other
Guarantor shall be expressly junior and subordinate to such other Guarantor's
obligations and liabilities in respect of the Guaranteed Obligations and any
other obligations owing under this Guaranty. As used in this Section 2.16: (i)
each Guarantor's "Contribution Percentage" shall mean the percentage obtained by
-----------------------
dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y)
the aggregate Adjusted Net Worth of all Guarantors; (ii) the "Adjusted Net
------------
Worth" of each Guarantor shall mean the greater of (x) the Net Worth (as defined
below) of such Guarantor and (y) zero; and (iii) the "Net Worth" of each
---------
Guarantor shall mean the amount by which the fair salable value of such
Guarantor's assets on the date of any Relevant Payment exceeds its existing
debts and other liabilities (including contingent liabilities, but without
giving effect to any Guaranteed Obligations arising under this Guaranty) on such
date. Each of the Guarantors recognizes and acknowledges that the rights to
contribution arising hereunder shall constitute an asset in favor of the party
entitled to such contribution. In this connection, each Guarantor has the right
to waive its contribution right against any Guarantor to
14
<PAGE>
the extent that after giving effect to such waiver such Guarantor would remain
solvent, in the determination of the Required Lenders under the Credit
Agreement.
2.15. Designation of Additional Debt. The Borrower may, by written
-------------------------------
notice to the Collateral Agent (any such notice, an "Additional Debt
Designation"), designate any obligations of the Borrower or any of its
Subsidiaries, Joint Ventures or Unrestricted Subsidiaries as Guaranteed
Additional Debt obligations and Additional Debt Obligations under this
Agreement, provided such designation is permitted under Section 6.02(l) of the
Credit Agreement and 6.02(l) of the IRL Agreement. Any Additional Debt
Designation shall specify the principal amount of the obligation(s), the
obligee(s) thereof, the principal documents evidencing and/or governing such
obligation(s), and, if less than the entire amount of any obligation is so
designated, the portion of such obligation(s) designated as Guaranteed
Additional Debt Obligations and Additional Debt Obligations hereunder. Upon the
delivery of any such Additional Debt Designation permitted under Section 6.02(1)
of the Credit Agreement and the IRL Agreement, the obligations so designated
therein shall thereupon be deemed to be Guaranteed Additional Debt Obligations
or Additional Debt Obligations, as the case may be for all purposed of this
Agreement. The Collateral Agent shall from time to time, at Borrower's request,
give Borrower a written notice identifying all Additional Debt Designations
theretofore received by Collateral Agent form Borrower.
2.16. Designation of Other Debt. The Borrower may, by written notice
--------------------------
to the Collateral Agent (any such notice, an "Other Debt Designation"),
designate any obligations of Borrower or any of its Subsidiaries, Joint Ventures
or Unrestricted Subsidiaries as Guaranteed Other Debt obligations and Other Debt
Obligations under this Agreement, provided such designation is permitted under
the Credit Agreement and the IRL Agreement. Any Other Debt Designation shall
specify all of the material economic terms of the obligation(s), the obligee(s)
thereof, the principal documents evidencing and/or governing such obligation(s),
and, if less than the entire amount of any obligation is so designated, the
portion of such obligation(s) designated as Guaranteed Other Debt Obligations
and Other Debt Obligations hereunder. Upon the delivery of any such Other Debt
Designation permitted under the Credit Agreement and the IRL Agreement, the
obligations so designated therein shall thereupon be deemed to be Guaranteed
Other Debt Obligations or Other Debt Obligations for all purposed of this
Agreement. The Collateral Agent shall from time to time, at Borrower's request,
give Borrower a written notice identifying all Other Debt Designations
theretofore received by Collateral Agent form Borrower.
SECTION 3. PLEDGE OF SECURITY INTEREST, ETC.
---------------------------------
3.1. Security for Obligations. This Agreement is made by each
------------------------
Pledgor for the benefit of the respective Secured Creditors to secure:
(a) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and indebtedness
(including, without limitation, indemnities, fees and interest thereon) of
the Borrower to the Credit Facility Creditors, whether now existing or
hereafter incurred, arising out of, or in connection with the Credit
Agreement and the other Loan Documents to which the Borrower is a party
(including, in the case of each Guarantor, all Guaranteed Credit Facility
Obligations with
15
<PAGE>
respect thereto under this Agreement) and the due performance and
compliance by such Pledgor with all of the terms, conditions and agreements
contained in the Credit Agreement and such other Loan Documents (the
"Credit Facility Obligations");
---------------------------
(b) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and indebtedness
(including, without limitation, indemnities, fees and interest thereon) of
the Borrower to the IRL Creditors, whether now existing or hereafter
incurred under, arising out of, or in connection with the IRL Agreement,
the other IRL Loan Documents to which the Borrower is a party (including,
in the case of each Guarantor, all Guaranteed IRL Obligations with respect
thereto under this Agreement) and the due performance and compliance by
such Pledgor with all of the terms, conditions and agreements contained in
the IRL Agreement and such other IRL Loan Documents (but in any event
excluding Exchange Notes as defined in the IRL Agreement) (the "IRL
---
Obligations");
-----------
(c) to the extent any Additional Debt Designation is executed by the
Borrower and delivered to the Collateral Agent, the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of
all obligations and indebtedness of the Borrower to the Additional Debt
Creditors, whether now existing or hereafter incurred, arising out of, or
in connection with the Additional Debt Documents to the extent permitted by
the Credit Agreement to which the Borrower is a party, (including, in the
case of each Guarantor, all Additional Debt Obligations with respect
thereto, if any, under this Agreement), and the due performance and
compliance by such Pledgor with all of the terms, conditions and
agreements, contained in the Additional Debt Documents (the "Additional
----------
Debt Obligations");
----------------
(d) to the extent any Other Debt Designation is executed by the
Borrower and delivered to the Collateral Agent, the full and prompt payment
when due (whether at the stated maturity, by acceleration or otherwise) of
all obligations and liabilities of the Borrower to the Other Creditors
under, or with respect to any Interest Rate Protection Agreement, Other
Hedging Agreement with the Other Creditors or Other Debt Documents
(including, in the case of each Guarantor, all Guaranteed Other Obligations
with respect thereto, if any, under this Agreement), whether such Interest
Rate Protection Agreement with the Other Creditors, Other Hedging Agreement
with the Other Creditors or Other Debt Documents are is now in existence or
hereafter arising, and the due performance and compliance by such Pledgor
with all of the terms, conditions and agreements contained in the Other
Debt Obligations (the "Other Debt Obligations");
----------------------
(e) after an Event of Default any and all sums advanced by Collateral
Agent in order to preserve the Collateral (as hereinafter defined) or
preserve its security interest in the Collateral;
(f) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations, or liabilities of the Collateral Agent
referred to in clauses (a) - (d) above, after an Event of Default shall
have occurred and be continuing, the reasonable expenses of retaking,
holding, preparing for sale or lease, selling or otherwise disposing of
16
<PAGE>
or realizing on the Collateral, or of any exercise by the Collateral Agent
of its rights hereunder, together with reasonable attorneys' fees and court
costs; and
(g) all amounts paid by any Secured Creditor as to which such Secured
Creditor has the right to reimbursement under Section 3.14 of this
Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (a)
through (g) of this Section 3.1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
- ------------
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
3.2. Pledge. To secure the Obligations and for the purposes set
------
forth in Section 3.1, each Pledgor hereby grants, pledges and assigns to the
Collateral Agent for the benefit of the Secured Creditors, and hereby creates a
continuing security interest in favor of the Collateral Agent for the benefit of
the Secured Creditors in, all of the right, title and interest in and to the
following, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
----------
(a) each of the Collateral Accounts including any and all assets of
whatever type or kind deposited by such Pledgor in such Collateral Account,
whether now owned or hereafter acquired, existing or arising, including,
without limitation, all Financial Assets in respect of an equity interest
in any Person of any type or nature deposited or required by the Credit
Agreement, IRL Agreement or any other Guaranteed Documents to be deposited
in such Collateral Account, and all investments and all certificates and
other Instruments (including depository receipts, if any) from time to time
representing or evidencing the same, and all dividends, interest,
distributions, cash and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of the foregoing;
(b) all Securities of such Pledgor from time to time in respect of any
Subsidiary or Joint Venture of such Pledgor (excluding Securities indicated
on Annex A, or otherwise determined by the Administrative Agent in its
reasonable discretion under Section 5.10(b) of the Credit Agreement, as not
required to be pledged);
(c) all Limited Liability Company Interests of such Pledgor from time
to time and all of its right, title and interest in each limited liability
company to which each such interest relates, whether now existing or
hereafter acquired, including, without limitation:
(A) all the capital thereof and its interest in all profits,
losses, Limited Liability Company Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of such
Limited Liability Company Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Limited Liability Company Interests, whether under any
limited liability com-
17
<PAGE>
pany agreement or otherwise, whether as contractual obligations,
damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
limited liability company agreement or operating agreement, or at law
or otherwise in respect of such Limited Liability Company Interests;
(D) all present and future claims, if any, of such Pledgor
against any such limited liability company for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability
company agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and privilege of
such Pledgor relating to such Limited Liability Company Interests,
including any power to terminate, cancel or modify any limited
liability company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in
the name of any of such Pledgor in respect of such Limited Liability
Company Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Limited Liability Company Asset, to enforce
or execute any checks, or other instruments or orders, to file any
claims and to take any action in connection with any of the foregoing;
and
(F) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash,
securities, interest, dividends, rights and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof;
(d) all Partnership Interests of such Pledgor from time to time and
all of its right, title and interest in each partnership to which each such
interest relates, whether now existing or hereafter acquired, including,
without limitation:
(A) all the capital thereof and its interest in all profits,
losses, Partnership Assets and other distributions to which such
Pledgor shall at any time be entitled in respect of such Partnership
Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Partnership Interests, whether under any partnership
agreement or otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
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(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
partnership agreement or operating agreement, or at law or otherwise
in respect of such Partnership Interests;
(D) all present and future claims, if any, of such Pledgor
against any such partnership for moneys loaned or advanced, for
services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership agreement
or operating agreement or at law to exercise and enforce every right,
power, remedy, authority, option and privilege of such Pledgor
relating to such Partnership Interests, including any power to
terminate, cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all other
action on behalf of and in the name of any of such Pledgor in respect
of such Partnership Interests and any such partnership, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Partnership Asset, to enforce or execute any
checks, or other instruments or orders, to file any claims and to take
any action in connection with any of the foregoing; and
(F) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash,
securities, interest, dividends, rights and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof;
(e) all Security Entitlements of such Pledgor from time to time in any
and all of the foregoing;
(f) all Financial Assets and Investment Property of such Pledgor from
time to time in respect of any of the foregoing; and
(g) to the extent not otherwise included, all Proceeds of any and all
of the foregoing.
Notwithstanding anything to the contrary contained in this Section 3.2, no
Pledgor shall be required at any time to pledge hereunder more than 65% of the
voting Equity Ownership Interest of any Company which is not formed or
incorporated under the laws of the United States or any State thereof (each, a
"Foreign Company"), except that, subject to the Credit Agreement each Pledgor
- ----------------
shall be required to pledge hereunder 100% of any Non-Voting Stock at any time
and from time to time acquired by such Pledgor of any such Foreign Company.
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<PAGE>
3.3. Procedures. (a) To the extent that any Pledgor at any time or
----------
from time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by the respective Pledgor) be pledged pursuant to Section 3.2 of this
Agreement and, in addition thereto, such Pledgor shall (to the extent provided
below) take the following actions as set forth below (as promptly as practicable
and, in any event, within 30 days after it obtains such Collateral) for the
benefit of the Collateral Agent and the Secured Creditors:
(i) with respect to a Certificated Security constituting Collateral
(other than a Certificated Security credited on the books of a Clearing
Corporation), the respective Pledgor shall physically deliver such
Certificated Security to the Collateral Agent, endorsed to the Collateral
Agent or endorsed in blank;
(ii) with respect to an Uncertificated Security constituting
Collateral (other than an Uncertificated Security credited on the books of
a Clearing Corporation), the respective Pledgor shall cause the issuer of
such Uncertificated Security to duly authorize and execute, and deliver to
the Collateral Agent, an agreement for the benefit of the Collateral Agent
and the Secured Creditors substantially in the form of Annex D hereto
(appropriately completed to the satisfaction of the Collateral Agent and
with such modifications, if any, as shall be reasonably satisfactory to the
Collateral Agent) pursuant to which such issuer agrees to comply with any
and all instructions originated by the Collateral Agent without further
consent by the registered owner and not to comply with instructions
regarding such Uncertificated Security (and any Partnership Interests and
Limited Liability Company Interests issued by such issuer) originated by
any other Person other than a court of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation (including a Federal
Reserve Bank, Participants Trust Company or The Depository Trust Company),
the respective Pledgor shall promptly notify the Collateral Agent thereof
and shall promptly take all actions reasonably required (i) to comply with
the applicable rules of such Clearing Corporation and (ii) to perfect the
security interest of the Collateral Agent under applicable law (including,
in any event, under Sections 9-115(4)(a) and (b), 9-115(1)(e) and 8-106(d)
of the UCC). The Pledgor further agrees to take such actions as the
Collateral Agent deems reasonably necessary or desirable to effect the
foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability
Company Interest (other than a Partnership Interest or Limited Liability
Interest credited on the books of a Clearing Corporation), (1) if such
Partnership Interest or Limited Liability Company Interest is represented
by a certificate, the procedure set forth in Section 3.3(a)(i) hereof, and
(2) if such Partnership Interest or Limited Liability Company Interest is
not represented by a certificate, the procedure set forth in Section
3.3(a)(ii) hereof;
(v) After the occurrence and continuance of an Event of Default,
with respect to cash which is Proceeds of Collateral (i) establishment by
the Collateral Agent of a cash
20
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account in the name of such Pledgor over which the Collateral Agent shall
have exclusive and absolute control and dominion (and no withdrawals or
transfers may be made therefrom by any Person except with the prior written
consent of the Collateral Agent) and (ii) deposit of such cash in such cash
account; and
(vi) with respect to any Note, physical delivery of such Note to the
Collateral Agent, endorsed to the Collateral Agent or endorsed in blank.
(b) In addition to the actions required to be taken pursuant to
preceding Section 3.3(a), each Pledgor shall take the following additional
actions with respect to the Securities and Collateral:
(i) with respect to all Collateral of such Pledgor whereby or with
respect to which the Collateral Agent may obtain "control" thereof within
the meaning of Section 8-106 of the UCC (or under any provision of the UCC
as same may be amended or supplemented from time to time, or under the laws
of any relevant State other than the State of New York), the respective
Pledgor shall take all actions as may be requested from time to time by the
Collateral Agent so that "control" of such Collateral is obtained and at
all times held by the Collateral Agent; and
(ii) each Pledgor shall from time to time cause appropriate
financing statements (on Form UCC-1 or other appropriate form) under the
Uniform Commercial Code as in effect in the various relevant States,
covering all Collateral hereunder for which the filing of such financing
statements is required to perfect the applicable security interest (with
the form of such financing statements to be satisfactory to the Collateral
Agent), to be filed in the relevant filing offices so that at all times the
Collateral Agent has a security interest in all Investment Property and
other Collateral which is perfected by the filing of such financing
statements (in each case to the maximum extent perfection by filing may be
obtained under the laws of the relevant states, including, without
limitation, Section 9-115(4)(b) of the UCC).
3.4. Subsequently Acquired Collateral. If any Pledgor shall acquire
--------------------------------
(by purchase, stock dividend or otherwise) any additional Collateral at any time
or from time to time after the date hereof, such Collateral shall automatically
(and without any further action being required to be taken) be subject to the
pledge and security interests created pursuant to Section 3.2 hereof and,
furthermore, the Pledgor will promptly thereafter take (or cause to be taken)
all action with respect to such Collateral in accordance with the procedures set
forth in Section 3.3 hereof, and will promptly thereafter deliver to the
Collateral Agent (i) a certificate executed by a principal executive officer of
such Pledgor describing such Collateral and certifying that the same has been
duly pledged in favor of the Collateral Agent (for the benefit of the Secured
Creditors) hereunder and (ii) supplements to Annexes A through C hereto as are
necessary to cause such annexes to be complete and accurate at such time.
Without limiting the foregoing, each Pledgor shall be required to pledge
hereunder any Equity Ownership Interest at any time and from time to time after
the date hereof acquired by such Pledgor of any Foreign Company, provided that
no Pledgor shall be required at any time to pledge hereunder more than 65% of
the Voting Equity Ownership Interest of any Foreign Company and subject to the
Credit Agreement each Pledgor shall be
21
<PAGE>
required to pledge hereunder 100% of any other Equity Ownership Interest at any
time and from time to time acquired by such Pledgor of any Foreign Company.
3.5. Transfer Taxes. Each pledge of Collateral under Section 3.1 or
--------------
Section 3.4 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.6. Certain Representations and Warranties Regarding the Collateral.
---------------------------------------------------------------
Each Pledgor represents and warrants that on the date hereof (i) each Subsidiary
or Joint Venture of such Pledgor, and the direct ownership thereof, is listed in
Annex A hereto; (ii) the Stock held by such Pledgor consists of the number and
type of shares of the stock of the corporations as described in Annex A hereto;
(iii) such Stock constitutes that percentage of the issued and outstanding
capital stock of the issuing corporation as is set forth in Annex A hereto; (iv)
the Notes held by such Pledgor consist of the promissory Notes described in
Annex B hereto where such Pledgor is listed as the lender; (v) the Limited
Liability Company Interests held by such Pledgor consist of the number and type
of interests of the Persons described in Annex A hereto; (vi) each such Limited
Liability Company Interest constitutes that percentage of the issued and
outstanding equity interest of the issuing Person as set forth in Annex A
hereto; (vii) the Partnership Interests held by such Pledgor consist of the
number and type of interests of the Persons described in Annex A hereto; (viii)
each such Partnership Interest constitutes that percentage or portion of the
entire partnership interest of the Partnership as set forth in Annex A hereto;
(ix) the Pledgor has complied with the respective procedure set forth in Section
3.2(a) hereof with respect to each item of Collateral described in Annexes A and
B hereto; and (x) on the date hereof, such Pledgor owns no other Securities
required to be pledged hereunder, Limited Liability Company Interests or
Partnership Interests.
3.7. Appointment of Sub-Agents; Endorsements, etc. The Collateral
---------------------------------------------
Agent shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Collateral, which may be held (in the
reasonable discretion of the Collateral Agent) in the name of the relevant
Pledgor, endorsed or assigned in blank or in favor of the Collateral Agent or
any nominee or nominees of the Collateral Agent or a sub-agent appointed by the
Collateral Agent.
3.8. Voting, etc., While No Event of Default. Notwithstanding
---------------------------------------
anything to the contrary contained herein, unless and until an Event of Default
shall have occurred and be continuing, each Pledgor shall be entitled to
exercise any and all voting and other consensual rights pertaining to the
Pledged Equity Ownership Interests and to give consents, waivers or
ratifications in respect thereof; provided that no vote shall be cast or not
--------
cast or any consent, waiver or ratification given or not given or any action
taken or not taken which would violate or be inconsistent with any of the terms
of this Agreement or any other Guaranteed Document, or which would have the
effect of materially impairing the position or interests of the Collateral Agent
or any Secured Creditor. All such rights of such Pledgor to vote and to give
consents, waivers and ratifications shall cease in case an Event of Default
shall occur and be continuing, and Section 3.10 hereof shall become applicable.
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3.9. Dividends and Distributions. Notwithstanding anything to the
---------------------------
contrary contained herein, unless and until there shall have occurred and be
continuing an Event of Default, all cash dividends, cash distributions, cash
Proceeds and other cash amounts payable in respect of the Collateral shall be
paid to the respective Pledgor. Subject to Section 3.3 hereof, the Collateral
Agent shall be entitled to receive directly, and to retain as part of the
Collateral:
(i) all other or additional stock, Notes, limited liability company
interests, partnership interests, instruments or other securities or
property (other than cash) paid or distributed by way of dividend,
distribution or otherwise in respect of the Collateral;
(ii) all other or additional stock, Notes, limited liability company
interests, partnership interests, instruments or other securities or
property paid or distributed in respect of the Collateral by way of merger,
consolidation, conveyance of assets, liquidation, exchange of stock, stock-
split, spin-off, split-up, reclassification, combination of shares or
similar rearrangement; and
(iii) all other property (other than cash) paid or distributed by
way of dividend or distribution in respect of the Collateral.
Nothing contained in this Section 3.9 shall limit or restrict in any way the
Collateral Agent's right to receive proceeds of the Collateral in any form in
accordance with Section 3.2 of this Agreement, provided that in the absence of
an Event of Default, such distributions and dividends may be received free and
clear of the Lien under this Agreement. All dividends, distributions, proceeds
or other payments which are received by any Pledgor contrary to the provisions
of this Section 3.9 and Section 3.10 hereof shall be received in trust for the
benefit of the Collateral Agent, shall be segregated from other property or
funds of such Pledgor and shall be forthwith paid over to the Collateral Agent
as Collateral in the same form as so received (with any necessary endorsement).
3.10. Remedies in Case of an Event of Default. In case an Event of
---------------------------------------
Default shall have occurred and be continuing, then in each and every case the
Collateral Agent shall be entitled to exercise all of the rights, powers and
remedies (whether vested in it by this Agreement or by any other Guaranteed
Document or by law) for the protection and enforcement of its rights in respect
of the Collateral, and the Collateral Agent shall be entitled to exercise all
the rights and remedies of a secured party under the UCC (subject, in the case
of a pledge of Securities, Partnership Interests or Limited Liability Company
Interests in any Subsidiary or Joint Venture to the provisions contained in the
charter or organizational documents of such Subsidiary or Joint Venture) and
also shall be entitled (subject to the immediately proceeding parenthetical), to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(a) to receive all amounts payable in respect of the Collateral
otherwise payable to such Pledgor under Section 3.9 hereof;
(b) to transfer all or any part of the Collateral into the Collateral
Agent's name or the name of its nominee or nominees;
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(c) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
(d) to vote all or any part of the Collateral (whether or not
transferred into the name of the Collateral Agent) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise act
with respect thereto as though it were the outright owner thereof (each
Pledgor hereby irrevocably constituting and appointing the Collateral Agent
the proxy and attorney-in-fact of such Pledgor, with full power of
substitution to do so);
(e) at any time and from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Collateral
Agent in its absolute discretion may determine, provided that at least 10
--------
days' written notice of the time and place of any such sale shall be given
to the respective Pledgor. The Collateral Agent shall not be obligated to
make any such sale of Collateral regardless of whether any such notice of
sale has theretofore been given. Each Pledgor hereby waives and releases
to the fullest extent permitted by law any right or equity of redemption
with respect to the Collateral, whether before or after sale hereunder, and
all rights, if any, of marshalling the Collateral and any other security
for the Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Collateral Agent on behalf of the Secured Creditors may
bid for and purchase all or any part of the Collateral so sold free from
any such right or equity of redemption. Neither the Collateral Agent nor
any other Secured Creditor shall be liable for failure to collect or
realize upon any or all of the Collateral or for any delay in so doing nor
shall any of them be under any obligation to take any action whatsoever
with regard thereto; and
(f) to set-off any and all Collateral against any and all Obligations,
and to withdraw any and all cash or other Collateral from any and all
Collateral Accounts and to apply such cash and other Collateral to the
payment of any and all Obligations.
3.11. Remedies, etc., Cumulative. Each and every right, power and
--------------------------
remedy of the Collateral Agent provided for in this Agreement or in any other
Guaranteed Document, or now or hereafter existing at law or in equity or by
statute shall be cumulative and concurrent and shall be in addition to every
other such right, power or remedy. The exercise or beginning of the exercise by
the Collateral Agent or any other Secured Creditor of any one or more of the
rights, powers or remedies provided for in this Agreement or any other
Guaranteed Document or now or hereafter existing at law or in equity or by
statute or otherwise shall not preclude the simultaneous or later exercise by
the Collateral Agent or any other Secured Creditor of all such other rights,
powers or remedies, and no failure or delay on the part of the Collateral Agent
or any other Secured Creditor to exercise any such right, power or remedy shall
operate as a waiver thereof. No notice to or demand on any Pledgor in any case
shall entitle it to any other or further notice or demand in similar or other
circumstances or constitute a waiver of any of the rights of the Collateral
Agent
24
<PAGE>
or any other Secured Creditor to any other or further action in any
circumstances without notice or demand. The Secured Creditors (including
Guaranteed Parties) agree that this Agreement may be enforced only by the action
of the Administrative Agent or the Collateral Agent, in each case acting upon
the instructions of the Required Lenders under the Credit Agreement (or, after
the date on which all Credit Facility Obligations have been paid in full and all
commitments in respect thereof terminated, the holders of at least the majority
of the outstanding IRL Obligations, Additional Debt Obligations and Other Debt
Obligations) and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Agreement or to realize upon
the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Administrative Agent or the
Collateral Agent for the benefit of the Secured Creditors upon the terms of this
Agreement.
3.12. Application of Proceeds. (a) All moneys or other proceeds
-----------------------
collected by the Collateral Agent upon any sale or other disposition of the
Collateral pursuant to the terms of this Agreement, together with all other
moneys or other proceeds received by the Collateral Agent hereunder, shall be
applied to the payment of the Obligations as follows:
(i) first, to the payment of all Obligations owing to the
Collateral Agent of the type described in clauses (e) and (f) of Section
3.1 of this Agreement;
(ii) second, to the extent moneys remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Primary Obligations shall be paid to the Secured Creditors as provided in
Section 3.12(e) hereof, with each Secured Creditor receiving an amount
equal to its outstanding Primary Obligations or, if the moneys are
insufficient to pay in full all such Primary Obligations, its Pro Rata
Share of the Primary Obligations of the amount remaining to be distributed;
(iii) third, to the extent moneys remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Secondary Obligations shall be paid to the Secured Creditors as
provided in Section 3.12(e) hereof, with each Secured Creditor receiving an
amount equal to its outstanding Secondary Obligations or, if the moneys or
proceeds are insufficient to pay in full all such Secondary Obligations,
its Pro Rata Share of the Secondary Obligations of the amount remaining to
be distributed; and
(iv) fourth, to the extent moneys remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, and
following the termination of this Agreement pursuant to 3.23(a) hereof, to
the relevant Pledgor or to whomever may be lawfully entitled to receive
such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall mean,
--------------
when calculating a Secured Creditor's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Creditor's Primary Obligations
or Secondary Obligations, as the case may be, and the denominator of which is
the then outstanding amount of all Primary Obligations or Secondary Obligations,
as the case may be, (y) "Primary Obligations" shall mean collectively (i) in the
-------------------
case of
25
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the Credit Facility Obligations, all principal of, and interest on, all
Loans under the Credit Agreement, all LC Obligations (together with all interest
accrued thereon), and all Fees, (ii) in the case of IRL Obligations, all
principal of, and interest on, all Loans under the IRL Agreement, and all fees
payable thereunder, (iii) in the case of Additional Debt Obligations, all
principal of, and interest on, all loans under the Additional Debt Agreements,
all letter of credit reimbursement obligations thereunder (together with all
interest accrued thereon) and all fees payable thereunder and (iv) in the case
of the Other Debt Obligations, all amounts due under the Interest Rate
Protection or Other Hedging Agreements (other than indemnities, reasonable fees
(including, without limitation, reasonable attorneys' fees) and similar
obligations and liabilities) and (z) "Secondary Obligations" shall mean all
---------------------
Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their respective
Pro Rata Shares, the amounts received by such Secured Creditors hereunder shall
be applied (for purposes of making determinations under this Section 3.12 only)
(i) first, to their Primary Obligations and (ii) second, to their Secondary
Obligations. If any payment to any Secured Creditor of its Pro Rata Share of
any distribution would result in overpayment to such Secured Creditor, such
excess amount shall instead be distributed in respect of the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of the other Secured
Creditors, with each Secured Creditor whose Primary Obligations or Secondary
Obligations, as the case may be, have not been paid in full to receive an amount
equal to such excess amount multiplied by a fraction the numerator of which is
the unpaid Primary Obligations or Secondary Obligations, as the case may be, of
such Secured Creditor and the denominator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
(d) Each of the Secured Creditors agrees and acknowledges, by its
acceptance of this Agreement that if the Credit Facility Creditors or Additional
Debt Creditors are to receive a distribution on account of undrawn amounts with
respect to Letters of Credit issued (or deemed issued) under the Credit
Agreement or letters of credit issued under the Additional Debt Agreements
(which shall only occur after all outstanding loans and letter of credit
reimbursement obligations with respect to such Letters of Credit or letters of
credit have been paid in full), such amounts shall be paid to the Administrative
Agent under the Credit Agreement or the representative under the Additional Debt
Agreements, as the case may be and held by it, for the equal and ratable benefit
of the respective Secured Creditors, as cash security for the repayment of
Obligations owing to the Credit Facility Creditors as such. If any amounts are
held as cash security pursuant to the immediately preceding sentence, then upon
the termination of all outstanding Letters of Credit or letters of credit, and
after the application of all such cash security to the repayment of all
Obligations owing to the respective Secured Creditors after giving effect to the
termination of all such Letters of Credit or letters of credit, if there remains
any excess cash, such excess cash shall be returned by the Administrative Agent
to the Collateral Agent for distribution in accordance with Section 3.12(a)
hereof.
(e) Except as set forth in Section 3.12(d) hereof, all payments
required to be made hereunder shall be made (x) if to the Credit Facility
Creditors, to the Administrative Agent for the account of the Credit Facility
Creditors, (y) if to the IRL Creditors, to the IRL Administrative Agent for the
account of the IRL Creditors and (z) if to the Additional Debt
26
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Creditors or Other Debt Creditors, to the trustee, paying agent or other similar
representative (each, a "Representative") for the Other Debt Creditors or, in
--------------
the absence of such a Representative, directly to the Additional Debt Creditors
or Other Debt Creditors.
(f) For purposes of applying payments received in accordance with this
Section 3.12, the Collateral Agent shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement, (ii) the IRL Administrative
Agent under the IRL Agreement and (iii) the Representative for the Additional
Debt Creditors and Other Debt Creditors or, in the absence of such a
Representative, upon the Additional Debt Creditors and Other Debt Creditors for
a determination (which the Administrative Agent, the IRL Administrative Agent,
each Representative for any Secured Creditor and the Secured Creditors agree (or
shall agree) to provide upon request of the Collateral Agent), of the
outstanding Primary Obligations and Secondary Obligations owed to the respective
Secured Creditors. Unless it has actual knowledge (including by way of written
notice from a Secured Creditor) to the contrary, the Administrative Agent and
each Representative, in furnishing information pursuant to the preceding
sentence, and the Collateral Agent, in acting hereunder, shall be entitled to
assume that no Secondary Obligations are outstanding. Unless it has actual
knowledge (including by way of written notice from an Additional Debt Creditor
or Other Debt Creditor) to the contrary, the Collateral Agent, in acting
hereunder, shall be entitled to assume that no Additional Debt Agreements,
Interest Rate Protection Agreements or Other Hedging Agreements are in
existence.
(g) It is understood and agreed that the Pledgors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
3.13. Purchasers of Collateral. Upon any sale of the Collateral by
------------------------
the Collateral Agent hereunder (whether by virtue of the power of sale herein
granted, pursuant to judicial process or otherwise), the receipt of the
Collateral Agent or the officer making the sale shall be a sufficient discharge
to the purchaser or purchasers of the Collateral so sold, and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Collateral Agent or such officer or be
answerable in any way for the misapplication or nonapplication thereof.
3.14. Indemnity. Each Pledgor jointly and severally agrees (i) to
---------
indemnify and hold harmless the Collateral Agent and each other Secured Creditor
and their respective successors, assigns, employees, agents, affiliates and
servants (individually an "Indemnitee," and collectively the "Indemnitees") from
---------- -----------
and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all costs and expenses, including reasonable
attorneys' fees, in each case growing out of or resulting from this Agreement or
the exercise by any Indemnitee of any right or remedy granted to it hereunder or
under any other Guaranteed Document (but excluding any claims, demands, losses,
judgments and liabilities or expenses to the extent incurred by reason of gross
negligence or willful misconduct of such Indemnitee (as finally determined by a
court of competent jurisdiction)). In no event shall any Indemnitee be liable,
in the absence of gross negligence or willful misconduct on its part, for any
matter or thing in connection with this Agreement other than to account for
monies actually received by it in accordance with the terms
27
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hereof. If and to the extent that the obligations of any Pledgor under this
Section 3.14 are unenforceable for any reason, such Pledgor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law. The indemnity obligations
of each Pledgor contained in this Section 3.14 shall continue in full force and
effect notwithstanding the full payment of all Obligations and notwithstanding
the discharge thereof.
3.15. Collateral Agent Not Bound. (a) Nothing herein shall be
--------------------------
construed to make the Collateral Agent or any other Secured Creditor liable as a
general partner or limited partner of any partnership or as a member of any
limited liability company and the Collateral Agent or any other Secured Creditor
by virtue of this Agreement or otherwise (except as referred to in the following
sentence) shall not have any of the duties, obligations or liabilities of a
general partner or limited partner of any partnership or of a member of any
limited liability company. The parties hereto expressly agree that, unless the
Collateral Agent shall become the absolute owner of a Partnership Interest or a
Limited Liability Company Interest pursuant hereto, this Agreement shall not be
construed as creating a partnership or joint venture among the Collateral Agent,
any other Secured Creditor and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 3.15, the Collateral Agent, by accepting this Agreement, did not intend
to become a general partner or limited partner of any partnership or of a member
of any limited liability company or otherwise be deemed to be a co-venturer with
respect to any Pledgor or any partnership or any limited liability company
either before or after an Event of Default shall have occurred. The Collateral
Agent shall have only those powers set forth herein and shall assume none of the
duties, obligations or liabilities of a general partner or limited partner of
any partnership or of a member of any limited liability company or any Pledgor.
(c) The Collateral Agent and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a result of
the pledge hereby effected.
(d) The acceptance by the Collateral Agent of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Collateral Agent or any other Secured Creditor to
appear in or defend any action or proceeding relating to the Collateral to which
it is not a party, or to take any action hereunder or thereunder, or to expend
any money or incur any expenses or perform or discharge any obligation, duty or
liability under the Collateral.
3.16. Further Assurances; Power-of-Attorney. (a) Each Pledgor
-------------------------------------
agrees that it will join with the Collateral Agent in executing and, at such
Pledgor's own expense, file and refile under the UCC or other applicable law
such financing statements, continuation statements and other documents in such
offices as the Collateral Agent may reasonably determine necessary or
appropriate and wherever required or permitted by law in order to perfect and
preserve the Collateral Agent's security interest in the Collateral and hereby
authorizes the Collateral Agent to file financing statements and amendments
thereto relative to all or any part of the Collateral without the signature of
such Pledgor where permitted by law, and agrees to do such further acts (or, in
the case of Securities, Partnership Interests or Limited Liability Company
Interests which
28
<PAGE>
are Joint Ventures, such Pledgor shall make reasonable efforts to do such
further acts) and things and to execute and deliver to the Collateral Agent such
additional conveyances, assignments, agreements and instruments as the
Collateral Agent may reasonably require or deem necessary to carry into effect
the purposes of this Agreement or to further assure and confirm unto the
Collateral Agent its rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Collateral Agent such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, to act from time to time solely after
the occurrence and during the continuance of an Event of Default in the
Collateral Agent's discretion to take any action and to execute any instrument
which the Collateral Agent may deem necessary or advisable to accomplish the
purposes of this Agreement.
3.17. The Collateral Agent as Collateral Agent. The Collateral Agent
----------------------------------------
will hold in accordance with this Agreement all items of the Collateral at any
time received under this Agreement. It is expressly understood and agreed by
each Secured Creditor that by accepting the benefits of this Agreement each such
Secured Creditor acknowledges and agrees that the obligations of the Collateral
Agent as holder of the Collateral and interests therein and with respect to the
disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in this Agreement (including Schedule I hereof). The
Collateral Agent shall act hereunder on the terms and conditions set forth
herein and in Schedule I hereof.
3.18. Transfer by the Pledgors. No Pledgor will sell or otherwise
------------------------
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the terms of this Agreement and the other
Guaranteed Documents).
3.19. Representations, Warranties and Covenants of the Pledgors. (a)
---------------------------------------------------------
Each Pledgor represents, warrants and covenants that except as otherwise
expressly disclosed:
(i) it is the legal, beneficial and record owner of, and has good
and marketable title to, all Collateral consisting of one or more
Securities and that it has sufficient interest in all Collateral in which a
security interest is purported to be created hereunder for such security
interest to attach (subject, in each case, to no pledge, lien, mortgage,
hypothecation, security interest, charge, option, Adverse Claim or other
encumbrance whatsoever, except the liens and security interests created by
this Agreement or as permitted under the Credit Agreement);
(ii) it has full power, authority and legal right to pledge all the
Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in accordance
with its terms, except to the extent that the enforceability hereof and
thereof may be limited by applicable bankruptcy, insolvency,
reorganiza-
29
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tion, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is
sought in equity or at law);
(iv) except to the extent already obtained or made, no consent or
(including, without limitation, any stockholder or creditor of such Pledgor
or any of its Subsidiaries) authorization of, filing with, notice to or any
other act by or in respect of, any Governmental Authority or any other
Person is required to be obtained by such Pledgor in connection with (a)
the execution, delivery or performance of this Agreement, (b) the validity
or enforceability of this Agreement (except as set forth in clause (iii)
above), (c) the perfection or enforceability of the Collateral Agent's
security interest in the Collateral or (d) except for compliance with or as
may be required by applicable securities laws, the exercise by the
Collateral Agent of any of its rights or remedies provided herein (it being
understood and agreed that the exercise of rights and remedies hereunder
may breach or create defaults under other agreements to such Pledgor or the
Pledged Equity Ownership Interests);
(v) the execution, delivery and performance by such Pledgor of this
Agreement will not violate any Requirement of Law or material Contractual
Obligation applicable to such Pledgor, or of the certificate of
incorporation, operating agreement, limited liability company agreement,
partnership agreement or by-laws of such Pledgor or of any securities
issued by such Pledgor or any of its Subsidiaries, or of any mortgage, deed
of trust, indenture, lease, loan agreement, credit agreement or other
contract, agreement or instrument or undertaking to which such Pledgor or
any of its Subsidiaries is a party or which purports to be binding upon
such Pledgor or any of its Subsidiaries or upon any of their respective
assets and will not result in the creation or imposition of (or the
obligation to create or impose) any lien or encumbrance on any of the
assets of such Pledgor or any of its Subsidiaries except as contemplated by
this Agreement (it being understood and agreed that the exercise of rights
and remedies hereunder may breach or create defaults under other agreements
to such Pledgor or the Pledged Equity Ownership Interests);
(vi) to the knowledge of such Pledgor, all of the Collateral
(consisting of Securities, Limited Liability Company Interests or
Partnership Interests) has been duly and validly issued, is fully paid and
non-assessable and is subject to no options to purchase or similar rights;
(vii) each of the Pledged Notes constitutes, or when executed by the
obligor thereof will constitute, the legal, valid and binding obligation of
such obligor, enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law);
(viii) the pledge, collateral assignment and delivery to the
Collateral Agent of the Collateral consisting of Certificated Securities
pursuant to this Agreement creates a valid and perfected first priority
security interest in such Securities, and the proceeds thereof, subject to
no prior Lien other than as permitted under the Credit Agreement or
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<PAGE>
encumbrance or to any agreement purporting to grant to any third party a
Lien or encumbrance on the property or assets of such Pledgor which would
include the Securities and the Collateral Agent is entitled to all the
rights, priorities and benefits afforded by the UCC or other relevant law
as enacted in any relevant jurisdiction to perfect security interests in
respect of such Collateral; and
(ix) Control has been obtained by the Collateral Agent over all
Collateral consisting of Securities (including Notes which are Securities)
with respect to which such "control" may be obtained pursuant to Section 8-
106 of the UCC.
(b) Each Pledgor covenants and agrees that it will defend the
Collateral Agent's right, title and security interest in and to the Securities
and the proceeds thereof against the claims and demands of all persons
whomsoever; and each Pledgor covenants and agrees that it will have like title
to and right to pledge any other property at any time hereafter pledged to the
Collateral Agent as Collateral hereunder and will likewise defend the right
thereto and security interest therein of the Collateral Agent and the Secured
Creditors.
(c) Each Pledgor covenants and agrees that on and after the Effective
Date and until the Total Commitment has terminated and when no Letter of Credit
remains outstanding and all Credit Facility Obligations have been paid in full,
such Pledgor shall, and shall cause each of its Subsidiaries to, take, or will
refrain from taking, as the case may be, all actions that are necessary to be
taken or not taken to enable each of the Borrower to comply with all its
respective obligations, representations and covenants under the Credit
Agreement, so that no violation of any provision, covenant or agreement
contained in Sections 5 and 6 of the Credit Agreement, and so that no Event of
Default, is caused by the actions of such Pledgor or any of its Subsidiaries.
(d) Each Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Guaranteed Document.
3.20. Chief Executive Office; Records. The chief executive office of
-------------------------------
each Pledgor is located at the address specified in Annex C hereto. Each
Pledgor will not move its chief executive office except to such new location as
such Pledgor may establish in accordance with the last sentence of this Section
3.20. No Pledgor shall establish a new location for such offices until (i) it
shall have given to the Collateral Agent not less than 30 days' prior written
notice of its intention so to do, clearly describing such new location and
providing such other information in connection therewith as the Collateral Agent
may reasonably request and (ii) with respect to such new location, it shall have
taken all action, satisfactory to the Collateral Agent, to maintain the security
interest of the Collateral Agent in the Collateral intended to be granted hereby
at all times fully perfected and in full force and effect. Promptly after
establishing a new location for such offices in accordance with the immediately
preceding sentence, the respective Pledgor shall deliver to the Collateral Agent
a supplement to Annex C hereto so as to cause such Annex C hereto to be complete
and accurate.
3.21. Pledgors' Obligations Absolute, etc. The obligations of each
------------------------------------
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect (subject to Section 3.23 hereof) without regard
to, and shall not be released, suspended, discharged,
31
<PAGE>
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation: (i) any renewal, extension, amendment or
modification of or addition or supplement to or deletion from any Guaranteed
Document or any other instrument or agreement referred to therein, or any
assignment or transfer of any thereof; (ii) any waiver, consent, extension,
indulgence or other action or inaction under or in respect of any such agreement
or instrument including, without limitation, this Agreement; (iii) any
furnishing of any additional security to the Collateral Agent or its assignee or
any acceptance thereof or any release of any security by the Collateral Agent or
its assignee; (iv) any limitation on any party's liability or obligations under
any such instrument or agreement or any invalidity or unenforceability, in whole
or in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
or Joint Venture of any Pledgor, or any action taken with respect to this
Agreement by any trustee or receiver, or by any court, in any such proceeding,
whether or not such Pledgor shall have notice or knowledge of any of the
foregoing.
3.22. Registration, etc. (a) If an Event of Default shall have
------------------
occurred and be continuing then, and in every such case, upon receipt by any
Pledgor from the Collateral Agent of a written request or requests that such
Pledgor cause any registration, qualification or compliance under any Federal or
state securities law or laws to be effected with respect to all or any part of
the Collateral consisting of Stock, Limited Liability Company Interests or
Partnership Interests, such Pledgor as soon as practicable and at its expense
will cause such registration to be effected (and be kept effective) and will
cause such qualification and compliance to be declared effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Collateral, including, without limitation, registration
under the Securities Act, as then in effect (or any similar statute then in
effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other government
requirements, provided that the Collateral Agent shall furnish to such Pledgor
--------
such information regarding the Collateral Agent as such Pledgor may reasonably
request in writing and as shall be required in connection with any such
registration, qualification or compliance. Such Pledgor will cause the
Collateral Agent to be kept advised in writing as to the progress of each such
registration, qualification or compliance and as to the completion thereof, will
furnish to the Collateral Agent such number of prospectuses, offering circulars
or other documents incident thereto as the Collateral Agent from time to time
may reasonably request, and will indemnify the Collateral Agent, each other
Secured Creditor and all others participating in the distribution of such
Collateral against all claims, losses, damages and liabilities caused by any
untrue statement (or alleged untrue statement) of a material fact contained
therein (or in any related registration statement, notification or the like) or
by any omission (or alleged omission) to state therein (or in any related
registration statement, notification or the like) a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same may have been caused by an untrue statement or
omission based upon information furnished in writing to such Pledgor by the
Collateral Agent or such other Secured Creditor expressly for use therein.
(b) If at any time when the Collateral Agent shall determine to
exercise its right to sell all or any part of the Collateral pursuant to Section
3.10 hereof, and such Collateral or the part thereof to be sold shall not, for
any reason whatsoever, be effectively registered under the
32
<PAGE>
Securities Act, as then in effect, the Collateral Agent may, in its sole and
absolute discretion, sell such Collateral or part thereof by private sale in
such manner and under such circumstances as the Collateral Agent may deem
necessary or advisable in order that such sale may legally be effected without
such registration. Without limiting the generality of the foregoing, in any such
event the Collateral Agent, in its sole and absolute discretion (i) may proceed
to make such private sale notwithstanding that a registration statement for the
purpose of registering such Collateral or part thereof shall have been filed
under the Securities Act, (ii) may approach and negotiate with a single possible
purchaser to effect such sale, and (iii) may restrict such sale to a purchaser
who will represent and agree that such purchaser is purchasing for its own
account, for investment, and not with a view to the distribution or sale of such
Collateral or part thereof. In the event of any such sale, the Collateral Agent
shall incur no responsibility or liability for selling all or any part of the
Collateral at a price which the Collateral Agent, in its sole and absolute
discretion, in good faith deems reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration as aforesaid.
SECTION 4. MISCELLANEOUS
-------------
4.1. Notices, etc. All such notices and communications hereunder
-------------
shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
overnight courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when delivered to the telegraph company, cable company or
overnight courier, as the case may be, or sent by telex or telecopier and when
mailed shall be effective three Business Days following deposit in the mail with
proper postage, except that notices and communications to the Collateral Agent
or the respective Credit Party shall not be effective until received by the
Collateral Agent or the respective Credit Party, as the case may be. All
notices and other communications shall be in writing and addressed as follows:
(a) if to any Credit Party, at its address set forth opposite its
signature below;
(b) if to the Collateral Agent, at:
The Chase Manhattan Bank
Agency Plus
One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: Daniella Cassognol
Telephone No.: (212) 552-7452
Facsimile No.: (212) 552-5701
(c) if to any Credit Facilities Creditor or IRL Creditor, either (x)
to the Administrative Agent, at the address of the Administrative Agent
specified in the Credit Agreement or to the IRL Administrative Agent at the
address of the IRL Administrative Agent specified in the IRL Agreement or
(y) at such address as such Credit Facility Creditor or IRL Creditor shall
have specified in the Credit Agreement or the IRL Agreement, as the case
may be; and
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<PAGE>
(d) if to any Additional Debt Creditor of Other Debt Creditor at such
address as such Additional Debt Creditor or Other Debt Creditor shall have
specified in writing to the Pledgors and the Collateral Agent;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
4.2. Waiver; Credit Facility Amendment. None of the terms and
---------------------------------
conditions of this Agreement may be changed, waived, modified or varied in any
manner whatsoever unless in writing duly signed by each Credit Party directly
affected thereby and the Collateral Agent (with the written consent of (x) the
Required Lenders under the Credit Agreement (or all of the Lenders to the extent
required by Section 9.02 of the Credit Agreement) at all times prior to the date
on which all Credit Facility Obligations have been paid in full or (y) the
Required Lenders under the IRL Agreement (the "Required IRL Lenders") after the
- ---------------- --------------------
date clause (x) applies and prior to the date on which the Total Revolving Loan
Commitment and all Letters of Credit have been terminated and all IRL
Obligations have been paid in full; provided that any change, waiver,
--------
modification or variance affecting (A) any release of Guarantors of their
obligations under Section 2 shall require the consent of the Required Lenders
under the Credit Agreement (or all of the Lenders to the extent required by
Section 9.02 of the Credit Agreement) and the Required IRL Lenders (or all of
the IRL Lenders to the extent required by Section 9.02 of the IRL Agreement) and
(B) any change, waiver, modification or variance affecting the rights and
benefits of a single Class of Secured Creditors (and not all Secured Creditors
in a like or similar manner) shall also require the written consent of the
Requisite Creditors of such affected Class. For the purpose of this Agreement,
the term "Class" shall mean each class of Secured Creditors, i.e., whether (i)
----- ----
the Credit Facility Creditors as holders of the Credit Document Obligations,
(ii) IRL Creditors as holders of IRL obligations, (iii) Additional Debt
Creditors as holders of Additional Debt Obligations or (iv) the Other Debt
Creditors as the holders of the Other Debt Obligations. For the purpose of this
Agreement, the term "Requisite Creditors" of any Class shall mean each of (i)
-------------------
with respect to the Credit Facility Obligations, the Required Lenders under the
Credit Agreement, (ii) with respect to the IRL Obligations, the Required IRL
Lenders, (iii) with respect to the Additional Debt Obligations or IRL
Obligations, the required IRL Lenders and (iv) with respect to the Other Debt
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Additional Debt Agreements or Other Debt Agreements.
4.3. Assignment. This Agreement shall create a continuing security
----------
interest in the Collateral and shall (i) remain in full force and effect,
subject to release and/or termination as set forth herein, (ii) be binding upon
each Credit Party, its successors and assigns; provided, however, that no Credit
-------- -------
Party shall assign any of its rights or obligations hereunder without the prior
written consent of the Collateral Agent (and the prior written consent of the
Required Lenders under the Credit Agreement or, to the extent required by
Section 9.02 of the Credit Agreement, each of the Lenders), and (iii) inure,
together with the rights and remedies of the Collateral Agent hereunder, to the
benefit of the Collateral Agent, the other Secured Creditors and their
respective successors, transferees and assigns.
4.4. Section Headings. The headings of the several sections and
----------------
subsections in this Agreement are for purposes of reference only and shall not
limit or define the meaning hereof.
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<PAGE>
4.5. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
4.6. Severability. In the event that any provision of this Agreement
------------
shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain binding
on all parties hereto.
4.7. Recourse. This Agreement is made with full recourse to the
--------
Credit Parties and pursuant to and upon all the representations, warranties,
covenants and agreements on the part of the Pledgors contained herein and in the
other Guaranteed Documents and otherwise in writing in connection herewith or
therewith.
4.8. Additional Guarantors and Pledgors. It is understood and agreed
----------------------------------
that any Subsidiary of the Borrower that is required to execute a counterpart of
this Agreement after the date hereof pursuant to the Credit Agreement shall
automatically become a Guarantor and/or Pledgor hereunder by executing an
Agreement Supplement indicating such designation and delivering same to the
Collateral Agent.
4.9. Termination; Release. (a) After the Termination Date (as
--------------------
defined below), this Agreement, the Guaranty and the security interests created
hereby shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 3.14 hereof shall survive any such
termination) the Collateral Agent, at the request and expense of any Pledgor,
will execute and deliver to such Pledgor a proper instrument or instruments
acknowledging the satisfaction and termination of this Agreement, including
without limitation, UCC termination statements and instruments of satisfaction,
discharge and/or reconveyance and will duly assign, transfer and deliver to such
Pledgor (without recourse and without any representation or warranty) such of
the Collateral as has not theretofore been sold or otherwise applied or released
pursuant to this Agreement, together with any moneys at the time held by the
Collateral Agent or any of its sub-agents hereunder and, with respect to any
Collateral consisting of an Uncertified Security (other than an Uncertificated
Security credited on the books of a Clearing Corporation), a Partnership
Interest or a Limited Liability Company Interest, a termination of the agreement
relating thereto executed and delivered by the issuer of such Uncertificated
Security pursuant to Section 3.3(a)(ii) hereof or by the respective partnership
or limited liability company pursuant to Section 3.2(a)(iv) hereof. As used in
this Agreement, "Termination Date" shall mean the date upon which the Total
----------------
Revolving Loan Commitment and all Letters of Credit have been terminated and all
Credit Facility Obligations and IRL Obligations have been paid in full; provided
that (i) if on the Termination Date, any Additional Debt Agreement or Other
Debt Agreements remain outstanding, or any Additional Debt Obligations or Other
Debt Obligations remain unpaid and (ii) the Borrower and the holders of any such
outstanding obligations described in clause (i) above appoint a replacement
Collateral Agent to act as such hereunder, the Termination Date shall be
extended to the date agreed to by the parties described in this clause (ii).
(b) In the event that (i) any part of the Collateral is subject to a
Disposition under the Credit Agreement (other than a Disposition to any
Pledgor), (ii) any Pledgor is merged with another Pledgor in accordance with the
Credit Agreement, (iii) any Collateral is required to be released to effectuate
the incurrence of Indebtedness permitted under Sections 6.02 and 6.03
35
<PAGE>
of the Credit Agreement or (iv) any Collateral is otherwise released at the
direction of the Required Lenders under the Credit Agreement (or all Lenders if
required by Section 9.02 of the Credit Agreement) and in the case of clauses
(i)-(iv) above, the proceeds of such Indebtedness or Disposition release shall
be applied in accordance with the provisions of the Credit Agreement, to the
extent required to be so applied, the Collateral Agent, at the request and
expense of any Pledgor, will duly assign, transfer and deliver to such Pledgor
(without recourse and without any representation or warranty) such of the
Collateral (and releases therefor) as is then being (or has been) so sold or
released and has not theretofore been released pursuant to this Agreement.
(c) At any time that a Pledgor desires that the Collateral Agent
assign, transfer and deliver Collateral (and releases therefor) as provided in
Section 4.9(a) or (b) hereof, such Pledgor or Borrower shall deliver to the
Collateral Agent a certificate signed by a principal executive officer of such
Pledgor stating that the release of the respective Collateral is permitted
pursuant to such Section 4.9(a) or (b).
(d) The Collateral Agent shall have no liability whatsoever to any
other Secured Creditor as the result of any release of Collateral by it in
accordance with this Section 4.9.
(e) In the event that all of the Equity Ownership Interests in one or
more Guarantors are sold or otherwise disposed of or liquidated in compliance
with the requirements of the Credit Agreement (or such sale or other disposition
has been approved in writing by the Required Lenders under the Credit Agreement
(or all of the Lenders required under Section 9.02 thereof)) and the proceeds of
such sale, disposition or liquidation are applied in accordance with the
provisions of the Credit Agreement, to the extent applicable, such Guarantor
shall be released from this Guaranty and this Guaranty shall, as to each such
Guarantor or Guarantors, terminate, and have no further force or effect (it
being understood and agreed that the sale of one or more Persons that own,
directly or indirectly, all of the Equity Ownership Interests of any Guarantor
shall be deemed to be a sale of such Guarantor for the purposes of this Section
4.9(e)).
4.10. GOVERNING LAW. (a) THIS AGREEMENT AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE SECURED CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
Any legal action or proceeding with respect to this Agreement or any other
Guaranteed Document to which any Credit Party is a party may be brought in the
courts of the State of New York or of the United States of America for the
Southern District of New York, and, by execution and delivery of this Credit
Party, each Credit Party hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Credit Party hereby further irrevocably waives any claim that any
such courts lack jurisdiction over such Credit Party, and agrees not to plead or
claim in any legal action or proceeding with respect to this Credit Party or any
other Guaranteed Document to which such Credit Party is a party brought in any
of the aforesaid courts that any such court lacks jurisdiction over such Credit
Party. Each Credit Party further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
each Credit Party at its address set forth opposite its signature below, such
service to
36
<PAGE>
become effective 30 days after such mailing. Each Credit Party hereby
irrevocably waives any objection to such service of process and further
irrevocably waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other Guaranteed Document to which such Credit
Party is a party that service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of any of the Secured Creditors to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against each Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement or
any other Guaranteed Document to which such Credit Party is a party brought in
the courts referred to in clause (a) above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that such action or
proceeding brought in any such court has been brought in an inconvenient forum.
4.11. WAIVER OF JURY TRIAL. EACH CREDIT PARTY AND EACH SECURED
--------------------
CREDITOR (BY ITS ACCEPTANCE OF THE BENEFITS OF THIS AGREEMENT) HEREBY
IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGENT, THE OTHER GUARANTEED
DOCUMENTS TO WHICH SUCH CREDIT PARTY IS A PARTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
* * * *
37
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written by their respective duly authorized officers.
1500 CANAL STREET INVESTORS II, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
ALBUQUERQUE C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality Partnership,
L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
BJV REALTY, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
BOULDERS CAREFREE SEWER
CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
BOULDERS JOINT VENTURE,
as Pledgor and Guarantor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
BURRLLEN ENTERPRISES OF
MARYLAND,
as Pledgor and Guarantor
By: Patriot Grand Heritage, LLC, its General
Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
C.I. ALBUQUERQUE LESSEE GP, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
C.I. ALBUQUERQUE LESSEE, L.P.,
as Pledgor and Guarantor
By: C.I. Albuquerque Lessee GP, LLC, its
General Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
CAREFREE MANAGEMENT LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
CASA MARINA REALTY CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CHC HOTELS & RESORTS CORP.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
CHC LEASE PARTNERS,
as Pledgor and Guarantor
By: CHC REIT Management Corp., its
General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CHC REIT LESSEE CORP.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CHC REIT MANAGEMENT CORP.
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CHICAGO-ES HOLDING CORP.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CHMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
CLUBHOUSE INNS OF AMERICA, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
CRITERION HOTEL MANAGEMENT CORP.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CRITERION NY INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CROSSROADS DEVELOPMENT
COMPANY,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
CSMC OF KALAMAZOO, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
DEUCE MANAGEMENT COMPANY, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
FAMILY SUITES CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
Title: Vice President
FAMILY SUITES MANAGEMENT
CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
FS DEVELOPMENT CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GH-ATLANTA, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
GH-CHICAGO, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
GH-DETROIT, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GH-GREENVILLE, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GH-PROVIDENCE, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GH-SAN DIEGO, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GH TRADEMARKS LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
GH-WICHITA, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GHMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
GHV-COLORADO, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GHV-GALVESTON, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GLENVIEW HOSPITALITY, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC,
its General Partner
By: Patriot American Hospitality Partnership,
L.P.,
its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
GRAND BAY MANAGEMENT COMPANY,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GRAND BAY MANAGEMENT LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
GRAND HERITAGE HOTELS, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
GRAND HERITAGE LEASING, LLC,
as Pledgor and Guarantor
By: Patriot Grand Heritage, LLC, a Member
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
GRAND HERITAGE REAL ESTATE
GROUP LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
GRAND MANAGEMENT SERVICES, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
HMG BEVERAGE, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
IHC/BURLINGTON CORPORATION,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
IHC/CAPITAL CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
IHC/CONSHOHOCKEN PARTNERSHIP
L.P.,
as Pledgor and Guarantor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/DENVER PARTNERSHIP, L.P.,
as Pledgor and Guarantor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/FS DEVELOPMENT CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
Title: Vice President
IHC/HOUSTON PARTNERSHIP, L.P.,
as Pledgor and Guarantor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
IHC/INTERSTONE PARTNERSHIP II, LP,
as Pledgor and Guarantor
By: PAH-Interstone, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/JACKSONVILLE CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/JAMAICA CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/MARYVILLE HOTEL CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
Title: Vice President
IHC MEMBER CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/MIAMI BEACH CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
IHC MIAMI MORTGAGE CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/PARK WEST CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/REACH CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC REALTY CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC REALTY PARTNERSHIP, L.P.,
as Pledgor and Guarantor
By: IHC Realty Corporation,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC/SANTA MARIA CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
IHC/TEXAS CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHC TITLE AGENCY CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHP/CLASS B PARTNERSHIP, L.P.,
as Pledgor and Guarantor
By: IHC Realty Partnership, L.P., its General
Partner
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
IHP INVESTMENT COMPANY, L.L.C.,
as Pledgor and Guarantor
By: IHC Realty Partnership, L.P., a Member
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
IHP LESSEE, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
INTERSTATE/MONTOUR ASSOCIATES,
LTD.,
as Pledgor and Guarantor
BY: IHC/Park West Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
INTERSTONE/PAH PARTNERS, L.P.,
as Pledgor and Guarantor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
INTERSTONE THREE PARTNERS I L.P.,
as Pledgor and Guarantor
By: PAH Interstone, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
INTMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
KANSAS CITY HOSPITALITY, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
MARINA HOSPITALITY, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
MBAH, INC.,
as Pledgor and Guarantor
By /s/Richard L. Mahoney
---------------------
Title: Vice President & Treasurer
<PAGE>
MELBOURNE HOSPITALITY, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC,
its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
O-H ACQUISITION, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
P.H.G., LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PA HUNT VALLEY INVESTORS, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PA TROY HOSPITALITY, L.P.
as Pledgor and Guarantor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH ACQUISITION CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH ALLEN OPERATING CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH ASSET MANAGEMENT, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
PAH BATTERYMARCH OPERATING
COMPANY, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PAH BUTTES L.L.C.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-CAREFREE, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-CI HOLDING, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-COLUMBUS HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH DEUCE GP, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-DT PARK PLACE PARTNERS, L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-DT TALLAHASSEE PARTNERS, L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-DT MINNEAPOLIS SUITES
PARTNERS, L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-DT CHICAGO O'HARE PARTNERS,
L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-DT MIAMI AIRPORT PARTNERS,
L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH FF&E HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-FRANCHISE HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAHG FF&E HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH GAH HOLDINGS, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PAH GAH HOLDINGS, L.P.,
as Pledgor and Guarantor
By: PAH GAH Holdings, LLC, its General
Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PAH-GBM, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-GP ALLEN PARTNERS, L.P.,
as Pledgor and Guarantor
By: PAH-Allen Operating Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH GP, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-GRAND BAY MIAMI, L.P.,
as Pledgor and Guarantor
By: PAH-GBM, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-INTEREST HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-INTERSTONE, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-IP HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH LEASING LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PAH LP, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-MANAGEMENT CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAHP FF&E HOLDING, INC., as Pledgor and
Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-PITTSBURGH, LLC,
as Pledgor and Guarantor
By: PAR-Franchise Holding, Inc., its sole
Member
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-PITTSBURGH CI HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-REAL ESTATE MEMBER, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-RH, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-RIVER HOUSE, L.P.,
as Pledgor and Guarantor
By: PAH-RH, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH RIVER NORTH, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH STANLY HOLDING LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PAH-SUMMERFIELD HOLDING CORP.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH-SUMMERFIELD LEASING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-SUMMERFIELD LLC,
as Pledgor and Guarantor
By: PAH-Summerfield Holding Corp., its sole
Member
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-T, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-TAMPA, L.P.,
as Pledgor and Guarantor
By: PAH-T, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PAH VENTANA CANYON, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-WMC HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAH-XERXES HOLDING, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PAHMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
PARK WEST HOTEL ASSOCIATES,
as Pledgor and Guarantor
By: PW Land Associated Limited Partnership,
a General Partner
By: IHC/Park West Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PATRIOT AMERICAN HOSPITALITY, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P., as Pledgor and
Guarantor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PATRIOT BOUGAINVILLEA
DEVELOPMENT COMPANY, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PATRIOT GRAND HERITAGE, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
PATRIOT HOLDING LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
PATRIOT LAND HOLDING LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PATRIOT MIAMI NOTE HOLDER, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
PATRIOT RACETRACK LAND LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., a Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PSMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
--------------------
Title: Vice President & Treasurer
PW LAND ASSOCIATES LIMITED
PARTNERSHIP,
as Pledgor and Guarantor
By: IHC/Park West Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
PWMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
<PAGE>
RICHARDSON C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SAVANNAH C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SFMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
SIERRA SUITES MARKETING
ASSOCIATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
ST. LOUIS C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its General Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SUMMERFIELD HOTEL COMPANY, L.P.,
as Pledgor and Guarantor
By: PAH-Summerfield LLC, its General
Partner
By: PAH-Summerfield Holding Corp., its sole
Member
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SUMMERFIELD HOTEL CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SUMMERFIELD SUITES MARKETING
ASSOCIATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
SYRACUSE ASSOCIATES CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
SYRACUSE REALTY ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: Syracuse Associates Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
THE KEY WEST REACH LIMITED
PARTNERSHIP,
as Pledgor and Guarantor
By: IHC/Reach Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
THE PEAKS REAL ESTATE SERVICES,
INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
TOLEDO HOTEL INVESTORS, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC, its General
Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
TOPEKA C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality Partnership,
L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WATERFRONT MANAGEMENT
CORPORATION,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
<PAGE>
WATER STREET HOTEL, LTD.,
as Pledgor and Guarantor
By: IHC/Jacksonville Corporation, its General
Partner
By /s/ Richard L. Mahoney
--------------------
Title: Vice President & Treasurer
WH INTEREST, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
--------------------
Title: Vice President & Treasurer
WHC CHICAGO, LLC,
as Pledgor and Guarantor
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WHC FINANCE, L.P., as Pledgor and
Guarantor
By: O-H Acquisition, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WHC FRANCHISE CORPORATION,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
--------------------
Title: Vice President & Treasurer
<PAGE>
WHCMB, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
WHCMB OVERLAND PARK, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
Title: Vice President & Treasurer
WI OHIO INVESTORS, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WMC II, INC.,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WYN TRAVEL, INC.,
as Pledgor and Guarantor
By /s/ Richard L. Mahoney
----------------------
Title: Vice President & Treasurer
WYNDHAM ATLANTA LESSEE, LLC,
as Pledgor and Guarantor
By: Wyndham International, Inc., its sole
member
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
WYNDHAM IP CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WYNDHAM INTERNATIONAL, INC., as
Pledgor and not as a Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
WYNDHAM INTERNATIONAL
OPERATING PARTNERSHIP, L.P.,
as Pledgor and Guarantor
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
WYNDHAM MANAGEMENT
CORPORATION,
as Pledgor and Guarantor
By /s/ John P. Bohlmann
--------------------
Title: Vice President
WYNDHAM MANAGEMENT II, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
<PAGE>
WYNDHAM SUMMERFIELD LESSEE, L.P.,
as Pledgor and Guarantor
By: Wyndham Summerfield Lessee, LLC, its
General Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
WYNDHAM SUMMERFIELD LESSEE,
LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------
Title: Sr. Vice President
YO HOTEL INVESTORS, L.P.,
as Pledgor and Guarantor
By: PAH Deuce GP, LLC, its General Partner
By: Patriot American Hospitality Partnership,
L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
GAH-II, L.P., as Pledgor and Guarantor
By: GAH-II Corp., its General Partner
By /s/ John P. Bohlmann
--------------------
Title: Vice President
TCC VENEZUELA, L.C., as Pledgor and
Guarantor
By: CHC Hotels & Resorts Corp., its Member
By /s/ John P. Bohlmann
--------------------
Title: Vice President
<PAGE>
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Collateral Agent
By /s/ Thomas H. Kozlark
---------------------
Title: Vice President
<PAGE>
SCHEDULE I
----------
THE COLLATERAL AGENT
--------------------
1. Appointment. The Secured Creditors by their acceptance of the
-----------
benefits of this Agreement, hereby irrevocably designate Chase as Collateral
Agent to act as specified herein and in this Agreement. Each Secured Creditor
hereby irrevocably authorizes the Collateral Agent to take such action on its
behalf under the provisions of this Agreement and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Collateral Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto.
2. The Collateral Agent in its Individual Capacity. The Collateral
-----------------------------------------------
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Collateral Agent, and such bank and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrower or
any Subsidiary or other Affiliate thereof as if it were not the Collateral Agent
hereunder and may accept fees and other consideration from the Borrower or any
Subsidiary or other Affiliate thereof for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
3. Nature of Duties. The Collateral Agent shall have no duties or
----------------
responsibilities except those expressly set forth in this Agreement. Neither
the Collateral Agent nor any of its officers, directors, employees or agents
shall be liable for any action taken or omitted by it as such under this
Agreement or hereunder or in connection herewith or therewith, unless caused by
its or their gross negligence or willful misconduct. The duties of the
Collateral Agent shall be mechanical and administrative in nature; the
Collateral Agent shall not have by reason of this Agreement or any other
Guaranteed Document a fiduciary relationship in respect of any Secured Creditor;
and nothing in this Agreement, expressed or implied, is intended to or shall be
so construed as to impose upon the Collateral Agent any obligations in respect
of this Agreement except as expressly set forth herein.
4. Reliance. The Collateral Agent shall be entitled to rely upon,
--------
and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Collateral Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Collateral Agent may consult with
legal counsel (who may be counsel for the Borrower), independent accountants and
other experts selected by it, with respect to all legal matters pertaining to
this Agreement and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
5. Sub-Agents. The Collateral Agent may perform any and all its
----------
duties and exercise its rights and powers by or through any one or more sub-
agents appointed by the Collateral Agent. The Collateral Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
succeeding or preceding paragraphs shall apply to any such sub-agent and to the
<PAGE>
Schedule 1
Page 2
Related Parties of the Collateral Agent and any such sub-agent, and shall apply
to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Collateral Agent.
6. Resignation of the Collateral Agent. Subject to the appointment
-----------------------------------
and acceptance of a successor Collateral Agent as provided in this paragraph,
the Collateral Agent may resign at any time from the performance of all its
functions and duties hereunder by notifying the Required Secured Creditors.
Upon any such resignation, the Required Secured Creditors shall have the right,
in consultation with the Borrower, to appoint a successor. If no successor
shall have been so appointed by the Required Secured Lenders or shall have
accepted such appointment within 30 days after the retiring Collateral Agent
gives notice of its resignation, then the retiring Collateral Agent may, on
behalf of the Required Secured Creditors, appoint a successor Collateral Agent
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as Collateral Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Collateral Agent,
and the retiring Collateral Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Collateral Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Collateral
Agent's resignation hereunder, the provisions herein shall continue in effect
for the benefit of such retiring Collateral Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Collateral Agent.
7. Lack of Reliance on the Collateral Agent. Each Secured Creditor
----------------------------------------
acknowledges that it has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of each Credit Party and
each of their Subsidiaries in connection with the making and the continuance of
the Loans, participation in Letters of Credit and the taking or not taking of
any action in connection herewith and (ii) its own appraisal of the
creditworthiness of each Credit Party and each of their Subsidiaries and, except
as expressly provided in this Agreement, the Collateral Agent shall not have any
duty or responsibility, either initially or on a continuing basis, to provide
any Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or issuance of Letters
of Credit or at any time or times thereafter. The Collateral Agent shall not be
responsible to any Lender for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectability, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of any Credit Party or any of its Subsidiaries or be required to make
any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of any Loan Party or any of its Subsidiaries or the
existence or possible existence of any Default or Event of Default.
8. Certain Rights of the Collateral Agent. No Secured Creditor shall
--------------------------------------
have the right to cause the Collateral Agent to take any action with respect to
the Collateral, with only the Required Secured Creditors having the right to
direct the Collateral Agent to take any such action. If the Collateral Agent
shall request instructions from the Required Secured Creditors
<PAGE>
Schedule 1
Page 3
with respect to any act or action (including failure to act) in connection with
this Agreement, the Collateral Agent shall be entitled to refrain from such act
or taking such action unless and until it shall have received instructions from
the Required Secured Creditors, and to the extent requested, appropriate
indemnification in respect of actions to be taken; and the Collateral Agent
shall not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, no Secured Creditor shall have any right of action
whatsoever against the Collateral Agent as a result of the Collateral Agent
acting or refraining from acting (x) hereunder in accordance with the
instructions of the Required Secured Creditors or (y) under any Guaranteed
Document as provided for therein.
9. Indemnification. To the extent that the Collateral Agent is not
---------------
reimbursed and indemnified by the Borrower, the Secured Creditors will reimburse
and indemnify that the Collateral Agent, in proportion to their respective
principal amounts of Obligations for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed on,
asserted against or incurred by the Collateral Agent in performing its
respective duties hereunder, in any way relating to or arising out of this
Agreement; provided that no Secured Creditor shall be liable for any portion of
--------
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Collateral Agent's
gross negligence or willful misconduct.
<PAGE>
ANNEX A
-------
Pledgor: CHC Hotels & Resorts Corp.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Carnicon Holdings Corp. FL 100% 1,000 shares 100%
Common
- ----------------------------------------------------------------------------------------------------------------------------------
Carnicon-Venezuela Hotel FL 50% 50% 50%
Consultants, L.C.
- ----------------------------------------------------------------------------------------------------------------------------------
CHC REIT Lessee Corp. FL 100% 100 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
CHC REIT Management Corporation FL 100% 100 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
Criterion N.Y., Inc. FL 100% 1,000 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
Criterion Hotel Management Corp. FL 100% 1,000 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
CSMC of Kalamazoo, Inc. MI 100% 1,000 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
GB Hotel Management de Mexico S
de RI de C.V. Mexico 100% 35%
- ----------------------------------------------------------------------------------------------------------------------------------
Grand Bay Management Company FL 100% 1,000 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
TCC Venezuela, L.C. FL 50% 50%
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Pledgor: CHC Lease Partners
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Wyndham Peachtree Lessee Holding DE 100% 100 shares 100%
Corp.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Lessee Member LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: CHC REIT Management Corp.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
CHC Lease Partners FL 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
GAH-II Corporation DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
GAH-II, L.P. DE 49.5% 49.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: CHC REIT Lessee Corp.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
CHC Lease Partners FL 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-2-
<PAGE>
Pledgor: C.I. Albuquerque Lessee GP, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
C.I. Albuquerque Lessee, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Casa Marina Realty Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Casa Marina Realty Partnership, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Chicago-ES Holding Corp.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Chicago-ES Member Corp. DE 100% 100 shares 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Deuce Management Company LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
GAH-II, L.P. DE 0.48% 0.48% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-3-
<PAGE>
Pledgor: Family Suites Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Family Suites Limited Partnership DE GP GP GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Family Suites Management Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Family Suites Management DE GP GP GP
Partnership, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Glenview Hospitality, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DT Glenview, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC/Interstone Partnership II, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Interstone Three Partners I, L.P. DE 50.5% 50.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners II, L.P. DE 50.5% 50.5% LP 50.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners III, L.P. DE 50.5% 50.5% LP 50.5% LP
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Interstone Three Partners IV, L.P. DE 50.5% 50.5% LP 50.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC/Jacksonville Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Water Street Hotel, Ltd. DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC/Maryville Hotel Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Maryville Centre Hotel Joint Venture MO 50% 50% GP 50% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC Member Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC Realty Partnership, L.P. DE 1.0333% 1.0333% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Texas Corporation DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-5-
<PAGE>
Pledgor: IHC/Park West Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Interstate/Montour Associates, Ltd. PA 95.6075% 95.6075% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PW Land Associates Limited PA 99% 99% GP 99% GP
Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC/Reach Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
The Key West Reach Limited DE 1% 1% GP 1% GP
Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC Realty Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
ES Phoenix Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
ES Schaumburg Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Columbus Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Gateway Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-6-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Hilt-Hilt Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Conshohocken Partnership, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Denver Partnership, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Houston Partnership, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC Realty Partnership, L.P. DE 1.0333% 1.0333% GP 1.0333% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHP Investment Company, L.L.C. DE 1% 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone/CGL (WC) Partners LP DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone/PAH-Partners, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Parsippany Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
R-Lisle Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Rad-Burl. Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Rad-Jose Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC Realty Partnership, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Casa Marina Realty Partnership, L.P. DE 97.6063% 97.6063% LP
- -----------------------------------------------------------------------------------------------------------------------------------
ES Phoenix Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Columbus Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-7-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
H-Gateway Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Hunt-Hilt Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Denver Partnership, L.P. DE 89% 89% LP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Conshohocken Partnership, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
IHP/Class B Partnership, L.P. DE 98.7829% 98.7829% GP 98.7829% GP
- -----------------------------------------------------------------------------------------------------------------------------------
IHP Investment Company, L.L.C. DE 99% 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone/CGL (WC) Partners LP DE 64% 64% LP 64% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone/PAH-Partners L.P. DE 98% 98% LP
- -----------------------------------------------------------------------------------------------------------------------------------
The Key West Reach Limited DE 96.1194% 96.1194% LP 96.1194% LP
Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
PW Land Associates Limited PA 1% 1% LP 1% LP
Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Parsippany, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
R-Lisle, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Rad-Burlington, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Rad-Jose, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Swatara Associates PA 97.9636% 1.3350% GP
96.6286% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Syracuse Realty Associates DE 93% 93% LP 93% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Water Street Hotel, Ltd. DE 84% 84% LP 84% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-8-
<PAGE>
Pledgor: IHC/Santa Maria Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Santa Maria Joint Venture DE 50% 50% GP 50% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHC/Texas Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Houston Partnership, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHP/Class B Partnership, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Chicago-ES, LLC DE 99% 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: IHP Investment Company, L.L.C.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHP Holdings Partnership, L.P. PA 19.8165% 19.8165% GP 19.8165% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-9-
<PAGE>
Pledgor: Interstate/Montour Associates, Ltd.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Park West Hotel Associates PA 50% 50% GP 50% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Interstone/PAH-Partners, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
ES Schaumburg Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Melbourne Hospitality, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
H-Melbourne, L.P. DE 99.5% 99.5% LP 99.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
H-Melbourne GP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: O-H Acquisition, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
WHC Finance, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-10-
<PAGE>
Pledgor: PA Troy Hospitality Investors, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Mar-Ty Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Allen Operating Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-GP Allen Partners, L.P. DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Buttes, L.L.C.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Buttes Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Carefree, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Resorts Limited Partnership II DE .1% .1% GP .1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Resorts Limited Partnership DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-11-
<PAGE>
Pledgor: PAH-CI Holdings, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Albuquerque C.I. Associates, L.P. KS 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
CI Holding, L.L.C. KS 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
Savannah C.I. Associates, L.P. GA 5% 5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Topeka C.I. Associates, L.P. KS 3.49% 3.49% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Columbus Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
WHC Columbus Corporation DE 100% 102 shares 100%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-DT Chicago O'Hare Partners, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DT-Des Plaines Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
DT-Des Plaines Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-12-
<PAGE>
Pledgor: PAH-DT Miami Airport Partners, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DT Miami LP Holding, L.L.C. DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
DT Miami LP Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-DT Tallahassee Partners, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DT Tallahassee LP Holding, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
DT Tallahassee LP Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
DT Tallahassee Mezz, L.P. DE 99.5% 99.5% LP 99.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Deuce GP, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Glenview Hospitality, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Kansas City Hospitality, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Marina Hospitality, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Melbourne Hospitality, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-13-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Toledo Hotel Investors, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
YO Hotel Investors, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Franchise Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Crossroads Development Company DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Don CeSar Holdings, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Don CeSar Resort Hotel, Ltd. FL 12% 12% LP 12% LP
- -----------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Ontario, L.P. DE 10% 10% LP 10% LP
- -----------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Manhattan Beach, L.P. DE 25% 25% LP 25% LP
- -----------------------------------------------------------------------------------------------------------------------------------
HMC/Interstate Waterford, L.P. DE 25% 25% LP 25% LP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Pittsburgh Partnership, L.P. DE 6.7673% 6.7673% LP 6.7673% LP
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Santa Maria Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC Title Agency Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Real Estate Member, Inc. DE 100% 100 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-14-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Pittsburgh, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WHC Franchise Corporation DE 100% 102 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-GAH Holdings, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-GAH Holdings, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-GBM, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Grand Bay Miami, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH GP, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1500 Canal Street Investors II, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Boulders Joint Venture AZ .1% .1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-15-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Bourbon Orleans Investors II, L.P. DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Chicago-ES Holding Corp. DE 100% 100 shares
- -----------------------------------------------------------------------------------------------------------------------------------
DT Denver Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
DT Glenview Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Cleveland Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Delmar Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Melbourne Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
M-Troy Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PA Hunt Valley Investors, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PA Troy Hospitality Investors, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Carefree, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Ventana Canyon, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Miami Note Holder, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American Hospitality VA 1% 1% GP
Partnership, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
R-Houston LP Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Tree-Mass Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Bel Age Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WCHNW Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Brookfield Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-16-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Buttes Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Charlotte Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Commerce Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Emerald Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Franklin L.P. Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Garden Atlanta Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Greenspoint Holding Corp. DE 100% 100 shares 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Indiana Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Miami Airport Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Richardson L.P. Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Tampa Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Holding Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-GP Allen Partners, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-DT Allen Partners, L.P. DE 85% 85% GP 85% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-17-
<PAGE>
Pledgor: PAH-IP Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Wyndham IP Corporation DE 100% 102 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Interest Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
WH Interest, Inc. TX 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Interstone, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Interstone Partnership II, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners I L.P. DE .5% .5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners II L.P. DE .5% .5% GP .5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners III L.P. DE .5% .5% GP .5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Interstone Three Partners IV L.P. DE .5% .5% GP .5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-18-
<PAGE>
Pledgor: PAH LP, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Patriot American Hospitality VA 91% 91% LP 73.6% LP
Partnership, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Leasing, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
BJV Realty, Inc. AZ 100% 1,000 shares
Common
- ----------------------------------------------------------------------------------------------------------------------------------
The Boulders Carefree Sewer AZ 100% 1,000 shares
Corporation Common
- -----------------------------------------------------------------------------------------------------------------------------------
The Peaks Real Estate Services, Inc. AZ 66.66% 1,000 shares
Preferred
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Management Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
DFW/H&R, Inc. TX 49% 490 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
HMG Beverage, Inc. TX 100% 400 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-19-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
INTMB, Inc. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Interstate Holdings, Inc. DE 46.721% 11,567.15 shares 46.721%
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Pittsburgh C.I. Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Pittsburgh C.I., Inc. KS 100% 102 shares 100%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Pittsburgh, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Pittsburgh Partnership, L.P. DE 92.2327% 92.2327% GP 92.2327% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-RH, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-River House, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-20-
<PAGE>
Pledgor: PAH-Real Estate Member, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Pittsburgh Partnership, L.P. DE 1% 1% GP 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-River House, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Miami Airport GP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Miami Airport, L.P. DE 99.5% 99.5% LP 99.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-River North, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Block 125 River North Hotel Venture, DE 19.9% 19.9% 19.9%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-21-
<PAGE>
Pledgor: PAH-Stanly Holding LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Stanly Ranch LLC DE 1% 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Summerfield Holding Corp.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Summerfield LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Company, L.P. KS 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Corporation DE 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Summerfield, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Summerfield Hotel Company L.P. KS 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-22-
<PAGE>
Pledgor: PAH-Summerfield Leasing, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Summerfield Hotel Leasing Corporation KS 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-T, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Tampa, L.P. DE 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-Tampa, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Tampa, GP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Tampa, L.P. DE 99.5% 99.5% 99.5%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PAH-WMC Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Wyndham Management Corporation DE 100% 102 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-23-
<PAGE>
Pledgor: PAH-Xerxes Holding, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Xerxes Limited Jamaica 99.5% 199 shares 35%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: PW Land Associates Limited Partnership
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Park West Hotel Associates PA 50% 50% GP 50% GP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Patriot American Hospitality, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Casa Marina Realty Corporation DE 98.6063% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Park West Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC Miami Mortgage Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Reach Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-24-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Jacksonville Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Maryville Hotel Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Capital Corporation DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC Member Corporation DE 100% 100 shares Class
A Common
12,075 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC Realty Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Miami Beach Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Interstate Hotels Corporation DE 3% 181,916 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-LP, Inc. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Allen Operating Corporation DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Acquisition Corp. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-GP, Inc. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-BV Holding Corp. DE 100% 1000 shares 100%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-25-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-CI Holding, LLC DE 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Franchise Holding, Inc. DE 94.3464% 20,071.2429
shares Class B
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-HVP Holding Corp. DE 100% 1,000 shares 100%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Interstate Holdings, Inc. DE 52.279% 12,943.34 shares 52.279%
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Management Corporation DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
Syracuse Associates Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
W-Novi Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Novi Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Pleasanton Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Pleasanton Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale Mezz Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Wood Dale Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-26-
<PAGE>
Pledgor: Patriot American Hospitality Partnership, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1500 Canal Street Investors II, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Albuquerque C.I. Associates, L.P. KS 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Atlanta C.I. Associates II, L.P. KS 49% 49% LP 49% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Atlanta American Hotel Investors, DE 69% 69% LP 69% LP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Boulders Joint Venture AZ 99.9% 99.9% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Bourbon Orleans Investors II, L.P. DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Holding, L.L.C. KS 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. General L.L.C. KS 20% 20% 20%
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Wichita General, L.L.C. KS 20% 20% 20%
- -----------------------------------------------------------------------------------------------------------------------------------
City Centre Partnership, L.P. DE 92.5% 92.5% GP
- -----------------------------------------------------------------------------------------------------------------------------------
CPHPAH-Dos Pueblos Associates, LLC DE 4% 4% 4%
- -----------------------------------------------------------------------------------------------------------------------------------
DT Denver Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
GHALP Partnership, L.P. DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Glenview Hospitality, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
H-Cleveland Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
H-Delmar Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Hotel Venture Partners, Ltd. FL 88.39% 88.39% LP 88.39% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-27-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Kansas City Hospitality, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Marina Hospitality, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Melbourne Hospitality, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PA Ravinia Partners VA 4% 4% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PA Hunt Valley Investors, L.P. VA 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PA Troy Hospitality Investors, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Akron, L.L.C. DE 90% 90% 90%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Batterymarch Realty Company, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood II, LLC DE 90% 90% 90%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood I, LLC DE 90% 90% 90%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH Billerica Realty Company, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Buttes L.L.C. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-BV Palace, L.P. DE 99.5% 99.5% LP 99.5% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Carefree, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-CI Holding, LLC DE 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Columbus Holding, Inc. DE 99% 9,900 Shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Deuce GP, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-28-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-DT Chicago O'Hare Partners, L.P. DE 90% 90% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-DT Miami Airport Partners, L.P. DE 90% 90% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-DT Minneapolis Suites Partners, DE 90% 90% GP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-DT Park Place Partners, L.P. DE 90% 90% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-DT Tallahassee Partners, L.P. DE 90% 90% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-FF&E Holding, Inc. DE 99% 99 shares
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Franchise Holding, Inc. DE 4.6536% 9,900 Shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAHG FF&E Holding, Inc. DE 99% 99 shares
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-GBM, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-GP Allen Partners, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Grand Bay Miami, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Interest Holding, Inc. DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-IP Holding, Inc. DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAHP FF&E Holding, Inc. DE 99% 99 shares
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh CI Holding, Inc. DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-29-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH Ravinia, Inc. VA 99.04% Class B -
Non-Voting
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-RH, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-River House, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-River North, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Holding Corp. DE 9.09% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Leasing, Inc. DE 9.09% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-T, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Tampa, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Ventana Canyon, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Westlake LLC DE 90% 90% 90%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Westmont CI Holding, Inc. DE 99% 10,890 shares 99%
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Windwatch Partners DE 4% 4% GP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Windwatch, LLC DE 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-WMC Holding, Inc. DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Xerxes Holding, Inc. DE 99% 9,900 shares
Class B Common
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Bougainvillea, LLC DE 25% 25% 25%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-30-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Patriot Land Holding LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Miami Note Holder, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Racetrack Land LLC DE 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
Resorts Limited Partnership DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
R-Houston LP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Richardson C.I. Associates, L.P. TX 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Rose Hall Associates Limited TX 99% 99% LP
Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Savannah C.I. Associates, L.P. GA 95% 95% LP
- -----------------------------------------------------------------------------------------------------------------------------------
St. Louis C.I. Associates, L.P. MO 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
Summerfield Hotel Leasing Company, KS 99% 99% LP 99% LP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Summerfield HPT Lease Company, L.L.C. DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Summerfield HPT Lease Company, L.P. KS 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Toledo Hotel Investors, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Topeka C.I. Associates, L.P. KS 96.51% 96.51% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Travis Real Estate Group Joint TX 65.48% 65.48% 65.48%
Venture
- -----------------------------------------------------------------------------------------------------------------------------------
Tree-Mass Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Bel Age Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-31-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Brookfield, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Charlotte, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WCHNW, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Colinas LP Manager Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Colinas Mezz LP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Commerce Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Emerald Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Franklin Mezz, LP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WG Member, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Garden Atlanta, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WHC Atlanta GP, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WHC Chicago, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
WHC Finance, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
WI Ohio Investors, Inc. DE 99%
- -----------------------------------------------------------------------------------------------------------------------------------
Wichita C.I. Associates III, L.P. KS 86.64% 86.64% LP 86.64% LP
- -----------------------------------------------------------------------------------------------------------------------------------
W-Indiana Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
W-Schaumburg Mezz, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Peachtree Member, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
YO Hotel Investors, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-32-
<PAGE>
Pledgor: Patriot Grand Heritage, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Burrllen Enterprises of Maryland MD 1% 1% GP
- -----------------------------------------------------------------------------------------------------------------------------------
GH Trademarks, LLC MD 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Atlanta, LLC MD 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Leasing, LLC MD 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Real Estate MD 1% 1%
Group LLC
- -----------------------------------------------------------------------------------------------------------------------------------
P.H.G., LLC MD 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Patriot Land Holding LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Patriot Racetrack Land LLC DE 1% 1%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Richardson C.I. Associates, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
W-Richardson Mezz L.P., LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-33-
<PAGE>
Pledgor: Summerfield Hotel Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Sierra Suites Marketing KS 100% 100%
Association
- ------------------------------------------------------------------------------------------------------------------------------------
Summerfield Suites Marketing DE 100% 100%
Association
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Syracuse Associates Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Syracuse Realty Associates, DE 1% 1% GP 1% GP
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: TCC Venezuela, L.C.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
TCC Maturin, C.A. FL 100% 100% 35%
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-34-
<PAGE>
Pledgor: WHC Chicago, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Oxford Wyn 633 DE 50% 50% 50%
Investment Company,
L.L.C.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: WHCMB, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
CHMB, Inc. TX 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GHMB, Inc. TX 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
MBAH, Inc. TX 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PSMB, Inc. CA 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
WHCMB Overland Park, KS 100% 1,000 shares
Common
Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: WI Ohio Investors, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Akron, L.L.C. DE 10% 10% 10%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-35-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Beachwood II, LLC DE 10% 10% 10%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Beachwood I, LLC DE 10% 10% 10%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Westlake LLC DE 10% 10% 10%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Wyndham International, Inc.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
CHC Hotels & Resorts Corp. FL 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Lessee GP, Inc. DE 100% 100 shares 100%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GHALP Operating GP, Inc. DE 100% 100 shares 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH Ravinia, Inc. VA 1% [1%]
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American DE 100%
Hospitality, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Resorts Services, Inc. AZ 99% 622.50 shares
Non-voting
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Salt Lake City DE 100% 100 shares 100%
Operating GP, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Atlanta Lessee, DE 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-36-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Wyndham International DE 81% 80% LP
Operating Partnership, 1% GP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
WYN Travel, Inc. DE 100% 100 shares
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Wyndham International Operating Partnership, L.P.
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Arcadian Hotels Limited UK 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Burrllen Enterprises of MD 99% 99% GP
Maryland
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Albuquerque DE 99% 99% LP
Lessee, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Wichita Lessee, DE 99% 99% LP 99% LP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Albuquerque Lessee DE 100% 100%
GP, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Overland Park DE 99% 99% LP 99% LP
Lessee, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Atlanta Lessee, DE 99% 99% LP 99% LP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Knoxville Lessee, DE 99% 99% LP 99% LP
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
C.I. Omaha Lessee, L.P. DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Carefree Management LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
CFMB, Inc. DE 100% 100 shares 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-37-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Deuce Management TX 100% 100%
Company LLC
- -----------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Member, DE 100% 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
ESC Greenspoint Holding DE 100% 100 shares 100%
Corp.
- -----------------------------------------------------------------------------------------------------------------------------------
Family Suites DE 100% 600 shares
Corporation
- -----------------------------------------------------------------------------------------------------------------------------------
Family Suites DE 100% 600 shares
Management Corporation
- -----------------------------------------------------------------------------------------------------------------------------------
FS Development DE 100% 600 shares
Corporation
- -----------------------------------------------------------------------------------------------------------------------------------
GAH-II, L.P. DE 48.34% 48.34% LP
- -----------------------------------------------------------------------------------------------------------------------------------
GH (Cayman) Limited Cayman 100% 999 shares 35%
Islands Common
- -----------------------------------------------------------------------------------------------------------------------------------
GH Trademarks, LLC MD 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Atlanta, LLC MD 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Chicago, Inc. IL 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Detroit, Inc. MI 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Greeneville, Inc. TN 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Providence, Inc. RI 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-38-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
GH-San Diego, Inc. DE 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GH-Wichita, Inc. KS 100% 200 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GHALP Operating DE 99% 99% LP 99% LP
Partnership, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
GHV-Colorado, Inc. CO 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
GHV-Galveston, Inc. TX 100% 1,000 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Bay Management, FL 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Hotels, MD 100% 6,000 shares
Common
Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Leasing, MD 99% 99%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Heritage Real MD 99% 99%
Estate Group, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Grand Management FL 100% 1,000 shares
Services, Inc. Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Interstone DE 99% 99% LP
Partnership II, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/Burlington VT 100% 100 shares
Corporation Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHC/FS Development DE 100% 600 shares
Corporation
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-39-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
IHC/Jamaica Corporation DE 100% 600 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
IHP Lessee, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
L'Horizon Management Jersey 100% 100 shares 100%
(Jersey) Ltd. Common
- -----------------------------------------------------------------------------------------------------------------------------------
L'Horizon Hotel Jersey 100% 100%
(Jersey) Ltd.
- -----------------------------------------------------------------------------------------------------------------------------------
P.H.G. LLC MD 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
Malmaison Hotels Limited England & 100% 100%
Wales
- -----------------------------------------------------------------------------------------------------------------------------------
PAH Asset Management, DE 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Batterymarch DE 100% 100%
Operating Company, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Columbus Holding, DE 1% 100 shares
Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-FF&E Holding, Inc. DE 1% 1 share
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Franchise Holding, DE 1% 212.7398 shares
Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAHG FF&E Holding, Inc. DE 1% 1 share
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-GAH Holdings, L.P. DE 99% 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-GAH Holding, LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-40-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Interest Holding, DE 1% 100 shares
Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Interstate DE 1% 247.58 shares 1%
Holdings, Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Interstone, Inc. DE 100% 100 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-IP Holding, Inc. DE 1% 100 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Leasing LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Management DE 1% 100 shares
Corporation Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAHMB Maryland, Inc. MD 100% 100 shares 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAHMB, Inc. TX 100% 100 shares
- -----------------------------------------------------------------------------------------------------------------------------------
PAHP FF&E Holding, Inc. DE 1% 1 share
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh CI DE 1% 100 shares
Holding, Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Stanly Holding LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Stanly Ranch LLC DE 99% 99% 99%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-41-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PAH-Summerfield Holding DE 90.91% 2 shares
Corp. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield DE 90.91% 2 shares
Leasing, Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Westmont CI DE 1% 110 shares 1%
Holding, Inc. Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-WMC Holding, Inc. DE 1% 100 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
PAH-Xerxes Holding, Inc. DE 1% 100 shares
Class A
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Bougainvillea DE 100% 100%
Development Company, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Bougainvillea, DE 75% 75% 75%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Grand Heritage, DE 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot Holding LLC DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
PWMB, Inc. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Reserve Collection DE 100% 100% 100%
Boulders, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Reserve Collection DE 100% 100% 100%
Peaks, LLC
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-42-
<PAGE>
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Salt Lake City DE 99% 99% LP 99% LP
Operating Partnership,
L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
SFMB, Inc. DE 100% 100 shares
- -----------------------------------------------------------------------------------------------------------------------------------
WI Ohio Investors, Inc. DE 1% 100 shares
Class Common
- -----------------------------------------------------------------------------------------------------------------------------------
W-SSH, LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham HPT Lessee LLC DE 100% 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham HPT Lessee, L.P. DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Management II, DE 100% 100%
LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham SN Lessee Corp. DE 100% 100%
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham SN Lessee, L.P. DE 99% 99% LP 99% LP
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield DE 100% 100%
Lessee LLC
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield DE 99% 99% LP
Lessee, L.P.
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham UK Holdings England & 100% 100%
Limited Wales
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-43-
<PAGE>
Pledgor: Wyndham Management Corporation
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Clubhouse Inns of KS 100% 100 shares
America, Inc. Common
- -----------------------------------------------------------------------------------------------------------------------------------
Waterfront Management DE 100% 100 shares
Corporation Common
- -----------------------------------------------------------------------------------------------------------------------------------
WHC Caribbean Limited Jamaica .5% 1 share .5%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
WHCMB Toronto, Inc. Canada 100% 1 share 35%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
WHCMB Utah Private Club UT 100% 100%
Corporation
- -----------------------------------------------------------------------------------------------------------------------------------
WHCMB, Inc. DE 100% 100 shares
Common
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Hotels & Bermuda 100% 12,000 shares 35%
Resorts Management, Ltd. Common
- -----------------------------------------------------------------------------------------------------------------------------------
Wyndham Hotels & Aruba 100% 10 shares 35%
Resorts (Aruba) N.V. Common
- -----------------------------------------------------------------------------------------------------------------------------------
Xerxes Limited Jamaica .5% 1 share .5%
Common
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Pledgor: Wyndham Management II, LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
WMC II, Inc. DE 100% 100 shares
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-44-
<PAGE>
Pledgor: Wyndham Summerfield Lessee LLC
<TABLE>
<CAPTION>
Subsidiary/Unconsolidated Entity Jurisdiction Ownership Number and Type Partnership Membership Equity Not
of Shares Interests Interests Being Pledged
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Wyndham Summerfield DE 1% 1% GP
Lessee, L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
-45-
<PAGE>
The following Pledgors hold no Securities:
1. 1500 Canal Street Investors II, L.P.
2. Albuquerque C.I. Associates, L.P.
3. BJV Realty, Inc.
4. Boulders Carefree Sewer Corporation
5. Boulders Joint Venture
6. Burrllen Enterprises of Maryland
7. CHMB, Inc.
8. C.I. Albuquerque Lessee, L.P.
9. Carefree Management LLC
10. Clubhouse Inns of America, Inc.
11. Criterion Hotel Management Corp.
12. Criterion NY Inc.
13. Crossroads Development Company
14. CSMC of Kalamazoo, Inc.
15. FS Development Corporation
16. GAH-II, L.P.
17. GHMB, Inc.
18. GH-Atlanta, LLC
19. GH-Chicago, Inc.
20. GH-Detroit, Inc.
21. GH-Greeneville, Inc.
22. GH-Providence, Inc.
-46-
<PAGE>
23. GH-San Diego, Inc.
24. GH Trademarks, LLC
25. GH-Wichita, Inc.
26. GHV-Colorado, Inc.
27. GHV-Galveston, Inc.
28. Grand Bay Management Company
29. Grand Bay Management, LLC
30. Grand Heritage Hotels, Inc.
31. Grand Heritage Leasing LLC
32. Grand Heritage Real Estate Group LLC
33. Grand Management Services, Inc.
34. HMG Beverage, Inc.
35. IHC/Burlington Corporation
36. IHC/Capital Corporation
37. IHC/Conshohoken Partnership, L.P.
38. IHC/Denver Partnership, L.P.
39. IHC/FS Development Corporation
40. IHC/Houston Partnership, L.P.
41. IHC/Jamaica Corporation
42. IHC/Miami Beach Corporation
43. IHC/Miami Mortgage Corporation
44. IHC/Title Agency Corporation
45. IHP Lessee, LLC
46. INTMB, Inc.
-47-
<PAGE>
47. Interstone Three Partners I, L.P.
48. Kansas City Hospitality, L.P.
49. Key West Reach Limited Partnership
50. MBAH, Inc.
51. Marina Hospitality, L.P.
52. P.H.G. LLC
53. PA Hunt Valley Investors, L.P.
54. PAH-Acquisition Corporation
55. PAH Asset Management, LLC
56. PAH-Batterymarch Operating Company, LLC
57. PAH-DT Minneapolis Suites Partners, L.P.
58. PAH-DT Park Place Partners, L.P.
59. PAH-FF&E Holding, Inc.
60. PAH-GAH Holdings, L.P.
61. PAH-Grand Bay Miami, L.P.
62. PAHG FF&E Holding, Inc.
63. PAHMB, Inc.
64. PAHP FF&E Holding, Inc.
65. PAH-Ventana Canyon, L.P.
66. Park West Hotel Associates
67. Patriot Bougainvillea Development Company, LLC
68. Patriot Holding LLC
69. Patriot Miami Note Holder, L.P.
70. Patriot Racetrack Land LLC
-48-
<PAGE>
71. The Peaks Real Estate Services, Inc.
72. PSMB, Inc.
73. PWMB, Inc.
74. SFMB, Inc.
75. Savannah C.I. Associates, L.P.
76. Sierra Suites Marketing Association
77. St. Louis C.I. Associates, L.P.
78. Summerfield Hotel Company, L.P.
79. Summerfield Suites Marketing Association
80. Syracuse Realty Associates, L.P.
81. Toledo Hotel Investors, L.P.
82. Topeka C.I. Associates, L.P.
83. Water Street Hotel, Ltd.
84. Waterfront Management Corporation
85. WH Interest, Inc.
86. WHC Finance, L.P.
87. WHC Franchise Corporation
88. WHCMB Overland Park, Inc.
89. WMC II, Inc.
90. WYN Travel, Inc.
91. Wyndham Atlanta Lessee, LLC
92. Wyndham IP Corporation
93. Wyndham Summerfield Lessee, L.P.
94. YO Hotel Investors, L.P.
-49-
<PAGE>
Annex B
List of Notes
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American William W. Evans, III $424,375 Non-recourse loan (1998) for assistance with
Hospitality, Inc. (as of 6/25/99) payment of income taxes in connection with the
vesting of shares of paired common stock. Due on
November 27, 2003 or 60 days after termination of
employment, if earlier (7.5% interest per annum)
and secured by 53,667 shares of paired common
stock.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Lawrence S. Jones $779,524 Non-recourse loan (1998). Due on October 5, 2001
Inc. (as of 5/31/99) (7.0% interest per annum). Mr. Jones' Employment
(includes Agreement provides that a portion of the loan may
interest, be forgiven upon Mr. Jones' termination of
$750,000 note) employment.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Anne Raymond $5,196,959 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Raymond Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount the loan amount due exceeds the value of the
$4,417,588. shares (the "Raymond Debt Forgiveness") will be
forgiven.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American James Carreker $5,769,861 Loan (due July 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Carreker Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount the loan amount due exceeds the value of the
$4,904,573. shares (the "Carreker Debt Forgiveness") will be
forgiven.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American James Carreker $696,214 Note (related to 12/97 salary advance); matures
Hospitality Partnership, (as of 12/31/98) July 2003 (interest at Company's revolver rate)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Leslie Bentley $2,123,607 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Bentley Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount the loan amount due exceeds the value of the
$1,805,133. shares (the "Bentley Debt Forgiveness") will be
forgiven.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Stanley M. Koonce, Jr. $2,163,455 Loan (due April 2002, 6% interest per annum)
Hospitality Partnership, (as of 12/31/98) secured by shares in Wyndham International, Inc.
L.P. (includes (the "Koonce Secured Loan"). Repayment will be
interest). Note made by the security shares; any amount by which
amount the loan amount due exceeds the value of the
$1,839,006. shares (the "Koonce Debt Forgiveness") will be
forgiven.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Company Leslie Bentley $430,000 Note; matures April 2002 (7% interest per annum)
(as of 5/31/99)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham Management Company Dave Johnson $200,000 Note (related to margin call response); matures
(as of 5/31/99) April 2002 (7% interest per annum)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Leslie Ng $63,133 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per annum)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Terry Hunzicker $37,880 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per annum)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Diane Golden $8,820 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per annum)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation Deborah Gray $6,113 Note (related to taxes on vested restricted
(as of 5/31/99) stock); matures March 2000 (8% interest per annum)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. David Lee $8,696 Note related to taxes on vested restricted stock.
(as of 5/31/99)
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American NorthCoast Hotels, LLC $2,000,000 Secured by pledge of equity interests in entity
Hospitality Partnership, (as of 6/25/99) owning WestCoast Roosevelt, Gateway and Wenatchee
L.P. hotels. Interest: 8.5% per annum.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management WHC-LG Hotel Partners, $1,993,887 Secured by pledge of equity interests in WHC-LG.
Corporation L.P. (as of 6/25/99) Interest: 9.0% per annum.
(includes
interest)
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Bluewater Palmas Ltd. $5,165,300 Secured by Mortgage and Pledge Agreement on
Hospitality, Inc. (as of 6/25/99) Palmas del Mar. Interest: 10.0% per annum.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham Management Dublin Inn, Ltd. $2,619,127 Secured by pledge of partnership interests in
Corporation (as of 6/25/99) Wyndham Dublin (Columbus), OH. Interest: 13.5%
(includes per annum.
interest)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management San Juan Associates, $2,095,987 and Secured by pledge of partnership interests in Old
Corporation L.P., S.E. $473,450 San Juan Hotel. Two loans - for San Juan
(as of 6/25/99) construction and San Juan operations.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American John L. Hopkins III and $2,150,000 Wyndham Garden -Richmond Airport
Hospitality, Inc. Robert N. Prager (as of 6/25/99)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham Management Aruba Hotel Enterprises N.V. $1,941,815 Wyndham-Aruba Beach Resort & Casino
Corporation Alfonso Riveroll Estrada, (as of 6/25/99)
Pres.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Boulders Carefree Sewer $487,850 The Boulders - Grand Bay
Hospitality Partnership, Corporation (as of 5/31/99)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American City Centre Partnership, Approximately Wyndham City Center
Hospitality Partnership, L.P. $25,819,456
L.P. (as of 6/30/99)
(includes
interest)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American PAH-GP Allen Partners $35,819,456 Doubletree - Allen Center
Hospitality Partnership, (as of 6/30/99)
L.P. (includes
interest)
- -----------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Ravinia, Inc. 41,220,562 Crowne Plaza - Ravinia
Hospitality Partnership, (as of 5/31/99)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Windwatch LLC 31,343,070 Wyndham - Windwatch
Hospitality Partnership, (as of 5/31/99)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American PAH Leasing LLC 9,000,000 Carefree Resorts
Hospitality Partnership, (as of 5/31/99)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Dublin Inn Ltd. $1,278,260 Wyndham Garden - Dublin
Hospitality Partnership, (as of 5/31/99)
L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Patriot American $119,250,000 Interstate Acquisition
Inc. Hospitality, Inc. (as of 5/31/99)
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $24,179,761 Patriot/Wyndham Merger
Operating Partnership, Hospitality Partnership, (as of 6/30/99)
L.P. L.P.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham International Partnership, L.P. $4,057,323 Subscription Note issued by paired share company
Operating Partnership, (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the Summerfield transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $1,758,555 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the Summerfield transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Patriot American $34,591,050 Subscription Note issued by paired share company
Inc. Hospitality, Inc. (as of 6/25/99) to other paired share company which did not
receive assets in the Interstate transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $9,086,559 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the CF Asset transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $21,448,837 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the Wyndham transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Wyndham International $2,465,909 Subscription Note issued by paired share company
Hospitality Partnership, Operating Partnership, L.P. (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the Kaufman transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $4,564,980 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the UBS transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham International Patriot American $6,091,313 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the Nations transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International Patriot American $6,955,397 Subscription Note issued by paired share company
Operating Partnership, Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. L.P. receive assets in the PaineWebber transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Patriot American Hospitality $258,572 Subscription Note issued by paired share company
Inc. Partnership, L.P. (as of 6/25/99) to other paired share company which did not
receive assets in the PAH LP transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Wyndham International $37,310 Subscription Note issued by paired share company
Inc. Operating Partnership, L.P. (as of 6/25/99) to other paired share company which did not
receive assets in the WI transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Patriot American Wyndham International, Inc. $133,669,014 Subscription Note issued by paired share company
Hospitality Partnership, (as of 6/25/99) to other paired share company which did not
L.P. receive assets in the WHG transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Wyndham International, Owners of the Wyndham LAX $4,237,000 had In connection with the Los Angeles Airport
Inc. been funded as Wyndham, $4,560,000 promissory note; continuing
of 12/31/98 obligation to fund the unadvanced portion the
note.
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Lender Borrower Amount Outstanding Additional Information
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American Anatole Hotel Investors, L.P. $10,000,000, Unsecured construction loan agreement (1997).
Hospitality, Inc. plus $197,267
accrued interest
(as of 6/30/99)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
8
<PAGE>
ANNEX C
-------
ADDRESSES
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1. 1500 Canal Street Investors II, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
2. Albuquerque C.I. Associates, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
3. BJV Realty, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
4. Boulders Carefree Sewer Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
5. Boulders Joint Venture 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
6. Burrllen Enterprises of Maryland 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
7. C.I. Albuquerque Lessee GP, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
8. C.I. Albuquerque Lessee, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
9. Carefree Management LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
10. Casa Marina Realty Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
11. CHC Hotels & Resorts Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
12. CHC Lease Partners 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
13. CHC REIT Lessee Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
14. CHC REIT Management Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
15. Chicago-ES Holding Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
16. CHMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
17. Clubhouse Inns of America, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
18. Criterion Hotel Management Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
19. Criterion NY Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
20. Crossroads Development Company Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
21. CSMC of Kalamazoo, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
22. Deuce Management Company LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
23. Family Suites Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
24. Family Suites Management Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
25. FS Development Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
26. GAH-II, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
27. GH-Atlanta, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
28. GH-Chicago, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
29. GH-Detroit, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
30. GH-Greeneville, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
31. GH-Providence, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
32. GH Trademarks LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
33. GH-Wichita, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
34. GH-San Diego, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
35. GHMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
36. GHV-Colorado, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
37. GHV-Galveston, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
38. Glenview Hospitality, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
39. Grand Bay Management Company 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
40. Grand Bay Management LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
41. Grand Heritage Hotels, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
42. Grand Heritage Leasing, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
43. Grand Heritage Real Estate Group LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
44. Grand Management Services, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
45. HMG Beverage, Inc. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
46. IHC/Burlington Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
47. IHC/Capital Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
48. IHC/Conshohocken Partnership, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
49. IHC/Denver Partnership, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
50. IHC/FS Development Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
51. IHC/Houston Partnership, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
52. IHC/Interstone Partnership II, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
53. IHC/Jacksonville Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
54. IHC/Jamaica Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
55. IHC/Maryville Hotel Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
56. IHC Member Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
57. IHC/Miami Beach Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
58. IHC Miami Mortgage Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
59. IHC/Park West Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
60. IHC/Reach Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
61. IHC Realty Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
62. IHC Realty Partnership, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
63. IHC/Santa Maria Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
64. IHC/Texas Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
65. IHC Title Agency Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
66. IHP/Class B Partnership, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
67. IHP Investment Company, L.L.C. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
68. IHP Lessee, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
69. Interstate/Montour Associates, Ltd. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
70. Interstone Three Partners I, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
71. Interstone/PAH Partners, L.P. 1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
72. INTMB, Inc. 1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
73. Kansas City Hospitality, L.P. 1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
74. Key West Reach Limited Partnership Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
75. Marina Hospitality, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
76. MBAH, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
77. Melbourne Hospitality, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
78. O-H Acquisition, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
79. P.H.G., LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
80. PA Hunt Valley Investors, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
81. PA Troy Hospitality Investors, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
82. PAH Acquisition Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
83. PAH Allen Operating Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
84. PAH Asset Management, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
85. PAH Batterymarch Operating Company, 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
LLC
- ------------------------------------------------------------------------------------------------------------
86. PAH Deuce GP, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
87. PAH GAH Holdings, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
88. PAH GAH Holding, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
89. PAH GP, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
90. PAH Leasing LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
91. PAH LP, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
92. PAH-River House, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
93. PAH River North, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
94. PAH Stanly Holding LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
95. PAH Ventana Canyon, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
96. PAH Buttes L.L.C. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
97. PAH-Carefree, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
98. PAH-CI Holding, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
99. PAH-Columbus Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
100. PAH-DT Chicago O'Hare Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
101. PAH-DT Miami Airport Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
102. PAH-DT Minneapolis Suites Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
103. PAH-DT Park Place Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
104. PAH-DT Tallahassee Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
105. PAH-Franchise Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
106. PAH FF&E Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
107. PAHG FF&E Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
108. PAH-GBM, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
109. PAH-GP Allen Partners, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
110. PAH-Grand Bay Miami, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
111. PAH-Interest Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
112. PAH-Interstone, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
113. PAH-IP Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
114. PAH Management Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
115. PAHP FF&E Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
116. PAH-Pittsburgh CI Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
117. PAH-Pittsburgh, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
118. PAH-Real Estate Member, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
119. PAH-RH, LLC 1950 Stemmons Freeway, Suite 6001,Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
120. PAH-Summerfield Holding Corp. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
121. PAH-Summerfield Leasing, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
122. PAH-Summerfield LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
123. PAH-T, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
124. PAH-Tampa, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
125. PAH-WMC Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
126. PAH-Xerxes Holding, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
127. PAHMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
128. Park West Hotel Associates Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
129. Patriot Bougainvillea Development 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
Company, LLC 11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
130. Patriot Grand Heritage, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
131. Patriot Holding LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
132. Patriot Land Holding LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
133. Patriot Miami Note Holder, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
134. Patriot Racetrack Land LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
135. Peaks Real Estate Services, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
11811 N. Tatum Blvd., Suite 1060, Phoenix, Arizona 85028
- ------------------------------------------------------------------------------------------------------------
136. PSMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
137. PW Land Associates Limited Partnership Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
138. PWMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
139. Richardson C.I. Associates, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
140. Savannah C.I. Associates, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
141. SFMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
142. Sierra Suites Marketing Association 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
143. St. Louis C.I. Associates, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
144. Summerfield Hotel Company, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
145. Summerfield Hotel Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
146. Summerfield Suites Marketing Association 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
8100 East 22nd Street N., Building 500, Wichita, Kansas
67226
- ------------------------------------------------------------------------------------------------------------
147. Syracuse Associates Corporation Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
148. Syracuse Realty Associates, L.P. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
149. TCC Venezuela, L.C. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
150. Toledo Hotel Investors, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
151. Topeka C. I. Associates, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
152. Waterfront Management Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
153. Water Street Hotel, Ltd. Foster Plaza Ten, 680 Andersen Drive, Pittsburgh,
Pennsylvania 15220
- ------------------------------------------------------------------------------------------------------------
154. WH Interest, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
155. WHC Chicago, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
156. WHC Finance, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
157. WHC Franchise Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
Number Entity Address
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C>
158. WHCMB, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
159. WHCMB Overland Park, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
160. WI Ohio Investors, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
161. WMC II, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
162. WYN Travel, Inc. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
163. Wyndham Atlanta Lessee, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
164. Wyndham IP Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
165. Wyndham Management Corporation 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
166. Wyndham Management II, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
167. Wyndham Summerfield Lessee, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
168. Wyndham Summerfield Lessee, LLC 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
169. YO Hotel Investors, L.P. 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
- ------------------------------------------------------------------------------------------------------------
</TABLE>
8
<PAGE>
Annex D
[Conformed as Executed]
Agreement Regarding Uncertificated Securities, Limited Liability
----------------------------------------------------------------
Company Interests and Partnership Interests
-------------------------------------------
AGREEMENT (as amended, modified or supplemented from time to time,
this "Agreement"), dated as of June 30, 1999, among each of the undersigned
pledgors (each a "Pledgor" and, collectively, the "Pledgors"), THE CHASE
MANHATTAN BANK, not in its individual capacity but solely as Collateral Agent
and Wyndham International, Inc. as the issuer of the Uncertificated Securities,
Limited Liability Company Interests and/or Partnership Interests (each as
defined below) (the "Issuer").
W I T N E S S E T H :
--------------------
WHEREAS, each Pledgor and the Collateral Agent are entering into a
Guaranty and Collateral Agreement, dated as of June 30, 1999 (as amended,
amended and restated, modified or supplemented from time to time, the "Guaranty
and Collateral Agreement"), under which, among other things, in order to secure
the payment of the Obligations (as defined in the Guaranty and Collateral
Agreement), each Pledgor will pledge to the Collateral Agent for the benefit of
the Secured Creditors (as defined in the Guaranty and Collateral Agreement), and
grant a security interest in favor of the Collateral Agent for the benefit of
the Secured Creditors in, all of the right, title and interest of such Pledgor
in and to any and all (1) "uncertificated securities" (as defined in Section 8-
102(a)(18) of the Uniform Commercial Code, as adopted in the State of New York)
("Uncertificated Securities"), (2) Partnership Interests (as defined in the
Guaranty and Collateral Agreement) and (3) Limited Liability Company Interests
(as defined in the Guaranty and Collateral Agreement), in each case issued from
time to time by the Issuer, whether now existing or hereafter from time to time
acquired by such Pledgor (with all of such Uncertificated Securities,
Partnership Interests and Limited Liability Company Interests being herein
collectively called the "Issuer Pledged Interests"); and
WHEREAS, each Pledgor desires the Issuer to enter into this Agreement
in order to perfect the security interest of the Collateral Agent under the
Guaranty and Collateral Agreement in the Issuer Pledged Interests, to vest in
the Collateral Agent control of the Issuer Pledge Interests and to provide for
the rights of the parties under this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Each Pledgor hereby irrevocably authorizes and directs the Issuer,
and the Issuer hereby agrees after the occurrence and continuance of an Event of
Default, to comply with any and all instructions and orders originated by the
Collateral Agent (and its successors and assigns) regarding any and all of the
Issuer Pledged Interests that are consistent and in compliance with the relevant
operating agreements, related documents and applicable law without the further
consent of respective Pledgor), and not to comply with any instructions or
orders regarding any or all of the Issuer Pledged
<PAGE>
Interests originated by any person or entity other than the Collateral Agent
(and its successors and assigns) or a court of competent jurisdiction.
2. The Issuer hereby certifies that (i) no notice of any security
interest, lien or other encumbrance or claim affecting the Issuer Pledged
Interests (other than the security interest of the Collateral Agent) has been
received by it, and (ii) the security interest of the Collateral Agent in the
Issuer Pledged Interests has been registered in the books and records of the
Issuer.
3. The Issuer hereby represents and warrants that (i) the pledge by
the Pledgors of, and the granting by the Pledgors of a security interest in, the
Issuer Pledged Interests to the Collateral Agent, for the benefit of the Secured
Creditors, does not violate the charter, by-laws, partnership agreement,
membership agreement or any other agreement governing the Issuer or the Issuer
Pledged Interests, and (ii) the Issuer Pledged Interests are fully paid and
nonassessable.
4. All notices, statements of accounts, reports, prospectuses,
financial statements and other communications to be sent to any Pledgor by the
Issuer in respect of the Issuer will also be sent to the Collateral Agent at the
following address:
The Chase Manhattan Bank
Agency Plus
One Chase Manhattan Plaza
8th Floor
New York, NY 10081
Attention: Daniella Cassognol
Tel: (212) 552-7425
Fax: (212) 552-5901
5. After the occurrence and continuance of an Event of Default, until
the Collateral Agent shall have delivered written notice to the Issuer that all
of the Obligations have been paid in full and this Agreement is terminated, the
Issuer will send any and all redemptions, distributions, interest or other
payments in respect of the Issuer Pledged Interests from the Issuer for the
account of the Pledgor only by wire transfers to the following address:
_____________________
_____________________
_____________________
_____________________
[Account Information]
ABA No.: __________________________
Account in the Name of: ___________
Account No.: ______________________
6. Except as expressly provided otherwise in Sections 4 and 5, all
notices, instructions, orders and communications hereunder shall be sent or
delivered by mail, telex, telecopy or overnight courier service and all such
notices and communications shall, when mailed, telexed, telecopied or sent by
overnight courier, be effective when deposited in the mails or
-2-
<PAGE>
delivered to the overnight courier, prepaid and properly addressed for delivery
on such or the next Business Day, or sent by telex or telecopier, except that
notices and communications to the Collateral Agent shall not be effective until
received by the Collateral Agent. All notices and other communications shall be
in writing and addressed as follows:
(a) if to any Pledgor, at:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Tx 75207
Attention: _____________________
Tel: __________________
Fax: (214) 863-1527
(b) if to the Collateral Agent, at:
The Chase Manhattan Bank
Agency Plus
One Chase Manhattan Plaza
8th Floor
New York, NY 10081
Attention: Daniella Cassognol
Tel: (212) 552-7425
Fax: (212) 552-5901
(c) if to the Issuer, at:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Tx 75207
Attention: _____________________
Tel: ____________________
Fax: (214) 863-1527
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder. As used in this
Section 6, "Business Day" means any day other than a Saturday, Sunday, or other
day in which banks in New York are authorized to remain closed.
7. This Agreement shall be binding upon the successors and assigns of
each Pledgor and the Issuer and shall inure to the benefit of and be enforceable
by the Collateral Agent and its successors and assigns. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall constitute one instrument. In the event that any provision
of this Agreement shall prove to be invalid or unenforceable, such provision
-3-
<PAGE>
shall be deemed to be severable from the other provisions of this Agreement
which shall remain binding on all parties hereto. None of the terms and
conditions of this Agreement may be changed, waived, modified or varied in any
manner whatsoever except in writing signed by the Collateral Agent, the Issuer
and any Pledgor which at such time owns any Issuer Pledged Interests.
8. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its principles of
conflict of laws.
-4-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written by their respective duly authorized
officers.
WYNDHAM INTERNATIONAL, INC.
as Issuer
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
1500 CANAL STREET INVESTORS II, L.P.,
as Pledgor and Guarantor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
ALBUQUERQUE C.I. ASSOCIATES, L.P.,
as Pledgor and Guarantor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
BJV REALTY, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-5-
<PAGE>
BOULDERS CAREFREE SEWER
CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
BOULDERS JOINT VENTURE,
as Pledgor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
BURRLLEN ENTERPRISES OF
MARYLAND,
as Pledgor
By: Patriot Grand Heritage, LLC, its
General Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-6-
<PAGE>
C.I. ALBUQUERQUE LESSEE GP, LLC,
as Pledgor and Guarantor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
C.I. ALBUQUERQUE LESSEE, L.P.,
as Pledgor
By: C.I. Albuquerque Lessee GP, LLC,
its General Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
CAREFREE MANAGEMENT LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-7-
<PAGE>
CASA MARINA REALTY CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CHC HOTELS & RESORTS CORP.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CHC LEASE PARTNERS,
as Pledgor
By: CHC REIT Management Corp., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CHC REIT LESSEE CORP.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CHC REIT MANAGEMENT CORP.
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CHICAGO-ES HOLDING CORP.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-8-
<PAGE>
CHMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
CLUBHOUSE INNS OF AMERICA, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CRITERION HOTEL MANAGEMENT CORP.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CRITERION NY INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CROSSROADS DEVELOPMENT COMPANY,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
CSMC OF KALAMAZOO, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-9-
<PAGE>
DEUCE MANAGEMENT COMPANY, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
FAMILY SUITES CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
FAMILY SUITES MANAGEMENT CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
FS DEVELOPMENT CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-10-
<PAGE>
GH-ATLANTA, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH-CHICAGO, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH-DETROIT, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH-GREENVILLE, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH-PROVIDENCE, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-11-
<PAGE>
GH-SAN DIEGO, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH TRADEMARKS LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GH-WICHITA, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GHMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
GHV-COLORADO, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-12-
<PAGE>
GHV-GALVESTON, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GLENVIEW HOSPITALITY, L.P.,
as Pledgor
By: PAH Deuce GP, LLC,
its General Partner
By: Patriot American Hospitality
Partnership, L.P.,
its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GRAND BAY MANAGEMENT COMPANY,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GRAND BAY MANAGEMENT LLC,
Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-13-
<PAGE>
GRAND HERITAGE HOTELS, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GRAND HERITAGE LEASING, LLC,
as Pledgor
By: Patriot Grand Heritage, LLC,
a Member
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GRAND HERITAGE REAL ESTATE GROUP LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
GRAND MANAGEMENT SERVICES, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-14-
<PAGE>
HMG BEVERAGE, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
IHC/BURLINGTON CORPORATION,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
IHC/CAPITAL CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/CONSHOHOCKEN PARTNERSHIP L.P.,
as Pledgor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/DENVER PARTNERSHIP, L.P.,
as Pledgor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-15-
<PAGE>
IHC/FS DEVELOPMENT CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/HOUSTON PARTNERSHIP, L.P.,
as Pledgor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/INTERSTONE PARTNERSHIP II, LP,
as Pledgor
By: PAH-Interstone, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/JACKSONVILLE CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/JAMAICA CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-16-
<PAGE>
IHC/MARYVILLE HOTEL CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC MEMBER CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/MIAMI BEACH CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC MIAMI MORTGAGE CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/PARK WEST CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/REACH CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-17-
<PAGE>
IHC REALTY CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC REALTY PARTNERSHIP, L.P.,
as Pledgor
By: IHC Realty Corporation,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/SANTA MARIA CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC/TEXAS CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHC TITLE AGENCY CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-18-
<PAGE>
IHP/CLASS B PARTNERSHIP, L.P.,
as Pledgor
By: IHC Realty Partnership, L.P., its
General Partner
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHP INVESTMENT COMPANY, L.L.C.,
as Pledgor
By: IHC Realty Partnership, L.P.,
a Member
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
IHP LESSEE, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-19-
<PAGE>
INTERSTATE/MONTOUR ASSOCIATES, LTD.,
as Pledgor
BY: IHC/Park West Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
INTERSTONE/PAH PARTNERS, L.P.,
as Pledgor
By: IHC Realty Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
INTERSTONE THREE PARTNERS I L.P.,
as Pledgor
By: PAH Interstone, Inc., its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
INTMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
-20-
<PAGE>
KANSAS CITY HOSPITALITY, L.P.,
as Pledgor
By: PAH Deuce GP, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
MARINA HOSPITALITY, L.P.,
as Pledgor
By: PAH Deuce GP, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
MBAH, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
-21-
<PAGE>
MELBOURNE HOSPITALITY, L.P.,
as Pledgor
By: PAH Deuce GP, LLC,
its General Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
O-H ACQUISITION, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
P.H.G., LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., a Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PA HUNT VALLEY INVESTORS, L.P.,
as Pledgor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-22-
<PAGE>
PA TROY HOSPITALITY, L.P.
as Pledgor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH ACQUISITION CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH ALLEN OPERATING CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH ASSET MANAGEMENT, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-23-
<PAGE>
PAH BATTERYMARCH OPERATING COMPANY, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PAH BUTTES L.L.C.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-CAREFREE, L.P.,
as Pledgor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-24-
<PAGE>
PAH-CI HOLDING, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-COLUMBUS HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH DEUCE GP, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-DT PARK PLACE PARTNERS, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-25-
<PAGE>
PAH-DT TALLAHASSEE PARTNERS, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-DT MINNEAPOLIS SUITES
PARTNERS, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-DT CHICAGO O'HARE PARTNERS, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-26-
<PAGE>
PAH-DT MIAMI AIRPORT PARTNERS, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH FF&E HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-FRANCHISE HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAHG FF&E HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-27-
<PAGE>
PAH GAH HOLDINGS, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PAH GAH HOLDINGS, L.P.,
as Pledgor
By: PAH GAH Holdings, LLC, its General
Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PAH-GBM, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-28-
<PAGE>
PAH-GP ALLEN PARTNERS, L.P.,
as Pledgor
By: PAH-Allen Operating Corporation,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH GP, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-GRAND BAY MIAMI, L.P.,
as Pledgor
By: PAH-GBM, LLC, its General Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-INTEREST HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-INTERSTONE, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-29-
<PAGE>
PAH-IP HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH LEASING LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PAH LP, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-MANAGEMENT CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAHP FF&E HOLDING, INC., as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-30-
<PAGE>
PAH-PITTSBURGH, LLC,
as Pledgor
By: PAH-Franchise Holding, Inc., its
sole Member
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-PITTSBURGH CI HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-REAL ESTATE MEMBER, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-RH, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-31-
<PAGE>
PAH-RIVER HOUSE, L.P.,
as Pledgor
By: PAH-RH, LLC, its General Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH RIVER NORTH, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH STANLY HOLDING LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PAH-SUMMERFIELD HOLDING CORP.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-32-
<PAGE>
PAH-SUMMERFIELD LEASING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-SUMMERFIELD LLC,
as Pledgor
By: PAH-Summerfield Holding Corp.,
its sole Member
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-T, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-TAMPA, L.P.,
as Pledgor
By: PAH-T, LLC, its General Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-33-
<PAGE>
PAH VENTANA CANYON, L.P.,
as Pledgor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-WMC HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAH-XERXES HOLDING, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PAHMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
PARK WEST HOTEL ASSOCIATES,
as Pledgor
By: PW Land Associated Limited
Partnership, a General Partner
By: IHC/Park West Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-34-
<PAGE>
PATRIOT AMERICAN HOSPITALITY, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P., as Pledgor
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PATRIOT BOUGAINVILLEA
DEVELOPMENT COMPANY, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PATRIOT GRAND HERITAGE, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-35-
<PAGE>
PATRIOT HOLDING LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
PATRIOT LAND HOLDING LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PATRIOT MIAMI NOTE HOLDER, L.P.,
as Pledgor
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-36-
<PAGE>
PATRIOT RACETRACK LAND LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc.,
its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PSMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
PW LAND ASSOCIATES LIMITED
PARTNERSHIP,
as Pledgor
By: IHC/Park West Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
PWMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
-37-
<PAGE>
RICHARDSON C.I. ASSOCIATES, L.P.,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SAVANNAH C.I. ASSOCIATES, L.P.,
as Pledgor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SFMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treausrer
SIERRA SUITES MARKETING
ASSOCIATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-38-
<PAGE>
ST LOUIS C.I. ASSOCIATES, L.P.
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its General
Partner
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SUMMERFIELD HOTEL COMPANY, L.P.
as Pledgor
By: PAH-Summerfield LLC, its General
Partner
By: PAH-Summerfield Holding Corp., its
sole Member
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SUMMERFIELD HOTEL CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SUMMERFIELD SUITES MARKETING
ASSOCIATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-39-
<PAGE>
SYRACUSE ASSOCIATES CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
SYRACUSE REALTY ASSOCIATES, L.P.,
as Pledgor
By: Syracuse Associates Corporation, its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
THE KEY WEST REACH LIMITED
PARTNERSHIP,
as Pledgor
By: IHC/Reach Corporation, its General
Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
THE PEAKS REAL ESTATE SERVICES,
INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-40-
<PAGE>
TOLEDO HOTEL INVESTORS, L.P.,
as Pledgor
By: PAH Deuce GP, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
TOPEKA C.I. ASSOCIATES, L.P.,
as Pledgor
By: PAH-CI HOLDING, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., a Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WATERFRONT MANAGEMENT
CORPORATION,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
-41-
<PAGE>
WATER STREET HOTEL, LTD.,
as Pledgor
By: IHC/Jacksonville Corporation, its
General Partner
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
WH INTEREST, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
WHC CHICAGO, LLC,
as Pledgor
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WHC FINANCE, L.P., as Pledgor
By: O-H Acquisition, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WHC FRANCHISE CORPORATION,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
-42-
<PAGE>
WHCMB, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
WHCMB OVERLAND PARK, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
WI OHIO INVESTORS, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WMC II, INC.,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WYN TRAVEL, INC.,
as Pledgor
By /s/ Richard L. Mahoney
--------------------------------
Title: Vice President & Treasurer
WYNDHAM ATLANTA LESSEE, LLC,
as Pledgor
By: Wyndham International, Inc., its
sole member
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-43-
<PAGE>
WYNDHAM IP CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WYNDHAM INTERNATIONAL, INC., as
Pledgor and not as a Guarantor
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
WYNDHAM INTERNATIONAL
OPERATING PARTNERSHIP, L.P.,
as Pledgor
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
WYNDHAM MANAGEMENT
CORPORATION,
as Pledgor
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
WYNDHAM MANAGEMENT II, LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
-44-
<PAGE>
WYNDHAM SUMMERFIELD LESSEE, L.P.,
as Pledgor
By: Wyndham Summerfield Lessee, LLC, its
General Partner
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham INternational, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
WYNDHAM SUMMERFIELD LESSEE,
LLC,
as Pledgor
By: Wyndham International Operating
Partnership, L.P., its sole Member
By: Wyndham International, Inc., its
General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Sr. Vice President
YO HOTEL INVESTORS, L.P.,
as Pledgor
By: PAH Deuce GP, LLC, its General
Partner
By: Patriot American Hospitality
Partnership, L.P., its sole Member
By: PAH GP, Inc., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-45-
<PAGE>
GAH-II, L.P., as Pledgor
By: GAH-II Corp., its General Partner
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
TCC VENEZUELA, L.C., as Pledgor
By: CHC Hotels & Resorts Corp., its
Member
By /s/ John P. Bohlmann
--------------------------------
Title: Vice President
-46-
<PAGE>
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Collateral Agent
By /s/ Thomas H. Kozlark
--------------------------------
Title: Vice President
-47-
<PAGE>
Annex E
FORM OF AGREEMENT SUPPLEMENT
AGREEMENT SUPPLEMENT (this "Agreement"), dated as of ___________, made
by _____________________, a ___________ corporation (the "New Subsidiary").
Unless otherwise defined herein, capitalized terms used herein and defined in
the Credit Agreement referred to below are used herein as so defined.
W I T N E S S E T H :
-------------------
WHEREAS, Wyndham International, Inc., a Delaware corporation (the
"Borrower"), the Lenders party thereto from time to time, Chase Securities Inc.
("CSI"), as Lead Arranger and Book Manager, NationsBank, N.A., and Bankers Trust
Company as Syndication Agents (each a "Syndication Agent," together the
"Syndications Agents"), and Credit Lyonnais New York Branch, as Documentation
Agent, Bear Stearns Corporate Lending Inc., as Co-Documentation Agent (each a
"Documentation Agent, together the Documentation Agents") and the Chase
Manhattan Bank ("Chase"), as Administrative Agent, have entered into a Credit
Agreement, dated as of June 30, 1999 (as amended, modified or supplemented to
the date hereof, the "Credit Agreement");
WHEREAS, Wyndham International, Inc., a Delaware corporation (the
"Borrower"), the Lenders Party thereto from time to time (the "IRL Lenders")
CSI, as Lead Arranger and Book Manager (the "IRL Lead Arranger"), Bear, Stearns
Co. Inc. ("BSC"), as Co-Arranger and Syndication Agent (the "IRL Co-Arranger"),
Bankers Trust Company, as Syndication Agent (the "IRL Syndication Agent") and
Chase, as Administrative Agent (the "IRL Administrative Agent"), have entered
into an Increasing Rate Note Purchase and Loan Agreement, dated as of June 30,
1999 (as amended, modified or supplemented to the date hereof, the "IRL
Agreement");
WHEREAS, in connection with the Credit Agreement, certain Subsidiaries
of the Borrower have entered into a Guaranty and Collateral Agreement, dated as
of June 30, 1999 (as amended, modified or supplemented to the date hereof, the
"Guaranty and Collateral Agreement");
WHEREAS, pursuant to Section 5.10 of the Credit Agreement and Section
5.9 of the IRL Agreement, the New Subsidiary is required to become a party to
the Guaranty and Collateral Agreement; and
WHEREAS, the New Subsidiary desires to execute and deliver this
Agreement in order to become a party to the Guaranty and Collateral Agreement;
<PAGE>
Annex E
Page 2
NOW, THEREFORE, IT IS AGREED:
1. Guaranty and Collateral Agreement. (a) By executing and
---------------------------------
delivering this Agreement, the New Subsidiary hereby becomes a party to the
Guaranty and Collateral Agreement, as a "Guarantor" thereunder, and hereby
expressly and jointly and severally assumes all obligations and liabilities of a
"Guarantor" thereunder. The New Subsidiary hereby makes each of the
representations and warranties contained in Section 2.10 of the Guaranty and
Collateral Agreement on the date hereof, after giving effect to this Agreement.
[(b) By executing and delivering this Agreement, the New Subsidiary
hereby (i) becomes a party to the Guaranty and Collateral Agreement as a
"Pledgor" thereunder, (ii) expressly assumes all obligations and liabilities of
a "Pledgor" thereunder and (iii) pledges and grants to the Collateral Agent (as
defined in the Guaranty and Collateral Agreement) for the benefit of the Secured
Creditors, as collateral security for the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of all of the
Obligations (as defined in the Guaranty and Collateral Agreement), a security
interest in and to all of the New Subsidiary's right, title and interest in, to
and under the Collateral (as defined in the Guaranty and Collateral Agreement).
The Annexes to the Guaranty and Collateral Agreement are each hereby amended as
necessary by supplementing such Annexes with the information contained in the
attached schedule to this Agreement. The New Subsidiary hereby makes each of
the representations and warranties contained in Sections 3.6 and 3.19 of the
Guaranty and Collateral Agreement on the date hereof, after giving effect to
this Agreement.
3. Pledged Securities; Financing Statements. By executing and
----------------------------------------
delivering this Agreement, the New Subsidiary hereby agrees to deposit as
security with the Collateral Agent the Security/1/ (as defined in the Guaranty
and Collateral Agreement) owned by the New Subsidiary on the date hereof, and
deliver to the Collateral Agent certificates or instruments therefor, duly
endorsed in blank by the New Subsidiary in the case of Notes (as defined in the
Guaranty and Collateral Agreement) and accompanied by undated stock or other
powers duly executed in blank by the New Subsidiary in the case of Stock (as
defined in the Guaranty and Collateral Agreement), or such other instruments of
transfer as are acceptable to the Pledgee.]/2/
4. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
- -----------------------------------
/1/ If any Securities owned by the New Subsidiary are uncertificated or the New
Subsidiary itself has issued uncertificated Securities, a control agreement
in the form of Annex G to the Guarantee and Collateral Agreement will be
required.
/2/ Applicable only to the extent that the New Subsidiary is required to pledge
Collateral pursuant to the Guaranty and Collateral Agreement.
<PAGE>
Annex E
Page 3
5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
* * *
<PAGE>
Annex E
Page 4
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
Address:
- -------
[NAME OF NEW SUBSIDIARY]
By
---------------------------------
Name:
Title:
ACKNOWLEDGED AND ACCEPTED:
THE CHASE MANHATTAN BANK,
as Administrative Agent for the Lenders
and as Collateral Agent
for the Secured Creditors
By
---------------------------
Name:
Title:
<PAGE>
EXHIBIT D
[Conformed as Executed]
REGISTRATION RIGHTS AGREEMENT
Dated as of June 30, 1999
by and among
WYNDHAM INTERNATIONAL, INC.,
THE HOLDERS OF CERTAIN NOTES
and
THE CHASE MANHATTAN BANK, as Representative of the Holders
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
June 30, 1999, by and among Wyndham International, Inc., a corporation
incorporated under the laws of Delaware (the "Company"), The Chase Manhattan
Bank, as representative of the holders of the Notes (as defined below) and of
Registrable Notes that may be exchanged therefor as provided below (the
"Representative").
The execution and delivery of this Agreement is a requirement
contained in the Increasing Rate Note Purchase and Loan Agreement dated as of
June 29, 1999 among the Company, the lenders named therein, The Chase Manhattan
Bank, as Administrative Agent, Chase Securities Inc., as Lead Arranger and Book
Manager Bear Stearns Corporate Lending, as Co-Arranger and Syndication Agent and
Bakers Trust Company, as Syndication Agent (the "Increasing Rate Term Loan
Agreement") and this Agreement is executed and delivered by the Company to
induce the various Lenders pursuant to the Increasing Rate Term Loan Agreement
to make the extensions of credit thereunder which are evidenced by "Loans" or
"Notes" (collectively, the "IRL Notes," and together with the Exchange Notes (as
defined below), the "Notes"). This Agreement shall inure to the benefit of each
direct and indirect transferee of Notes and of Registrable Notes that may be
exchanged therefor.
The parties hereby agree as follows:
1. Definitions
-----------
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: Has the meaning provided in Section 4(a) hereof.
-------------------
Advice: Has the meaning provided in the last paragraph of Section 5
------
hereof.
Agreement: Has the meaning provided in the first introductory
---------
paragraph hereto.
Applicable Period: Has the meaning provided in Section 2(b) hereof.
-----------------
Company: Has the meaning provided in the first introductory paragraph
-------
hereto.
Company Notice: Has the meaning provided in Section 10(a) hereof.
--------------
Effective Date: Has the meaning provided in Section 9.13 of the
--------------
Increasing Rate Term Loan Agreement.
Effectiveness Period: Has the meaning provided in Section 3(a)
--------------------
hereof.
Event Date: Has the meaning provided in Section 4(b) hereof.
----------
Event Date: Has the meaning provided in Section 4(b) hereof.
----------
<PAGE>
Page 2
Exchange Act: The Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: Has the meaning provided in Section 2(a) hereof.
--------------
Exchange Offer: Has the meaning provided in Section 2(a) hereof.
--------------
Exchange Registration Statement: Has the meaning provided in Section
-------------------------------
2(a) hereof.
Filing Date: June 30, 2000
-----------
Holder: Any holder of a Registrable Note or Registrable Notes.
------
Incidental Registration: Has the meaning provided in Section 10(a).
-----------------------
Indemnified Person: Has the meaning provided in Section 7(c) hereof.
------------------
Indemnifying Person: Has the meaning provided in Section 7(c) hereof.
-------------------
Indenture: Has the meaning provided in Section 2(a) hereof.
---------
Inspectors: Has the meaning provided in Section 5(o) hereof.
----------
Issuer: The Company as the issuer of Registrable Notes.
------
IRL Notes: Has the meaning provided in the second paragraph hereof.
---------
NASD: Has the meaning provided in Section 5(s) hereof.
----
Notes: Has the meaning provided in the second introductory paragraph
-----
hereof.
Participant: Has the meaning provided in Section 7(a) hereof.
-----------
Participating Broker-Dealer: Has the meaning provided in Section 2(b)
---------------------------
hereof.
Person: An individual, trustee, corporation, partnership, limited
------
liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
Prospectus: The prospectus included in any Registration Statement
----------
(including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from
a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, and all other
amendments and supplements to the Prospectus, with respect to the
terms of the offering of any portion of the Registrable Notes covered
by such Registra-
<PAGE>
Page 3
tion Statement including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Records: Has the meaning provided in Section 5(o) hereof.
-------
Registrable Notes: Each Exchange Note upon original issuance of the
-----------------
Exchange Notes and at all times subsequent thereto until, in the case
of any such Exchange Note, the earliest to occur of (i) an Exchange
Registration Statement covering the exchange of such Exchange Note for
Notes and the resale of such Exchange Note, has been declared
effective by the SEC and such Exchange Note has been disposed of in
accordance with such effective Registration Statement, (ii) a Shelf
Registration Statement covering any Exchange Note as to which Section
2(c) hereof is applicable has been declared effective by the SEC,
(iii) such Exchange Note is sold in compliance with Rule 144, (iv)
such Exchange Note ceases to be outstanding for purposes of the
Indenture or (v) the Exchange Offer has been consummated in accordance
with Section 2 hereof.
Registration Effective Date: December 31, 2000
---------------------------
Registration Statement: Any registration statement of the Company,
----------------------
including, but not limited to, the Exchange Registration Statement and
the Shelf Registration Statement, that covers any of the Registrable
Notes pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in
such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
--------
may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers
and sales of securities made in compliance therewith resulting in
offers and sales by subsequent holders that are not affiliates of an
issuer of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
---------
Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
--------
may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The United States Securities and Exchange Commission.
---
Securities Act: The United States Securities Act of 1933, as amended,
--------------
and the rules and regulations of the SEC promulgated thereunder.
<PAGE>
Page 4
Shelf Notice: Has the meaning provided in Section 2(c) hereof.
------------
Shelf Registration: Has the meaning provided in Section 3(a) hereof.
------------------
Shelf Registration Statement: shall mean a "shelf" registration
----------------------------
statement of the Company which covers all of the Registrable Notes on
an appropriate form under Rule 415 under the Securities Act, or any
similar rule that may be adopted by the SEC, 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.
Staff: The staff of the SEC.
-----
TIA: The Trust Indenture Act of 1939, as amended.
---
Trustee(s): The trustee under the Indenture governing the Exchange
----------
Notes.
Underwritten registration or underwritten offering: A registration in
--------------------------------------------------
which securities of the Issuer are sold to an underwriter for
reoffering to the public.
2. Exchange Offer
--------------
(a) The Issuer shall use its reasonable commercial efforts to file
with the SEC no later than the Filing Date an offer to exchange (the "Exchange
Offer") any and all of the IRL Notes for a like aggregate principal amount of
debt securities of the Company which are identical in all material respects to
the IRL Notes (the "Exchange Notes") and which are entitled to the benefits of
an indenture between the Issuer and a Trustee (selected by the Issuer and
reasonably acceptable to the Representative) which are identical in all material
respects to the substantive terms of IRL Agreement other than (i) such changes
to the Indenture as are necessary to comply with the express requirements of the
TIA, as amended, (ii) the holders of Exchange Notes subject to the Indenture
shall not have the benefit of the "Guaranty" under the Guaranty and Collateral
Agreement or the pledge and security interests granted by the Guarantors
thereunder (and each Lender hereby acknowledges and agrees that upon its
acceptance of an Exchange Note in exchange for its Note, it shall thereafter
hold an unsecured obligation of the borrower which shall not have the benefit of
any guaranties or credit support), (iii) the indenture shall provide that,
subject to Section 9.02(c) of the Increasing Rate Term Loan Agreement, holders
of Loans and holders of Exchange Notes, collectively or on a combined basis,
will vote as one class (for all purposes of this of the Increasing Rate Term
Loan Agreement and the Indenture) except as mandated by the express requirements
of the Trust Indenture Act and which has been qualified under the TIA, (iv)
interest on the Exchange Notes shall occur from the last date on which interest
was paid on the IRL Notes (v) the Exchange Notes shall have been registered
pursuant to an effective Registration Statement under the Securities Act, (the
"Indenture") and (vi) the Exchange Notes shall contain no restrictive legend or
transfer restrictions thereon. The Exchange Offer shall be registered under the
Securities Act on the appropriate form (the "Exchange Registration Statement")
and shall comply with all applicable tender offer rules and regulations
<PAGE>
Page 5
under the Exchange Act. The Issuer agrees to use its reasonable commercial
efforts to (x) cause the Exchange Registration Statement to be filed with the
SEC on or before the Filing Date; (y) keep the Exchange Offer open for at least
20 business days (or longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to the Holders; and (z) consummate the
Exchange Offer on or prior to the Registration Effective Date. If after such
Exchange Registration Statement is declared effective by the SEC, the Exchange
Offer or the issuance of the Exchange Notes thereunder is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Exchange Registration Statement shall be
deemed not to have become effective for purposes of this Agreement during the
period of interference, until the offering of the Exchange Notes pursuant to the
Exchange Registration Statement may resume. Each Holder who participates in the
Exchange Offer will be required to represent that any Exchange Notes received by
it will be acquired in the ordinary course of its business, that at the time of
the consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act or applicable state
securities or blue sky laws, and that such Holder in not an "affiliate" of the
Issuer within the meaning of the Securities Act and to acknowledge that such
Holder is exchanging a secured and guaranteed debt security for an unsecured and
unguaranteed debt security, and that such Holder's rights and powers shall be
subject to Section 9.2(c) of the Increasing Rate Term Loan Agreement and the
corresponding provisions of the Indenture. Upon consummation of the Exchange
Offer in accordance with this Section 2, the Issuer shall have no further
obligation to register Registrable Notes (other than in respect of any Exchange
Notes as to which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included in the Exchange
Registration Statement.
(b) The Issuer shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Representative, which shall contain a summary
statement of the positions taken or policies made by the Staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the Staff of the SEC or such positions or policies, in the
reasonable judgment of the Representative and its counsel, represent the
prevailing views of the Staff of the SEC. Such "Plan of Distribution" section
shall also expressly permit the use of the Prospectus by all Persons subject to
the prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, and include a statement describing the means by
which Participating Broker-Dealers may resell the Exchange Notes.
The Issuer shall use its reasonable commercial efforts to keep the
Exchange Registration Statement effective and to amend and supplement the
Prospectus contained therein, in order to permit such Prospectus to be lawfully
delivered by any Participating Broker-Dealer subject to the prospectus delivery
requirements of the Securities Act for such period of time as is necessary to
comply with applicable law in connection with any resale of the Exchange Notes;
provided, however, that such period shall not extended beyond the earlier of (i)
- -------- -------
the date in which the Issuer is no longer required (in the sole judgment of the
Representative) to permit resales of
<PAGE>
Page 6
Exchange Notes and (ii) 540 days after the consummation of the Exchange Offer
(or such later date if extended pursuant to the last paragraph of Section 5
hereof) (the "Applicable Period").
Interest on the Exchange Notes will accrue from the last interest
payment date on which interest was paid on the IRL Notes surrendered in exchange
therefor or, if no interest has been paid on the IRL Notes, from the date of
issuance of the IRL Notes.
In connection with the Exchange Offer, the Issuer shall:
(1) mail to each holder of the IRL Notes a copy of the Prospectus
forming part of the Exchange Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the borough of Manhattan, in the City of New York, New York;
(3) permit holders to withdraw tendered IRL Notes at any time prior to
5:00 p.m. New York time, on the last business day on which the Exchange
Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer, the
Issuer shall:
(1) accept for exchange all IRL Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer;
(2) deliver or cause to be delivered to the Trustee for cancellation
all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
holder of IRL Notes, Exchange Notes equal in principal amount to the IRL
Notes of such Holder so accepted for exchange.
The Exchange Notes to be issued under the Indenture shall not be
subject to transfer restrictions.
(c) If (i) because of any change in law, SEC rules or regulations or
currently prevailing interpretations of the Staff of the SEC, the Issuer is not
permitted to effect an Exchange Offer, (ii) holders of a majority in aggregate
principal amount of Registrable Notes may so request at any time after the
Registration Effective Date and the Exchange Offer shall have not been
consummated, (iii) in the case of any Holder that participates in the Exchange
Offer, such Holder does not receive Exchange Notes on the date of the exchange
that may be sold without restriction under state and federal securities laws
(other than due solely to the status of such Holder as an affiliate of the
Issuer within the meaning of the Securities Act), or (iv) at the Issuer's sole
option, the Issuer shall promptly deliver written notice thereof (the "Shelf
Notice") to the
<PAGE>
Page 7
Trustee and, in the case of clauses (i) and (iv) above, all Holders, in the case
of clause (ii) above, the holders of IRL Notes so requesting,, and, in the case
of clause (iii) above, the affected Holder, and shall file a Shelf Registration
pursuant to Section 3 hereof.
3. Shelf Registration
------------------
If a Shelf Notice is delivered as contemplated by Section 2(c) hereof,
then:
(a) Shelf Registration. The Issuer shall as promptly as reasonably
------------------
practicable after delivery of the Shelf Notice (i) in a transaction not
involving any public offering, exchange Exchange Notes for Notes and (ii) file
with the SEC a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Registrable Notes (the "Shelf
Registration"). If the Issuer shall not have yet filed an Exchange Registration
Statement, the Issuer shall use its best efforts to file with the SEC the Shelf
Registration on or prior to the Filing Date. The Shelf Registration shall be on
Form S-1 or another appropriate form permitting registration of such Registrable
Notes for resale by Holders in the manner or manners designated by Holders of at
least a majority of the Registrable Notes included in the Shelf Registration
(including, without limitation, one or more underwritten offerings). The Issuer
shall not permit any securities other than the Registrable Notes to be included
in the Shelf Registration.
The Issuer shall use its reasonable commercial efforts to cause the
Shelf Registration to be declared effective under the Securities Act on or prior
to the first Event Date and to keep the Shelf Registration continuously
effective under the Securities Act until the date which is two years from the
date of the issuance of any Exchange Note (or one year in the case of a Shelf
Notice pursuant to Section 2(c)(ii) hereof), subject to extension pursuant to
the last paragraph of Section 5 hereof (the "Effectiveness Period"), or such
shorter period ending when all Registrable Notes covered by the Shelf
Registration have been sold in the manner set forth and as contemplated in the
Shelf Registration.
(b) Withdrawal of Stop Orders. If the Shelf Registration ceases to be
-------------------------
effective for any reason at any time during the Effectiveness Period (other than
because of the sale of all of the securities registered thereunder), the Issuer
shall use its reasonable commercial efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Issuer shall promptly supplement
--------------------------
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any managing underwriter of such
Registrable Notes.
4. Additional Interest
-------------------
(a) The Issuer and the Representative agree that the holders of IRL
Notes and/or the Holders of Registrable Notes, as the case may be, will suffer
damages if the Issuer fails to fulfill its obligations under Section 2 or
Section 3 hereof and that it would not be feasible to
<PAGE>
Page 8
ascertain the extent of such damages with precision. Accordingly, the Issuer
agrees to pay, as liquidated damages, additional interest on the Notes
("Additional Interest") under the circumstances and to the extent set forth
below:
(i) if neither the Exchange Registration Statement nor a Shelf
Registration has been filed on or prior to the Filing Date, then,
commencing on the first day after the Filing Date, Additional Interest
shall accrue on the IRL Notes over and above the stated interest at a rate
of .50% per annum;
(ii) if neither the Exchange Registration Statement nor a Shelf
Registration is declared effective by the SEC on or prior to the
Registration Effective Date, then, commencing on the first day after the
Registration Effective Date, Additional Interest shall accrue on the Notes
or the Exchange Notes included or which should have been included in such
Registration Statement over and above the stated interest at a rate of .50%
per annum; and
(iii) if (A) the Issuer has not exchanged Exchange Notes for all IRL
Notes validly tendered in accordance with the terms of the Exchange Offer
or (B) the Exchange Registration Statement ceases to be effective at any
time after the Filing Date and prior to the time that the Exchange Offer is
consummated or (C) if applicable, a Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective after the
Registration Effective Date at any time during the Effectiveness Period,
then Additional Interest shall accrue (over and above any interest
otherwise payable on such Notes or Exchange Notes) at a rate of .50% per
annum commencing on (x) the first day after Registration Effective Date
with respect to the Notes not exchanged by the Company, in the case of (A)
above, or (y) the day (which shall not be earlier than the first day after
the Registration Effective Date) the Exchange Registration Statement ceases
to be effective in the case of (B) above, or (z) the day (which shall not
be earlier than the first day after the Registration Effective Date) such
Shelf Registration ceases to be effective in the case of (C) above (it
being understood and agreed that, notwithstanding any provision to the
contrary, so long as any Exchange Note which is the subject of a Shelf
Notice is then covered by an effective Shelf Registration Statement, no
Additional Interest shall accrue on such Exchange Note);
provided, however, that notwithstanding the foregoing, the Additional
-------- -------
Interest rate on any affected Note may not exceed at any one time in the
aggregate .50% per annum; provided, further, that (1) upon the filing of
-------- -------
the Exchange Registration Statement or a Shelf Registration (in the case of
clause (i) of this Section 4(a)), (2) upon the effectiveness of the
Exchange Registration Statement or the Shelf Registration (in the case of
clause (ii) of this Section 4(a)), or (3) upon the exchange of Exchange
Notes for all Notes validly tendered (in the case of clause (iii)(A) of
this Section 4(a)), or upon the effectiveness of the Exchange Registration
Statement which had ceased to remain effective (in the case of (iii)(B) of
this Section 4(a)), or upon the effectiveness of the Shelf Registration
which had ceased to remain effective (in the case of (iii)(C) of this
Section 4(a)), Additional Interest on the affected Notes as a result of
such clause (or the relevant subclause thereof), as the case may be, shall
cease to accrue; and provided, further that notwithstanding anything to
-------- -------
<PAGE>
Page 9
the contrary, if Additional Interest would otherwise be required to accrue
and be payable under clause (i) or (ii) of this Section 4(a) due solely to
the terms of the Exchange Notes, then (1) no Additional Interest shall
accrue or be payable, and (2) this Agreement and the Issuer's obligations
shall automatically terminate without requiring any further action.
(b) The Issuer shall notify the Representative within one business day
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). The Issuer shall
pay the Additional Interest due on Notes by depositing with the paying agent or
the Administrative Agent, as the case may be (which shall not be the Company for
these purposes) for the Notes, in trust, for the benefit of the holders thereof,
prior to 11:00 A.M. on the next interest payment date specified by the Indenture
(or the Increasing Rate Term Loan Agreement with respect to the IRL Notes), sums
sufficient to pay the Additional Interest then due. Any amounts of Additional
Interest due pursuant to clauses (a) or (a)(ii) of this Section 4 will be
payable to the holders or Holders of affected Notes in cash on each interest
payment date specified by the Indenture (or the Increasing Rate Term Loan
Agreement with respect to the IRL Notes) to the record holders entitled to
receive the interest payment to be made on such date, commencing with the first
such date occurring after any such Additional Interest commences to accrue. The
amount of Additional Interest will be determined by multiplying the applicable
Additional Interest rate by the principal amount of the affected Notes of such
holders or Holders, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months
and, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
5. Registration Procedures
-----------------------
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuer shall effect such registration(s) to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuer hereunder, the Issuer shall:
(a) Prepare and file with the SEC prior to the Filing Date a
Registration Statement or Registration Statements as prescribed by Sections 2 or
3 hereof, and use its reasonable commercial efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that, if (1) such filing is pursuant to Section 3
-------- -------
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, before filing any Registration Statement or
Prospectus or any amendments or
<PAGE>
Page 10
supplements thereto, the Issuer shall, if requested, furnish to and afford the
Holders of the Registrable Notes covered by such Registration Statement or each
such Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each case
at least five business days prior to such filing). The Issuer shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto in
respect of which the Holders must be afforded an opportunity to review prior to
the filing of such document, if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement, or any
such Participating Broker-Dealer, as the case may be, their counsel, or the
managing underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration Statement, as the
case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable Period or
until consummation of the Exchange Offer, as the case may be; cause the related
Prospectus to be supplemented by any Prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act applicable
to it with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so supplemented
and with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus; the Company shall be
deemed not to have used its best efforts to keep a Registration Statement
effective during the Applicable Period if it voluntarily takes any action that
would result in selling Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not being able to
sell such Registrable Notes or such Exchange Notes during that period unless
such action is required by applicable law or unless the Company complies with
this Agreement, including without limitation, the provisions of paragraph 5(k)
hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, notify the selling Holders of Registrable Notes, or each
such Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, promptly (but in any event within two business
days), and if requested by such selling holders, Participating Broker-Dealers or
managing underwriters confirm such notice in writing, (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole expense
of the Issuer, one conformed copy of such Registration Statement or post-
effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that purpose,
(iii) if at any time when a Prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Notes or resales of
Exchange Notes by Participating Broker-Dealers, the representations and
warranties of the Issuer contained in any agreement (including any underwriting
agreement), contemplated by Section 5(n) hereof cease to be true and correct in
all material respects, (iv) of the receipt by the Issuer of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable Notes or the
<PAGE>
Page 11
Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale
in any jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the determination by the Issuer that a post-
effective amendment to a Registration Statement would be appropriate.
(d) Use its reasonable commercial efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable Notes
or the Exchange Notes for sale in any jurisdiction, and, if any such order is
issued, to use its reasonable commercial efforts to obtain the withdrawal of any
such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 hereof and
if reasonably requested by the managing underwriter or underwriters (if any), or
the Holders of a majority in aggregate principal amount of the Registrable Notes
being sold in connection with an underwritten offering, (i) promptly incorporate
in a prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders, or counsel for any
of them reasonably request to be included therein, (ii) make all required
filings of such prospectus supplement or such post-effective amendment as soon
as practicable after the Issuer has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment, and
(iii) supplement or make amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, furnish to each selling Holder of Registrable Notes and
to each such Participating Broker-Dealer who so requests and to counsel and each
managing underwriter, if any, at the sole expense of the Issuer, one conformed
copy of the Registration Statement or Registration Statements and each post-
effective amendment thereto, including financial statements and schedules, and,
if requested, all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, deliver to each selling Holder of Registrable
<PAGE>
Page 12
Notes, or each such Participating Broker-Dealer, as the case may be, their
respective counsel, and the underwriters, if any, at the sole expense of the
Issuer, as many copies of the Prospectus or Prospectuses (including each form of
preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Issuer hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of the Registrable
Notes covered by, or the sale by Participating Broker-Dealers of the Exchange
Notes pursuant to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, to use its reasonable commercial efforts to register or
qualify such Registrable Notes (and to cooperate with selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case may be,
the managing underwriter or underwriters, if any, and their respective counsel
in connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Notes) for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters reasonably request in writing; provided, however,
-------- -------
that where Exchange Notes held by Participating Broker-Dealers or Registrable
Notes are offered other than through an underwritten offering, the Issuer agrees
to cause its counsel to perform Blue Sky investigations and file registrations
and qualifications required to be filed pursuant to this Section 5(h); keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the applicable Registration
Statement; provided, however, that the Issuer shall not be required to (A)
-------- -------
qualify generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or (C) subject
itself to taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company, and enable such
Registrable Notes to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may request at
least two business days prior to the closing of any sale of Registrable Notes to
the managing underwriter or underwriters.
(j) Use its reasonable commercial efforts to cause the Registrable
Notes covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the Holders thereof or the
<PAGE>
Page 13
underwriter or underwriters, if any, to dispose of such Registrable Notes,
except as may be required solely as a consequence of the nature of a selling
Holder's business, in which case the Issuer will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting of such
approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(ii), 5(c)(iii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) hereof) file with the SEC,
at the sole expense of the Issuer, a supplement or post-effective amendment to
the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(l) Use its reasonable commercial efforts to cause the Registrable
Notes covered by a Registration Statement or the Exchange Notes, as the case may
be, to be rated with the appropriate rating agencies, if so requested by the
Holders of a majority in aggregate principal amount of Registrable Notes covered
by such Registration Statement or the Exchange Notes, as the case may be, or the
managing underwriter or underwriters, if any.
(m) Not later than the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes or Exchange Notes, as the case may be, in
a form eligible for deposit with The Depository Trust Company and (ii) provide a
CUSIP number for the Registrable Notes or Exchange Notes, as the case may be.
(n) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as is
customary in underwritten offerings of debt securities similar to the Notes and
take all such other actions as are reasonably requested by the managing
underwriter or underwriters in order to facilitate the registration or the
disposition of such Registrable Notes and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters with
respect to the business of the Issuer and its subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings of debt securities similar to
the Notes, and confirm the same in writing if and when requested; (ii) obtain
the written opinion of counsel to the Issuer and written updates thereof in
form, scope and substance reasonably satisfactory to the
<PAGE>
Page 14
managing underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten offerings of
debt similar to the Notes; (iii) obtain "comfort" letters and updates thereof in
form, scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Issuer
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Issuer or of any business acquired by the Issuer for which
financial statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "comfort" letters in connection with
underwritten offerings of debt similar to the Notes and such other matters as
reasonably requested by the managing underwriter or underwriters; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section 7
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters or agents)
with respect to all parties to be indemnified pursuant to said Section. The
above shall be done at each closing under such underwriting agreement, or as and
to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, make available for inspection by any selling Holder of
such Registrable Notes being sold, or each such Participating Broker-Dealer, as
the case may be, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent retained
by any such selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and instruments of the Issuer and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Issuer and its respective
subsidiaries to make available for inspection all information reasonably
requested by any such Inspector in connection with such Registration Statement;
provided that the foregoing inspection and other information gathering shall be
coordinated for the selling Holders and Participating Broker-Dealers and any
attorney, accountant or agent retained by them by one counsel determined by the
holders of a majority of the Registrable Securities. Records which the Issuer
determines, in good faith, to be confidential and any Records which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors unless
(i) the disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, (iii) disclosure of such information is, in the written
opinion of counsel (a copy of which shall be delivered to the Issuer) for any
Inspector, necessary or advisable in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving this
Agreement, or any transactions contemplated hereby or arising hereunder, or (iv)
the information in such Records has been made generally available to the public.
Each selling Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to agree that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the Issuer
unless and until
<PAGE>
Page 15
such information is generally available to the public. Each selling Holder of
such Registrable Notes and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Issuer and allow the Issuer to undertake appropriate action to prevent
disclosure of the Records deemed confidential at the Issuer's sole expense.
(p) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture provided for in
Section 2(a) hereof to be qualified under the TIA not later than the effective
date of the Exchange Offer or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the trustee under
such Indenture and the Holders of the Registrable Notes, to effect such changes
to such Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its reasonable
commercial efforts to cause such trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to
be filed with the SEC to enable such Indenture to be so qualified in a timely
manner.
(q) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earnings statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (or in each case within such extended
period of time as may be permitted by the SEC for filing the applicable report
with the SEC) (i) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.
(r) If an Exchange Offer is consummated, upon delivery of the IRL
Notes by holders to the Issuer (or to such other Person as directed by the
Issuer) in exchange for the Exchange Notes the Issuer shall mark, or cause to be
marked, on such IRL Notes that such IRL Notes are being cancelled in exchange
for the Exchange Notes; in no event shall such Bridge Notes be marked as paid or
otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
(t) Use its reasonable best efforts to take all other steps necessary
or advisable to effect the registration of the Registrable Notes covered by a
Registration Statement contemplated hereby.
The Issuer may require each seller of Registrable Notes as to which
any Registration Statement is being effected to furnish to the Issuer such
information regarding such seller and the distribution of such Registrable Notes
as the Issuer may, from time to time, reasonably
<PAGE>
Page 16
request. The Issuer may exclude from such Registration Statement the Registrable
Notes of any seller who unreasonably fails to furnish such information within a
reasonable time after receiving such request. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Issuer all
information required to be disclosed in order to make the information previously
furnished to the Issuer by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be, that, upon
actual receipt of any notice from the Issuer of the happening of any event of
the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), 5(c)(v), or
5(c)(vi) hereof, such Holder will forthwith discontinue disposition of such
Registrable Notes covered by such Registration Statement or Prospectus or
Exchange Notes to be sold by such Holder or Participating Broker-Dealer, as the
case may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the Issuer that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Issuer shall give any such
notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Notes covered by such Registration Statement or Exchange Notes to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuer shall be borne by the Issuer whether or not
the Exchange Offer or a Shelf Registration is filed or becomes effective,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of White & Case LLP in connection
with Blue Sky qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes for
investment under the laws of such jurisdictions (x) where the holders of
Registrable Notes are located, in the case of the Exchange Notes, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Notes or Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable Period
but excluding underwriting discounts and commissions and transfer taxes, if any,
relating to the sale of Registrable Securities by a Holder), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or sold by any Participating
Broker-Dealer, as the case may be, (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Issuer, (v) fees and
disbursements of all independent
<PAGE>
Page 17
certified public accountants referred to in Section 5(n)(iii) hereof (including,
without limitation, the expenses of any special audit and "comfort" letters
required by or incident to such performance by or incident to such performance),
(vi) rating agency fees, if any, and any fees associated with making the
Registrable Notes or Exchange Notes eligible for trading through The Depository
Trust Company, (vii) Securities Act liability insurance, if the Issuer desires
such insurance, (viii) fees and expenses of all other Persons retained by the
Issuer, (ix) internal expenses of the Issuer (including, without limitation, all
salaries and expenses of officers and employees of the Issuer performing legal
or accounting duties), (x) the expense of any annual audit, (ix) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange or any inter-dealer quotation system, if
applicable, and (xii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement.
(b) The Issuer shall (i) reimburse the Holders of the Registrable
Notes being registered in a Shelf Registration for the reasonable fees and
disbursements of not more than one counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority in aggregate principal amount of
the Registrable Notes to be included in such Registration Statement and (ii)
reimburse the reasonable out-of-pocket expenses (other than legal expenses) of
Holders of Registrable Notes incurred in connection with the registration and
sale of the Registrable Notes pursuant to a Shelf Registration or in connection
with the exchange of Registrable Notes pursuant to the Exchange Offer. In
addition, the Issuer shall reimburse the Representative for the reasonable fees
and expenses of counsel in connection with the Exchange Offer, which shall be
White & Case LLP.
7. Indemnification. (a) The Issuer agrees to indemnify and hold
---------------
harmless each Holder of Registrable Notes offered pursuant to a Shelf
Registration Statement and each Holder and Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, the affiliates, directors,
officers, agents, representatives and employees of each such Person or its
affiliates, and each other Person, if any, who controls any such Person or its
affiliates within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, a "Participant") from and against any and
all losses, claims, damages and liabilities (including, without limitation, the
reasonable legal fees and other expenses actually incurred in connection with
any suit, action or proceeding or any claim asserted) caused by, arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement pursuant to which the offering of
such Registrable Notes or Exchange Notes, as the case may be, is registered (or
any amendment thereto) or related Prospectus (or any amendments or supplements
thereto) or any related preliminary prospectus, or caused by, arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
--------
however, that the Issuer will not be required to indemnify a Participant if (i)
- -------
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant furnished to the Issuer
in writing by or on behalf of such Participant expressly for use therein or (ii)
such Participant sold to the person asserting the claim the Registrable Notes or
Exchange Notes which are the subject of such claim and such untrue
<PAGE>
Page 18
statement or omission or alleged untrue statement or omission was contained or
made in any preliminary prospectus and corrected in the Prospectus or any
amendment or supplement thereto and the Prospectus does not contain any other
untrue statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding and it is
determined in the related proceeding that such Participant failed to deliver or
provide a copy of the Prospectus (as amended or supplemented) to such Person
with or prior to the confirmation of the sale of such Registrable Notes or
Exchange Notes sold to such Person if required by applicable laws, unless such
failure to deliver or provide a copy of the Prospectus (as amended or
supplemented) was a result of noncompliance by the Issuer with Section 5 of this
Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Issuer, its affiliates, directors, officers, agents,
representatives and employees and each Person who controls the Issuer within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Issuer to each
Participant, but only with reference to information relating to such Participant
furnished to the Issuer in writing by or on behalf of such Participant expressly
for use in any Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand (each a "proceeding") shall be
brought or asserted against any Person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such Person (the
"Indemnified Person") shall promptly notify the Person against whom such
indemnity may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, at its election may assume the defense of such proceeding
with counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may reasonably
designate in such proceeding and shall pay the reasonable fees and expenses
actually incurred by such counsel related to such proceeding unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed in
writing to the contrary, (ii) the Indemnifying Person shall have failed within a
reasonable period of time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person (or an affiliate or
controlling person thereof) and the Indemnified Person , and such Indemnified
Person shall have been advised in writing by counsel that either (x) there may
be one or more legal defenses available to it which are different from or in
addition to those available to such Indemnifying Person or such affiliate or
controlling person or (y) a conflict of interest may exist if such counsel
represents such Indemnified Person and such Indemnifying Person or its affiliate
or controlling person; provided, however, that the failure to so notify the
-------- -------
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any proceeding where the Indemnifying Person is
entitled to assume the defense thereof, any Indemnified Person shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Person. It is understood that, unless
there exists a conflict among Indemnified Persons, the Indemnifying Person shall
not, in connection with any one such proceeding or separate but substantially
similar related proceeding in the same jurisdiction arising out of the same
general allegations, be liable for the
<PAGE>
Page 19
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed promptly as they are incurred. Any such separate firm for the
Participants and such control Persons of Participants shall be designated in
writing by Participants who sold a majority in interest of Registrable Notes and
Exchange Notes sold by all such Participants and any such separate firm for the
Issuer, its affiliates, directors, officers, agents, representatives and
employees and such control Persons of the Issuer shall be designated in writing
by the Issuer. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its prior written consent, but if settled with
such consent or if there be a final non-appealable judgment for the plaintiff
for which the Indemnified Person is entitled to indemnification pursuant to this
Agreement, the Indemnifying Person agrees to indemnify and hold harmless each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for reasonable fees and expenses actually incurred by
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such Indemnifying Person of the
aforesaid and (ii) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement; provided, however, that the Indemnifying Person shall not be liable
-------- -------
for any settlement effected without its consent pursuant to this sentence if the
Indemnifying Person is contesting, in good faith, the request for reimbursement.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional written
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of any
Indemnified Person.
(d) The Indemnifying Person's liability to any Indemnified Person
hereunder shall not be extinguished solely because any other Indemnified Person
is not entitled to indemnity hereunder.
(e) The indemnification provided for hereunder will remain in full
force and effect regardless of any investigation made by or on behalf of the
Indemnified Person or any officer, director or controlling Person of such
Indemnified Person, and will survive the transfer of the Notes during any
applicable period.
(f) If the indemnification provided for in Section 7(a) and 7(b)
hereof is for any reason unavailable to, or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, than each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on
<PAGE>
Page 20
the one hand and the Indemnified Person or Persons on the other from the
offering of the Notes or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but also
the relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
fault of the parties 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 the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons, on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in the
circumstances.
(g) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
--- ----
(even if the Participants were treated as one entity for such purposes) or by
any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid 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.
(h) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A. The Company covenants that it will file the
------------------
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
in accordance with the requirements of the Securities Act and the Exchange Act
and, if at any time the Company is not required to file such reports, it will,
upon the request of any Holder of Registrable Notes, to make available to any
Holder or beneficial owner of Registrable Notes in connection with any sale
thereof and any prospective purchaser of such Registrable Notes from such Holder
or beneficial owner the information required by Rule 144(d)(4) under the
Securities Act in order to permit resales of such Registrable Notes pursuant to
Rule 144A.
9. Underwritten Registrations. If any of the Registrable Notes
--------------------------
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Issuer and
<PAGE>
Page 21
reasonably acceptable to Holders of a majority in aggregate principal amount of
such Registrable Notes included in such offering.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes 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, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous. (a) No Inconsistent Agreements. The Issuer
------------- --------------------------
has not entered, as of the date hereof, and the Issuer shall not, after the date
of this Agreement, enter into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof.
(b) Adjustments Affecting Registrable Notes. The Issuer shall not,
---------------------------------------
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Holders of not less than a majority in aggregate principal amount
of the then outstanding IRL Notes or, after the issuance thereof, Registrable
Notes. Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Notes whose securities are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Holders of Registrable Notes may
be given by Holders of at least a majority in aggregate principal amount of the
Registrable Notes being sold by such Holders pursuant to such Registration
Statement; provided, however, that the provisions of this sentence may not be
-------- -------
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(d) Notices. All notices and other communications (including without
-------
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or facsimile:
<PAGE>
Page 22
1. if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth in the records of the registrar
under the Indenture, with a copy in like manner to the Representative as
follows:
The Chase Manhattan Bank
270 Park Avenue
New York, New York
Attention: Daniella Cassognol
with a copy to:
White & Case LLP
1155 Avenue of the Americas
New York, NY 10036-2787
USA
Attention: Michael S. Goetz
2. if to the Issuer, as follows:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
Attention: Chief Financial Officer
with a copy to:
Goodwin Proctor & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: Steven Ellis
Skadden, Arps, Slate
Meager & Flom LLP
919 Third Avenue
New York, NY 10022
Attn: Randall Doud
All such notices and communications shall be deemed to have been duly
given when actually delivered, upon receipt of telecopy or 4 Business Days after
depositing it in the mail, registered or certified, with postage prepaid and
properly addressed. For the purposes hereof, the addresses of the parties
hereto shall be as set forth above until notice of a change thereof is delivered
as provided in this clause (d).
<PAGE>
Page 23
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in the Indenture (if same is then in
effect).
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties hereto.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning thereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Notes Held by the Issuer or its Affiliates. Whenever the consent
------------------------------------------
or approval of holders of a specified percentage of Notes or Registerable Notes
is required hereunder, Notes and Registerable Notes held by the Issuer or any of
its affiliates (as such term is defined in Rule 405 under the Securities Act)
shall not be counted in determining whether such consent or approval was given
by the holders of such required percentage.
(k) Third Party Beneficiaries. All holders of IRL Notes and
-------------------------
Registrable Notes and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement and this Agreement may be enforced by such
Persons.
* * *
<PAGE>
Page 24
IN WITNESS WHEREOF, the parties have executed the Agreement as of the
date first written above.
Issuer:
WYNDHAM INTERNATIONAL, INC.
By: /s/ Richard L. Mahoney
----------------------------------
Title: Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written:
THE CHASE MANHATTAN BANK
By: /s/ Thomas H. Kozlark
------------------------------------
Title: Vice President
<PAGE>
EXHIBIT E
FORM OF CLOSING CERTIFICATE
[NAME OF LOAN PARTY]
I, the undersigned, the [Trustee] [Secretary/Assistant Secretary] of
[NAME OF LOAN PARTY] [NAME OF GENERAL PARTNER OF THE APPLICABLE PARTNERSHIP LOAN
PARTY, the General Partner of ], a [trust] [corporation]
---------------
[partnership] [limited liability company] organized and existing under the laws
of the State of (the "Company"), DO HEREBY CERTIFY that:
---------------
1. This Certificate is furnished pursuant to Section 4.01(f) to the
Increasing Rate Note Purchase and Loan Agreement, dated as of June 30, 1999,
among Wyndham International, Inc., a Delaware corporation (the "Borrower"), the
lenders party thereto from time to time, Chase Securities ("CSI"), as Lead
Arranger and Book Manager, Bear Stearns Corporate Lending Inc., as Co-Arranger
and Syndication Agent, Bankers Trust Company, as Syndication Agent and The Chase
Manhattan Bank ("Chase"), as Administrative Agent (such Increasing Rate Note
Purchase and Loan Agreement as in effect on the date of this Certificate, being
herein called the "IRL Agreement"). Unless otherwise defined herein, capitalized
terms used in this Certificate shall have the meanings set forth in the IRL
Agreement.
2. The following named individuals are presently the elected
officers of the Company. Each holds the office of the Company set forth opposite
his or her name below and has held such office as of the date of signing of any
Loan Document. The signature written opposite the name and title of each such
officer below is his or her correct signature.
Name/1/ Office Signature
--------------------- --------------------- ---------------------
--------------------- --------------------- ---------------------
--------------------- --------------------- ---------------------
--------------------- --------------------- ---------------------
- ----------------------
/1/ Include name, office and signature of each officer who will sign any Loan
Document.
<PAGE>
Exhibit E
Page 2
3. Attached hereto as Exhibit A is a true and correct copy of the
[Declaration of Trust] [Certificate of Incorporation of the Company]
[Certificate of Partnership of the Company] [Certificate of Limited Partnership
of the Company] [Certificate of Limited Liability Company] as filed in the
Office of the Secretary of State of the State of its formation, together with
all amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the
[Trust Agreement] [By-Laws of the Company] [Partnership Agreement of the
Company] [Limited Liability Company Agreement], together with all amendments
thereto, which were duly adopted and are in full force and effect on the date
hereof.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions which were duly adopted on , 1999 by [the Trustee]
------------
[unanimous written consent of the Board of [Directors] [Managers] of the
Company] [the written consent of [the required percentage] of the Partners of
the Company] [the written consent of the General Partner of the Company], and
said resolutions have not been rescinded, amended or modified. Except as
attached hereto as Exhibit C, no resolutions have been adopted by the Company
which deal with the execution, delivery or performance of any of the Loan
Documents to which the Company is party.
6. I know of no proceeding for the dissolution or liquidation of the
Company or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this day of
----
June, 1999.
[NAME OF LOAN PARTY]
By:
-------------------------------
Name:
Title:
<PAGE>
Exhibit F
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
599 LEXINGTON AVENUE
NEW YORK, NY 10022
TELEPHONE (212) 813-8800
TELECOPIER (212) 355-3333
June 30, 1999
The Chase Manhattan Bank
380 Madison Avenue
New York, New York 10017
Each of the Lenders
(as defined in the
Credit Agreements)
Re: $1,800,000,000 Senior Credit Facility and
$650,000,000 Increasing Rate Note Facility
in favor of Wyndham International, Inc.
------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Wyndham International, Inc., a Delaware
corporation (the "Borrower"), in connection with the preparation, execution and
delivery of the Credit Agreement dated as of June 30, 1999 (the "Senior Credit
Agreement") among the Borrower, the Lenders party thereto, NationsBank, N.A., as
Syndication Agent, Bankers Trust Company, as Syndication Agent, Credit Lyonnais
New York Branch, as Documentation Agent, Bear Stearns Corporate Lending Inc., as
Co-Documentation Agent, The Chase Manhattan Bank, as Administrative Agent. We
have also acted as special counsel to the Borrower in connection with the
preparation, execution and delivery of the Increasing Rate Note Purchase and
Loan Agreement dated as of June 30, 1999 (the "IRN Agreement"; together with the
Senior Credit Agreement, the "Credit Agreements") among the Borrower, the
Lenders party thereto, Bear Stearns Corporate Lending Inc., as Co-Arranger and
Syndication Agent, Bankers Trust Company, as Syndication Agent, and The Chase
Manhattan Bank, as Administrative Agent. We have also acted as special counsel
to those certain affiliates of the Borrower listed on Schedule I hereto (the
----------
"Affiliate Guarantors") and on Schedule II hereto (the "Affiliate Pledgors";
-----------
together with the Borrower and the Affiliate Guarantors, the "Borrower Parties")
in connection with the preparation, execution and delivery of the Guaranty and
Collateral Agreement (as defined in the Credit Agreements).
All capitalized terms used herein which are not otherwise defined herein
and which are defined in the Senior Credit Agreement shall have the meanings
assigned to such terms in the Senior Credit Agreement. This opinion is delivered
to you pursuant to Section 4.01(g) of the Credit Agreements.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 2
In connection with the transactions contemplated by the Credit Agreements, we
have reviewed and relied solely upon originals, or copies certified or otherwise
authenticated to our satisfaction, of the following documents, each dated on or
as of June 30, 1999, except as otherwise indicated:
A. The Senior Credit Agreement;
B. The IRN Agreement;
C. The Guaranty and Collateral Agreement (the "Guaranty and Collateral
Agreement") by the Affiliate Guarantors and the Affiliate Pledgors in favor
of The Chase Manhattan Bank, as Collateral Agent (in such capacity,
"Collateral Agent");
D. UCC-1 Financing Statements (the "Financing Statements"), each naming
an Affiliate Pledgor as debtor and Collateral Agent as secured party, which
are to be filed in the appropriate filing offices (the "UCC Filing Offices")
with respect to the Collateral (as defined in the Guaranty and Collateral
Agreement) of each Affiliate Pledgor;
E. Copies of the certificates of incorporation and by-laws, limited
liability company agreements, partnership agreements, certificates of
partnership and other organizational documents (collectively, the
"Organizational Documents"), as the case may be, of each of the Borrower
Parties;
F. Copies of resolutions of the respective directors, members and
general partners, as the case may be, of each of the Borrower Parties
authorizing the transactions contemplated by the Credit Agreements; and
G. Copies of the certificates listed on Schedule III hereto issued by
appropriate officials of the jurisdictions of organization of each of the
Borrower Parties.
The documents identified under items A through D above are collectively
referred to herein as the Credit Documents".
In rendering the opinions set forth below, we have assumed, without
independent investigation or verification, (i) the authenticity of all documents
submitted to us as originals, the conformity to authentic original documents of
all documents submitted to us as certified, conformed or photostatic copies, the
genuineness, accuracy, authenticity, and completeness of all signatures on all
documents submitted to us as executed and the legal capacity of all natural
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 3
persons executing all documents submitted to us as executed, and (ii) that the
execution, delivery and performance by each of the Borrower Parties of each of
the Credit Documents to which such corporation, partnership or limited liability
company is a party do not contravene or constitute a breach of or default under
any applicable provision of the laws of any jurisdiction other than the laws of
the United States, the laws of the State of New York, the Delaware General
Corporation Law, the Delaware Revised Uniform Limited Partnership Act or the
Delaware Limited Liability Company Act, or any applicable regulations thereunder
or under any judgment, injunction, order, decree or other instrument binding
upon any of the Borrower Parties.
You have also authorized us to assume, and we have done so without
undertaking any independent investigation, that: (i) the Lenders have all
requisite power and authority and are validly existing and in good standing
under their organizational documents and under the laws of the state of their
organization, to enter into, execute and deliver the Credit Documents and
otherwise to assume and perform the obligations on their part to be assumed and
performed as contemplated by the Credit Documents and that no consent, approval
or authorization by the Lenders or any governmental authority is required in
connection therewith; (ii) the Credit Documents are valid and binding agreements
of the Lenders, enforceable in accordance with their respective terms; (iii) the
execution, delivery and performance by the Lenders of the Credit Documents and
the transactions contemplated therein have been duly authorized, executed and
delivered by each of the Lenders; (iv) there are no agreements or understandings
among the parties, written or oral, and there is no usage of trade or course of
prior dealing among the parties that would, in either case, define, supplement,
or qualify the terms of the Credit Documents; and (v) the Collateral exists, the
Affiliate Pledgors have sufficient rights in the Collateral for a security
interest to attach, and the Lenders acquired the security interests in the
Collateral in good faith, for value and without notice of any adverse claims (in
each case, as such terms are defined for purposes of the Uniform Commercial
Code).
We have also assumed, with your permission (even though the assumptions in
this paragraph are known to us and to you to be contrary to fact), that each
Affiliate Pledgor and each issuer of Collateral consisting of stock, membership
interests in limited liability companies or partnership interests is organized
under the laws of, and has its chief executive office and principal place of
business in, the State of New York.
Whenever a statement herein is qualified by "known to us," "to our
knowledge," or any similar phrase, it is intended to be limited to the present
conscious awareness of the lawyers in this firm who had active involvement in
negotiating the Credit Documents or preparing this opinion. We have not
undertaken any independent investigation to determine the accuracy of any such
statement, and any limited inquiry undertaken by us during preparation of this
opinion
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 4
letter should not be regarded as such an investigation; no inference as to our
knowledge of any matters bearing on the accuracy of any such statement should be
drawn from the fact of our representation of the Borrower Parties.
With respect to our opinion in paragraph 1 below regarding the existence
and good standing of the Borrower Parties, we have relied solely on the
certificates listed on Schedule III hereto.
------------
We express no opinion as to compliance with any environmental, gaming or
liquor laws, rules and regulations.
Members of our firm are admitted to the bar of the State of New York and we
express no opinion other than as to the laws of the United States and the State
of New York, the Delaware General Corporation Law, the Delaware Revised Uniform
Limited Partnership Act, and the Delaware Limited Liability Company Act.
Based upon and subject to the foregoing and to the matters set forth below,
we are of the opinion that:
1. Each of the Borrower Parties is a corporation, partnership or limited
liability company (as the case may be), validly existing in good standing under
the laws of its jurisdiction of organization (except as otherwise indicated on
Annex III hereto), with corporate, partnership and limited liability company
power (as the case may be) adequate for the execution and delivery of the Credit
Documents to which it is a party and the performance of the transactions
contemplated thereby.
2. The execution and delivery by each of the Borrower Parties of the Credit
Documents to which it is a party and the performance of the transactions
contemplated therein are within its corporate, partnership or limited liability
company authority (as the case may be), have been duly authorized by all
necessary corporate, partnership or limited liability company action (as the
case may be) and do not contravene any provision of the Organizational Documents
of such Borrower Party.
3. Each of the Credit Documents have been duly executed and delivered by
each of the Borrower Parties which is a party thereto.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 5
4. The Credit Documents constitute valid and binding obligations of
Borrower Parties party thereto, and are enforceable against such Borrower
Parties in accordance with their respective terms. The opinion expressed in this
paragraph 4 is subject to the following further qualifications:
(i) Our opinion is subject to the effect of bankruptcy, insolvency,
fraudulent transfer, reorganization, arrangement, moratorium or other
similar laws relating to or affecting the rights of creditors generally.
(ii) The enforceability of the Credit Documents is subject to
limitations imposed by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(iii) Certain remedies, waivers, and other provisions of the Credit
Documents may not be enforceable, but such unenforceability does not render
the Credit Documents invalid as a whole or preclude the practical
realization of the principal benefits intended to be provided by the Credit
Documents.
5. The Guaranty and Collateral Agreement creates in favor of the
Collateral Agent a security interest in the Collateral (as defined therein) as
security for the Obligations (as defined therein). With respect to that portion
of the Collateral that consists of shares of stock evidenced by certificates or
that consists of Pledged Notes, upon the delivery of the original stock
certificates, duly endorsed in blank or accompanied by an undated duly endorsed
in blank stock power thereto, and the original Pledged Notes, duly endorsed in
blank, to the Collateral Agent in New York, the security interest in such shares
and Pledged Notes will be perfected. With respect to that portion of the
Collateral that consists of membership interests in limited liability companies
or partnership interests that, in either case, are not evidenced by
certificates, upon the filing of the applicable Financing Statements, in each
case naming the applicable Affiliate Pledgor as debtor and describing the
applicable membership interest or partnership interest, in the appropriate
filing offices under the Uniform Commercial Code, the security interest in such
interests will be perfected.
6. (i) No registration with, consent or approval of, notice to, or other
action by, any governmental entity is required for the execution, delivery or
performance of the Credit Documents by the Borrower Parties party thereto; and
(ii) the execution and delivery of the Credit Documents by the Borrower Parties
party thereto and the performance of their respective obligations thereunder
will not (a) violate or result in any breach of any of the terms, conditions or
provisions of or constitute a default under any contract, indenture or other
agreement known to
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 6
us, or (b) result in the creation of any lien, charge or encumbrance on any
property or assets of any Borrower Party, contrary or pursuant to the terms of
any contract, indenture or other agreement known to us, or (c) violate any
existing law or regulation that we have, in the exercise of customary
professional diligence, recognized as applicable to the Borrower Parties or to
transactions of the type contemplated by the Credit Documents, or any order
known to us of any court or administrative agency by which any Borrower Party is
bound or to which it is subject.
7. The payment by the Borrower, and the receipt by the Lenders, of all
principal, interest and other amounts to be paid pursuant to the Credit
Documents will not violate the usury laws of the State of New York.
8. In any proceedings duly taken in the courts of the State of New York
(or a Federal court sitting in New York), the choice of New York law as the
substantive law governing the Credit Documents would be recognized and such law
would be applied. However, we express no opinion as to the law that would govern
the perfection, the effect or perfection or non-perfection, or the priority, of
any security interests.
For purposes of the opinions set forth in paragraph 6 above, we have
assumed, with your permission, that any contract, indenture or other agreement
known to us which by its terms prohibits or restricts the "transfer", "sale" or
"assignment" (in those terms or by similar terms of like import) by any Borrower
Party of any membership interest or partnership interest or stock (but which
does not expressly prohibit or restrict the pledge, hypothecation, or grant of a
security interest in, such membership interest or partnership interest or stock)
would not be construed to prohibit or restrict the ability of such Borrower
Party to pledge and grant a security interest in such membership interest or
partnership interest or stock to secure the Obligations, as provided in the
Guaranty and Collateral Agreement. We express no opinion as to whether the
foreclosure of any such security interest would (a) violate or result in any
breach of any of the terms, conditions or provisions of or constitute a default
under any contract, indenture or other agreement, (b) result in the creation of
any lien, charge or encumbrance on any property or assets of any Borrower Party,
contrary or pursuant to the terms of any contract, indenture or other
agreement, or (c) violate any existing law or regulation, or any order of any
court or administrative agency by which any Borrower Party is bound or to which
it is subject.
Also for purposes of the opinions set forth in paragraph 6 above, we have
assumed, with your permission, that the consents delivered with respect to the
agreements identified on Annex A hereto are sufficient to cure any violations,
breaches of or defaults under such agreements arising from any of the
transactions contemplated under the Credit Documents, which could be cured by a
consent from the Person giving the same. We express no opinion
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 7
herein as to whether such assumption is reasonable. Also, excluded from the
scope of the opinions set forth in paragraphs 2 and 6 above are any
contraventions of the Organizational Documents of any Borrower Party and any
violations, breaches of or defaults under any contract, indenture or other
agreement known to us which, in any case, would be cured by consents that could
be given or other actions that could be taken by Persons controlled by the
Borrower, to the extent that such consents have not been given or other actions
taken on the date hereof.
Our opinions set forth herein are limited to the matters expressly set
forth in this opinion letter, and no opinion is implied or may be inferred
beyond the matters expressly so stated. The opinions rendered herein may not be
used or relied upon by any person or entity other than the addressees hereof,
any permitted assignee of any Lender who becomes a party to any Credit Agreement
and any participant of any Lender in the Loans under any Credit Agreement, for
any purpose whatsoever without our prior written consent in each instance.
This opinion speaks as of the date hereof, and we undertake no, and hereby
disclaim any, obligation to advise you of any change in any matter set forth
herein.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 8
SCHEDULE I
Affiliate Guarantors
--------------------
1500 Canal Street Investors II, L.P.
Albuquerque C.I. Associates, L.P.
BJV Realty, Inc.
Boulders Carefree Sewer Corporation
Boulders Joint Venture
Burrllen Enterprises of Maryland
C.I. Albuquerque Lessee GP, LLC
C.I. Albuquerque Lessee, L.P.
Carefree Management LLC
Casa Marina Realty Corporation
CHC Hotels & Resorts Corp.
CHC Lease Partners
CHC REIT Lessee Corp.
CHC REIT Management Corp.
Chicago-ES Holding Corp.
CHMB, Inc.
Clubhouse Inns of America, Inc.
Criterion Hotel Management Corp.
Criterion NY Inc.
Crossroads Development Company
CSMC of Kalamazoo, Inc.
Deuce Management Company LLC
Family Suites Corporation
Family Suites Management Corporation
FS Development Corporation
GAH-II, L.P.
GH-Atlanta, LLC
GH-Chicago, Inc.
GH-Detroit, Inc.
GH-Greeneville, Inc.
GH-Providence, Inc.
GH Trademarks LLC
GH-Wichita, Inc.
GH-San Diego, Inc.
GHMB, Inc.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 9
GHV-Colorado, Inc.
OH V-Galveston, Inc.
Glenview Hospitality, L.P.
Grand Bay Management Company
Grand Bay Management LLC
Grand Heritage Hotels, Inc.
Grand Heritage Leasing, LLC
Grand Heritage Real Estate Group LLC
Grand Management Services, Inc.
HMG Beverage, Inc.
IHC/Burlington Corporation
IHC/Capital Corporation
IHC/Conshohocken Partnership, L.P.
IHC/Denver Partnership, L.P.
IHC/FS Development Corporation
IHC/Houston Partnership, L.P.
IHC/Interstone Partnership II, L.P.
IHC/Jacksonville Corporation
IHC/Jamaica Corporation
IHC/Maryville Hotel Corporation
IHC Member Corporation
IHC/Miami Beach Corporation
IHC Miami Mortgage Corporation
IHC/Park West Corporation
IHC/Reach Corporation
IHC Realty Corporation
IHC Realty Partnership, L.P.
IHC/Santa Maria Corporation
IHC/Texas Corporation
IHC Title Agency Corporation
IHP/Class B Partnership, L.P.
IHP Investment Company, L.L.C.
IHP Lessee, LLC
Interstate/Montour Associates, Ltd.
Interstone Three Partners I L.P.
Interstone/PAH Partners, L.P.
INTMB, Inc.
Kansas City Hospitality, L.P.
Key West Reach Limited Partnership
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 10
Marina Hospitality, L.P.
MBAH, Inc.
Melbourne Hospitality, L.P.
O-H Acquisition, Inc.
P.H.G., LLC
PA Hunt Valley Investors, L.P.
PA Troy Hospitality Investors, L.P.
PAH Acquisition Corporation
PAH Allen Operating Corporation
PAH Asset Management, LLC
PAH Batterymarch Operating Company, LLC
PAH Deuce GP, LLC
PAH GAH Holdings, LLC
PAH GAH Holding, L.P.
PAH GP, Inc.
PAH Leasing LLC
PAH LP, Inc.
PAH-River House, L.P.
PAH River North, LLC
PAH Stanly Holding LLC
PAH Ventana Canyon, L.P.
PAH Buttes L.L.C.
PAH-Carefree, L.P.
PAH-CI Holding, LLC
PAH-Columbus Holding, Inc.
PAH-DT Chicago O'Hare Partners, L.P.
PAH-DT Miami Airport Partners, L.P.
PAH-DT Minneapolis Suites Partners, L.P.
PAH-DT Park Place Partners, L.P.
PAH-DT Tallahassee Partners, L.P.
PAH-Franchise Holding, Inc.
PAH FF&E Holding, Inc.
PAHG FF&E Holding, Inc.
PAH-GBM, LLC
PAH-GP Allen Partners, L.P.
PAH-Grand Bay Miami, L.P.
PAH-Interest Holding, Inc.
PAH-Interstone, Inc.
PAH-IP Holding, Inc.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 11
PAH-Management Corporation
PAHP FF&E Holding, Inc.
PAH-Pittsburgh CI Holding, Inc.
PAH-Pittsburgh, LLC
PAH-Real Estate Member, Inc.
PAH-RH, LLC
PAH-Summerfield Holding Corp.
PAH-Summerfield Leasing, Inc.
PAH -Summerfield LLC
PAH-T, LLC
PAH-Tampa, L.P.
PAH-WMC Holding, Inc.
PAH-Xerxes Holding, Inc.
PAHMB, Inc.
Park West Hotel Associates
Patriot American Hospitality, Inc.
Patriot American Hospitality Partnership, Inc.
Patriot Bougainvillea Development Company, LLC
Patriot Grand Heritage, LLC
Patriot Holding LLC
Patriot Land Holding LLC
Patriot Miami Note Holder, L.P.
Patriot Racetrack Land LLC
Peaks Real Estate Services, Inc.
PSMB, Inc.
PW Land Associates Limited Partnership
PWMB, Inc.
Richardson C.I. Associates, L. P.
Savannah C.I. Associates, L.P.
SFMB, Inc.
Sierra Suites Marketing Association
St. Louis C.I. Associates, L.P.
Summerfield Hotel Company, L.P.
Summerfield Hotel Corporation
Summerfield Suites Marketing Association
Syracuse Associates Corporation
Syracuse Realty Associates, L.P.
TCC Venezuela, L.C.
Toledo Hotel Investors, L.P.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 12
Topeka C. I. Associates, L.P.
Waterfront Management Corporation
Water Street Hotel, Ltd.
WH Interest, Inc.
WHC Chicago, LLC
WHC Finance, L.P.
WHC Franchise Corporation
WHCMB, Inc.
WHCMB Overland Park, Inc.
WI Ohio Investors, Inc.
WMC II, Inc.
WYN Travel, Inc.
Wyndham Atlanta Lessee, LLC
Wyndham International Operating Partnership, L.P.
Wyndham IP Corporation
Wyndham Management Corporation
Wyndham Management II, LLC
Wyndham Summerfield Lessee, L.P.
Wyndham Summerfield Lessee, LLC
YO Hotel Investors, L.P.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 13
SCHEDULE II
Affiliate Pledgors
------------------
1500 Canal Street Investors II, L.P.
Albuquerque C.I. Associates, L.P.
BJV Realty, Inc.
Boulders Carefree Sewer Corporation
Boulders Joint Venture
Burrllen Enterprises of Maryland
C.I. Albuquerque Lessee GP, LLC
C.I. Albuquerque Lessee, L.P.
Carefree Management LLC
Casa Marina Realty Corporation
CHC Hotels & Resorts Corp.
CHC Lease Partners
CHC REIT Lessee Corp.
CHC REIT Management Corp.
Chicago-ES Holding Corp.
CHMB, Inc.
Clubhouse Inns of America, Inc.
Criterion Hotel Management Corp.
Criterion NY Inc.
Crossroads Development Company
CSMC of Kalamazoo, Inc.
Deuce Management Company LLC
Family Suites Corporation
Family Suites Management Corporation
FS Development Corporation
GAH-II, L.P.
GH-Atlanta, LLC
GH-Chicago, Inc.
GH-Detroit, Inc.
GH-Greeneville, Inc.
GH-Providence, Inc.
GH Trademarks LLC
GH-Wichita, Inc.
GH-San Diego, Inc.
GHMB, Inc.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 14
GHV-Colorado, Inc.
GHV-Galveston, Inc.
Glenview Hospitality, L.P.
Grand Bay Management Company
Grand Bay Management LLC
Grand Heritage Hotels, Inc.
Grand Heritage Leasing, LLC
Grand Heritage Real Estate Group LLC
Grand Management Services, Inc.
HMG Beverage, Inc.
IHC/Burlington Corporation
IHC/Capital Corporation
IHC/Conshohocken Partnership, L.P.
IHC/Denver Partnership, L.P.
IHC/FS Development Corporation
IHC/Houston Partnership, L.P.
IHC/Interstone Partnership II, L.P.
IHC/Jacksonville Corporation
IHC/Jamaica Corporation
IHC/Maryville Hotel Corporation
IHC Member Corporation
IHC/Miami Beach Corporation
IHC Miami Mortgage Corporation
IHC/Park West Corporation
IHC/Reach Corporation
IHC Realty Corporation
IHC Realty Partnership, L.P.
IHC/Santa Maria Corporation
IHC/Texas Corporation
IHC Title Agency Corporation
IHP/Class B Partnership, L.P.
IHP Investment Company, L.L.C.
IHP Lessee, LLC
Interstate/Montour Associates, Ltd.
Interstone Three Partners I L.P.
Interstone/PAH Partners, L.P.
INTMB, Inc.
Kansas City Hospitality, L.P.
Key West Reach Limited Partnership
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 15
Marina Hospitality, L.P.
MBAH, Inc.
Melbourne Hospitality, L.P.
O-H Acquisition, Inc.
P.H.G., LLC
PA Hunt Valley Investors, L.P.
PA Troy Hospitality Investors, L.P.
PAH Acquisition Corporation
PAH Allen Operating Corporation
PAH Asset Management, LLC
PAH Batterymarch Operating Company, LLC
PAH Deuce GP, LLC
PAH GAH Holdings, LLC
PAH GAH Holding, L.P.
PAH GP, Inc.
PAH Leasing LLC
PAH LP, Inc.
PAH-River House, L.P.
PAH River North, LLC
PAH Stanly Holding LLC
PAH Ventana Canyon, L.P.
PAH Buttes L.L.C.
PAH-Carefree, L.P.
PAH-CI Holding, LLC
PAH-Columbus Holding, Inc.
PAH-DT Chicago O'Hare Partners, L.P.
PAH-DT Miami Airport Partners, L.P.
PAH-DT Minneapolis Suites Partners, L.P.
PAH-DT Park Place Partners, L.P.
PAH-DT Tallahassee Partners, L.P.
PAH-Franchise Holding, Inc.
PAH FF&E Holding, Inc.
PAHG FF&E Holding, Inc.
PAH-GBM, LLC
PAH-GP Allen Partners, L.P.
PAH-Grand Bay Miami, L.P.
PAH-Interest Holding, Inc.
PAH-Interstone, Inc.
PAH-IP Holding, Inc.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 16
PAH-Management Corporation
PAHP FF&E Holding, Inc.
PAH-Pittsburgh CI Holding, Inc.
PAH-Pittsburgh, LLC
PAH-Real Estate Member, Inc.
PAH-RH, LLC
PAH-Summerfield Holding Corp.
PAH-Summerfield Leasing, Inc.
PAH-Summerfield LLC
PAH-T, LLC
PAH-Tampa, L.P.
PAH-WMC Holding, Inc.
PAH-Xerxes Holding, Inc.
PAHMB, Inc.
Park West Hotel Associates
Patriot American Hospitality, Inc.
Patriot American Hospitality Partnership, Inc.
Patriot Bougainvillea Development Company, LLC
Patriot Grand Heritage, LLC
Patriot Holding LLC
Patriot Land Holding LLC
Patriot Miami Note Holder, L.P.
Patriot Racetrack Land LLC
Peaks Real Estate Services, Inc.
PSMB, Inc.
PW Land Associates Limited Partnership
PWMB, Inc.
Richardson C.I. Associates, L.P.
Savannah C.I. Associates, L.P.
SFMB, Inc.
Sierra Suites Marketing Association
St. Louis C.I. Associates, L.P.
Summerfield Hotel Company, L.P.
Summerfield Hotel Corporation
Summerfield Suites Marketing Association
Syracuse Associates Corporation
Syracuse Realty Associates, L.P.
TCC Venezuela, L.C.
Toledo Hotel Investors, L.P.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 17
Topeka C. I. Associates, L.P.
Waterfront Management Corporation
Water Street Hotel, Ltd.
WH Interest, Inc.
WHC Chicago, LLC
WHC Finance, L.P.
WHC Franchise Corporation
WHCMB, Inc.
WHCMB Overland Park, Inc.
WI Ohio Investors, Inc.
WMC II, Inc.
WYN Travel, Inc.
Wyndham Atlanta Lessee, LLC
Wyndham International, Inc.
Wyndham International Operating Partnership, L.P.
Wyndham IP Corporation
Wyndham Management Corporation
Wyndham Management II, LLC
Wyndham Summerfield Lessee, L.P.
Wyndham Summerfield Lessee, LLC
YO Hotel Investors, L.P.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 18
SCHEDULE III
Certificates Issued by Officials of the
Jurisdictions of Organization of the Borrower Parties
-----------------------------------------------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Patriot American Hospitality, Inc. DE Y-5/28/99 Yes 6/29/99
- -----------------------------------------------------------------------------------------------------------------
Wyndham International, Inc. DE Y-5/28/99 Yes 6/29/99
- -----------------------------------------------------------------------------------------------------------------
1500 Canal Street Investors II, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Albuquerque C.I. Associates, L.P. KS Y-6/25/99 Yes 6/29/99
- -----------------------------------------------------------------------------------------------------------------
BJV Realty, Inc. AZ Not in Good Standing Not in Good Standing
- -----------------------------------------------------------------------------------------------------------------
Boulders Carefree Sewer Corporation AZ Y-6/23/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
C.I. Albuquerque Lessee GP, LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
C.I. Albuquerque Lessee, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Carefree Management LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Casa Marina Realty Corporation DE Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
CHC Hotels & Resorts Corp. FL Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
CHC REIT Lessee Corp. FL Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
CHC REIT Management Corporation FL Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Chicago-ES Holding Corp. DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
CHMB, Inc. TX Y-6/7/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Clubhouse Inns of America, Inc. KS Y-5/28/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Criterion Hotel Management Corp. FL Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Criterion NY Inc. FL Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
Crossroads Development Company DE Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
CSMC of Kalamazoo, Inc. MI Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 19
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Deuce Management Company LLC TX Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Family Suites Corporation DE Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Family Suites Management Corporation DE Y-6/3/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
FS Development Corporation DE Y-6/3/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-II, LP DE Y-6/3/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-Atlanta, LLC MD Y-6/3/99 Not in Good Standing
- -------------------------------------------------------------------------------------------------------
GH-Chicago, Inc. IL Y-6/23/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-Detroit, Inc. MI Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-Greeneville, Inc. TN Y-6/2/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-Providence, Inc. RI Y-6/3/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH Trademarks LLC MD Y-6/25/99 Bring down not
available
- -------------------------------------------------------------------------------------------------------
GH-Wichita, Inc. KS Y-5/28/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GH-San Diego, Inc. DE Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GHMB, Inc. TX Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GHV-Colorado, Inc. CO Y-6/9/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
GHV-Galveston, Inc. TX Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Glenview Hospitality, L.P. DE Y-6/3/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Grand Bay Management Company FL Y-6/2/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Grand Bay Management LLC DE Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
Grand Heritage Hotels, Inc. MD Y-6/3/99 Not in Good Standing
- -------------------------------------------------------------------------------------------------------
Grand Heritage Leasing, LLC MD Y-6/3/99 Not in Good Standing
- -------------------------------------------------------------------------------------------------------
Grand Heritage Real Estate Group LLC MD Y-6/25/99 Bring down not
available
- -------------------------------------------------------------------------------------------------------
Grand Management Services, Inc. FL Y-6/2/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
HMG Beverage, Inc. TX Y-6/1/99 Yes 6/25/99
- -------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 20
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
IHC/Burlington Corporation VT Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Capital Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Conshohoken Partnership, L.P. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Denver Partnership, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/FS Development Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Houston Partnership, L.P. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Interstone Partnership II, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Jacksonville Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Jamaica Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Maryville Hotel Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC Member Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Miami Beach Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC Miami Mortgage Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Park West Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Reach Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC Realty Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC Realty Partnership, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Santa Maria Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC/Texas Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHC Title Agency Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHP/Class B Partnership, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHP Investment Company, L.L.C. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
IHP Lessee, L.L.C. DE Y-6/16/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
Interstate/Montour Associates, Ltd. PA Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
Interstone/PAH Partners L.P. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 21
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Interstone Three Partners I L.P. DE Y-6/2/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
INTMB, Inc. DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Kansas City Hospitality, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Marina Hospitality, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
MBAH, Inc. TX Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Melbourne Hospitality, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
O-H Acquisition, Inc. DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
P.H.G., LLC MD Y-6/3/99 Not in Good Standing
- ----------------------------------------------------------------------------------------------------------------------------
PA Hunt Valley Investors, L.P. VA Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PA Troy Hospitality Investors, L.P. DE Y-6/28/99 Yes 6/29/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Acquisition Corporation DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Allen Operating Corporation DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Asset Management, LLC DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Batterymarch Operating Company, LLC DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Deuce GP, LLC DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH GAH Holdings, LLC DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH GAH Holdings, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH GP, Inc. DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Leasing LLC DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH LP, Inc. DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH River House, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH River North, LLC DE Y-6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Stanly Holding LLC DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH Ventana Canyon, L.P. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
PAH-Buttes L.L.C. DE Y-6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 22
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PAH-Carefree, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-CI Holding, LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Columbus Holding, Inc. DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-DT Chicago O'Hare Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-DT Miami Airport Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-DT Minneapolis Suites Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-DT Park Place Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-DT Tallahassee Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Franchise Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH FF&E Holding, Inc. DE Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAHG FF&E Holding, Inc. DE Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-GBM, LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-GP Allen Partners, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Grand Bay Miami, L.P. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Interest Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Interstone, Inc. DE Y-6/15/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-IP Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Management Corporation DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAHP FF&E Holding, Inc. DE Y-6/1/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh CI Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Pittsburgh, LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Real Estate Member, Inc. DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-RH, LLC DE Y-6/3/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Holding Corp. DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
PAH-Summerfield Leasing, Inc. DE Y-6/2/99 Yes 6/25/99
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 23
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
PAH-Summerfield LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PAH-T, LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PAH-Tampa, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PAH-WMC Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PAH-Xerxes Holding, Inc. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PAHMB, Inc. TX Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot American Hospitality
Partnership, L.P. VA Y-6/1/99 Yes 6/29/99
- ---------------------------------------------------------------------------------------------------------
Patriot Bougainvillea Development
Company, LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot Grand Heritage, LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot Holding LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot Land Holding LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot Miami Note Holder, L.P. DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Patriot Racetrack Land LLC DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PSMB, Inc. CA Y-6/8/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PW Land Associates Limited Partnership PA Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
PWMB, Inc. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Richardson C.I. Associates, L.P. TX Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Savannah C.I. Associates, L.P. GA Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
SFMB, Inc. DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Sierra Suites Marketing Association KS Y-5/28/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
St. Louis C.I. Associates, L.P. MO Y-6/7/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Summerfield Hotel Company, L.P. KS Y-6/7/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Summerfield Hotel Corporation DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Summerfield Suites Marketing Association DE Y-6/3/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
Syracuse Associates Corporation DE Y-6/1/99 Yes 6/25/99
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 24
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
TCC Venezuela, LC FL Y - 6/2/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Syracuse Realty Associates, L.P. DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
The Key West Reach Limited Partnership DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
The Peaks Real Estate Services, Inc. AZ Y - 6/2/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Toledo Hotel Investors, L.P. DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Topeka C. I. Associates, L.P. KS Delinquent Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Waterfront Management Corporation DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WH Interest, Inc. TX Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHC Chicago, LLC DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHC Columbus Corporation DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHC Finance, L.P. DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHC Franchise Corporation DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHCMB, Inc. DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WHCMB Overland Park, Inc. KS Y - 6/29/99 Bring Down not
available
- ----------------------------------------------------------------------------------------------------------------------------
WI Ohio Investors, Inc. DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WMC II, Inc. DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
WYN Travel, Inc. KS Y - 6/14/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Atlanta Lessee, LLC DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham International Operating Partnership, L.P. DE Y - 6/3/99 Yes 6/29/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham IP Corporation DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Management Corporation DE Y - 6/1/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Management II, LLC DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield Lessee, L.P. DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
Wyndham Summerfield Lessee, LLC DE Y - 6/3/99 Yes 6/28/99
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 25
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Entity Jurisdiction Received Good Received Bring Down
Standing Good Standing
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
YO Hotel Investors, L.P. DE Y - 6/3/99 Yes 6/25/99
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 26
Annex A
Certain Agreements
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Entity Property Agreement Franchisor/Third
Party
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Wyndham International Embassy Suites North Embassy Suites Embassy Suites
Operating Partnership, Phoenix License Agreement (PROMUS Hotels, Inc.)
L.P. dated November 1,
1996.
- -----------------------------------------------------------------------------------------------------------------------
Wyndham International Schaumberg Embassy Embassy Suites Embassy Suites
Operating Partnership, Suites License Agreement (PROMUS Hotels, Inc.)
L.P. dated October 14,
1998.
- -----------------------------------------------------------------------------------------------------------------------
CHC Lease Partners Four Points by ITT Sheraton ITT Sheraton
(licensee) Sheraton, Saginaw, Corporation License Corporation
Michigan Agreement dated
January 15, 1996.
- -----------------------------------------------------------------------------------------------------------------------
CHC Lease Partners Holiday Inn, Lenox Conversion License Holiday Inns
(franchisee) (a/k/a PAH Atlanta Agreement dated Franchising, Inc.
Buckhead), Atlanta, December 22, 1993.
Georgia
- -----------------------------------------------------------------------------------------------------------------------
CHC Lease Partners Holiday Inn, North Holiday Inn Change Holiday Inns
West Houston, Texas of Ownership Franchising,
License Agreement Inc.
dated September 28,
1990, as amended by
Amendment to
License Agreement
dated October 2,
1995.
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTER & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 27
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Entity Property Agreement Franchisor/Third
Party
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CHC Lease Holiday Inn Holiday Inn License Agreement (Change Holiday Inns
Partners Northwest Plaza, of Ownership and Renewal) dated January Franchising, Inc.
Austin, Texas 30, 1992 between Holiday Inns Franchising,
Inc. and Travis Real Estate Group Joint
Venture and Amendment to License
Agreement effective October 2, 1995 among
Holiday Inns Franchising, Inc., Travis
Real Estate Group Joint Venture and CHC
Lease Partners.
- ---------------------------------------------------------------------------------------------------------
CHC Lease Holiday Inn Holiday Inn Conversion License Agreement Holiday Inns
Partners Select, North dated August 13, 1993; Amendment to Franchising, Inc.
(licensee) Dallas, Texas Holiday Inn License Agreement for Brand
Conversion to Holiday Inn Select dated
June 16, 1995; Amendment to License
Agreement dated October 2, 1995 between
Holiday Inns Franchising, Inc., and CHS
Lease Partners.
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTOR & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 28
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Entity Property Agreement Franchisor/Third
Party
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CHC Lease Partners Holiday Inn YO, Holiday Inn Holidays Inns
Kerville, Texas Conversion License Franchising, Inc.
Agreement dated
March 30, 1993.
- ---------------------------------------------------------------------------------------------------------
PAH Leasing, LLC Grand Bay Carmel Operating Lease CV Ranch, L.P.
(lessee) Valley Ranch, Carmel, dated January 7,
California 1997, as amended on
January 31, 1998
and June 30, 1998.
- ---------------------------------------------------------------------------------------------------------
PAH Leasing, LLC Courtyard by Marriott Courtyard by Marriott International,
(lessee) Beachwood, Ohio Marriott Franchise Inc.
Agreement dated
November 2, 1992,
as amended by
Amendment One to
Franchise
Agreement dated
November 2, 1992
as assigned by
Assignment of
Franchise
Agreement dated
July 1, 1997.
- ---------------------------------------------------------------------------------------------------------
PAH Leasing, LLC Holiday Inn, Westlake, Franchise Holiday Hospitality
Westlake, Ohio Agreement dated Franchising, Inc.
July 1, 1997.
- ---------------------------------------------------------------------------------------------------------
PAH-Management Chicago Embassy License Agreement Embassy Suites
Corporation Suites (PROMUS) Hotels, Inc.
- ---------------------------------------------------------------------------------------------------------
CHC Lease Partners Radisson Hotel and License Agreement Radisson Hotels
Suites T&C, Radisson Hotels International, Inc.
Houston, TX International, Inc.
effective October
2, 1995 and
Addendum
(undated)
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
GOODWIN, PROCTOR & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 29
- --------------------------------------------------------------------------------
Entity Property Agreement Franchisor/Third
Party
- --------------------------------------------------------------------------------
Kansas City Radisson Kansas Amended and Radisson Hotels
Hospitality, L.P. City, Kansas City, Restated License International, Inc.
MO Agreement date
April 13, 1995
- --------------------------------------------------------------------------------
1500 Canal Street Radisson New License Agreement Radisson Hotels
Investors II, LP Orleans, Northboro dated January 12, International, Inc.
LA 1995
- --------------------------------------------------------------------------------
GAH II, LP Radisson Northbrook, Agreement Radisson Hotels
Northbrook, IL Amending and International, Inc.
Restating Radisson
License
Agreement, First
and Second
Addenda to
License Agreement
(each dated April
30, 1997), Letter
Agreement
granting consent to
Amendment
- --------------------------------------------------------------------------------
CHC Lease Partners Radisson Overland Agreement Radisson Hotels
Park, Overland Park, Amending and International, Inc.
KS Restating Radisson
License
Agreement dated
April 30, 1997
- --------------------------------------------------------------------------------
Marina Hospitality, Radisson Riverwalk Radisson License Radisson Hotels
L.P. Hotel, Jacksonville, Agreement dated International, Inc.
FL November 27,
1995
- --------------------------------------------------------------------------------
<PAGE>
GOODWIN, PROCTOR & HOAR LLP
The Chase Manhattan Bank
Lenders
June 30, 1999
Page 30
- --------------------------------------------------------------------------------
Entity Property Agreement Franchisor/Third
Party
- --------------------------------------------------------------------------------
CHC Lease Partners Radisson Suites License Ageement Radisson Hotels
Dallas, Dallas, TX dated October 2, International, Inc.
1995
- --------------------------------------------------------------------------------
PAH RSI, LLC Radisson Akron, Agreement Radisson Hotels
Akron, OH Assigning, International, Inc.
Amending, and
Restating Radisson
License Agreement
dated July 1, 1997
- --------------------------------------------------------------------------------
PAH RSI, LLC Radisson Beachwood, Agreement Radisson Hotels
Beachwood, OH Assigning, International, Inc.
Amending, and
Restating Radisson
License Agreement
dated July 1, 1997
<PAGE>
EXHIBIT G
FORM OF OFFICER'S SOLVENCY CERTIFICATE
I, the undersigned, the [Chairman][President][Chief Financial Officer]
[Treasurer][Chief Accounting Officer] of Wyndham International, Inc., a
corporation organized and existing under the laws of the State of Delaware (the
"Borrower"), do hereby certify on behalf of the Borrower that:
1. This Certificate is furnished pursuant to Section 4.01(j) of the
Increasing Rate Note Purchase and Loan Agreement, dated as of June 30, 1999,
among Wyndham International, Inc., a Delaware corporation (the "Borrower"), the
Lenders party thereto from time to time, Chase Securities Inc. ("CSI"), as Lead
Arranger and Book Manager, Bear Stearns Corporate Lending Inc., as Co-Arranger
and Syndication Agent, Bankers Trust Company, as Syndication Agent and The Chase
Manhattan Bank ("Chase"), as Administrative Agent (such Increasing Rate Note
Purchase and Loan Agreement as in effect on the date of this Certificate being
called herein the "IRL Agreement"). Unless otherwise defined herein, capitalized
terms used in this Certificate shall have the meanings set forth in the IRL
Agreement.
2. For purposes of this Certificate, the terms below shall have the
following definitions:
(a) "Fair Value"
The amount at which the assets, in their entirety, of each of (i) the
Borrower and the Subsidiary Guarantors (taken as a whole) and (ii) the
Borrower (on a stand-alone basis) would change hands between a willing
buyer and a willing seller, within a commercially reasonable period of
time, each having reasonable knowledge of the relevant facts, with
neither being under any compulsion to act.
(b) "Present Fair Salable Value"
The amount that could be obtained by an independent willing seller
from an independent willing buyer if the assets of each of (i) the
Borrower and the Subsidiary Guarantors (taken as a whole) and (ii) the
Borrower (on a stand-alone basis) are sold with reasonable promptness
under normal selling conditions in a current market.
(c) "New Financing"
The indebtedness incurred or to be incurred by the Borrower and the
Subsidiary Guarantors under the Loan Documents and all other financing
contemplated by the Loan Documents.
(d) "Stated Liabilities"
The recorded liabilities (including Contingent Liabilities that would
be recorded in accordance with GAAP consistently applied) of the
Borrower and the Subsidiary Guarantors at June 30, 1999, together with
(i) the net change in long-term debt
<PAGE>
EXHIBIT G
Page 2
(including current maturities) between June 30, 1999 and the date
hereof and (ii) without duplication, the amount of all New Financing.
(e) "Contingent Liabilities"
The maximum estimated amount of liability reasonably likely to result
from pending litigation, asserted claims and assessments, guaranties,
uninsured risks and other contingent liabilities of the Borrower and
the Subsidiary Guarantors (exclusive of such Contingent Liabilities to
the extent reflected in Stated Liabilities).
(f) "Will be able to pay its Stated Liabilities, including Contingent
Liabilities, as they mature."
For the period from the date hereof through the stated maturity of all
New Financing, each of (i) the Borrower and the Subsidiary Guarantors
(taken as a whole) and (ii) the Borrower (on a stand-alone basis) will
have sufficient assets and cash flow to pay their respective Stated
Liabilities and Contingent Liabilities as those liabilities mature or
otherwise become due.
(g) "Does not have Unreasonably Small Capital"
For the period from the date hereof through the stated maturity of all
New Financing, each of (i) the Borrower and the Subsidiary Guarantors
(taken as a whole) and (ii) the Borrower (on a stand-alone basis),
after consummation of all Indebtedness (including the Loans) being
incurred or assumed and Liens created by the [Borrower] Subsidiary
Guarantors in connection therewith, is a going concern and has
sufficient capital to ensure that it will continue to be a going
concern for such period and to remain a going concern despite
moderately negative deviations from the Projections discussed below.
3. For purposes of this Certificate, I, or officers of the Borrower
under my direction and supervision, have performed the following procedures as
of and for the periods set forth below.
(a) I have reviewed the financial statements referred to in Section 3.01
of the IRL Agreement.
(b) I have read:
1. the Loan Documents and the respective Schedules and Exhibits
thereto.
(c) With respect to Contingent Liabilities, I:
1. have inquired of certain officials of the Borrower and the
Subsidiary Guarantors who have responsibility for legal, financial
and accounting matters as to the existence and estimated liability
with respect to all Contingent Liabilities known to them;
<PAGE>
EXHIBIT G
Page 3
2. have confirmed with senior officers of the Borrower and the
Subsidiary Guarantors that, to the best of such officers'
knowledge, (i) all appropriate items were included in Stated
Liabilities or Contingent Liabilities made known to me in the
course of my inquiry and that (ii) the amounts relating thereto
were the estimated amount of liability reasonably likely to result
therefrom as of the date hereof;
3. hereby certify that, to the best of my knowledge, all material
Contingent Liabilities have been considered in making the
certification set forth in paragraph 4 below, and with respect to
each such Contingent Liability the estimated amount of liability
reasonably likely to result therefrom was used in making such
certification.
(d) I have made inquiries of certain officers of the Borrower and the
Subsidiary Guarantors which have responsibility for financial
reporting and accounting matters regarding whether they were aware of
any events or conditions that, as of the date hereof, would cause each
of (i) the Borrower and the Subsidiary Guarantors (taken as whole) or
(ii) the Borrower (on a stand-alone basis) after giving effect to the
financing transactions (including the incurrence of the New
Financing), to (x) have assets with a Fair Value or Present Fair
Salable Value that are less than the sum of Stated Liabilities and
Contingent Liabilities; (y) have Unreasonably Small Capital; or (z)
not be able to pay its Stated Liabilities and Contingent Liabilities
as they mature or otherwise become due.
4. Based on and subject to the foregoing, I hereby certify on behalf
of the Borrower that, after giving effect to the financing transactions
(including the New Financing), it is my informed opinion that as of the date
hereof (x) the Fair Value and Present Fair Salable Value of the assets of each
of (i) the Borrower and the Subsidiary Guarantors (taken as a whole) and
(ii) the Borrower (on a stand-alone basis) exceed their respective Stated
Liabilities and Contingent Liabilities; (y) each of (i) the Borrower and the
Subsidiary Guarantors (taken as a whole) and (ii) the Borrower (on a stand-alone
basis) will not have Unreasonably Small Capital; and (z) each of (i) the
Borrower and the Subsidiary Guarantors (taken as a whole) and (ii) the Borrower
(on a stand-alone basis) will be able to pay its respective Stated Liabilities
and Contingent Liabilities as they mature or otherwise become due.
* * *
<PAGE>
EXHIBIT G
Page 4
IN WITNESS WHEREOF, Wyndham International, Inc. has caused its duly
authorized chief accounting officer to execute and deliver this Certificate this
day of June, 1999.
- -----------
WYNDHAM INTERNATIONAL, INC.
By:
---------------------------------
Name:
Title:
<PAGE>
EXHIBIT 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
AS AMENDED AND RESTATED
This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is
made as of the 19th day of April, 1999, between Wyndham International, Inc., a
Delaware corporation (the "Company"), and Leslie V. Bentley ("Executive").
WHEREAS, Executive is currently employed by the Company in a senior
executive capacity;
WHEREAS, the Company desires to continue to employ Executive and Executive
desires to continue to be employed by the Company;
WHEREAS, the Company and Executive desire to amend and restate Executive's
existing Executive Employment Agreement with the Company to make certain changes
therein and to eliminate the requirement of an escrow arrangement upon a Change
in Control of the Company;
WHEREAS, the Company and Executive acknowledge that regardless of the
provisions of Paragraph 8 of this amended and restated Agreement, upon the
closing of the Securities Purchase Agreement by and among Patriot American
Hospitality, Inc., Wyndham International, Inc., Patriot American Hospitality,
L.P. and the Investors named therein, all options and other stock-based awards
granted to Executive prior to the date of this Agreement shall immediately
accelerate and become exercisable or non-forfeitable as of such date;
WHEREAS, as an additional inducement to Executive to enter into this
amended and restated Agreement, the Company shall, on the Commencement Date (as
hereinafter defined), grant Executive an option to purchase a certain number of
Paired Shares of common stock of the Company and of common stock of Patriot
American Hospitality, Inc. as set forth in the agreement attached hereto as
Exhibit A (the "Option"), to enter into a new nonrecourse promissory note
attached hereto as Exhibit B (the "Note") and to enter into a new recourse
promissory note attached hereto as Exhibit C; and
WHEREAS, Executive is desirous of committing to serve the Company on the
terms herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment. The term of this Agreement shall extend from the date hereof
(the "Commencement Date") until the third anniversary of the Commencement Date;
provided, however, that the term of this Agreement shall automatically be
extended for one additional year on the third anniversary of the Commencement
Date and each anniversary thereafter unless, not less than 90 days prior to each
such date, either party shall have given notice to the
<PAGE>
other that it does not wish to extend this Agreement; provided, further, that if
a Change in Control occurs during the original or extended term of this
Agreement, the term of this Agreement shall continue in effect for a period of
not less than eighteen (18) months beyond the month in which the Change in
Control occurred. The term of this Agreement shall be subject to termination as
provided in Paragraph 6 and may be referred to herein as the "Period of
Employment."
2. Position and Duties. During the Period of Employment, Executive shall serve
as an Executive Vice President of the Company, shall have supervision and
control over and responsibility for the day-to-day business and affairs of those
functions and operations of the Company and shall have such other powers and
duties as may from time to time be prescribed by the Chairman of the Board of
the Company (the "Chairman") or the Chief Executive Officer of the Company (the
"CEO") or other executive authorized by the Chairman or CEO, provided that such
duties are consistent with Executive's position or other positions that he may
hold from time to time. Executive shall devote his full working time and efforts
to the business and affairs of the Company. Notwithstanding the foregoing,
Executive may serve on other boards of directors, with the approval of the
Chairman or CEO, or engage in religious, charitable or other community
activities as long as such services and activities are disclosed to the Chairman
or CEO and do not materially interfere with Executive's performance of his
duties to the Company as provided in this Agreement.
3. Compensation and Related Matters.
(a) Base Salary and Incentive Compensation. Executive's initial annual
base salary ("Base Salary") shall be $350,000.00. Executive's Base Salary shall
be redetermined at least thirty (30) days before each annual compensation
determination date established by the Company during the Period of Employment in
an amount to be fixed by the Board of Directors of the Company or a Committee
thereof or a duly authorized officer (the "Board"). The Base Salary, as
redetermined, may be referred to herein as "Adjusted Base Salary." The Base
Salary or Adjusted Base Salary shall be payable in substantially equal bi-weekly
installments and shall in no way limit or reduce the obligations of the Company
hereunder. In addition to Base Salary or Adjusted Base Salary, Executive shall
be eligible to receive cash incentive compensation as determined by the Board
from time to time, and shall also be eligible to participate in such incentive
compensation plans as the Board shall determine from time to time for employees
of the same status within the hierarchy of the Company.
(b) Expenses. Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by him (in accordance with the policies and
procedures then in effect and established by the Company for its senior
executive officers) in performing services hereunder during the Period of
Employment, provided that Executive properly accounts therefor in accordance
with Company policy.
(c) Other Benefits. During the Period of Employment, Executive shall be
entitled to continue to participate in or receive benefits under all of the
Company's Employee Benefit
2
<PAGE>
Plans in effect on the date hereof, or under plans or arrangements that provide
Executive with at least substantially equivalent benefits to those provided
under such Employee Benefit Plans. As used herein, "Employee Benefit Plans"
include, without limitation, each pension and retirement plan; supplemental
pension, retirement and deferred compensation plan; savings and profit-sharing
plan; stock ownership plan; stock purchase plan; stock option plan; life
insurance plan; medical insurance plan; disability plan; and health and accident
plan or arrangement established and maintained by the Company on the date hereof
for employees of the same status within the hierarchy of the Company. To the
extent that the scope or nature of benefits described in this section are
determined under the policies of the Company based in whole or in part on the
seniority or tenure of an employee's service, Executive shall be deemed to have
a tenure with the Company equal to the actual time of Executive's service with
Company. During the Period of Employment, Executive shall be entitled to
participate in or receive benefits under any employee benefit plan or
arrangement which may, in the future, be made available by the Company to its
executives and key management employees, subject to and on a basis consistent
with the terms, conditions and overall administration of such plan or
arrangement. Any payments or benefits payable to Executive under a plan or
arrangement referred to in this Subparagraph 3(c) in respect of any calendar
year during which Executive is employed by the Company for less than the whole
of such year shall, unless otherwise provided in the applicable plan or
arrangement, be prorated in accordance with the number of days in such calendar
year during which he is so employed. Should any such payments or benefits accrue
on a fiscal (rather than calendar) year, then the proration in the preceding
sentence shall be on the basis of a fiscal year rather than calendar year.
(d) Life Insurance. The Company shall pay the premiums on, and maintain
in effect throughout the Period of Employment, a life insurance policy on the
life of Executive in an amount not less than the amount of Executive's then
current Base Salary or Adjusted Base Salary. Executive shall have the right to
designate the beneficiary under such policy.
(e) Vacations. Executive shall be entitled to the number of paid vacation
days in each calendar year determined by the Company from time to time for
executives at the same level as Executive. Executive shall also be entitled to
all paid holidays given by the Company to its executives. To the extent that the
scope or nature of benefits described in this section are determined under the
policies of the Company based in whole or in part on the seniority or tenure of
an employee's service, Executive shall be deemed to have a tenure with the
Company equal to the actual time of Executive's service with Company.
(f) Disability Insurance. The Company shall pay the premiums on, and
maintain in effect through the Period of Employment, long-term disability
insurance providing for payment of benefits at rates not less than sixty percent
(60%) of Executive's current Base Salary or Adjusted Base Salary.
(g) Tax Loan. Upon the maturity of the Note, if Executive is still
employed by the Company, the Company shall provide Executive with a loan (the
"Tax Loan") in an amount sufficient to enable Executive to pay taxes due upon
the maturity of the Note. The Tax Loan
3
<PAGE>
shall (i) be personal recourse, (ii) have a term of four (4) years, (iii) bear
interest at the Company's revolver interest rate, and (iv) require Executive to
prepay with fifty percent (50%) of the net after-tax proceeds of the sale of any
shares of stock of the Company acquired through option exercises and with
twenty-five percent (25%) of the net after-tax amount of any bonus payment
from the Company.
4. Unauthorized Disclosure.
(a) Confidential Information. Executive acknowledges that in the course of
his employment with the Company (and, if applicable, its predecessors), he has
been allowed to become, and will continue to be allowed to become, acquainted
with the Company's business affairs, information, trade secrets, and other
matters which are of a proprietary or confidential nature, including but not
limited to the Company's and its predecessors' operations, business
opportunities, price and cost information, finance, customer information,
business plans, various sales techniques, manuals, letters, notebooks,
procedures, reports, products, processes, services, and other confidential
information and knowledge (collectively the "Confidential Information")
concerning the Company's and its predecessors' business. The Company agrees to
provide on an ongoing basis such Confidential Information as the Company deems
necessary or desirable to aid Executive in the performance of his duties.
Executive understands and acknowledges that such Confidential Information is
confidential, and he agrees not to disclose such Confidential Information to
anyone outside the Company except to the extent that (i) Executive deems such
disclosure or use reasonably necessary or appropriate in connection with
performing his duties on behalf of the Company, (ii) Executive is required by
order of a court of competent jurisdiction (by subpoena or similar process) to
disclose or discuss any Confidential Information, provided that in such case,
Executive shall promptly inform the Company of such event, shall cooperate with
the Company in attempting to obtain a protective order or to otherwise restrict
such disclosure, and shall only disclose Confidential Information to the minimum
extent necessary to comply with any such court order; (iii) such Confidential
Information becomes generally known to and available for use by the hotel and
hospitality industry (the "Hotel Industry"), other than as a result of any
action or inaction by Executive; or (iv) such information has been rightfully
received by a member of the Hotel Industry or has been published in a form
generally available to the Hotel Industry prior to the date Executive proposes
to disclose or use such information. Executive further agrees that he will not
during employment and/or at any time thereafter use such Confidential
Information in competing, directly or indirectly, with the Company. At such
time as Executive shall cease to be employed by the Company, he will immediately
turn over to the Company all Confidential Information, including papers,
documents, writings, electronically stored information, other property, and all
copies of them provided to or created by him during the course of his employment
with the Company.
(b) Heirs, successors, and legal representatives. The foregoing provisions
of this Paragraph 4 shall be binding upon Executive's heirs, successors, and
legal representatives. The provisions of this Paragraph 4 shall survive the
termination of this Agreement for any reason.
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5. Covenant Not to Compete. In consideration for the Option and the Loan and
for Executive's employment by the Company under the terms provided in this
Agreement and as a means to aid in the performance and enforcement of the terms
of the Unauthorized Disclosure provisions of Paragraph 4, Executive agrees that
(a) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, as an
owner, director, principal, agent, officer, employee, partner, consultant,
servant, or otherwise, carry on, operate, manage, control, or become involved in
any manner with any business, operation, corporation, partnership, association,
agency, or other person or entity which is in the business of owning, operating,
managing or granting franchise rights with respect to hotels, motels or other
lodging facilities in any area or territory in which the Company conducts
operations; provided, however, that the foregoing shall not prohibit Executive
from owning up to one percent (1%) of the outstanding stock of a publicly held
company engaged in the hospitality business. Notwithstanding the foregoing,
Executive shall be permitted to engage in such activities with respect to any
other hotel, motel or lodging facility that would be immaterial to the
operations of the Company in the area or territory in question. Immateriality,
for purposes of the foregoing sentence, shall be determined in the sole
discretion of the Board in good faith.
(b) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, either
for himself or for any other business, operation, corporation, partnership,
association, agency, or other person or entity, call upon, compete for, solicit,
divert, or take away, or attempt to divert or take away any of the customers
(including, without limitation, any hotel owner, lessor or lessee, asset
manager, trustee, consumer with whom the Company from time to time (i) has an
existing agreement or business relationship; or (ii) has included as a prospect
in its applicable pipeline) or vendors of the Company in any of the areas or
territories in which the Company conducts operations if such action has the
intent or effect of interfering with the Company's relationship with the vendor
or customer.
(c) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not directly or indirectly solicit or
induce any present or future employee of the Company to accept employment with
Executive or with any business, operation, corporation, partnership,
association, agency, or other person or entity with which Executive may be
associated, and Executive will not employ or cause any business, operation,
corporation, partnership, association, agency, or other person or entity with
which Executive may be associated to employ any present or future employee of
the Company without providing the Company with ten (10) days' prior written
notice of such proposed employment.
Should Executive violate the provisions of this Paragraph, then in addition
to all other rights and remedies available to the Company at law or in equity,
the duration of this covenant
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shall automatically be extended for the period of time from which Executive
began such violation until he permanently ceases such violation.
6. Termination. Executive's employment hereunder may be terminated without any
breach of this Agreement under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If, as a result of Executive's incapacity due to physical
or mental illness, Executive shall have been absent from his duties hereunder on
a full-time basis for one hundred eighty (180) calendar days in the aggregate in
any twelve (12) month period, the Company may terminate Executive's employment
hereunder.
(c) Termination by Company For Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder for Cause
if such termination is approved by not less than a majority of the Board of
Directors of the Company at a meeting of such Board of Directors called and held
for such purpose. For purposes of this Agreement "Cause" shall mean: (A)
conduct by Executive constituting a material act of willful misconduct in
connection with the performance of his duties, including, without limitation,
misappropriation of funds or property of the Company or any of its affiliates
other than the occasional, customary and de minimis use of Company property for
personal purposes; (B) criminal or civil conviction of Executive, a plea of nolo
contendere by Executive or conduct by Executive that would reasonably be
expected to result in material injury to the reputation of the Company if he
were retained in his position with the Company, including, without limitation,
conviction of a felony involving moral turpitude; (C) continued, willful and
deliberate non-performance by Executive of his duties hereunder (other than by
reason of Executive's physical or mental illness, incapacity or disability) and
such non-performance has continued for more than thirty (30) days following
written notice of such non-performance from the Board; (D) a breach by Executive
of any of the provisions contained in Paragraphs 4 and 5 of this Agreement; or
(E) a violation by Executive of the Company's employment policies and such
violation has continued following written notice of such violation from the
Board.
(d) Termination Without Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder without
Cause if such termination is approved by a majority of the Board at a meeting of
the Board called and held for such purpose. Any termination by the Company of
Executive's employment under this Agreement which does not constitute a
termination for Cause under Subparagraph 6(c) or result from the death or
disability of the Executive under Subparagraph 6(a) or (b) shall be deemed a
termination without Cause. If the Company provides notice to the Executive
under Paragraph 1 that it does not wish to extend the Period of Employment, such
action shall be deemed a termination without Cause.
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(e) Termination by Executive. At any time during the Period of Employment,
Executive may terminate his employment hereunder for any reason, including but
not limited to Good Reason. If Executive provides notice to the Company under
Paragraph 1 that he does not wish to extend the Period of Employment, such
action shall be deemed a voluntary termination by Executive and one without Good
Reason. For purposes of this Agreement, "Good Reason" shall mean that Executive
has complied with the "Good Reason Process" (hereinafter defined) following the
occurrence of any of the following events: (A) a substantial diminution or
other substantive adverse change, not consented to by Executive, in the nature
or scope of Executive's responsibilities, authorities, powers, functions or
duties, other than a change in Executive's position or reporting relationship;
(B) any removal, during the Period of Employment, from Executive of his title of
Executive Vice President; (C) an involuntary reduction in Executive's Base
Salary or Adjusted Base Salary or involuntary reduction in cash incentive
compensation plan (but not reduction in incentive compensation appropriate for
level of performance) except for across-the-board salary reductions similarly
affecting all or substantially all management employees; (D) a breach by the
Company of any of its other material obligations under this Agreement and the
failure of the Company to cure such breach within thirty (30) days after written
notice thereof by Executive; (E) the involuntary relocation of the Company's
offices at which Executive is principally employed or the involuntary relocation
of the offices of Executive's primary workgroup to a location more than thirty
(30) miles from such offices (other than a relocation in either event to Dallas,
Texas), or the requirement by the Company for Executive to be based anywhere
other than the Company's offices at such location or in Dallas, Texas on an
extended basis, except for required travel on the Company's business to an
extent substantially consistent with Executive's business travel obligations; or
(F) the requirement that Executive report to a person who is below the level of
an Executive Vice President. "Good Reason Process" shall mean that (i) the
Executive reasonably determines in good faith that a "Good Reason" event has
occurred; (ii) Executive notifies the Company in writing of the occurrence of
the Good Reason event; (iii) Executive cooperates in good faith with the
Company's efforts, for a period not less than ninety (90) days following such
notice, to modify Executive's employment situation in a manner acceptable to
Executive and Company; and (iv) notwithstanding such efforts, one or more of the
Good Reason events continues to exist and has not been modified in a manner
acceptable to Executive. If the Company cures the Good Reason event during the
ninety (90) day period, Good Reason shall be deemed not to have occurred.
(f) Notice of Termination. Except for termination as specified in
Subparagraph 6(a), any termination of Executive's employment by the Company or
any such termination by Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(g) Date of Termination. "Date of Termination" shall mean: (A) if
Executive's employment is terminated by his death, the date of his death; (B) if
Executive's employment is terminated on account of disability under Subparagraph
6(b) or by the Company for Cause under Subparagraph 6(c), the date on which
Notice of Termination is given; (C) if Executive's
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employment is terminated by the Company under Subparagraph 6(d), sixty (60) days
after the date on which a Notice of Termination is given; and (D) if Executive's
employment is terminated by Executive under Subparagraph 6(e), thirty (30) days
after the date on which a Notice of Termination is given.
7. Compensation Upon Termination or During Disability.
(a) If Executive's employment terminates by reason of his death, the
Company shall, within ninety (90) days of death, pay in a lump sum amount to
such person as Executive shall designate in a notice filed with the Company or,
if no such person is designated, to Executive's estate, Executive's accrued and
unpaid Base Salary or, if applicable, his Adjusted Base Salary, to the date of
his death, plus his accrued and unpaid incentive compensation, if any, under
Subparagraph 3(a). For a period of one (1) year following the Date of
Termination, the Company shall pay such health insurance premiums as may be
necessary to allow Executive's spouse and dependents to receive health insurance
coverage substantially similar to coverage they received prior to the Date of
Termination. In addition to the foregoing, any payments to which Executive's
spouse, beneficiaries, or estate may be entitled under any employee benefit plan
shall also be paid in accordance with the terms of such plan or arrangement.
Such payments, in the aggregate, shall fully discharge the Company's obligations
hereunder.
(b) During any period that Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, Executive
shall continue to receive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary and accrued and unpaid incentive compensation payments,
if any, under Subparagraph 3(a), until Executive's employment is terminated due
to disability in accordance with Subparagraph 6(b) or until Executive terminates
his employment in accordance with Subparagraph 6(e), whichever first occurs. For
a period of one (1) year following the Date of Termination, the Company shall
pay such health insurance premiums as may be necessary to allow Executive,
Executive's spouse and dependents to receive health insurance coverage
substantially similar to coverage they received prior to the Date of
Termination. Upon termination due to death prior to the termination first to
occur as specified in the preceding sentence, Subparagraph 7(a) shall apply.
(c) If Executive's employment is terminated by Executive other than for
Good Reason as provided in Subparagraph 6(e), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given. Thereafter, the Company shall have no further obligations
to Executive except as otherwise expressly provided under this Agreement,
provided any such termination shall not adversely affect or alter Executive's
rights under any employee benefit plan of the Company in which Executive, at the
Date of Termination, has a vested interest, unless otherwise provided in such
employee benefit plan or any agreement or other instrument attendant thereto.
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(d) If Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e) or if Executive's employment is terminated by the Company
without Cause as provided in Subparagraph 6(d), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given and his accrued and unpaid incentive compensation, if any,
under Subparagraph 3(a). In addition, subject to signing by Executive of a
general release of claims in a form and manner satisfactory to the Company,
(i) the Company shall continue Executive's compensation at a rate
equal to the sum of Executive's Average Base Salary and his Average
Incentive Compensation payable for the remaining length of the Period of
Employment after the Date of Termination (the "Severance Amount"), but in
no event for fewer than twenty-four (24) months. The Severance Amount
shall be paid out in substantially equal bi-weekly installments, in
arrears; provided, however, that in the event Executive commences any
employment during such period, the Company shall be entitled to set-off
against the remaining Severance Amount seventy-five percent (75%) of the
amount of any cash compensation received by Executive from the new
employer. From time to time, Executive may be asked to certify to the
Company that he has not accepted employment with a new employer (including,
without limitation, contract and consulting agreements). For purposes of
this Agreement, "Average Base Salary" shall mean the average of the annual
Base Salary or, if applicable, Adjusted Base Salary received by Executive
for each of the three (3) immediately preceding fiscal years or such fewer
number of complete fiscal years as Executive may have been employed by the
Company. For purposes of this Agreement, "Average Incentive Compensation"
shall mean the average of the annual incentive compensation under
Subparagraph 3(a) received by Executive for the three (3) immediately
preceding fiscal years or such fewer number of complete fiscal years as
Executive may have been employed by the Company. In no event shall
"Average Incentive Compensation" include any sign-on bonus, retention bonus
or any other special bonus. Notwithstanding the foregoing, if the
Executive breaches any of the provisions contained in Paragraphs 4 and 5 of
this Agreement, all payments of the Severance Amount shall immediately
cease. Notwithstanding the foregoing, in the event Executive terminates
his employment for Good Reason as provided in Subparagraph 6(e), he shall
be entitled to the Severance Amount only if he provides the Notice of
Termination provided for in Subparagraph 6(f) within thirty (30) days after
the occurrence of the event or events which constitute such Good Reason as
specified in clauses (A), (B), (C), (D) (E) and (F) of Subparagraph 6(e);
(ii) in addition to any other benefits to which Executive may be
entitled in accordance with the Company's then existing severance policies,
the Company shall, for a period of one (1) year commencing on the Date of
Termination, pay such health insurance premiums as may be necessary to
allow Executive, Executive's spouse and dependents to continue to receive
health insurance coverage substantially similar to the coverage they
received prior to his termination of employment.
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(e) If Executive's employment is terminated by the Company for Cause as
provided in Subparagraph 6(c), then the Company shall, through the Date of
Termination, pay Executive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary at the rate in effect at the time Notice of Termination
is given. Thereafter, the Company shall have no further obligations to
Executive except as otherwise expressly provided under this Agreement, provided
any such termination shall not adversely affect or alter Executive's rights
under any employee benefit plan of the Company in which Executive, at the Date
of Termination, has a vested interest, unless otherwise provided in such
employee benefit plan or any agreement or other instrument attendant thereto.
(f) Regardless of the reason for termination, for a period of five (5)
years beginning on the Date of Termination, the Company will provide such
reasonable assistance and support to Executive as he shall reasonably require in
connection with the preparation and filing of tax returns, statements and forms
insofar as such returns, statements or forms relate to Executive's association
with the Company or any of its predecessors or affiliates. At the Company's
election, such assistance and support shall be provided by either tax personnel
from the Company or certified public accountants selected and compensated by the
Company.
(g) Nothing contained in the foregoing Subparagraphs 7(a) through 7(f)
shall be construed so as to affect Executive's rights or the Company's
obligations relating to agreements or benefits which are unrelated to
termination of employment.
8. Change in Control Payment. The provisions of this Paragraph 8 set forth
certain terms of an agreement reached between Executive and the Company
regarding Executive's rights and obligations upon the occurrence of a Change in
Control of the Company. These provisions are intended to assure and encourage
in advance Executive's continued attention and dedication to his assigned duties
and his objectivity during the pendency and after the occurrence of any such
event. These provisions shall apply in lieu of, and expressly supersede, the
provisions of Subparagraph 7(d)(i) regarding severance pay upon a termination of
employment, if such termination of employment occurs within eighteen (18) months
after the occurrence of the first event constituting a Change of Control;
provided that such first event occurs during the Period of Employment. These
provisions shall terminate and be of no further force or effect beginning
eighteen (18) months after the occurrence of a Change of Control.
(a) Change in Control.
(i) If within eighteen (18) months after the occurrence of the
first event constituting a Change in Control, Executive's employment is
terminated by the Company without Cause as provided in Subparagraph 6(d) or
Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e), then the Company shall pay Executive the Severance
Amount as provided in Subparagraph 7(d)(i) in substantially bi-weekly
installments, in arrears, over twenty-four (24) months. Notwithstanding the
foregoing, if the Executive breaches any of the provisions
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contained in Paragraphs 4 and 5 of this Agreement, all payments of the
Severance Amount shall immediately cease; and
(ii) Within fifteen (15) days after Executive becomes entitled to
receive the Severance Amount under (i) above, the Company shall place funds
in an amount equal to the estimated Severance Amount in escrow, pursuant to
arrangements that are mutually acceptable to the Company and Executive (the
"Escrow Arrangement"). The Escrow Arrangement shall be maintained until
the final installment payment of the Severance Amount has been made;
(iii) Notwithstanding anything to the contrary in any applicable
option agreement or stock-based award agreement, if Executive terminates
his employment for Good Reason as provided in Subparagraph 6(e) or if
Executive's employment is terminated by the Company without Cause as
provided in Subparagraph 6(d) within eighteen (18) months of a Change in
Control, all stock options and other stock-based awards granted to
Executive by the Company shall immediately accelerate and become
exercisable or non-forfeitable as of the Date of Termination, and Executive
shall have 360 days to exercise all his stock options. Executive shall
also be entitled to any other rights and benefits with respect to stock-
related awards, to the extent and upon the terms provided in the employee
stock option or incentive plan or any agreement or other instrument
attendant thereto pursuant to which such options or awards were granted;
and
(iv) The Company shall, for a period of one (1) year commencing on
the Date of Termination, pay such health insurance premiums as may be
necessary to allow Executive, Executive's spouse and dependents to continue
to receive health insurance coverage substantially similar to the coverage
they received prior to his termination of employment.
(b) Gross Up Payment.
(i) Excess Parachute Payment. If Executive incurs the tax (the
"Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986
(the "Code") on "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code, the Company will pay to Executive an amount (the
"Gross Up Payment") such that the net amount retained by Executive, after
deduction of any Excise Tax on the excess parachute payment and any
federal, state and local income taxes and employment taxes (together with
penalties and interest) and Excise Tax upon the payment provided for by
this Subparagraph 8(c)(i), will be equal to the Severance Amount.
(ii) Applicable Rates. For purposes of determining the amount of the
Gross Up Payment, Executive will be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar year
in which the Gross Up Payment is to be made and state and local income
taxes at the highest marginal rates of
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taxation in the state and locality of Executive's residence on the date of
Executive's Termination, net of the maximum reduction in federal income
taxes that could be obtained from deduction of such state and local taxes.
(iii) Determination of Gross Up Payment Amount. The determination of
whether the Excise Tax is payable and the amount thereof will be based upon
the opinion of tax counsel selected by Executive and approved by the
Company, which approval will not be unreasonably withheld. If such opinion
is not finally accepted by the Internal Revenue Service (or state and local
taxing authorities), then appropriate adjustments to the Excise Tax will be
computed and additional Gross Up Payments will be made in the manner
provided by this Subparagraph (c).
(iv) Time For Payment. The Company will pay the estimated amount of
the Gross Up Payment in cash to Executive at such time or times when the
Excise Tax is due. Executive and the Company agree to reasonably cooperate
in the determination of the actual amount of the Gross Up Payment.
Further, Executive and the Company agree to make such adjustments to the
estimated amount of the Gross Up Payment as may be necessary to equal the
actual amount of the Gross Up Payment, which in the case of Executive will
refer to refunds of prior overpayments and in the case of the Company will
refer to makeup of prior underpayments.
(c) Definitions. For purposes of this Paragraph 8, the following terms
shall have the following meanings:
"Change in Control" shall mean any of the following:
(a) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (the
"Acquiring Person"), other than the Company, or any of its Subsidiaries or
any Investor or Excluded Group, of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of the
combined voting power or economic interests of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors; provided, however, that any transfer from any Investor or
Excluded Group will not result in a Change in Control if such transfer was
part of a series of related transactions the effect of which, absent the
transfer to such Acquiring Person by the Investor or Excluded Group, would
not have resulted in the acquisition by such Acquiring Person of 35% or
more of the combined voting power or economic interests of the then
outstanding voting securities; or
(b) during any period of 12 consecutive months after the Issuance
Date, the individuals who at the beginning of any such 12-month period
constituted a majority of the Class A Directors and Class C Directors (the
"Incumbent Non-Investor Majority") cease for any reason to constitute at
least a majority of such Class A Directors and Class C Directors; provided
that (i) any individual becoming a director whose election,
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or nomination for election by the Company's stockholders, was approved by a
vote of the stockholders having the right to designate such director and
(ii) any director whose election to the Board or whose nomination for
election by the stockholders of the Company was approved by the requisite
vote of directors entitled to vote on such election or nomination in
accordance with the Restated Certificate of Incorporation of the Company,
shall, in each such case, be considered as though such individual were a
member of the Incumbent Non-Investor Majority, but excluding, as a member
of the Incumbent Non-Investor Majority, any such individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) and further excluding any person who is an affiliate or
associate of an Acquiring Person having or proposing to acquire beneficial
ownership of 25% or more of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in
the election of directors; or
(c) the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who were the
respective beneficial owners of the voting securities of the Company
immediately prior to such reorganization, merger or consolidation do not,
following such reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 57.5% of the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of directors of the Company resulting from such reorganization,
merger or consolidation; or
(d) the sale or other disposition of assets representing 50% or
more of the assets of the Company in one transaction or series of related
transactions .
All defined terms used in the definition of "Change in Control" shall have
the same meaning as set forth in the Form of Certificate of Designation of
Series B Convertible Preferred Stock of Wyndham International, Inc.
"Company" shall mean not only Wyndham International, Inc., but also
its successors by merger or otherwise.
9. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
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if to the Executive:
At his home address as shown
in the Company's personnel records;
if to the Company:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
Attention: Senior Vice President of Human Resources and General
Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10. Miscellaneous. No provisions of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Texas (without regard to principles of
conflicts of laws).
11. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. The invalid portion of this Agreement, if any, shall be modified by any
court having jurisdiction to the extent necessary to render such portion
enforceable.
12. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
13. Arbitration; Other Disputes. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the applicable rules of the American Arbitration Association before
resorting to arbitration. In the event such dispute or controversy remains
unresolved in whole or in part for a period of thirty (30) days after it
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arises, the parties will settle any remaining dispute or controversy exclusively
by arbitration in Dallas, Texas, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding the above,
the Company shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
Paragraph 4 or 5 hereof. Furthermore, should a dispute occur concerning
Executive's mental or physical capacity as described in Subparagraph 6(b), 6(c)
or 7(b), a doctor selected by Executive and a doctor selected by the Company
shall be entitled to examine Executive. If the opinion of the Company's doctor
and Executive's doctor conflict, the Company's doctor and Executive's doctor
shall together agree upon a third doctor, whose opinion shall be binding. Any
amount to which Executive is entitled under this Agreement (including any
disputed amount), which is not paid when due, shall bear interest at a rate
equal to the lesser of eighteen percent (18%) per annum or the maximum lawful
rate.
14. Third-Party Agreements and Rights. Executive represents to the Company
that Executive's execution of this Agreement, Executive's employment with the
Company and the performance of Executive's proposed duties for the Company will
not violate any obligations Executive may have to any employer or other party,
and Executive will not bring to the premises of the Company any copies or other
tangible embodiments of non-public information belonging to or obtained from any
such previous employment or other party.
15. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company;
provided, however, that such cooperation shall not materially and adversely
affect Executive or expose Executive to an increased probability of civil or
criminal litigation. Executive's cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after Executive's
employment, Executive also shall cooperate fully with the Company in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Executive was employed by the Company. The Company shall
also provide Executive with compensation on an hourly basis (to be derived from
the sum of his Base Compensation or, if applicable, Adjusted Base Salary and
Average Incentive Compensation) for requested litigation and regulatory
cooperation that occurs after his termination of employment, and reimburse
Executive for all costs and expenses incurred in connection with his performance
under this Paragraph 15, including, but not limited to, reasonable attorneys'
fees and costs.
16. Gender Neutral. Wherever used herein, a pronoun in the masculine gender
shall be considered as including the feminine gender unless the context clearly
indicates otherwise.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year first above written.
WYNDHAM INTERNATIONAL, INC.
By:_______________________________
Its: Chairman and Chief Executive Officer
_______________________________
Leslie V. Bentley
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Exhibit A
WYNDHAM INTERNATIONAL, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Dated as of April 19, 1999
Wyndham International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby grants to Leslie V. Bentley, an Employee of the
Company (the "Optionee"), as of April 19, 1999 (the "Date of Grant"), a non-
qualified option (the "Option") to purchase from the Company 450,000 Paired
Shares, at the price of $5.00 per Paired Share, subject to the terms and
conditions set forth below. Such grant is pursuant to the Wyndham International,
Inc. 1997 Incentive Plan (the "Plan") and is made as an inducement to Optionee
to enter into the Employment Agreement between Optionee and the Company of even
date herewith (the "Employment Agreement").
1. Option Subject to Acceptance of Option Agreement and Employment Agreement.
The Option may not be exercised unless the Optionee accepts this Option
Agreement and the Employment Agreement by executing both the Option
Agreement and the Employment Agreement and returning such original
execution copies to the Company.
2. Time and Manner of Exercise of Option.
a. Maximum Term of Option. The Expiration Date of this Option is the date
that is ten years from the Date of Grant. This Option may not be
exercised on or after the Expiration Date.
b. Vesting Schedule. No portion of this Option may be exercised until
such portion shall have vested. Except as set forth in Section 3 of
this Agreement, this Option shall be vested and exercisable with
respect to the following number of Paired Shares on the date indicated
below provided that Optionee remains employed by the Company on such
date:
===============================================
Vesting Schedule A
===============================================
Number of Paired
Shares Exercisable Vesting Date
-----------------------------------------------
450,000 (100%) February 13, 2009
===============================================
Notwithstanding the foregoing, upon the closing (the "Closing") of the
Securities Purchase Agreement (the "Securities Purchase Agreement") by
and among Patriot American Hospitality, Inc., Wyndham International,
Inc., Patriot American Hospitality Partnership, L.P. and the
Investors named therein dated as of February 28, 1999, as amended from
time to time, the foregoing vesting schedule shall not apply and
except as set forth in Section 3 of this Agreement, this Option shall
be vested and exercisable with respect to the following number
<PAGE>
of Paired Shares on the dates indicated below provided that Optionee
remains employed by the Company on such dates:
===============================================
Vesting Schedule B
===============================================
Number of Paired
Shares Exercisable Vesting Date
-----------------------------------------------
90,000 (20%) 1 year after Date of Grant
-----------------------------------------------
90,000 (20%) 2 years after Date of Grant
-----------------------------------------------
90,000 (20%) 3 years after Date of Grant
-----------------------------------------------
90,000 (20%) 4 years after Date of Grant
-----------------------------------------------
90,000 (20%) 5 years after Date of Grant
===============================================
In the event of a Change in Control of the Company (as defined in the
Employment Agreement), if within 18 months of such Change in Control,
the Optionee's employment with the Company is terminated by the
Company without Cause (as defined in the Employment Agreement) or for
Good Reason (as defined in the Employment Agreement)), any unvested
portions of this Option shall fully vest and become exercisable.
Notwithstanding the foregoing, the purchase of securities by the
Investors pursuant to the Securities Purchase Agreement shall not be
deemed to be a Change in Control.
A partial exercise of this Option shall not affect Optionee's right to
exercise this Option with respect to the remaining Paired Shares.
c. Method of Exercise of Option. Subject to the limitations set forth in
this Agreement, the Option may be exercised by the Optionee (1) by
giving written notice to the Company specifying the number of whole
Paired Shares to be purchased and accompanied by payment of the Option
price in full (or arrangement made for such payment to the Company's
satisfaction) either (i) in cash or cash equivalent acceptable to the
Committee, (ii) in previously owned Paired Shares (which the Optionee
has held for at least six months prior to the delivery of such Paired
Shares or which the Optionee purchased on the open market and for
which the Optionee has good title, free and clear of all liens and
encumbrances) having a Fair Market Value, determined as of the date of
exercise, equal to the aggregate purchase price payable pursuant to
the Option by reason of such exercise, (iii) in cash or a check
payable and acceptable to the Company by a broker-dealer acceptable to
the Company to whom the Optionee has submitted an irrevocable notice
of exercise or (iv) a combination of two or more of the foregoing, and
(2) by executing such documents as the Company may reasonably request.
Any fraction of a Paired Share which would be
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<PAGE>
required to pay such purchase price shall be disregarded and the
remaining amount due shall be paid in cash by the Optionee.
The delivery of certificates representing the Paired Shares subject to
the Option will be contingent upon the Company's receipt from Optionee
of (1) full payment of the Option price, as set forth above, and (2)
any agreement, statement or other evidence that the Company may
require to satisfy itself that the issuance of Paired Shares to be
purchased pursuant to the exercise of the Option and the subsequent
resale of Paired Shares will be in compliance with applicable laws and
regulations.
3. Exercise After Termination of Employment. If the Optionee's employment by
the Company or an Affiliate is terminated, the period within which to
exercise the Option may be subject to earlier termination as set forth
below. The Board's determination of the reason for termination of the
Optionee's employment shall be conclusive and binding on the Optionee and
his or her legal representatives or legatees. Any transfer of employment
from the Company to any Affiliate of the Company shall not be deemed to be
a termination of employment for purposes of this Agreement.
a. Termination Due to Death. If, on or after the Closing, the Optionee's
employment terminates by reason of death, the Option held by the
Optionee shall vest and become exercisable in accordance with the
Vesting Schedule B as set forth in Section 2(b), plus an additional
number of Paired Shares that would have vested on the next vesting
anniversary date. The Optionee's legal representative or legatee may
exercise the Option to the extent exercisable in accordance with this
Section 3(a), for a period of 360 days from the date of death or until
the Expiration Date, if earlier. Any portion of the Option that is not
exercisable at the time of death shall terminate immediately and be of
no further force or effect.
Notwithstanding the foregoing, if the Optionee's employment terminates
by reason of death on or after the Date of Grant but before the
Closing, the Option held by the Optionee shall vest and become
exercisable in accordance with Vesting Schedule A as set forth in
Section 2(b).
b. Termination Due to Disability. If, on or after the Closing, the
Optionee's employment terminates by reason of incapacity due to
physical or mental illness which resulted in his or her absence from
his or her duties with the Company on a full-time basis for 180
calendar days in the aggregate in any 12-month period, the Option held
by the Optionee shall vest and become exercisable in accordance with
the Vesting Schedule B as set forth in Section 2(b), plus an
additional number of Paired Shares that would have vested on the next
vesting anniversary date. The Optionee may exercise the Option to the
extent exercisable in accordance with this Section 3(b), for a period
of 360 days from the date of
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<PAGE>
termination of employment or until the Expiration Date, if earlier.
Any portion of the Option that is not exercisable upon termination of
employment shall terminate immediately and be of no further force or
effect.
Notwithstanding the foregoing, if, on or after the Date of Grant but
before the Closing, the Optionee's employment terminates by reason of
incapacity due to physical or mental illness which resulted in his or
her absence from his or her duties with the Company on a full-time
basis for 180 calendar days in the aggregate in any 12-month period,
the Option held by the Optionee shall vest and become exercisable in
accordance with Vesting Schedule A as set forth in Section 2(b).
c. Termination without Cause or for Good Reason. If, on or after the
Closing, the Optionee's employment is terminated by the Company
without Cause (as defined in the Employment Agreement) or the Optionee
resigns from the Company for Good Reason (as defined in the Employment
Agreement), the Option held by the Optionee shall continue to vest and
become exercisable in accordance with the Vesting Schedule B as set
forth in Section 2(b) for an additional 24 months. The Optionee may
exercise the Option, to the extent exercisable in accordance with this
Section 3(c), for a period of 360 days after the end of the 24-month
period or until the Expiration Date, if earlier. Any portion of the
Option that is not exercisable at the end of 24 months following
termination of employment shall terminate immediately and be of no
further force or effect.
Notwithstanding the foregoing, if Optionee breaches any of the
provisions contained in Paragraph 4 or 5 of the Employment Agreement,
(i) any portion of the Option that vested or will vest by virtue of
this Section 3(c) shall immediately terminate and be of no force and
effect, and (ii) to the extent any portion of the Option that vested
by virtue of this Section 3(c) has been exercised, Optionee shall be
required to disgorge to the Company the difference between the fair
market value per Paired Share on the date of exercise and the Option
price per Paired Share, multiplied by the number of Paired Shares
acquired by Optionee.
Furthermore, notwithstanding the foregoing, if the Optionee's
employment is terminated by the Company without Cause (as defined in
the Employment Agreement) or the Optionee resigns from the Company for
Good Reason (as defined in the Employment Agreement) on or after the
Date of Grant but before the Closing or a Change in Control, the
Option held by the Optionee shall vest and become exercisable in
accordance with Vesting Schedule A as set forth in Section 2(b).
4
<PAGE>
d. Termination for Cause. If the Optionee's employment is terminated for
Cause (as defined in the Employment Agreement), the Option held by
the Optionee shall terminate immediately and be of no further force
and effect.
e. Other Termination. If the Optionee's employment terminates for any
reason not covered in Subsections (a), (b), (c) or (d) of this Section
3, the Option held by the Optionee may be exercised, to the extent
exercisable on the date of termination pursuant to the applicable
vesting schedule in Section 2(b), for a period of three (3) months
from the date of termination or until the Expiration Date, if earlier.
Any portion of the Option that is not exercisable at such time shall
terminate immediately and be of no further force or effect.
4. Incorporation of Plan. Notwithstanding anything herein to the contrary,
this Option shall be subject to and governed by all the terms and
conditions of the Plan. Capitalized terms in this Agreement shall have the
meaning specified in the Plan, unless a different meaning is specified
herein. All references herein to the Plan shall mean the Plan in effect as
of the date hereof. In the event of any conflict between the provisions in
the Plan and the provisions in this Agreement, the provisions of the Plan
shall govern.
5. Additional Terms and Conditions of Option.
a. Nontransferabiltiy of Option. This Agreement is personal to the
Optionee, is non-assignable and is not transferable in any manner, by
operation of law or otherwise, other than by will or the laws of
descent and distribution. This Option is exercisable, during the
Optionee's lifetime, only by the Optionee, and thereafter only by the
Optionee's legal representative or legatee.
b. Delivery of Certificates. Upon the exercise of the Option, in whole or
in part, the Company shall deliver or cause to be delivered one or
more certificates representing the number of Paired Shares purchased
against full payment therefor. The Company shall pay all original
issue or transfer taxes and all fees and expenses incident to such
delivery.
c. Option Confers No Rights as Stockholder. The Optionee shall not be
entitled to any privileges of ownership with respect to Paired Shares
subject to the Option unless and until purchased and delivered upon
the exercise of the Option, in whole or in part, and the Optionee
becomes a stockholder of record with respect to such delivered Paired
Shares; and the Optionee shall not be considered a stockholder of the
Company with respect to any such Paired Shares not so purchased and
delivered.
d. Decisions of Committee. The Committee shall have the right to resolve
all questions which may arise in connection with the Option or its
exercise. Any
5
<PAGE>
interpretation, determination or other action made or taken by the
Committee regarding this Agreement shall be final, binding and
conclusive.
e. Reservation of Paired Shares. The Company shall at all times prior to
the expiration or termination of the Option reserve or cause to be
reserved and keep or cause to be kept available, either in its
treasury or out of its authorized but unissued shares of common stock,
the full number of shares of common stock of the Company subject to
the Option from time to time. In addition, pursuant to Section 2(c) of
the Pairing Agreement, the Company shall request Patriot American
Hospitality, Inc. to issue the number of shares of common stock of
Patriot American Hospitality, Inc. subject to the Option so that the
Optionee shall receive Paired Shares upon exercise of the Option.
f. Change in Capital Structure. The terms of this Option shall be
adjusted as the Committee determines is equitably required in the
event the Company effects one or more stock dividends, stock split-
ups, subdivisions or consolidations of shares or other similar
changes in capitalization.
g. Fractional Shares. Fractional shares shall not be issuable hereunder,
and when any provision hereof may entitle Optionee to a fractional
share such fraction shall be disregarded.
6. Tax Withholding. The Optionee shall, not later than the date as of which
the exercise of this Option becomes a taxable event for Federal income tax
purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any Federal, state, and local taxes required by
law to be withheld on account of such taxable event. Subject to the
approval of the Committee, the Optionee may elect to have such tax
withholding obligation satisfied, in whole or in part, by (i) authorizing
the Company to withhold from Paired Shares to be issued, or (ii)
transferring to the Company a number of previously owned whole Paired
Shares (which the Optionee has held for at least six months prior to the
delivery of such Paired Shares or which the Optionee purchased on the open
market and for which the Optionee has good title, free and clear of all
liens and encumbrances) having an aggregate Fair Market Value, determined
as of the date of exercise, that would satisfy the withholding amount due.
7. Miscellaneous Provisions.
a. Designation as Non-qualified Stock Option. The Option is hereby
designated as not constituting an "incentive stock option" within the
meaning of section 422 of the Code. This Agreement shall be
interpreted and treated consistently with such designation.
b. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person
or persons who
6
<PAGE>
shall, upon the death of the Optionee, acquire any rights hereunder in
accordance with this Agreement or the Plan.
c. Notices. All notices, requests or other communications provided for in
this Agreement shall be made, if to the Company, to the Secretary of
the Company at the Company's principal executive office, and if to the
Optionee, to his or her address on the books of the Company (or to
such other address as the Company or the Optionee may give to the
other for purposes of notice hereunder).
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to
the party entitled thereto, (b) by facsimile with confirmation of
receipt, (c) by mailing in the United States mail to the last known
address of the party entitled thereto or (d) by express courier
service. The notice, request or other communication shall be deemed to
be received upon personal delivery, upon confirmation of receipt of
facsimile transmission or upon receipt by the party entitled thereto
if by United States mail or express courier service; provided,
however, that if a notice, request or other communication in not
received during regular business hours, it shall be deemed to be
received on the next succeeding business day of the Company.
d. Governing Law. This Agreement and all determinations made and actions
taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State
of Delaware and construed in accordance therewith without giving
effect to principles of conflicts of laws.
e. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
f. Further Assurances. The Company and the Optionee shall execute and
deliver such further instruments and take such additional action as
each party may reasonably request to effect, consummate, confirm or
evidence the grant of the Option to the Optionee, and they shall each
execute such documents as may be reasonably necessary to assist each
other in preserving or perfecting their respective rights in the
Option.
g. No Right to Continued Employment. This Agreement does not confer upon
Optionee any right to continue in the employ of the Company or an
Affiliate,
7
<PAGE>
nor shall it interfere in any way with the right of the Company or an
Affiliate to terminate such employment at any time.
WYNDHAM INTERNATIONAL, INC.
By: /s/ James D. Carreker
--------------------------------
Title:
--------------------------------
Accepted this ____ day of ___________, 1999.
/s/ Leslie V. Bentley
- --------------------------------
Leslie V. Bentley
"Optionee"
8
<PAGE>
Exhibit B
NO PERSONAL LIABILITY NONRECOURSE PROMISSORY NOTE
Dallas, Texas
$2,123,607.00 April 19, 1999
FOR VALUE RECEIVED, LESLIE V. BENTLEY (referred to herein as the "Maker"),
promises to pay to WYNDHAM INTERNATIONAL, INC., a Delaware corporation (referred
to herein as the "Payee"), or its assigns, the sum of TWO MILLION ONE HUNDRED
TWENTY-THREE THOUSAND SIX HUNDRED SEVEN DOLLARS AND NO CENTS ($2,123,607.00),
together with interest on the unpaid principal balance as set forth below.
1. Certain Definitions. The following terms, when used in this Note,
shall have the meanings assigned to them below:
(a) Collateral. The term "Collateral" shall mean 68,079 paired shares
of the common stock, $.01 par value, of Wyndham International, Inc. and Patriot
American Hospitality, Inc. (the "Shares") and all dividends, distributions and
payments in respect of the Shares ("Proceeds").
(b) Fixed Rate. The term "Fixed Rate" means the rate of six percent
(6%) per annum, compounded annually.
(c) Market Value. The term "Market Value," when used with reference
to Shares as of any date, shall mean the average of the closing sale prices for
a Share, on the principal national securities exchange on which the Shares are
listed, for each trading day during the 90-day period immediately preceding the
date in question.
(d) Maximum Rate. The term "Maximum Rate" shall mean, on any day, the
highest nonusurious rate of interest (if any) permitted by applicable law on
such day. For purposes of Tex. Rev. Civ. Stat. Ann. Art. 5069-1.04(b), as it may
from time to time be amended, the "applicable rate ceiling" shall be the
"indicated rate" ceiling from time to time in effect as limited by Art. 5069-
1.04(b); provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable rate ceiling" from time to
time by further notice and disclosure to Maker; and, provided further, that the
"highest nonusurious rate of interest permitted by applicable law" for purposes
of this Note shall not be limited to the applicable rate ceiling under Art.
5069-1.04 if federal laws or other state laws now or hereafter in effect and
applicable to this Note (and the interest contracted for, charged and collected
hereunder) shall permit a higher rate of interest.
2. Interest Rate. The unpaid principal balance from the date hereof until
maturity shall bear interest at a rate per annum equal to the lesser of the
Fixed Rate or the Maximum Rate. Interest on the unpaid principal balance hereof
shall be calculated at a daily rate equal to 1/365th of the rate per annum
herein provided, and shall be charged and collected on the actual number of days
elapsed. After maturity, unpaid principal and, to the extent permitted by law,
<PAGE>
interest on this Note shall bear interest at a rate equal to the lesser of four
(4) percentage points over the Fixed Rate, or the Maximum Rate.
3. Payment of Principal and Interest. The entire principal balance and
accrued interest on this Note shall become due and payable on the earlier of
April 19, 2002, or ten (10) days after Maker's termination of employment with
Payee.
4. Mandatory Prepayment. Prior to maturity, all Proceeds to which Maker is
entitled in respect of the Shares shall be applied, at the time Maker is
entitled to receive such Proceeds, to payment of this Note, with such payments
to be applied first to accrued interest and then to the outstanding principal
balance of this Note. By execution of this Note, Maker hereby irrevocably
authorizes and hereby grants to Payee a special power of attorney irrevocably
making, constituting and appointing Payee, with unrestricted power of
substitution and resubstitution, as the attorney-in-fact for Maker, with power
and authority to apply the payments referred to in this Paragraph in accordance
with the provisions hereof and to execute, acknowledge and deliver any and all
such documents and instruments as may be necessary or appropriate to carry out
the provisions of this Paragraph 4.
5. Events of Default.
(a) The occurrence of any one or more of the following events shall be
deemed an event of default hereunder ("Event of Default"):
(i) The failure of Maker to make any payment on this Note when the
same becomes due and payable and such failure continues for ten (10)
days after notice of such failure to pay is received by Maker from
Payee; or
(ii) Maker shall commence any case, proceeding or other action
seeking reorganization, arrangement or adjustment of its debts under any
bankruptcy, insolvency or reorganization law, or seek the appointment of
a receiver, trustee or custodian for Maker or for all of its property;
or
(iii) Any case, proceeding or other action shall be commenced
against Maker seeking reorganization, arrangement or adjustment of its
debts under any bankruptcy, insolvency or reorganization law or seeking
the appointment of a receiver, custodian or trustee for Maker or for all
or substantially all of its property, and such case, proceeding or other
action remains undismissed for a period of sixty (60) days after
commencement thereof; or
(iv) The dissolution or liquidation of Maker.
(b) Upon the occurrence of an Event of Default hereunder, Payee, at its
option, may declare the entire unpaid principal balance and accrued interest on
this Note to be immediately due and payable without notice of any kind to Maker
and without any other
2
<PAGE>
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by Maker, and may, at its option, exercise any other right or
remedy existing at law or in equity. Failure to exercise any such right or
remedy shall not constitute a waiver of the right to exercise the same in the
event of any subsequent default.
(c) Upon the occurrence of an Event of Default hereunder, Payee shall
purchase the Collateral from Maker for an amount equal to the Market Value of
the Collateral, or the entire principal balance and accrued interest due on the
Note, whichever is higher. Such payment shall be applied towards the repayment
of the outstanding amount of the Note. If the Market Value of the Collateral
exceeds the outstanding amount of the Note, the excess Collateral remaining
after full satisfaction of the Note shall be returned to Maker without offset of
any kind and free and clear of all liens, claims or encumbrances in favor of
Payee.
6. Voluntary Prepayment. Maker shall have the right and privilege from
time to time to prepay in whole or in part the unpaid principal of this Note
without premium or penalty, provided that the accrued interest on the amount
prepaid is likewise paid, and the accrual of interest shall immediately cease on
any amount so prepaid.
7. Waiver. Maker waives demand, presentment for payment, notice of
nonpayment, protest and notice of protest and agrees to any substitution,
subordination or release of any parties primarily or secondarily liable hereon.
No waiver by Payee of any of its rights or remedies hereunder or under any other
document evidencing or securing this Note or otherwise shall be considered a
waiver of any other subsequent right or remedy of Payee; and no delay or
omission in the exercise or enforcement by Payee of any rights or remedies shall
be construed as a waiver of any right or remedy of Payee.
8. Attorneys' Fees. If this Note is not paid pursuant to the terms hereof
and is placed in the hands of an attorney for collection, or if it is collected
through bankruptcy or any other court proceeding after maturity, then Payee
shall be entitled to reasonable attorneys' fees for collection.
9. Limitation on Agreements. It is the intention of Maker and Payee to
comply with applicable usury laws. In furtherance thereof, Maker and Payee
stipulate and agree that, notwithstanding any provision contained in this Note,
or in any other agreement between Maker and Payee, Payee shall never be entitled
to receive, collect or apply as interest on this Note, any amount in excess of
the Maximum Rate, and, in the event Payee ever receives, collects or applies as
interest any such excess, such amount that would be excessive interest shall be
deemed to be a partial prepayment of principal and treated hereunder as such,
and, if the principal amount of the Note is paid in full, any remaining excess
shall forthwith be paid to Maker. In determining whether the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, Maker and
Payee shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payments (other than payments hereunder) as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate and
spread in equal parts the total amount
3
<PAGE>
of interest throughout the entire contemplated term of this Note so that the
interest rate is uniform throughout such term.
10. Pledge and Grant of Security Interest. Maker hereby pledges and grants
to Payee a security interest in the Collateral, and in connection therewith,
Payee shall have all of the rights of a secured party under Chapter 9 of the
Texas Uniform Commercial Code. Maker agrees to execute and deliver such other
documents as may be reasonably necessary to confirm, evidence or perfect such
pledge and security interest. Payee currently holds certificates representing
all Shares currently constituting the Collateral. Unless and until an Event of
Default shall have occurred and be continuing, Maker shall be entitled to vote
all or any part of the Shares constituting the Collateral and to execute
consents and waivers in respect thereof, all with the same force and effect as
if this Note did not exist.
11. Nature of Obligation: Limitation on Liability. The principal amount of
this Note represents the unpaid principal balance and accrued interest as of
December 31, 1998 on that certain Promissory Note dated March 20, 1996 from
Maker to Wyndham Finance Limited Partnership in the original principal amount of
$1,805,133.00 on which no payments have been made as of the date hereof and
which is also secured by the Collateral. This Note is an amendment in its
entirety of such March 20, 1996 Note. Maker agrees that all existing security
interest in the Collateral existing immediately prior to the execution hereof
shall continue to exist and shall secure this Note. THIS NOTE SHALL BE
NONRECOURSE TO MAKER AND MAKER SHALL HAVE NO PERSONAL LIABILITY FOR THE PAYMENT
HEREOF, AND PAYEE SHALL PROCEED SOLELY AGAINST THE COLLATERAL UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT UNDER THIS NOTE.
12. Governing Law and Venue. This Note is being executed and delivered and
is intended to be performed in the State of Texas. This Note shall be construed
as to both validity and performance and enforced in accordance with and governed
by the laws of the State of Texas.
13. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by certified or registered mail, postage prepaid,
with return receipt requested, addressed to Maker or Payee as follows:
If to Payee to:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
Attention: General Counsel
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<PAGE>
If to Maker to:
Leslie V. Bentley at address on file with the Payee
or such other address as shall be furnished in writing by Maker or Payee to the
other, in accordance with the above provisions, and such notice or communication
shall be deemed to have been given as of the date so delivered in the case of
personal delivery or three (3) days after deposit in the mail in the case of
certified or registered mail.
14. Arbitration. Maker and Payee agree that any claim, controversy or
dispute arising out of or relating to this Note that cannot be amicably settled
shall be referred to binding arbitration as hereinafter provided. If arbitration
is required to resolve a dispute between Maker and Payee, Payee will notify the
American Arbitration Association ("AAA") and request AAA to select one person to
act as the arbitrator for resolution of this dispute. The selected arbitrator
will establish the rules for arbitration of the dispute and such rules will be
binding upon all parties to the arbitration proceeding. The arbitrator may use
the rules of the AAA for commercial arbitration but is encouraged to adopt such
rules as the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly, the arbitrator may
(i) dispense with any formal rules of evidence and allow hearsay testimony so as
to limit the number of witnesses required, (ii) minimize discovery procedures as
the arbitrator deems appropriate, (iii) act upon his understanding or
interpretation of the law on any issue without the obligation to research such
issue or accept or act upon briefs of the issue prepared by any party, (iv)
limit the time for presentation of any party's case as well as the amount of
information or number of witnesses to be presented in connection with any
hearing, (v) prevent any party from allowing an attorney to present or argue the
party's case before the arbitrator in any hearing, and (iv) impose any other
rules which the arbitrator believes appropriate to effect a resolution of the
dispute as quickly and inexpensively as possible. The arbitration shall take
place in Dallas, Texas. The arbitrator will have the exclusive authority to
determine and award costs of arbitration and the cost incurred by any party for
attorneys, advisors and consultants. Any award made by the arbitrator shall be
binding on Maker, Payee and all parties to the arbitration and shall be
enforceable to the fullest extent of the law.
5
<PAGE>
15. Tax Matters. Maker acknowledges that Maker has not relied on any
advice from Payee with regard to the tax treatment of the Note.
MAKER
/s/ LESLIE V. BENTLEY
----------------------------
Leslie V. Bentley
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Exhibit C
PROMISSORY NOTE
$430,000.00 April 19, 1999
FOR VALUE RECEIVED, Leslie V. Bentley (hereinafter referred to as the
"Borrower") hereby promises to pay to the order of Wyndham International, Inc.,
a Delaware corporation with its principal place of business at 1950 Stemmons
Freeway, Suite 6001, Dallas, Texas (hereinafter referred to as the "Company"),
the principal amount of Four Hundred Thirty Thousand Dollars and no cents
($430,000.00), together with interest thereon as provided below, subject to the
terms and conditions set forth herein.
1. Purpose. This Promissory Note (the "Note") is entered into for the
purpose of refinancing Borrower's prior loan for the Company as evidenced by a
Promissory Note dated February 19, 1999.
2. Payment. The Note shall bear interest at the rate provided in Section 2
hereof, payable upon Maturity as provided in Section 2 hereof. The entire
principal balance of this Note and all accrued and unpaid interest and other
charges as may be due hereunder, shall be due on the earlier of April 19, 2002,
or sixty (60) days after Borrower's termination of employment with the Company
(the "Maturity Date").
3. Interest. Interest on this Note shall be computed on a simple interest
basis and shall accrue on the unpaid principal balance due under the Note until
maturity, whether by reason of Default (as defined below), lapse of time or
otherwise ("Maturity"), at the rate of seven percent (7%) per annum. Such
interest shall be payable by the Borrower on the Maturity Date.
4. Prepayment. The Borrower may prepay the whole or any part of the
principal amount of this Note from time to time without premium or penalty. The
Borrower is required to prepay the outstanding balance of this Note with 50
percent of the net after-tax proceeds of the sale of any shares of stock of the
Company acquired through option exercises and with 25 percent of the net after-
tax amount of any bonus payment from the Company.
5. Default. The failure by the Borrower to pay the entire outstanding
principal balance of this Note and all accrued interest on the Maturity Date
shall constitute a Default under this Note. Upon the occurrence of a Default
under this Note, the outstanding principal balance hereof, together with all
accrued interest and reasonable costs of collection and/or enforcement of the
Note, including reasonable attorney's fees, shall at the option of the Company
become immediately due and payable.
6. Recourse. The Company and the Borrower agree that Borrower shall have
personal recourse for the Note.
7. Modification. Neither this Note nor any provision hereof may be
modified, altered, or amended in any manner or form except by an agreement in
writing, executed by a
<PAGE>
duly authorized officer of the Company and the Borrower, which writing shall
make specific reference hereto.
8. Severability. If, for any reason, any provision or provisions hereof
are determined to be invalid, unenforceable or contrary to any existing or
future law, such invalidity or unenforcability shall not impair the operation or
affect those portions of this Note which are valid.
9. Usury, etc. All agreements between the Borrower and the Company are
hereby expressly limited so that in no contingency or event whatsoever, whether
by reason Maturity of the indebtedness or otherwise, shall the amount paid or
agreed to be paid to the holder for the use, forbearance or detention of the
indebtedness evidenced hereby exceed the maximum amount which the holder is
permitted to receive under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Note, at the time performance
of such provision shall be due, shall involve payments exceeding such amount,
then the obligation to be fulfilled shall automatically be reduced to the limit
of such maximum amount, and if from any circumstances the holder should ever
receive as interest an amount which would exceed such maximum amount, such
amount which would be excessive interest shall be applied to the reduction of
the principal balance evidenced hereby and not to the payment of interest. As
used herein, the term "applicable law" shall mean the law in effect as of the
date hereof; provided, however, that in the event that there is a change in the
law which results in a higher permissible rate of interest, then this Note shall
be governed by such new law as of its effective date. This provision shall
control every other provision of this Note.
10. Governing Law. The execution, delivery and performance of this Note
shall be governed by, construed, and enforced in accordance with the laws of the
State of Texas.
11. Waivers. The failure of the Company at any time to exercise any
option or right hereunder shall not constitute a waiver of the Company's right
to exercise such option or right at any other time.
IN WITNESS WHEREOF, this Note has been executed and delivered as a sealed
instrument as of the date first set forth above.
/s/ LESLIE V. BENTLEY
----------------------------
Leslie V. Bentley
Executed, sealed and delivered in the
presence of:
- ---------------------------------------
Name of Witness:
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EXHIBIT 10.5
EXECUTIVE EMPLOYMENT AGREEMENT
AS AMENDED AND RESTATED
This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is
made as of the 19th day of April, 1999, between Wyndham International, Inc., a
Delaware corporation (the "Company"), and Michael A. Grossman ("Executive").
WHEREAS, Executive has previously had a valued association with Gencom
American Hospitality ("Previous Employer");
WHEREAS, Executive is currently employed by the Company in a senior
executive capacity;
WHEREAS, the Company desires to continue to employ Executive and Executive
desires to continue to be employed by the Company;
WHEREAS, the Company and Executive desire to amend and restate Executive's
existing Executive Employment Agreement with the Company, as set forth herein;
WHEREAS, the Company and Executive acknowledge that regardless of the
provisions of Paragraph 8 of this Agreement, upon the closing of the Securities
Purchase Agreement by and among Patriot American Hospitality, Inc., Wyndham
International, Inc., Patriot American Hospitality, L.P. and the Investors named
therein, all options and other stock-based awards granted to Executive prior to
the date of this Agreement shall immediately accelerate and become exercisable
or non-forfeitable as of such date;
WHEREAS, as an additional inducement to Executive to enter into this
Agreement, the Company shall, on the Commencement Date (as hereinafter defined),
grant Executive an option to purchase a certain number of Paired Shares of
common stock of the Company and of common stock of Patriot American Hospitality,
Inc. as set forth in the agreement attached hereto as Exhibit A (the "Option");
and
WHEREAS, Executive is desirous of committing to serve the Company on the
terms herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment. The term of this Agreement shall extend from the date hereof
(the "Commencement Date") until the third anniversary of the Commencement Date;
provided, however, that the term of this Agreement shall automatically be
extended for one additional year on the third anniversary of the Commencement
Date and each anniversary thereafter unless, not less than 90 days prior to each
such date, either party shall have given notice to the other that it does not
wish to extend this Agreement; provided, further, that if a Change in
<PAGE>
Control occurs during the original or extended term of this Agreement, the term
of this Agreement shall continue in effect for a period of not less than
eighteen (18) months beyond the month in which the Change in Control occurred.
The term of this Agreement shall be subject to termination as provided in
Paragraph 6 and may be referred to herein as the "Period of Employment."
2. Position and Duties. During the Period of Employment, Executive shall serve
as an Executive Vice President of the Company, shall have supervision and
control over and responsibility for the day-to-day business and affairs of those
functions and operations of the Company and shall have such other powers and
duties as may from time to time be prescribed by the Chairman of the Board of
the Company (the "Chairman") or the Chief Executive Officer of the Company (the
"CEO") or other executive authorized by the Chairman or CEO, provided that such
duties are consistent with Executive's position or other positions that he may
hold from time to time. Executive shall devote his full working time and
efforts to the business and affairs of the Company. Notwithstanding the
foregoing, Executive may serve on other boards of directors, with the approval
of the Chairman or CEO, or engage in religious, charitable or other community
activities as long as such services and activities are disclosed to the Chairman
or CEO and do not materially interfere with Executive's performance of his
duties to the Company as provided in this Agreement.
3. Compensation and Related Matters.
(a) Base Salary and Incentive Compensation. Executive's initial annual
base salary ("Base Salary") shall be $270,700.00. Effective July 1, 1999, Base
Salary shall be adjusted to $300,000.00. Executive's Base Salary shall be
redetermined at least thirty (30) days before each annual compensation
determination date established by the Company during the Period of Employment in
an amount to be fixed by the Board of Directors of the Company or a Committee
thereof or a duly authorized officer (the "Board"). The Base Salary, as
redetermined, may be referred to herein as "Adjusted Base Salary." The Base
Salary or Adjusted Base Salary shall be payable in substantially equal bi-weekly
installments and shall in no way limit or reduce the obligations of the Company
hereunder. In addition to Base Salary or Adjusted Base Salary, Executive shall
be eligible to receive cash incentive compensation as determined by the Board
from time to time, and shall also be eligible to participate in such incentive
compensation plans as the Board shall determine from time to time for employees
of the same status within the hierarchy of the Company.
(b) Expenses. Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by him (in accordance with the policies and
procedures then in effect and established by the Company for its senior
executive officers) in performing services hereunder during the Period of
Employment, provided that Executive properly accounts therefor in accordance
with Company policy.
(c) Other Benefits. During the Period of Employment, Executive shall be
entitled to continue to participate in or receive benefits under all of the
Company's Employee Benefit Plans in effect on the date hereof, or under plans or
arrangements that provide Executive with
2
<PAGE>
at least substantially equivalent benefits to those provided under such Employee
Benefit Plans. As used herein, "Employee Benefit Plans" include, without
limitation, each pension and retirement plan; supplemental pension, retirement
and deferred compensation plan; savings and profit-sharing plan; stock ownership
plan; stock purchase plan; stock option plan; life insurance plan; medical
insurance plan; disability plan; and health and accident plan or arrangement
established and maintained by the Company on the date hereof for employees of
the same status within the hierarchy of the Company. To the extent that the
scope or nature of benefits described in this section are determined under the
policies of the Company based in whole or in part on the seniority or tenure of
an employee's service, Executive shall be deemed to have a tenure with the
Company equal to the actual time of Executive's service with Company plus the
actual service by Executive to the Previous Employer. During the Period of
Employment, Executive shall be entitled to participate in or receive benefits
under any employee benefit plan or arrangement which may, in the future, be made
available by the Company to its executives and key management employees, subject
to and on a basis consistent with the terms, conditions and overall
administration of such plan or arrangement. Any payments or benefits payable to
Executive under a plan or arrangement referred to in this Subparagraph 3(c) in
respect of any calendar year during which Executive is employed by the Company
for less than the whole of such year shall, unless otherwise provided in the
applicable plan or arrangement, be prorated in accordance with the number of
days in such calendar year during which he is so employed. Should any such
payments or benefits accrue on a fiscal (rather than calendar) year, then the
proration in the preceding sentence shall be on the basis of a fiscal year
rather than calendar year.
(d) Life Insurance. The Company shall pay the premiums on, and maintain in
effect throughout the Period of Employment, a life insurance policy on the life
of Executive in an amount not less than the amount of Executive's then current
Base Salary or Adjusted Base Salary. Executive shall have the right to
designate the beneficiary under such policy.
(e) Vacations. Executive shall be entitled to the number of paid vacation
days in each calendar year determined by the Company from time to time for
executives at the same level as Executive. Executive shall also be entitled to
all paid holidays given by the Company to its executives. To the extent that
the scope or nature of benefits described in this section are determined under
the policies of the Company based in whole or in part on the seniority or tenure
of an employee's service, Executive shall be deemed to have a tenure with the
Company equal to the actual time of Executive's service with Company plus the
actual service by Executive to the Previous Employer.
(f) Disability Insurance. The Company shall pay the premiums on, and
maintain in effect through the Period of Employment, long-term disability
insurance providing for payment of benefits at rates not less than sixty percent
(60%) of Executive's current Base Salary or Adjusted Base Salary.
3
<PAGE>
4. Unauthorized Disclosure.
(a) Confidential Information. Executive acknowledges that in the course of
his employment with the Company (and, if applicable, its predecessors), he has
been allowed to become, and will continue to be allowed to become, acquainted
with the Company's business affairs, information, trade secrets, and other
matters which are of a proprietary or confidential nature, including but not
limited to the Company's and its predecessors' operations, business
opportunities, price and cost information, finance, customer information,
business plans, various sales techniques, manuals, letters, notebooks,
procedures, reports, products, processes, services, and other confidential
information and knowledge (collectively the "Confidential Information")
concerning the Company's and its predecessors' business. The Company agrees to
provide on an ongoing basis such Confidential Information as the Company deems
necessary or desirable to aid Executive in the performance of his duties.
Executive understands and acknowledges that such Confidential Information is
confidential, and he agrees not to disclose such Confidential Information to
anyone outside the Company except to the extent that (i) Executive deems such
disclosure or use reasonably necessary or appropriate in connection with
performing his duties on behalf of the Company, (ii) Executive is required by
order of a court of competent jurisdiction (by subpoena or similar process) to
disclose or discuss any Confidential Information, provided that in such case,
Executive shall promptly inform the Company of such event, shall cooperate with
the Company in attempting to obtain a protective order or to otherwise restrict
such disclosure, and shall only disclose Confidential Information to the minimum
extent necessary to comply with any such court order; (iii) such Confidential
Information becomes generally known to and available for use by the hotel and
hospitality industry (the "Hotel Industry"), other than as a result of any
action or inaction by Executive; or (iv) such information has been rightfully
received by a member of the Hotel Industry or has been published in a form
generally available to the Hotel Industry prior to the date Executive proposes
to disclose or use such information. Executive further agrees that he will not
during employment and/or at any time thereafter use such Confidential
Information in competing, directly or indirectly, with the Company. At such
time as Executive shall cease to be employed by the Company, he will immediately
turn over to the Company all Confidential Information, including papers,
documents, writings, electronically stored information, other property, and all
copies of them provided to or created by him during the course of his employment
with the Company.
(b) Heirs, successors, and legal representatives. The foregoing provisions
of this Paragraph 4 shall be binding upon Executive's heirs, successors, and
legal representatives. The provisions of this Paragraph 4 shall survive the
termination of this Agreement for any reason.
5. Covenant Not to Compete. In consideration for the Option and for
Executive's employment by the Company under the terms provided in this Agreement
and as a means to aid in the performance and enforcement of the terms of the
Unauthorized Disclosure provisions of Paragraph 4, Executive agrees that
4
<PAGE>
(a) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, as an
owner, director, principal, agent, officer, employee, partner, consultant,
servant, or otherwise, carry on, operate, manage, control, or become involved in
any manner with any business, operation, corporation, partnership, association,
agency, or other person or entity which is in the business of owning, operating,
managing or granting franchise rights with respect to hotels, motels or other
lodging facilities in any area or territory in which the Company conducts
operations; provided, however, that the foregoing shall not prohibit Executive
from owning up to one percent (1%) of the outstanding stock of a publicly held
company engaged in the hospitality business. Notwithstanding the foregoing,
Executive shall be permitted to engage in such activities with respect to any
other hotel, motel or lodging facility that would be immaterial to the
operations of the Company in the area or territory in question. Immateriality,
for purposes of the foregoing sentence, shall be determined in the sole
discretion of the Board in good faith.
(b) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, either
for himself or for any other business, operation, corporation, partnership,
association, agency, or other person or entity, call upon, compete for, solicit,
divert, or take away, or attempt to divert or take away any of the customers
(including, without limitation, any hotel owner, lessor or lessee, asset
manager, trustee, consumer with whom the Company from time to time (i) has an
existing agreement or business relationship; or (ii) has included as a prospect
in its applicable pipeline) or vendors of the Company in any of the areas or
territories in which the Company conducts operations if such action has the
intent or effect of interfering with the Company's relationship with the vendor
or customer.
(c) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not directly or indirectly solicit or
induce any present or future employee of the Company to accept employment with
Executive or with any business, operation, corporation, partnership,
association, agency, or other person or entity with which Executive may be
associated, and Executive will not employ or cause any business, operation,
corporation, partnership, association, agency, or other person or entity with
which Executive may be associated to employ any present or future employee of
the Company without providing the Company with ten (10) days' prior written
notice of such proposed employment.
Should Executive violate the provisions of this Paragraph, then in addition
to all other rights and remedies available to the Company at law or in equity,
the duration of this covenant shall automatically be extended for the period of
time from which Executive began such violation until he permanently ceases such
violation.
6. Termination. Executive's employment hereunder may be terminated without any
breach of this Agreement under the following circumstances:
5
<PAGE>
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If, as a result of Executive's incapacity due to physical
or mental illness, Executive shall have been absent from his duties hereunder on
a full-time basis for one hundred eighty (180) calendar days in the aggregate in
any twelve (12) month period, the Company may terminate Executive's employment
hereunder.
(c) Termination by Company For Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder for Cause
if such termination is approved by not less than a majority of the Board of
Directors of the Company at a meeting of such Board of Directors called and held
for such purpose. For purposes of this Agreement "Cause" shall mean: (A)
conduct by Executive constituting a material act of willful misconduct in
connection with the performance of his duties, including, without limitation,
misappropriation of funds or property of the Company or any of its affiliates
other than the occasional, customary and de minimis use of Company property for
personal purposes; (B) criminal or civil conviction of Executive, a plea of nolo
contendere by Executive or conduct by Executive that would reasonably be
expected to result in material injury to the reputation of the Company if he
were retained in his position with the Company, including, without limitation,
conviction of a felony involving moral turpitude; (C) continued, willful and
deliberate non-performance by Executive of his duties hereunder (other than by
reason of Executive's physical or mental illness, incapacity or disability) and
such non-performance has continued for more than thirty (30) days following
written notice of such non-performance from the Board; (D) a breach by Executive
of any of the provisions contained in Paragraphs 4 and 5 of this Agreement; or
(E) a violation by Executive of the Company's employment policies and such
violation has continued following written notice of such violation from the
Board.
(d) Termination Without Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder without
Cause if such termination is approved by a majority of the Board at a meeting of
the Board called and held for such purpose. Any termination by the Company of
Executive's employment under this Agreement which does not constitute a
termination for Cause under Subparagraph 6(c) or result from the death or
disability of the Executive under Subparagraph 6(a) or (b) shall be deemed a
termination without Cause. If the Company provides notice to the Executive
under Paragraph 1 that it does not wish to extend the Period of Employment, such
action shall be deemed a termination without Cause.
(e) Termination by Executive. At any time during the Period of Employment,
Executive may terminate his employment hereunder for any reason, including but
not limited to Good Reason. If Executive provides notice to the Company under
Paragraph 1 that he does not wish to extend the Period of Employment, such
action shall be deemed a voluntary termination by Executive and one without Good
Reason. For purposes of this Agreement, "Good Reason" shall mean that Executive
has complied with the "Good Reason Process" (hereinafter defined) following the
occurrence of any of the following events: (A) a substantial
6
<PAGE>
diminution or other substantive adverse change, not consented to by Executive,
in the nature or scope of Executive's responsibilities, authorities, powers,
functions or duties, other than a change in Executive's position or reporting
relationship; (B) any removal, during the Period of Employment, from Executive
of his title of Executive Vice President; (C) an involuntary reduction in
Executive's Base Salary or Adjusted Base Salary or involuntary reduction in cash
incentive compensation plan (but not reduction in incentive compensation
appropriate for level of performance) except for across-the-board salary
reductions similarly affecting all or substantially all management employees;
(D) a breach by the Company of any of its other material obligations under this
Agreement and the failure of the Company to cure such breach within thirty (30)
days after written notice thereof by Executive; (E) the involuntary relocation
of the Company's offices at which Executive is principally employed or the
involuntary relocation of the offices of Executive's primary workgroup to a
location more than thirty (30) miles from such offices (other than a relocation
in either event to Dallas, Texas), or the requirement by the Company for
Executive to be based anywhere other than the Company's offices at such location
or in Dallas, Texas on an extended basis, except for required travel on the
Company's business to an extent substantially consistent with Executive's
business travel obligations; or (F) the requirement that Executive report to a
person who is below the level of an Executive Vice President. "Good Reason
Process" shall mean that (i) the Executive reasonably determines in good faith
that a "Good Reason" event has occurred; (ii) Executive notifies the Company in
writing of the occurrence of the Good Reason event; (iii) Executive cooperates
in good faith with the Company's efforts, for a period not less than ninety (90)
days following such notice, to modify Executive's employment situation in a
manner acceptable to Executive and Company; and (iv) notwithstanding such
efforts, one or more of the Good Reason events continues to exist and has not
been modified in a manner acceptable to Executive. If the Company cures the Good
Reason event during the ninety (90) day period, Good Reason shall be deemed not
to have occurred.
(f) Notice of Termination. Except for termination as specified in
Subparagraph 6(a), any termination of Executive's employment by the Company or
any such termination by Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(g) Date of Termination. "Date of Termination" shall mean: (A) if
Executive's employment is terminated by his death, the date of his death; (B) if
Executive's employment is terminated on account of disability under Subparagraph
6(b) or by the Company for Cause under Subparagraph 6(c), the date on which
Notice of Termination is given; (C) if Executive's employment is terminated by
the Company under Subparagraph 6(d), sixty (60) days after the date on which a
Notice of Termination is given; and (D) if Executive's employment is terminated
by Executive under Subparagraph 6(e), thirty (30) days after the date on which a
Notice of Termination is given.
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<PAGE>
7. Compensation Upon Termination or During Disability.
(a) If Executive's employment terminates by reason of his death, the
Company shall, within ninety (90) days of death, pay in a lump sum amount to
such person as Executive shall designate in a notice filed with the Company or,
if no such person is designated, to Executive's estate, Executive's accrued and
unpaid Base Salary or, if applicable, his Adjusted Base Salary, to the date of
his death, plus his accrued and unpaid incentive compensation, if any, under
Subparagraph 3(a). For a period of one (1) year following the Date of
Termination, the Company shall pay such health insurance premiums as may be
necessary to allow Executive's spouse and dependents to receive health insurance
coverage substantially similar to coverage they received prior to the Date of
Termination. In addition to the foregoing, any payments to which Executive's
spouse, beneficiaries, or estate may be entitled under any employee benefit plan
shall also be paid in accordance with the terms of such plan or arrangement.
Such payments, in the aggregate, shall fully discharge the Company's obligations
hereunder.
(b) During any period that Executive fails to perform his duties hereunder
as a result of incapacity due to physical or mental illness, Executive shall
continue to receive his accrued and unpaid Base Salary or, if applicable, his
Adjusted Base Salary and accrued and unpaid incentive compensation payments, if
any, under Subparagraph 3(a), until Executive's employment is terminated due to
disability in accordance with Subparagraph 6(b) or until Executive terminates
his employment in accordance with Subparagraph 6(e), whichever first occurs.
For a period of one (1) year following the Date of Termination, the Company
shall pay such health insurance premiums as may be necessary to allow Executive,
Executive's spouse and dependents to receive health insurance coverage
substantially similar to coverage they received prior to the Date of
Termination. Upon termination due to death prior to the termination first to
occur as specified in the preceding sentence, Subparagraph 7(a) shall apply.
(c) If Executive's employment is terminated by Executive other than for
Good Reason as provided in Subparagraph 6(e), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given. Thereafter, the Company shall have no further obligations
to Executive except as otherwise expressly provided under this Agreement,
provided any such termination shall not adversely affect or alter Executive's
rights under any employee benefit plan of the Company in which Executive, at the
Date of Termination, has a vested interest, unless otherwise provided in such
employee benefit plan or any agreement or other instrument attendant thereto.
(d) If Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e) or if Executive's employment is terminated by the Company
without Cause as provided in Subparagraph 6(d), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given and his accrued and unpaid
8
<PAGE>
incentive compensation, if any, under Subparagraph 3(a). In addition, subject to
signing by Executive of a general release of claims in a form and manner
satisfactory to the Company,
(i) the Company shall continue Executive's compensation at a rate
equal to the sum of Executive's Average Base Salary and his Average
Incentive Compensation payable for the remaining length of the Period of
Employment after the Date of Termination (the "Severance Amount"), but in
no event for fewer than twenty-four (24) months. The Severance Amount
shall be paid out in substantially equal bi-weekly installments, in
arrears; provided, however, that in the event Executive commences any
employment during such period, the Company shall be entitled to set-off
against the remaining Severance Amount seventy-five percent (75%) of the
amount of any cash compensation received by Executive from the new
employer. From time to time, Executive may be asked to certify to the
Company that he has not accepted employment with a new employer (including,
without limitation, contract and consulting agreements). For purposes of
this Agreement, "Average Base Salary" shall mean the average of the annual
Base Salary or, if applicable, Adjusted Base Salary received by Executive
for each of the three (3) immediately preceding fiscal years or such fewer
number of complete fiscal years as Executive may have been employed by the
Company and the Previous Employer. For purposes of this Agreement,
"Average Incentive Compensation" shall mean the average of the annual
incentive compensation under Subparagraph 3(a) received by Executive for
the three (3) immediately preceding fiscal years or such fewer number of
complete fiscal years as Executive may have been employed by the Company
and the Previous Employer. In no event shall "Average Incentive
Compensation" include any sign-on bonus, retention bonus or any other
special bonus. Notwithstanding the foregoing, if the Executive breaches
any of the provisions contained in Paragraphs 4 and 5 of this Agreement,
all payments of the Severance Amount shall immediately cease.
Notwithstanding the foregoing, in the event Executive terminates his
employment for Good Reason as provided in Subparagraph 6(e), he shall be
entitled to the Severance Amount only if he provides the Notice of
Termination provided for in Subparagraph 6(f) within thirty (30) days after
the occurrence of the event or events which constitute such Good Reason as
specified in clauses (A), (B), (C), (D), (E) and (F) of Subparagraph 6(e);
(ii) in addition to any other benefits to which Executive may be
entitled in accordance with the Company's then existing severance policies,
the Company shall, for a period of one (1) year commencing on the Date of
Termination, pay such health insurance premiums as may be necessary to
allow Executive, Executive's spouse and dependents to continue to receive
health insurance coverage substantially similar to the coverage they
received prior to his termination of employment.
(e) If Executive's employment is terminated by the Company for Cause as
provided in Subparagraph 6(c), then the Company shall, through the Date of
Termination, pay Executive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary at the rate in effect at the time Notice of Termination
is given. Thereafter, the Company shall have no
9
<PAGE>
further obligations to Executive except as otherwise expressly provided under
this Agreement, provided any such termination shall not adversely affect or
alter Executive's rights under any employee benefit plan of the Company in which
Executive, at the Date of Termination, has a vested interest, unless otherwise
provided in such employee benefit plan or any agreement or other instrument
attendant thereto.
(f) Regardless of the reason for termination, for a period of five (5)
years beginning on the Date of Termination, the Company will provide such
reasonable assistance and support to Executive as he shall reasonably require in
connection with the preparation and filing of tax returns, statements and forms
insofar as such returns, statements or forms relate to Executive's association
with the Company or any of its predecessors or affiliates. At the Company's
election, such assistance and support shall be provided by either tax personnel
from the Company or certified public accountants selected and compensated by the
Company.
(g) Nothing contained in the foregoing Subparagraphs 7(a) through 7(f)
shall be construed so as to affect Executive's rights or the Company's
obligations relating to agreements or benefits which are unrelated to
termination of employment.
8. Change in Control Payment. The provisions of this Paragraph 8 set forth
certain terms of an agreement reached between Executive and the Company
regarding Executive's rights and obligations upon the occurrence of a Change in
Control of the Company. These provisions are intended to assure and encourage
in advance Executive's continued attention and dedication to his assigned duties
and his objectivity during the pendency and after the occurrence of any such
event. These provisions shall apply in lieu of, and expressly supersede, the
provisions of Subparagraph 7(d)(i) regarding severance pay upon a termination of
employment, if such termination of employment occurs within eighteen (18) months
after the occurrence of the first event constituting a Change of Control;
provided that such first event occurs during the Period of Employment. These
provisions shall terminate and be of no further force or effect beginning
eighteen (18) months after the occurrence of a Change of Control.
(a) Change in Control.
(i) If within eighteen (18) months after the occurrence of the first
event constituting a Change in Control, Executive's employment is
terminated by the Company without Cause as provided in Subparagraph 6(d) or
Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e), then the Company shall pay Executive the Severance
Amount as provided in Subparagraph 7(d)(i) in substantially bi-weekly
installments, in arrears, over twenty-four (24) months. Notwithstanding
the foregoing, if the Executive breaches any of the provisions contained in
Paragraphs 4 and 5 of this Agreement, all payments of the Severance Amount
shall immediately cease; and
(ii) Within fifteen (15) days after Executive becomes entitled to
receive the Severance Amount under (i) above, the Company shall place funds
in an amount equal
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<PAGE>
to the estimated Severance Amount in escrow, pursuant to arrangements that
are mutually acceptable to the Company and Executive (the "Escrow
Arrangement"). The Escrow Arrangement shall be maintained until the final
installment payment of the Severance Amount has been made;
(iii) Notwithstanding anything to the contrary in any applicable
option agreement or stock-based award agreement, if Executive terminates
his employment for Good Reason as provided in Subparagraph 6(e) or if
Executive's employment is terminated by the Company without Cause as
provided in Subparagraph 6(d) within eighteen (18) months of a Change in
Control, all stock options and other stock-based awards granted to
Executive by the Company shall immediately accelerate and become
exercisable or non-forfeitable as of the Date of Termination, and Executive
shall have 360 days to exercise all his stock options. Executive shall
also be entitled to any other rights and benefits with respect to stock-
related awards, to the extent and upon the terms provided in the employee
stock option or incentive plan or any agreement or other instrument
attendant thereto pursuant to which such options or awards were granted;
and
(iv) The Company shall, for a period of one (1) year commencing on the
Date of Termination, pay such health insurance premiums as may be necessary
to allow Executive, Executive's spouse and dependents to continue to
receive health insurance coverage substantially similar to the coverage
they received prior to his termination of employment.
(b) Gross Up Payment.
(i) Excess Parachute Payment. If Executive incurs the tax (the
"Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986
(the "Code") on "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code, the Company will pay to Executive an amount (the
"Gross Up Payment") such that the net amount retained by Executive, after
deduction of any Excise Tax on the excess parachute payment and any
federal, state and local income taxes and employment taxes (together with
penalties and interest) and Excise Tax upon the payment provided for by
this Subparagraph 8(c)(i), will be equal to the Severance Amount.
(ii) Applicable Rates. For purposes of determining the amount of the
Gross Up Payment, Executive will be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar year
in which the Gross Up Payment is to be made and state and local income
taxes at the highest marginal rates of taxation in the state and locality
of Executive's residence on the date of Executive's Termination, net of the
maximum reduction in federal income taxes that could be obtained from
deduction of such state and local taxes.
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(iii) Determination of Gross Up Payment Amount. The determination of
whether the Excise Tax is payable and the amount thereof will be based upon
the opinion of tax counsel selected by Executive and approved by the
Company, which approval will not be unreasonably withheld. If such opinion
is not finally accepted by the Internal Revenue Service (or state and local
taxing authorities), then appropriate adjustments to the Excise Tax will be
computed and additional Gross Up Payments will be made in the manner
provided by this Subparagraph (c).
(iv) Time For Payment. The Company will pay the estimated amount of
the Gross Up Payment in cash to Executive at such time or times when the
Excise Tax is due. Executive and the Company agree to reasonably cooperate
in the determination of the actual amount of the Gross Up Payment.
Further, Executive and the Company agree to make such adjustments to the
estimated amount of the Gross Up Payment as may be necessary to equal the
actual amount of the Gross Up Payment, which in the case of Executive will
refer to refunds of prior overpayments and in the case of the Company will
refer to makeup of prior underpayments.
(c) Definitions. For purposes of this Paragraph 8, the following terms
shall have the following meanings:
"Change in Control" shall mean any of the following:
(a) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (the
"Acquiring Person"), other than the Company, or any of its Subsidiaries or
any Investor or Excluded Group, of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of the
combined voting power or economic interests of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors; provided, however, that any transfer from any Investor or
Excluded Group will not result in a Change in Control if such transfer was
part of a series of related transactions the effect of which, absent the
transfer to such Acquiring Person by the Investor or Excluded Group, would
not have resulted in the acquisition by such Acquiring Person of 35% or
more of the combined voting power or economic interests of the then
outstanding voting securities; or
(b) during any period of 12 consecutive months after the Issuance
Date, the individuals who at the beginning of any such 12-month period
constituted a majority of the Class A Directors and Class C Directors (the
"Incumbent Non-Investor Majority") cease for any reason to constitute at
least a majority of such Class A Directors and Class C Directors; provided
that (i) any individual becoming a director whose election, or nomination
for election by the Company's stockholders, was approved by a vote of the
stockholders having the right to designate such director and (ii) any
director whose election to the Board or whose nomination for election by
the stockholders of the Company was approved by the requisite vote of
directors entitled to vote on such
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<PAGE>
election or nomination in accordance with the Restated Certificate of
Incorporation of the Company, shall, in each such case, be considered as
though such individual were a member of the Incumbent Non-Investor
Majority, but excluding, as a member of the Incumbent Non-Investor
Majority, any such individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of the Company (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) and further
excluding any person who is an affiliate or associate of an Acquiring
Person having or proposing to acquire beneficial ownership of 25% or more
of the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors; or
(c) the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who were the
respective beneficial owners of the voting securities of the Company
immediately prior to such reorganization, merger or consolidation do not,
following such reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 57.5% of the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of directors of the Company resulting from such reorganization,
merger or consolidation; or
(d) the sale or other disposition of assets representing 50% or more
of the assets of the Company in one transaction or series of related
transactions.
All defined terms used in the definition of "Change in Control" shall have
the same meaning as set forth in the Form of Certificate of Designation of
Series B Convertible Preferred Stock of Wyndham International, Inc.
"Company" shall mean not only Wyndham International, Inc., but also
its successors by merger or otherwise.
9. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
if to the Executive:
At his home address as shown
in the Company's personnel records;
13
<PAGE>
if to the Company:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
Attention: Senior Vice President of Human Resources and General
Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10. Miscellaneous. No provisions of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Texas (without regard to principles of
conflicts of laws).
11. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. The invalid portion of this Agreement, if any, shall be modified by any
court having jurisdiction to the extent necessary to render such portion
enforceable.
12. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
13. Arbitration; Other Disputes. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the applicable rules of the American Arbitration Association before
resorting to arbitration. In the event such dispute or controversy remains
unresolved in whole or in part for a period of thirty (30) days after it arises,
the parties will settle any remaining dispute or controversy exclusively by
arbitration in Dallas, Texas, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding the above,
the Company shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
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<PAGE>
Paragraph 4 or 5 hereof. Furthermore, should a dispute occur concerning
Executive's mental or physical capacity as described in Subparagraph 6(b), 6(c)
or 7(b), a doctor selected by Executive and a doctor selected by the Company
shall be entitled to examine Executive. If the opinion of the Company's doctor
and Executive's doctor conflict, the Company's doctor and Executive's doctor
shall together agree upon a third doctor, whose opinion shall be binding. Any
amount to which Executive is entitled under this Agreement (including any
disputed amount), which is not paid when due, shall bear interest at a rate
equal to the lesser of eighteen percent (18%) per annum or the maximum lawful
rate.
14. Third-Party Agreements and Rights. Executive represents to the Company
that Executive's execution of this Agreement, Executive's employment with the
Company and the performance of Executive's proposed duties for the Company will
not violate any obligations Executive may have to any employer or other party,
and Executive will not bring to the premises of the Company any copies or other
tangible embodiments of non-public information belonging to or obtained from any
such previous employment or other party.
15. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company;
provided, however, that such cooperation shall not materially and adversely
affect Executive or expose Executive to an increased probability of civil or
criminal litigation. Executive's cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after Executive's
employment, Executive also shall cooperate fully with the Company in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Executive was employed by the Company. The Company shall
also provide Executive with compensation on an hourly basis (to be derived from
the sum of his Base Compensation or, if applicable, Adjusted Base Salary and
Average Incentive Compensation) for requested litigation and regulatory
cooperation that occurs after his termination of employment, and reimburse
Executive for all costs and expenses incurred in connection with his performance
under this Paragraph 15, including, but not limited to, reasonable attorneys'
fees and costs.
16. Gender Neutral. Wherever used herein, a pronoun in the masculine gender
shall be considered as including the feminine gender unless the context clearly
indicates otherwise.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year first above written.
WYNDHAM INTERNATIONAL, INC.
By:_______________________________
Its:_______________________________
_______________________________
Michael A. Grossman
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<PAGE>
Exhibit A
WYNDHAM INTERNATIONAL, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Dated as of April 19, 1999
Wyndham International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby grants to Michael A. Grossman, an Employee of
the Company (the "Optionee"), as of April 19, 1999 (the "Date of Grant"), a non-
qualified option (the "Option") to purchase from the Company 400,000 Paired
Shares, at the price of $5.00 per Paired Share, subject to the terms and
conditions set forth below. Such grant is pursuant to the Wyndham International,
Inc. 1997 Incentive Plan (the "Plan") and is made as an inducement to Optionee
to enter into the Employment Agreement between Optionee and the Company of even
date herewith (the "Employment Agreement").
1. Option Subject to Acceptance of Option Agreement and Employment Agreement.
The Option may not be exercised unless the Optionee accepts this Option
Agreement and the Employment Agreement by executing both the Option
Agreement and the Employment Agreement and returning such original
execution copies to the Company.
2. Time and Manner of Exercise of Option.
a. Maximum Term of Option. The Expiration Date of this Option is the date
that is ten years from the Date of Grant. This Option may not be
exercised on or after the Expiration Date.
b. Vesting Schedule. No portion of this Option may be exercised until
such portion shall have vested. Except as set forth in Section 3 of
this Agreement, this Option shall be vested and exercisable with
respect to the following number of Paired Shares on the date indicated
below provided that Optionee remains employed by the Company on such
date:
===============================================
Vesting Schedule A
===============================================
Number of Paired
Shares Exercisable Vesting Date
-----------------------------------------------
400,000 (100%) February 13, 2009
===============================================
Notwithstanding the foregoing, upon the closing (the "Closing") of the
Securities Purchase Agreement (the "Securities Purchase Agreement") by
and among Patriot American Hospitality, Inc., Wyndham International,
Inc., Patriot American Hospitality Partnership, L.P. and the
Investors named therein dated as of February 28, 1999, as amended from
time to time, the foregoing vesting
<PAGE>
schedule shall not apply and except as set forth in Section 3 of this
Agreement, this Option shall be vested and exercisable with respect to
the following number of Paired Shares on the dates indicated below
provided that Optionee remains employed by the Company on such dates:
===============================================
Vesting Schedule B
===============================================
Number of Paired
Shares Exercisable Vesting Date
-----------------------------------------------
80,000 (20%) 1 year after Date of Grant
-----------------------------------------------
80,000 (20%) 2 years after Date of Grant
-----------------------------------------------
80,000 (20%) 3 years after Date of Grant
-----------------------------------------------
80,000 (20%) 4 years after Date of Grant
-----------------------------------------------
80,000 (20%) 5 years after Date of Grant
===============================================
In the event of a Change in Control of the Company (as defined in the
Employment Agreement), if within 18 months of such Change in Control,
the Optionee's employment with the Company is terminated by the
Company without Cause (as defined in the Employment Agreement) or for
Good Reason (as defined in the Employment Agreement)), any unvested
portions of this Option shall fully vest and become exercisable.
Notwithstanding the foregoing, the purchase of securities by the
Investors pursuant to the Securities Purchase Agreement shall not be
deemed to be a Change in Control.
A partial exercise of this Option shall not affect Optionee's right to
exercise this Option with respect to the remaining Paired Shares.
c. Method of Exercise of Option. Subject to the limitations set forth in
this Agreement, the Option may be exercised by the Optionee (1) by
giving written notice to the Company specifying the number of whole
Paired Shares to be purchased and accompanied by payment of the Option
price in full (or arrangement made for such payment to the Company's
satisfaction) either (i) in cash or cash equivalent acceptable to the
Committee, (ii) in previously owned Paired Shares (which the Optionee
has held for at least six months prior to the delivery of such Paired
Shares or which the Optionee purchased on the open market and for
which the Optionee has good title, free and clear of all liens and
encumbrances) having a Fair Market Value, determined as of the date of
exercise, equal to the aggregate purchase price payable pursuant to
the Option by reason of such exercise, (iii) in cash or a check
payable and acceptable to the Company by a broker-dealer acceptable to
the Company to whom the Optionee has submitted an irrevocable notice
of exercise or (iv) a combination of two or
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<PAGE>
more of the foregoing, and (2) by executing such documents as the
Company may reasonably request. Any fraction of a Paired Share which
would be required to pay such purchase price shall be disregarded and
the remaining amount due shall be paid in cash by the Optionee.
The delivery of certificates representing the Paired Shares subject to
the Option will be contingent upon the Company's receipt from Optionee
of (1) full payment of the Option price, as set forth above, and (2)
any agreement, statement or other evidence that the Company may
require to satisfy itself that the issuance of Paired Shares to be
purchased pursuant to the exercise of the Option and the subsequent
resale of Paired Shares will be in compliance with applicable laws and
regulations.
3. Exercise After Termination of Employment. If the Optionee's employment by
the Company or an Affiliate is terminated, the period within which to
exercise the Option may be subject to earlier termination as set forth
below. The Board's determination of the reason for termination of the
Optionee's employment shall be conclusive and binding on the Optionee and
his or her legal representatives or legatees. Any transfer of employment
from the Company to any Affiliate of the Company shall not be deemed to be
a termination of employment for purposes of this Agreement.
a. Termination Due to Death. If, on or after the Closing, the Optionee's
employment terminates by reason of death, the Option held by the
Optionee shall vest and become exercisable in accordance with the
Vesting Schedule B as set forth in Section 2(b), plus an additional
number of Paired Shares that would have vested on the next vesting
anniversary date. The Optionee's legal representative or legatee may
exercise the Option to the extent exercisable in accordance with this
Section 3(a), for a period of 360 days from the date of death or until
the Expiration Date, if earlier. Any portion of the Option that is not
exercisable at the time of death shall terminate immediately and be of
no further force or effect.
Notwithstanding the foregoing, if the Optionee's employment terminates
by reason of death on or after the Date of Grant but before the
Closing, the Option held by the Optionee shall vest and become
exercisable in accordance with Vesting Schedule A as set forth in
Section 2(b).
b. Termination Due to Disability. If, on or after the Closing, the
Optionee's employment terminates by reason of incapacity due to
physical or mental illness which resulted in his or her absence from
his or her duties with the Company on a full-time basis for 180
calendar days in the aggregate in any 12-month period, the Option held
by the Optionee shall vest and become exercisable in accordance with
the Vesting Schedule B as set forth in Section 2(b), plus an
additional number of Paired Shares that would have vested on the next
vesting anniversary
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<PAGE>
date. The Optionee may exercise the Option to the extent exercisable
in accordance with this Section 3(b), for a period of 360 days from
the date of termination of employment or until the Expiration Date, if
earlier. Any portion of the Option that is not exercisable upon
termination of employment shall terminate immediately and be of no
further force or effect.
Notwithstanding the foregoing, if, on or after the Date of Grant but
before the Closing, the Optionee's employment terminates by reason of
incapacity due to physical or mental illness which resulted in his or
her absence from his or her duties with the Company on a full-time
basis for 180 calendar days in the aggregate in any 12-month period,
the Option held by the Optionee shall vest and become exercisable in
accordance with Vesting Schedule A as set forth in Section 2(b).
c. Termination without Cause or for Good Reason. If, on or after the
Closing, the Optionee's employment is terminated by the Company
without Cause (as defined in the Employment Agreement) or the Optionee
resigns from the Company for Good Reason (as defined in the Employment
Agreement), the Option held by the Optionee shall continue to vest and
become exercisable in accordance with the Vesting Schedule B as set
forth in Section 2(b) for an additional 24 months. The Optionee may
exercise the Option, to the extent exercisable in accordance with this
Section 3(c), for a period of 360 days after the end of the 24-month
period or until the Expiration Date, if earlier. Any portion of the
Option that is not exercisable at the end of 24 months following
termination of employment shall terminate immediately and be of no
further force or effect.
Notwithstanding the foregoing, if Optionee breaches any of the
provisions contained in Paragraph 4 or 5 of the Employment Agreement,
(i) any portion of the Option that vested or will vest by virtue of
this Section 3(c) shall immediately terminate and be of no force and
effect, and (ii) to the extent any portion of the Option that vested
by virtue of this Section 3(c) has been exercised, Optionee shall be
required to disgorge to the Company the difference between the fair
market value per Paired Share on the date of exercise and the Option
price per Paired Share, multiplied by the number of Paired Shares
acquired by Optionee.
Furthermore, notwithstanding the foregoing, if the Optionee's
employment is terminated by the Company without Cause (as defined in
the Employment Agreement) or the Optionee resigns from the Company for
Good Reason (as defined in the Employment Agreement) on or after the
Date of Grant but before the Closing or a Change in Control, the
Option held by the Optionee shall vest and become exercisable in
accordance with Vesting Schedule A as set forth in Section 2(b).
4
<PAGE>
d. Termination for Cause. If the Optionee's employment is terminated for
Cause (as defined in the Employment Agreement), the Option held by the
Optionee shall terminate immediately and be of no further force and
effect.
e. Other Termination. If the Optionee's employment terminates for any
reason not covered in Subsections (a), (b), (c) or (d) of this Section
3, the Option held by the Optionee may be exercised, to the extent
exercisable on the date of termination pursuant to the applicable
vesting schedule in Section 2(b), for a period of three (3) months
from the date of termination or until the Expiration Date, if
earlier. Any portion of the Option that is not exercisable at such
time shall terminate immediately and be of no further force or effect.
4. Incorporation of Plan. Notwithstanding anything herein to the contrary,
this Option shall be subject to and governed by all the terms and
conditions of the Plan. Capitalized terms in this Agreement shall have the
meaning specified in the Plan, unless a different meaning is specified
herein. All references herein to the Plan shall mean the Plan in effect as
of the date hereof. In the event of any conflict between the provisions in
the Plan and the provisions in this Agreement, the provisions of the Plan
shall govern.
5 . Additional Terms and Conditions of Option.
a. Nontransferability of Option. This Agreement is personal to the
Optionee, is non-assignable and is not transferable in any manner, by
operation of law or otherwise, other than by will or the laws of
descent and distribution. This Option is exercisable, during the
Optionee's lifetime, only by the Optionee, and thereafter only by the
Optionee's legal representative or legatee.
b. Delivery of Certificates. Upon the exercise of the Option, in whole or
in part, the Company shall deliver or cause to be delivered one or
more certificates representing the number of Paired Shares purchased
against full payment therefor. The Company shall pay all original
issue or transfer taxes and all fees and expenses incident to such
delivery.
c. Option Confers No Rights as Stockholder. The Optionee shall not be
entitled to any privileges of ownership with respect to Paired Shares
subject to the Option unless and until purchased and delivered upon
the exercise of the Option, in whole or in part, and the Optionee
becomes a stockholder of record with respect to such delivered Paired
Shares; and the Optionee shall not be considered a stockholder of the
Company with respect to any such Paired Shares not so purchased and
delivered.
d. Decisions of Committee. The Committee shall have the right to resolve
all questions which may arise in connection with the Option or its
exercise. Any
5
<PAGE>
interpretation, determination or other action made or taken by the
Committee regarding this Agreement shall be final, binding and
conclusive.
e. Reservation of Paired Shares. The Company shall at all times prior to
the expiration or termination of the Option reserve or cause to be
reserved and keep or cause to be kept available, either in its
treasury or out of its authorized but unissued shares of common stock,
the full number of shares of common stock of the Company subject to
the Option from time to time. In addition, pursuant to Section 2(c) of
the Pairing Agreement, the Company shall request Patriot American
Hospitality, Inc. to issue the number of shares of common stock of
Patriot American Hospitality, Inc. subject to the Option so that the
Optionee shall receive Paired Shares upon exercise of the Option.
f. Change in Capital Structure. The terms of this Option shall be
adjusted as the Committee determines is equitably required in the
event the Company effects one or more stock dividends, stock split-
ups, subdivisions or consolidations of shares or other similar changes
in capitalization.
g. Fractional Shares. Fractional shares shall not be issuable hereunder,
and when any provision hereof may entitle Optionee to a fractional
share such fraction shall be disregarded.
6. Tax Withholding. The Optionee shall, not later than the date as of which
the exercise of this Option becomes a taxable event for Federal income tax
purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any Federal, state, and local taxes required by
law to be withheld on account of such taxable event. Subject to the
approval of the Committee, the Optionee may elect to have such tax
withholding obligation satisfied, in whole or in part, by (i) authorizing
the Company to withhold from Paired Shares to be issued, or (ii)
transferring to the Company a number of previously owned whole Paired
Shares (which the Optionee has held for at least six months prior to the
delivery of such Paired Shares or which the Optionee purchased on the open
market and for which the Optionee has good title, free and clear of all
liens and encumbrances) having an aggregate Fair Market Value, determined
as of the date of exercise, that would satisfy the withholding amount due.
7. Miscellaneous Provisions.
a. Designation as Non-qualified Stock Option. The Option is hereby
designated as not constituting an "incentive stock option" within the
meaning of section 422 of the Code. This Agreement shall be
interpreted and treated consistently with such designation.
b. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person
or persons who
6
<PAGE>
shall, upon the death of the Optionee, acquire any rights hereunder in
accordance with this Agreement or the Plan.
c. Notices. All notices, requests or other communications provided for in
this Agreement shall be made, if to the Company, to the Secretary of
the Company at the Company's principal executive office, and if to the
Optionee, to his or her address on the books of the Company (or to
such other address as the Company or the Optionee may give to the
other for purposes of notice hereunder).
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to
the party entitled thereto, (b) by facsimile with confirmation of
receipt, (c) by mailing in the United States mail to the last known
address of the party entitled thereto or (d) by express courier
service. The notice, request or other communication shall be deemed to
be received upon personal delivery, upon confirmation of receipt of
facsimile transmission or upon receipt by the party entitled thereto
if by United States mail or express courier service; provided,
however, that if a notice, request or other communication in not
received during regular business hours, it shall be deemed to be
received on the next succeeding business day of the Company.
d. Governing Law. This Agreement and all determinations made and actions
taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State
of Delaware and construed in accordance therewith without giving
effect to principles of conflicts of laws.
e. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
f. Further Assurances. The Company and the Optionee shall execute and
deliver such further instruments and take such additional action as
each party may reasonably request to effect, consummate, confirm or
evidence the grant of the Option to the Optionee, and they shall each
execute such documents as may be reasonably necessary to assist each
other in preserving or perfecting their respective rights in the
Option.
g. No Right to Continued Employment. This Agreement does not confer upon
Optionee any right to continue in the employ of the Company or an
Affiliate,
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nor shall it interfere in any way with the right of the Company or an
Affiliate to terminate such employment at any time.
WYNDHAM INTERNATIONAL, INC.
By: /s/ James D. Carreker
-------------------------------
Title:
-------------------------------
Accepted this ____ day of _____________, 1999.
/s/ Michael A. Grossman
- ------------------------------------
Name: Michael A. Grossman
"Optionee"
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EXHIBIT 10.6
EXECUTIVE EMPLOYMENT AGREEMENT
AS AMENDED AND RESTATED
This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is
made as of the 19th day of April, 1999, between Wyndham International, Inc., a
Delaware corporation (the "Company"), and Stanley M. Koonce, Jr. ("Executive").
WHEREAS, Executive is currently employed by the Company in a senior
executive capacity;
WHEREAS, the Company desires to continue to employ Executive and Executive
desires to continue to be employed by the Company;
WHEREAS, the Company and Executive desire to amend and restate Executive's
existing Executive Employment Agreement with the Company to make certain changes
therein and to eliminate the requirement of an escrow arrangement upon a Change
in Control of the Company;
WHEREAS, the Company and Executive acknowledge that regardless of the
provisions of Paragraph 8 of this amended and restated Agreement, upon the
closing of the Securities Purchase Agreement by and among Patriot American
Hospitality, Inc., Wyndham International, Inc., Patriot American Hospitality,
L.P. and the Investors named therein, all options and other stock-based awards
granted to Executive prior to the date of this Agreement shall immediately
accelerate and become exercisable or non-forfeitable as of such date;
WHEREAS, as an additional inducement to Executive to enter into this
amended and restated Agreement, the Company shall, on the Commencement Date (as
hereinafter defined), grant Executive an option to purchase a certain number of
Paired Shares of common stock of the Company and of common stock of Patriot
American Hospitality, Inc. as set forth in the agreement attached hereto as
Exhibit A (the "Option") and to enter into a new promissory note attached hereto
as Exhibit B (the "Note"); and
WHEREAS, Executive is desirous of committing to serve the Company on the
terms herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment. The term of this Agreement shall extend from the date hereof
(the "Commencement Date") until the third anniversary of the Commencement Date;
provided, however, that the term of this Agreement shall automatically be
extended for one additional year on the third anniversary of the Commencement
Date and each anniversary thereafter unless, not less than 90 days prior to each
such date, either party shall have given notice to the other that it does not
wish to extend this Agreement; provided, further, that if a Change in Control
occurs during the original or extended term of this Agreement, the term of this
Agreement shall continue in effect for a period of not less than eighteen (18)
months beyond the month in which the
<PAGE>
Change in Control occurred. The term of this Agreement shall be subject to
termination as provided in Paragraph 6 and may be referred to herein as the
"Period of Employment."
2. Position and Duties. During the Period of Employment, Executive shall serve
as an Executive Vice President of the Company, shall have supervision and
control over and responsibility for the day-to-day business and affairs of those
functions and operations of the Company and shall have such other powers and
duties as may from time to time be prescribed by the Chairman of the Board of
the Company (the "Chairman") or the Chief Executive Officer of the Company (the
"CEO") or other executive authorized by the Chairman or CEO, provided that such
duties are consistent with Executive's position or other positions that he may
hold from time to time. Executive shall devote his full working time and efforts
to the business and affairs of the Company. Notwithstanding the foregoing,
Executive may serve on other boards of directors, with the approval of the
Chairman or CEO, or engage in religious, charitable or other community
activities as long as such services and activities are disclosed to the Chairman
or CEO and do not materially interfere with Executive's performance of his
duties to the Company as provided in this Agreement.
3. Compensation and Related Matters.
(a) Base Salary and Incentive Compensation. Executive's initial annual
base salary ("Base Salary") shall be $315,000.00. Executive's Base Salary shall
be redetermined at least thirty (30) days before each annual compensation
determination date established by the Company during the Period of Employment in
an amount to be fixed by the Board of Directors of the Company or a Committee
thereof or a duly authorized officer (the "Board"). The Base Salary, as
redetermined, may be referred to herein as "Adjusted Base Salary." The Base
Salary or Adjusted Base Salary shall be payable in substantially equal bi-weekly
installments and shall in no way limit or reduce the obligations of the Company
hereunder. In addition to Base Salary or Adjusted Base Salary, Executive shall
be eligible to receive cash incentive compensation as determined by the Board
from time to time, and shall also be eligible to participate in such incentive
compensation plans as the Board shall determine from time to time for employees
of the same status within the hierarchy of the Company.
(b) Expenses. Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by him (in accordance with the policies and
procedures then in effect and established by the Company for its senior
executive officers) in performing services hereunder during the Period of
Employment, provided that Executive properly accounts therefor in accordance
with Company policy.
(c) Other Benefits. During the Period of Employment, Executive shall be
entitled to continue to participate in or receive benefits under all of the
Company's Employee Benefit Plans in effect on the date hereof, or under plans or
arrangements that provide Executive with at least substantially equivalent
benefits to those provided under such Employee Benefit Plans. As used herein,
"Employee Benefit Plans" include, without limitation, each pension and
retirement plan; supplemental pension, retirement and deferred compensation
plan; savings and profit-sharing plan; stock ownership plan; stock purchase
plan; stock option plan; life insurance plan; medical
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insurance plan; disability plan; and health and accident plan or arrangement
established and maintained by the Company on the date hereof for employees of
the same status within the hierarchy of the Company. To the extent that the
scope or nature of benefits described in this section are determined under the
policies of the Company based in whole or in part on the seniority or tenure of
an employee's service, Executive shall be deemed to have a tenure with the
Company equal to the actual time of Executive's service with Company. During the
Period of Employment, Executive shall be entitled to participate in or receive
benefits under any employee benefit plan or arrangement which may, in the
future, be made available by the Company to its executives and key management
employees, subject to and on a basis consistent with the terms, conditions and
overall administration of such plan or arrangement. Any payments or benefits
payable to Executive under a plan or arrangement referred to in this
Subparagraph 3(c) in respect of any calendar year during which Executive is
employed by the Company for less than the whole of such year shall, unless
otherwise provided in the applicable plan or arrangement, be prorated in
accordance with the number of days in such calendar year during which he is so
employed. Should any such payments or benefits accrue on a fiscal (rather than
calendar) year, then the proration in the preceding sentence shall be on the
basis of a fiscal year rather than calendar year.
(d) Life Insurance. The Company shall pay the premiums on, and maintain
in effect throughout the Period of Employment, a life insurance policy on the
life of Executive in an amount not less than the amount of Executive's then
current Base Salary or Adjusted Base Salary. Executive shall have the right to
designate the beneficiary under such policy.
(e) Vacations. Executive shall be entitled to the number of paid vacation
days in each calendar year determined by the Company from time to time for
executives at the same level as Executive. Executive shall also be entitled to
all paid holidays given by the Company to its executives. To the extent that the
scope or nature of benefits described in this section are determined under the
policies of the Company based in whole or in part on the seniority or tenure of
an employee's service, Executive shall be deemed to have a tenure with the
Company equal to the actual time of Executive's service with Company.
(f) Disability Insurance. The Company shall pay the premiums on, and
maintain in effect through the Period of Employment, long-term disability
insurance providing for payment of benefits at rates not less than sixty percent
(60%) of Executive's current Base Salary or Adjusted Base Salary.
(g) Tax Loan. Upon the maturity of the Note, if Executive is still
employed by the Company, the Company shall provide Executive with a loan (the
"Tax Loan") in an amount sufficient to enable Executive to pay taxes due upon
the maturity of the Note. The Tax Loan shall (i) be personal recourse, (ii)
have a term of four (4) years, (iii) bear interest at the Company's revolver
interest rate, and (iv) require Executive to prepay with fifty percent (50%) of
the net after-tax proceeds of the sale of any shares of stock of the Company
acquired through option exercises and with twenty-five percent (25%) of the net
after-tax amount of any bonus payment from the Company.
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4. Unauthorized Disclosure.
(a) Confidential Information. Executive acknowledges that in the course
of his employment with the Company (and, if applicable, its predecessors), he
has been allowed to become, and will continue to be allowed to become,
acquainted with the Company's business affairs, information, trade secrets, and
other matters which are of a proprietary or confidential nature, including but
not limited to the Company's and its predecessors' operations, business
opportunities, price and cost information, finance, customer information,
business plans, various sales techniques, manuals, letters, notebooks,
procedures, reports, products, processes, services, and other confidential
information and knowledge (collectively the "Confidential Information")
concerning the Company's and its predecessors' business. The Company agrees to
provide on an ongoing basis such Confidential Information as the Company deems
necessary or desirable to aid Executive in the performance of his duties.
Executive understands and acknowledges that such Confidential Information is
confidential, and he agrees not to disclose such Confidential Information to
anyone outside the Company except to the extent that (i) Executive deems such
disclosure or use reasonably necessary or appropriate in connection with
performing his duties on behalf of the Company, (ii) Executive is required by
order of a court of competent jurisdiction (by subpoena or similar process) to
disclose or discuss any Confidential Information, provided that in such case,
Executive shall promptly inform the Company of such event, shall cooperate with
the Company in attempting to obtain a protective order or to otherwise restrict
such disclosure, and shall only disclose Confidential Information to the minimum
extent necessary to comply with any such court order; (iii) such Confidential
Information becomes generally known to and available for use by the hotel and
hospitality industry (the "Hotel Industry"), other than as a result of any
action or inaction by Executive; or (iv) such information has been rightfully
received by a member of the Hotel Industry or has been published in a form
generally available to the Hotel Industry prior to the date Executive proposes
to disclose or use such information. Executive further agrees that he will not
during employment and/or at any time thereafter use such Confidential
Information in competing, directly or indirectly, with the Company. At such time
as Executive shall cease to be employed by the Company, he will immediately turn
over to the Company all Confidential Information, including papers, documents,
writings, electronically stored information, other property, and all copies of
them provided to or created by him during the course of his employment with the
Company.
(b) Heirs, successors, and legal representatives. The foregoing
provisions of this Paragraph 4 shall be binding upon Executive's heirs,
successors, and legal representatives. The provisions of this Paragraph 4 shall
survive the termination of this Agreement for any reason.
5. Covenant Not to Compete. In consideration for the Option and the Loan and
for Executive's employment by the Company under the terms provided in this
Agreement and as a means to aid in the performance and enforcement of the terms
of the Unauthorized Disclosure provisions of Paragraph 4, Executive agrees that
(a) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, as an
owner, director, principal, agent, officer,
4
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employee, partner, consultant, servant, or otherwise, carry on, operate, manage,
control, or become involved in any manner with any business, operation,
corporation, partnership, association, agency, or other person or entity which
is in the business of owning, operating, managing or granting franchise rights
with respect to hotels, motels or other lodging facilities in any area or
territory in which the Company conducts operations; provided, however, that the
foregoing shall not prohibit Executive from owning up to one percent (1%) of the
outstanding stock of a publicly held company engaged in the hospitality
business. Notwithstanding the foregoing, Executive shall be permitted to engage
in such activities with respect to any other hotel, motel or lodging facility
that would be immaterial to the operations of the Company in the area or
territory in question. Immateriality, for purposes of the foregoing sentence,
shall be determined in the sole discretion of the Board in good faith.
(b) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, either
for himself or for any other business, operation, corporation, partnership,
association, agency, or other person or entity, call upon, compete for, solicit,
divert, or take away, or attempt to divert or take away any of the customers
(including, without limitation, any hotel owner, lessor or lessee, asset
manager, trustee, consumer with whom the Company from time to time (i) has an
existing agreement or business relationship; or (ii) has included as a prospect
in its applicable pipeline) or vendors of the Company in any of the areas or
territories in which the Company conducts operations if such action has the
intent or effect of interfering with the Company's relationship with the vendor
or customer.
(c) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not directly or indirectly solicit or
induce any present or future employee of the Company to accept employment with
Executive or with any business, operation, corporation, partnership,
association, agency, or other person or entity with which Executive may be
associated, and Executive will not employ or cause any business, operation,
corporation, partnership, association, agency, or other person or entity with
which Executive may be associated to employ any present or future employee of
the Company without providing the Company with ten (10) days' prior written
notice of such proposed employment.
Should Executive violate the provisions of this Paragraph, then in addition
to all other rights and remedies available to the Company at law or in equity,
the duration of this covenant shall automatically be extended for the period of
time from which Executive began such violation until he permanently ceases such
violation.
6. Termination. Executive's employment hereunder may be terminated without any
breach of this Agreement under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If, as a result of Executive's incapacity due to physical
or mental illness, Executive shall have been absent from his duties hereunder on
a full-time basis for one
5
<PAGE>
hundred eighty (180) calendar days in the aggregate in any twelve (12) month
period, the Company may terminate Executive's employment hereunder.
(c) Termination by Company For Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder for Cause
if such termination is approved by not less than a majority of the Board of
Directors of the Company at a meeting of such Board of Directors called and held
for such purpose. For purposes of this Agreement "Cause" shall mean: (A)
conduct by Executive constituting a material act of willful misconduct in
connection with the performance of his duties, including, without limitation,
misappropriation of funds or property of the Company or any of its affiliates
other than the occasional, customary and de minimis use of Company property for
personal purposes; (B) criminal or civil conviction of Executive, a plea of nolo
contendere by Executive or conduct by Executive that would reasonably be
expected to result in material injury to the reputation of the Company if he
were retained in his position with the Company, including, without limitation,
conviction of a felony involving moral turpitude; (C) continued, willful and
deliberate non-performance by Executive of his duties hereunder (other than by
reason of Executive's physical or mental illness, incapacity or disability) and
such non-performance has continued for more than thirty (30) days following
written notice of such non-performance from the Board; (D) a breach by Executive
of any of the provisions contained in Paragraphs 4 and 5 of this Agreement; or
(E) a violation by Executive of the Company's employment policies and such
violation has continued following written notice of such violation from the
Board.
(d) Termination Without Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder without
Cause if such termination is approved by a majority of the Board at a meeting of
the Board called and held for such purpose. Any termination by the Company of
Executive's employment under this Agreement which does not constitute a
termination for Cause under Subparagraph 6(c) or result from the death or
disability of the Executive under Subparagraph 6(a) or (b) shall be deemed a
termination without Cause. If the Company provides notice to the Executive
under Paragraph 1 that it does not wish to extend the Period of Employment, such
action shall be deemed a termination without Cause.
(e) Termination by Executive. At any time during the Period of
Employment, Executive may terminate his employment hereunder for any reason,
including but not limited to Good Reason. If Executive provides notice to the
Company under Paragraph 1 that he does not wish to extend the Period of
Employment, such action shall be deemed a voluntary termination by Executive and
one without Good Reason. For purposes of this Agreement, "Good Reason" shall
mean that Executive has complied with the "Good Reason Process" (hereinafter
defined) following the occurrence of any of the following events: (A) a
substantial diminution or other substantive adverse change, not consented to by
Executive, in the nature or scope of Executive's responsibilities, authorities,
powers, functions or duties, other than a change in Executive's position or
reporting relationship; (B) any removal, during the Period of Employment, from
Executive of his title of Executive Vice President; (C) an involuntary reduction
in Executive's Base Salary or Adjusted Base Salary or involuntary reduction in
cash incentive compensation plan (but not reduction in incentive compensation
appropriate for level of performance) except for across-the-board salary
reductions similarly affecting all or substantially all management
6
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employees; (D) a breach by the Company of any of its other material obligations
under this Agreement and the failure of the Company to cure such breach within
thirty (30) days after written notice thereof by Executive; (E) the involuntary
relocation of the Company's offices at which Executive is principally employed
or the involuntary relocation of the offices of Executive's primary workgroup to
a location more than thirty (30) miles from such offices (other than a
relocation in either event to Dallas, Texas), or the requirement by the Company
for Executive to be based anywhere other than the Company's offices at such
location or in Dallas, Texas on an extended basis, except for required travel on
the Company's business to an extent substantially consistent with Executive's
business travel obligations; or (F) the requirement that Executive report to a
person who is below the level of an Executive Vice President. "Good Reason
Process" shall mean that (i) the Executive reasonably determines in good faith
that a "Good Reason" event has occurred; (ii) Executive notifies the Company in
writing of the occurrence of the Good Reason event; (iii) Executive cooperates
in good faith with the Company's efforts, for a period not less than ninety (90)
days following such notice, to modify Executive's employment situation in a
manner acceptable to Executive and Company; and (iv) notwithstanding such
efforts, one or more of the Good Reason events continues to exist and has not
been modified in a manner acceptable to Executive. If the Company cures the Good
Reason event during the ninety (90) day period, Good Reason shall be deemed not
to have occurred.
(f) Notice of Termination. Except for termination as specified in
Subparagraph 6(a), any termination of Executive's employment by the Company or
any such termination by Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(g) Date of Termination. "Date of Termination" shall mean: (A) if
Executive's employment is terminated by his death, the date of his death; (B) if
Executive's employment is terminated on account of disability under Subparagraph
6(b) or by the Company for Cause under Subparagraph 6(c), the date on which
Notice of Termination is given; (C) if Executive's employment is terminated by
the Company under Subparagraph 6(d), sixty (60) days after the date on which a
Notice of Termination is given; and (D) if Executive's employment is terminated
by Executive under Subparagraph 6(e), thirty (30) days after the date on which a
Notice of Termination is given.
7. Compensation Upon Termination or During Disability.
(a) If Executive's employment terminates by reason of his death, the
Company shall, within ninety (90) days of death, pay in a lump sum amount to
such person as Executive shall designate in a notice filed with the Company or,
if no such person is designated, to Executive's estate, Executive's accrued and
unpaid Base Salary or, if applicable, his Adjusted Base Salary, to the date of
his death, plus his accrued and unpaid incentive compensation, if any, under
Subparagraph 3(a). For a period of one (1) year following the Date of
Termination, the Company shall pay such health insurance premiums as may be
necessary to allow Executive's spouse and dependents to receive health insurance
coverage substantially similar to coverage they received prior to the Date of
Termination. In addition to the foregoing, any payments to which
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Executive's spouse, beneficiaries, or estate may be entitled under any employee
benefit plan shall also be paid in accordance with the terms of such plan or
arrangement. Such payments, in the aggregate, shall fully discharge the
Company's obligations hereunder.
(b) During any period that Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, Executive
shall continue to receive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary and accrued and unpaid incentive compensation payments,
if any, under Subparagraph 3(a), until Executive's employment is terminated due
to disability in accordance with Subparagraph 6(b) or until Executive terminates
his employment in accordance with Subparagraph 6(e), whichever first occurs. For
a period of one (1) year following the Date of Termination, the Company shall
pay such health insurance premiums as may be necessary to allow Executive,
Executive's spouse and dependents to receive health insurance coverage
substantially similar to coverage they received prior to the Date of
Termination. Upon termination due to death prior to the termination first to
occur as specified in the preceding sentence, Subparagraph 7(a) shall apply.
(c) If Executive's employment is terminated by Executive other than for
Good Reason as provided in Subparagraph 6(e), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given. Thereafter, the Company shall have no further obligations
to Executive except as otherwise expressly provided under this Agreement,
provided any such termination shall not adversely affect or alter Executive's
rights under any employee benefit plan of the Company in which Executive, at the
Date of Termination, has a vested interest, unless otherwise provided in such
employee benefit plan or any agreement or other instrument attendant thereto.
(d) If Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e) or if Executive's employment is terminated by the Company
without Cause as provided in Subparagraph 6(d), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given and his accrued and unpaid incentive compensation, if any,
under Subparagraph 3(a). In addition, subject to signing by Executive of a
general release of claims in a form and manner satisfactory to the Company,
(i) the Company shall continue Executive's compensation at a rate
equal to the sum of Executive's Average Base Salary and his Average
Incentive Compensation payable for the remaining length of the Period of
Employment after the Date of Termination (the "Severance Amount"), but in
no event for fewer than twenty-four (24) months. The Severance Amount
shall be paid out in substantially equal bi-weekly installments, in
arrears; provided, however, that in the event Executive commences any
employment during such period, the Company shall be entitled to set-off
against the remaining Severance Amount seventy-five percent (75%) of the
amount of any cash compensation received by Executive from the new
employer. From time to time, Executive may be asked to certify to the
Company that he has not accepted employment with a new employer (including,
without limitation, contract and consulting agreements).
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For purposes of this Agreement, "Average Base Salary" shall mean the
average of the annual Base Salary or, if applicable, Adjusted Base Salary
received by Executive for each of the three (3) immediately preceding
fiscal years or such fewer number of complete fiscal years as Executive may
have been employed by the Company. For purposes of this Agreement, "Average
Incentive Compensation" shall mean the average of the annual incentive
compensation under Subparagraph 3(a) received by Executive for the three
(3) immediately preceding fiscal years or such fewer number of complete
fiscal years as Executive may have been employed by the Company. In no
event shall "Average Incentive Compensation" include any sign-on bonus,
retention bonus or any other special bonus. Notwithstanding the foregoing,
if the Executive breaches any of the provisions contained in Paragraphs 4
and 5 of this Agreement, all payments of the Severance Amount shall
immediately cease. Notwithstanding the foregoing, in the event Executive
terminates his employment for Good Reason as provided in Subparagraph 6(e),
he shall be entitled to the Severance Amount only if he provides the Notice
of Termination provided for in Subparagraph 6(f) within thirty (30) days
after the occurrence of the event or events which constitute such Good
Reason as specified in clauses (A), (B), (C), (D) (E) and (F) of
Subparagraph 6(e);
(ii) in addition to any other benefits to which Executive may be
entitled in accordance with the Company's then existing severance policies,
the Company shall, for a period of one (1) year commencing on the Date of
Termination, pay such health insurance premiums as may be necessary to
allow Executive, Executive's spouse and dependents to continue to receive
health insurance coverage substantially similar to the coverage they
received prior to his termination of employment.
(e) If Executive's employment is terminated by the Company for Cause as
provided in Subparagraph 6(c), then the Company shall, through the Date of
Termination, pay Executive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary at the rate in effect at the time Notice of Termination
is given. Thereafter, the Company shall have no further obligations to
Executive except as otherwise expressly provided under this Agreement, provided
any such termination shall not adversely affect or alter Executive's rights
under any employee benefit plan of the Company in which Executive, at the Date
of Termination, has a vested interest, unless otherwise provided in such
employee benefit plan or any agreement or other instrument attendant thereto.
(f) Regardless of the reason for termination, for a period of five (5)
years beginning on the Date of Termination, the Company will provide such
reasonable assistance and support to Executive as he shall reasonably require in
connection with the preparation and filing of tax returns, statements and forms
insofar as such returns, statements or forms relate to Executive's association
with the Company or any of its predecessors or affiliates. At the Company's
election, such assistance and support shall be provided by either tax personnel
from the Company or certified public accountants selected and compensated by the
Company.
(g) Nothing contained in the foregoing Subparagraphs 7(a) through 7(f)
shall be construed so as to affect Executive's rights or the Company's
obligations relating to agreements or benefits which are unrelated to
termination of employment.
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8. Change in Control Payment. The provisions of this Paragraph 8 set forth
certain terms of an agreement reached between Executive and the Company
regarding Executive's rights and obligations upon the occurrence of a Change in
Control of the Company. These provisions are intended to assure and encourage
in advance Executive's continued attention and dedication to his assigned duties
and his objectivity during the pendency and after the occurrence of any such
event. These provisions shall apply in lieu of, and expressly supersede, the
provisions of Subparagraph 7(d)(i) regarding severance pay upon a termination of
employment, if such termination of employment occurs within eighteen (18) months
after the occurrence of the first event constituting a Change of Control;
provided that such first event occurs during the Period of Employment. These
provisions shall terminate and be of no further force or effect beginning
eighteen (18) months after the occurrence of a Change of Control.
(a) Change in Control.
(i) If within eighteen (18) months after the occurrence of the
first event constituting a Change in Control, Executive's employment is
terminated by the Company without Cause as provided in Subparagraph 6(d) or
Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e), then the Company shall pay Executive the Severance
Amount as provided in Subparagraph 7(d)(i) in substantially bi-weekly
installments, in arrears, over twenty-four (24) months. Notwithstanding the
foregoing, if the Executive breaches any of the provisions contained in
Paragraphs 4 and 5 of this Agreement, all payments of the Severance Amount
shall immediately cease; and
(ii) Within fifteen (15) days after Executive becomes entitled to
receive the Severance Amount under (i) above, the Company shall place funds
in an amount equal to the estimated Severance Amount in escrow, pursuant to
arrangements that are mutually acceptable to the Company and Executive (the
"Escrow Arrangement"). The Escrow Arrangement shall be maintained until
the final installment payment of the Severance Amount has been made;
(iii) Notwithstanding anything to the contrary in any applicable
option agreement or stock-based award agreement, if Executive terminates
his employment for Good Reason as provided in Subparagraph 6(e) or if
Executive's employment is terminated by the Company without Cause as
provided in Subparagraph 6(d) within eighteen (18) months of a Change in
Control, all stock options and other stock-based awards granted to
Executive by the Company shall immediately accelerate and become
exercisable or non-forfeitable as of the Date of Termination, and Executive
shall have 360 days to exercise all his stock options. Executive shall
also be entitled to any other rights and benefits with respect to stock-
related awards, to the extent and upon the terms provided in the employee
stock option or incentive plan or any agreement or other instrument
attendant thereto pursuant to which such options or awards were granted;
and
(iv) The Company shall, for a period of one (1) year commencing on
the Date of Termination, pay such health insurance premiums as may be
necessary to allow
10
<PAGE>
Executive, Executive's spouse and dependents to continue to receive health
insurance coverage substantially similar to the coverage they received
prior to his termination of employment.
(b) Gross Up Payment.
(i) Excess Parachute Payment. If Executive incurs the tax (the
"Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986
(the "Code") on "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code, the Company will pay to Executive an amount (the
"Gross Up Payment") such that the net amount retained by Executive, after
deduction of any Excise Tax on the excess parachute payment and any
federal, state and local income taxes and employment taxes (together with
penalties and interest) and Excise Tax upon the payment provided for by
this Subparagraph 8(c)(i), will be equal to the Severance Amount.
(ii) Applicable Rates. For purposes of determining the amount of the
Gross Up Payment, Executive will be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar year
in which the Gross Up Payment is to be made and state and local income
taxes at the highest marginal rates of taxation in the state and locality
of Executive's residence on the date of Executive's Termination, net of the
maximum reduction in federal income taxes that could be obtained from
deduction of such state and local taxes.
(iii) Determination of Gross Up Payment Amount. The determination of
whether the Excise Tax is payable and the amount thereof will be based upon
the opinion of tax counsel selected by Executive and approved by the
Company, which approval will not be unreasonably withheld. If such opinion
is not finally accepted by the Internal Revenue Service (or state and local
taxing authorities), then appropriate adjustments to the Excise Tax will be
computed and additional Gross Up Payments will be made in the manner
provided by this Subparagraph (c).
(iv) Time For Payment. The Company will pay the estimated amount of
the Gross Up Payment in cash to Executive at such time or times when the
Excise Tax is due. Executive and the Company agree to reasonably cooperate
in the determination of the actual amount of the Gross Up Payment.
Further, Executive and the Company agree to make such adjustments to the
estimated amount of the Gross Up Payment as may be necessary to equal the
actual amount of the Gross Up Payment, which in the case of Executive will
refer to refunds of prior overpayments and in the case of the Company will
refer to makeup of prior underpayments.
(c) Definitions. For purposes of this Paragraph 8, the following terms
shall have the following meanings:
"Change in Control" shall mean any of the following:
11
<PAGE>
(a) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (the
"Acquiring Person"), other than the Company, or any of its Subsidiaries or
any Investor or Excluded Group, of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of the
combined voting power or economic interests of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors; provided, however, that any transfer from any Investor or
Excluded Group will not result in a Change in Control if such transfer was
part of a series of related transactions the effect of which, absent the
transfer to such Acquiring Person by the Investor or Excluded Group, would
not have resulted in the acquisition by such Acquiring Person of 35% or
more of the combined voting power or economic interests of the then
outstanding voting securities; or
(b) during any period of 12 consecutive months after the Issuance
Date, the individuals who at the beginning of any such 12-month period
constituted a majority of the Class A Directors and Class C Directors (the
"Incumbent Non-Investor Majority") cease for any reason to constitute at
least a majority of such Class A Directors and Class C Directors; provided
that (i) any individual becoming a director whose election, or nomination
for election by the Company's stockholders, was approved by a vote of the
stockholders having the right to designate such director and (ii) any
director whose election to the Board or whose nomination for election by
the stockholders of the Company was approved by the requisite vote of
directors entitled to vote on such election or nomination in accordance
with the Restated Certificate of Incorporation of the Company, shall, in
each such case, be considered as though such individual were a member of
the Incumbent Non-Investor Majority, but excluding, as a member of the
Incumbent Non-Investor Majority, any such individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) and further excluding any person who is an affiliate or
associate of an Acquiring Person having or proposing to acquire beneficial
ownership of 25% or more of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in
the election of directors; or
(c) the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who were the
respective beneficial owners of the voting securities of the Company
immediately prior to such reorganization, merger or consolidation do not,
following such reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 57.5% of the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of directors of the Company resulting from such reorganization,
merger or consolidation; or
(d) the sale or other disposition of assets representing 50% or
more of the assets of the Company in one transaction or series of related
transactions .
12
<PAGE>
All defined terms used in the definition of "Change in Control" shall have
the same meaning as set forth in the Form of Certificate of Designation of
Series B Convertible Preferred Stock of Wyndham International, Inc.
"Company" shall mean not only Wyndham International, Inc., but also
its successors by merger or otherwise.
9. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
if to the Executive:
At his home address as shown
in the Company's personnel records;
if to the Company:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
Attention: Senior Vice President of Human Resources and General
Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10. Miscellaneous. No provisions of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Texas (without regard to principles of
conflicts of laws).
11. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. The invalid portion of this Agreement, if any, shall be modified by any
court having jurisdiction to the extent necessary to render such portion
enforceable.
13
<PAGE>
12. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
13. Arbitration; Other Disputes. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the applicable rules of the American Arbitration Association before
resorting to arbitration. In the event such dispute or controversy remains
unresolved in whole or in part for a period of thirty (30) days after it arises,
the parties will settle any remaining dispute or controversy exclusively by
arbitration in Dallas, Texas, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding the above,
the Company shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
Paragraph 4 or 5 hereof. Furthermore, should a dispute occur concerning
Executive's mental or physical capacity as described in Subparagraph 6(b), 6(c)
or 7(b), a doctor selected by Executive and a doctor selected by the Company
shall be entitled to examine Executive. If the opinion of the Company's doctor
and Executive's doctor conflict, the Company's doctor and Executive's doctor
shall together agree upon a third doctor, whose opinion shall be binding. Any
amount to which Executive is entitled under this Agreement (including any
disputed amount), which is not paid when due, shall bear interest at a rate
equal to the lesser of eighteen percent (18%) per annum or the maximum lawful
rate.
14. Third-Party Agreements and Rights. Executive represents to the Company
that Executive's execution of this Agreement, Executive's employment with the
Company and the performance of Executive's proposed duties for the Company will
not violate any obligations Executive may have to any employer or other party,
and Executive will not bring to the premises of the Company any copies or other
tangible embodiments of non-public information belonging to or obtained from any
such previous employment or other party.
15. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company;
provided, however, that such cooperation shall not materially and adversely
affect Executive or expose Executive to an increased probability of civil or
criminal litigation. Executive's cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after Executive's
employment, Executive also shall cooperate fully with the Company in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Executive was employed by the Company. The Company shall
also provide Executive with compensation on an hourly basis (to be derived from
the sum of his Base Compensation or, if applicable, Adjusted
14
<PAGE>
Base Salary and Average Incentive Compensation) for requested litigation and
regulatory cooperation that occurs after his termination of employment, and
reimburse Executive for all costs and expenses incurred in connection with his
performance under this Paragraph 15, including, but not limited to, reasonable
attorneys' fees and costs.
16. Gender Neutral. Wherever used herein, a pronoun in the masculine gender
shall be considered as including the feminine gender unless the context clearly
indicates otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year first above written.
WYNDHAM INTERNATIONAL, INC.
By:
-----------------------------------------
Its: Chairman and Chief Executive Officer
-----------------------------------------
Stanley M. Koonce, Jr.
15
<PAGE>
Exhibit A
WYNDHAM INTERNATIONAL, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Dated as of April 19 , 1999
Wyndham International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby grants to Stanley M. Koonce, Jr., an Employee
of the Company (the "Optionee"), as of April 19, 1999 (the "Date of Grant"), a
non-qualified option (the "Option") to purchase from the Company 400,000 Paired
Shares, at the price of $5.00 per Paired Share, subject to the terms and
conditions set forth below. Such grant is pursuant to the Wyndham International,
Inc. 1997 Incentive Plan (the "Plan") and is made as an inducement to Optionee
to enter into the Employment Agreement between Optionee and the Company of even
date herewith (the "Employment Agreement").
1. Option Subject to Acceptance of Option Agreement and Employment Agreement.
The Option may not be exercised unless the Optionee accepts this Option
Agreement and the Employment Agreement by executing both the Option
Agreement and the Employment Agreement and returning such original execution
copies to the Company.
2. Time and Manner of Exercise of Option.
a. Maximum Term of Option. The Expiration Date of this Option is the date
that is ten years from the Date of Grant. This Option may not be
exercised on or after the Expiration Date.
b. Vesting Schedule. No portion of this Option may be exercised until
such portion shall have vested. Except as set forth in Section 3 of
this Agreement, this Option shall be vested and exercisable with
respect to the following number of Paired Shares on the date indicated
below provided that Optionee remains employed by the Company on such
date:
<TABLE>
<CAPTION>
============================================================
Vesting Schedule A
============================================================
Number of Paired
Shares Exercisable Vesting Date
------------------------------------------------------------
<S> <C>
400,000 (100%) February 13, 2009
============================================================
</TABLE>
Notwithstanding the foregoing, upon the closing (the "Closing") of the
Securities Purchase Agreement (the "Securities Purchase Agreement") by
and among Patriot American Hospitality, Inc., Wyndham International,
Inc., Patriot American Hospitality Partnership, L.P. and the Investors
named therein dated as of February 28, 1999, as amended from time to
time, the foregoing vesting schedule shall not apply and except as set
forth in Section 3 of this Agreement, this Option shall be vested and
exercisable with respect to the following number
<PAGE>
of Paired Shares on the dates indicated below provided that Optionee
remains employed by the Company on such dates:
<TABLE>
<CAPTION>
=============================================================
Vesting Schedule B
=============================================================
Number of Paired
Shares Exercisable Vesting Date
-------------------------------------------------------------
<C> <S>
80,000 (20%) 1 year after Date of Grant
-------------------------------------------------------------
80,000 (20%) 2 years after Date of Grant
-------------------------------------------------------------
80,000 (20%) 3 years after Date of Grant
-------------------------------------------------------------
80,000 (20%) 4 years after Date of Grant
-------------------------------------------------------------
80,000 (20%) 5 years after Date of Grant
-------------------------------------------------------------
</TABLE>
In the event of a Change in Control of the Company (as defined in the
Employment Agreement), if within 18 months of such Change in Control, the
Optionee's employment with the Company is terminated by the Company without
Cause (as defined in the Employment Agreement) or for Good Reason (as
defined in the Employment Agreement)), any unvested portions of this Option
shall fully vest and become exercisable. Notwithstanding the foregoing, the
purchase of securities by the Investors pursuant to the Securities Purchase
Agreement shall not be deemed to be a Change in Control.
A partial exercise of this Option shall not affect Optionee's right to
exercise this Option with respect to the remaining Paired Shares.
c. Method of Exercise of Option. Subject to the limitations set forth in this
Agreement, the Option may be exercised by the Optionee (1) by giving written
notice to the Company specifying the number of whole Paired Shares to be
purchased and accompanied by payment of the Option price in full (or
arrangement made for such payment to the Company 's satisfaction) either (i)
in cash or cash equivalent acceptable to the Committee, (ii) in previously
owned Paired Shares (which the Optionee has held for at least six months
prior to the delivery of such Paired Shares or which the Optionee purchased
on the open market and for which the Optionee has good title, free and clear
of all liens and encumbrances) having a Fair Market Value, determined as of
the date of exercise, equal to the aggregate purchase price payable pursuant
to the Option by reason of such exercise, (iii) in cash or a check payable
and acceptable to the Company by a broker-dealer acceptable to the Company
to whom the Optionee has submitted an irrevocable notice of exercise or (iv)
a combination of two or more of the foregoing, and (2) by executing such
documents as the Company may reasonably request. Any fraction of a Paired
Share which would be
2
<PAGE>
required to pay such purchase price shall be disregarded and the
remaining amount due shall be paid in cash by the Optionee.
The delivery of certificates representing the Paired Shares subject to
the Option will be contingent upon the Company's receipt from Optionee
of (1) full payment of the Option price, as set forth above, and (2)
any agreement, statement or other evidence that the Company may
require to satisfy itself that the issuance of Paired Shares to be
purchased pursuant to the exercise of the Option and the subsequent
resale of Paired Shares will be in compliance with applicable laws and
regulations.
3. Exercise After Termination of Employment. If the Optionee's employment by
the Company or an Affiliate is terminated, the period within which to
exercise the Option may be subject to earlier termination as set forth
below. The Board's determination of the reason for termination of the
Optionee's employment shall be conclusive and binding on the Optionee and
his or her legal representatives or legatees. Any transfer of employment
from the Company to any Affiliate of the Company shall not be deemed to be a
termination of employment for purposes of this Agreement.
a. Termination Due to Death. If, on or after the Closing, the Optionee's
employment terminates by reason of death, the Option held by the
Optionee shall vest and become exercisable in accordance with the
Vesting Schedule B as set forth in Section 2(b), plus an additional
number of Paired Shares that would have vested on the next vesting
anniversary date. The Optionee's legal representative or legatee may
exercise the Option to the extent exercisable in accordance with this
Section 3(a), for a period of 360 days from the date of death or until
the Expiration Date, if earlier. Any portion of the Option that is not
exercisable at the time of death shall terminate immediately and be of
no further force or effect.
Notwithstanding the foregoing, if the Optionee's employment terminates
by reason of death on or after the Date of Grant but before the
Closing, the Option held by the Optionee shall vest and become
exercisable in accordance with Vesting Schedule A as set forth in
Section 2(b).
b. Termination Due to Disability. If, on or after the Closing, the
Optionee's employment terminates by reason of incapacity due to
physical or mental illness which resulted in his or her absence from
his or her duties with the Company on a full-time basis for 180
calendar days in the aggregate in any 12-month period, the Option held
by the Optionee shall vest and become exercisable in accordance with
the Vesting Schedule B as set forth in Section 2(b), plus an additional
number of Paired Shares that would have vested on the next vesting
anniversary date. The Optionee may exercise the Option to the extent
exercisable in accordance with this Section 3(b), for a period of 360
days from the date of
3
<PAGE>
termination of employment or until the Expiration Date, if earlier. Any
portion of the Option that is not exercisable upon termination of employment
shall terminate immediately and be of no further force or effect.
Notwithstanding the foregoing, if, on or after the Date of Grant but before
the Closing, the Optionee's employment terminates by reason of incapacity
due to physical or mental illness which resulted in his or her absence from
his or her duties with the Company on a full-time basis for 180 calendar
days in the aggregate in any 12-month period, the Option held by the
Optionee shall vest and become exercisable in accordance with Vesting
Schedule A as set forth in Section 2(b).
c. Termination without Cause or for Good Reason. If, on or after the Closing,
the Optionee's employment is terminated by the Company without Cause (as
defined in the Employment Agreement) or the Optionee resigns from the
Company for Good Reason (as defined in the Employment Agreement), the Option
held by the Optionee shall continue to vest and become exercisable in
accordance with the Vesting Schedule B as set forth in Section 2(b) for an
additional 24 months. The Optionee may exercise the Option, to the extent
exercisable in accordance, with this Section 3(c), for a period of 360 days
after the end of the 24-month period or until the Expiration Date, if
earlier. Any portion of the Option that is not exercisable at the end of 24
months following termination of employment shall terminate immediately and
be of no further force or effect.
Notwithstanding the foregoing, if Optionee breaches any of the provisions
contained in Paragraph 4 or 5 of the Employment Agreement, (i) any portion
of the Option that vested or will vest by virtue of this Section 3(c) shall
immediately terminate and be of no force and effect, and (ii) to the extent
any portion of the Option that vested by virtue of this Section 3(c) has
been exercised, Optionee shall be required to disgorge to the Company the
difference between the fair market value per Paired Share on the date of
exercise and the Option price per Paired Share, multiplied by the number of
Paired Shares acquired by Optionee.
Furthermore, notwithstanding the foregoing, if the Optionee's employment is
terminated by the Company without Cause (as defined in the Employment
Agreement) or the Optionee resigns from the Company for Good Reason (as
defined in the Employment Agreement) on or after the Date of Grant but
before the Closing or a Change in Control, the Option held by the Optionee
shall vest and become exercisable in accordance with Vesting Schedule A as
set forth in Section 2(b).
4
<PAGE>
d. Termination for Cause. If the Optionee's employment is terminated for
Cause (as defined in the Employment Agreement), the Option held by the
Optionee shall terminate immediately and be of no further force and
effect.
e. Other Termination. If the Optionee's employment terminates for any
reason not covered in Subsections (a), (b), (c) or (d) of this Section
3, the Option held by the Optionee may be exercised, to the extent
exercisable on the date of termination pursuant to the applicable
vesting schedule in Section 2(b), for a period of three (3) months
from the date of termination or until the Expiration Date, if earlier.
Any portion of the Option that is not exercisable at such time shall
terminate immediately and be of no further force or effect.
4. Incorporation of Plan. Notwithstanding anything herein to the contrary, this
Option shall be subject to and governed by all the terms and conditions of
the Plan. Capitalized terms in this Agreement shall have the meaning
specified in the Plan, unless a different meaning is specified herein. All
references herein to the Plan shall mean the Plan in effect as of the date
hereof. In the event of any conflict between the provisions in the Plan and
the provisions in this Agreement, the provisions of the Plan shall govern.
5. Additional Terms and Conditions of Option.
a. Nontransferability of Option. This Agreement is personal to the
Optionee, is non-assignable and is not transferable in any manner, by
operation of law or otherwise, other than by will or the laws of
descent and distribution. This Option is exercisable, during the
Optionee's lifetime, only by the Optionee, and thereafter only by the
Optionee's legal representative or legatee.
b. Delivery of Certificates. Upon the exercise of the Option, in whole or
in part, the Company shall deliver or cause to be delivered one or
more certificates representing the number of Paired Shares purchased
against full payment therefor. The Company shall pay all original
issue or transfer taxes and all fees and expenses incident to such
delivery.
c. Option Confers No Rights as Stockholder. The Optionee shall not be
entitled to any privileges of ownership with respect to Paired Shares
subject to the Option unless and until purchased and delivered upon
the exercise of the Option, in whole or in part, and the Optionee
becomes a stockholder of record with respect to such delivered Paired
Shares; and the Optionee shall not be considered a stockholder of the
Company with respect to any such Paired Shares not so purchased and
delivered.
d. Decisions of Committee. The Committee shall have the right to resolve
all questions which may arise in connection with the Option or its
exercise. Any
5
<PAGE>
interpretation, determination or other action made or taken by the
Committee regarding this Agreement shall be final, binding and
conclusive.
e. Reservation of Paired Shares. The Company shall at all times prior to
the expiration or termination of the Option reserve or cause to be
reserved and keep or cause to be kept available, either in its
treasury or out of its authorized but unissued shares of common stock,
the full number of shares of common stock of the Company subject to
the Option from time to time. In addition, pursuant to Section 2(c) of
the Pairing Agreement, the Company shall request Patriot American
Hospitality, Inc. to issue the number of shares of common stock of
Patriot American Hospitality, Inc. subject to the Option so that the
Optionee shall receive Paired Shares upon exercise of the Option.
f. Change in Capital Structure. The terms of this Option shall be
adjusted as the Committee determines is equitably required in the
event the Company effects one or more stock dividends, stock split-
ups, subdivisions or consolidations of shares or other similar changes
in capitalization.
g. Fractional Shares. Fractional shares shall not be issuable hereunder,
and when any provision hereof may entitle Optionee to a fractional
share such fraction shall be disregarded.
6. Tax Withholding. The Optionee shall, not later than the date as of which the
exercise of this Option becomes a taxable event for Federal income tax
purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any Federal, state, and local taxes required by law
to be withheld on account of such taxable event. Subject to the approval of
the Committee, the Optionee may elect to have such tax withholding
obligation satisfied, in whole or in part, by (i) authorizing the Company to
withhold from Paired Shares to be issued, or (ii) transferring to the
Company a number of previously owned whole Paired Shares (which the Optionee
has held for at least six months prior to the delivery of such Paired Shares
or which the Optionee purchased on the open market and for which the
Optionee has good title, free and clear of all liens and encumbrances)
having an aggregate Fair Market Value, determined as of the date of
exercise, that would satisfy the withholding amount due.
7. Miscellaneous Provisions.
a. Designation as Non-qualified Stock Option. The Option is hereby
designated as not constituting an "incentive stock option" within the
meaning of section 422 of the Code. This Agreement shall be
interpreted and treated consistently with such designation.
b. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person
or persons who
6
<PAGE>
shall, upon the death of the Optionee, acquire any rights hereunder in
accordance with this Agreement or the Plan.
c. Notices. All notices, requests or other communications provided for in
this Agreement shall be made, if to the Company, to the Secretary of
the Company at the Company's principal executive office, and if to the
Optionee, to his or her address on the books of the Company (or to
such other address as the Company or the Optionee may give to the
other for purposes of notice hereunder).
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to
the party entitled thereto, (b) by facsimile with confirmation of
receipt, (c) by mailing in the United States mail to the last known
address of the party entitled thereto or (d) by express courier
service. The notice, request or other communication shall be deemed to
be received upon personal delivery, upon confirmation of receipt of
facsimile transmission or upon receipt by the party entitled thereto
if by United States mail or express courier service; provided,
however, that if a notice, request or other communication in not
received during regular business hours, it shall be deemed to be
received on the next succeeding business day of the Company.
d. Governing Law. This Agreement and all determinations made and actions
taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State
of Delaware and construed in accordance therewith without giving
effect to principles of conflicts of laws.
e. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
f. Further Assurances. The Company and the Optionee shall execute and
deliver such further instruments and take such additional action as
each party may reasonably request to effect, consummate, confirm or
evidence the grant of the Option to the Optionee, and they shall each
execute such documents as may be reasonably necessary to assist each
other in preserving or perfecting their respective rights in the
Option.
g. No Right to Continued Employment. This Agreement does not confer upon
Optionee any right to continue in the employ of the Company or an
Affiliate,
7
<PAGE>
nor shall it interfere in any way with the right of the Company or an
Affiliate to terminate such employment at any time.
WYNDHAM INTERNATIONAL, INC.
By: /s/ JAMES D. CARREKER
-----------------------------
Title: Chairman and CEO
--------------------------
Accepted this ____ day of __________, 1999.
/s/ STANLEY M. KOONCE, JR.
- -----------------------------------
Stanley M. Koonce, Jr.
"Optionee"
8
<PAGE>
Exhibit B
NO PERSONAL LIABILITY NONRECOURSE PROMISSORY NOTE
Dallas, Texas
$2,163,455.00 April 19, 1999
FOR VALUE RECEIVED, STANLEY M. KOONCE, JR. (referred to herein as the
"Maker"), promises to pay to WYNDHAM INTERNATIONAL, INC. , a Delaware
corporation (referred to herein as the "Payee"), or its assigns, the sum of TWO
MILLION ONE HUNDRED SIXTY-THREE THOUSAND FOUR HUNDRED FIFTY-FIVE DOLLARS AND NO
CENTS ($2,163,455.00), together with interest on the unpaid principal balance
as set forth below.
1. Certain Definitions. The following terms, when used in this Note,
shall have the meanings assigned to them below:
(a) Collateral. The term "Collateral" shall mean 69,356 paired shares
of the common stock, $.01 par value, of Wyndham International, Inc. and Patriot
American Hospitality, Inc. (the "Shares") and all dividends, distributions and
payments in respect of the Shares ("Proceeds").
(b) Fixed Rate. The term "Fixed Rate" means the rate of six percent
(6%) per annum, compounded annually.
(c) Market Value. The term "Market Value," when used with reference
to Shares as of any date, shall mean the average of the closing sale prices for
a Share, on the principal national securities exchange on which the Shares are
listed, for each trading day during the 90-day period immediately preceding the
date in question.
(d) Maximum Rate. The term "Maximum Rate" shall mean, on any day, the
highest nonusurious rate of interest (if any) permitted by applicable law on
such day. For purposes of Tex. Rev. Civ. Stat. Ann. Art. 5069-1.04(b), as it
may from time to time be amended, the "applicable rate ceiling" shall be the
"indicated rate" ceiling from time to time in effect as limited by Art.
5069-1.04(b); provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable rate ceiling" from time to
time by further notice and disclosure to Maker; and, provided further, that the
"highest nonusurious rate of interest permitted by applicable law" for purposes
of this Note shall not be limited to the applicable rate ceiling under Art.
5069-1.04 if federal laws or other state laws now or hereafter in effect and
applicable to this Note (and the interest contracted for, charged and collected
hereunder) shall permit a higher rate of interest.
2. Interest Rate. The unpaid principal balance from the date hereof until
maturity shall bear interest at a rate per annum equal to the lesser of the
Fixed Rate or the Maximum Rate. Interest on the unpaid principal balance hereof
shall be calculated at a daily rate equal to 1/365th of the rate per annum
herein provided, and shall be charged and collected on the actual number of days
elapsed. After maturity, unpaid principal and, to the extent permitted by law,
<PAGE>
interest on this Note shall bear interest at a rate equal to the lesser of four
(4) percentage points over the Fixed Rate, or the Maximum Rate.
3. Payment of Principal and Interest. The entire principal balance and
accrued interest on this Note shall become due and payable on the earlier of
April 19, 2002, or ten (10) days after Maker's termination of employment with
Payee.
4. Mandatory Prepayment. Prior to maturity, all Proceeds to which Maker is
entitled in respect of the Shares shall be applied, at the time Maker is
entitled to receive such Proceeds, to payment of this Note, with such payments
to be applied first to accrued interest and then to the outstanding principal
balance of this Note. By execution of this Note, Maker hereby irrevocably
authorizes and hereby grants to Payee a special power of attorney irrevocably
making, constituting and appointing Payee, with unrestricted power of
substitution and resubstitution, as the attorney-in-fact for Maker, with power
and authority to apply the payments referred to in this Paragraph in accordance
with the provisions hereof and to execute, acknowledge and deliver any and all
such documents and instruments as may be necessary or appropriate to carry out
the provisions of this Paragraph 4.
5. Events of Default.
(a) The occurrence of any one or more of the following events shall be
deemed an event of default hereunder ("Event of Default"):
(i) The failure of Maker to make any payment on this Note when
the same becomes due and payable and such failure continues for ten
(10) days after notice of such failure to pay is received by Maker
from Payee; or
(ii) Maker shall commence any case , proceeding or other action
seeking reorganization, arrangement or adjustment of its debts under
any bankruptcy, insolvency or reorganization law, or seek the
appointment of a receiver, trustee or custodian for Maker or for all
of its property; or
(iii) Any case, proceeding or other action shall be commenced
against Maker seeking reorganization, arrangement or adjustment of its
debts under any bankruptcy, insolvency or reorganization law or
seeking the appointment of a receiver, custodian or trustee for Maker
or for all or substantially all of its property, and such case,
proceeding or other action remains undismissed for a period of sixty
(60) days after commencement thereof; or
(iv) The dissolution or liquidation of Maker.
(b) Upon the occurrence of an Event of Default hereunder, Payee, at
its option, may declare the entire unpaid principal balance and accrued interest
on this Note to be immediately due and payable without notice of any kind to
Maker and without any other
2
<PAGE>
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by Maker, and may, at its option, exercise any other right or
remedy existing at law or in equity. Failure to exercise any such right or
remedy shall not constitute a waiver of the right to exercise the same in the
event of any subsequent default.
(c) Upon the occurrence of an Event of Default hereunder, Payee shall
purchase the Collateral from Maker for an amount equal to the Market Value of
the Collateral, or the entire principal balance and accrued interest due on the
Note, whichever is higher. Such payment shall be applied towards the repayment
of the outstanding amount of the Note. If the Market Value of the Collateral
exceeds the outstanding amount of the Note, the excess Collateral remaining
after full satisfaction of the Note shall be returned to Maker without offset of
any kind and free and clear of all liens, claims or encumbrances in favor of
Payee.
6. Voluntary Prepayment. Maker shall have the right and privilege from
time to time to prepay in whole or in part the unpaid principal of this Note
without premium or penalty, provided that the accrued interest on the amount
prepaid is likewise paid, and the accrual of interest shall immediately cease on
any amount so prepaid.
7. Waiver. Maker waives demand, presentment for payment, notice of
nonpayment, protest and notice of protest and agrees to any substitution,
subordination or release of any parties primarily or secondarily liable hereon.
No waiver by Payee of any of its rights or remedies hereunder or under any other
document evidencing or securing this Note or otherwise shall be considered a
waiver of any other subsequent right or remedy of Payee; and no delay or
omission in the exercise or enforcement by Payee of any rights or remedies shall
be construed as a waiver of any right or remedy of Payee.
8. Attorneys' Fees. If this Note is not paid pursuant to the terms
hereof and is placed in the hands of an attorney for collection, or if it is
collected through bankruptcy or any other court proceeding after maturity, then
Payee shall be entitled to reasonable attorneys' fees for collection.
9. Limitation on Agreements. It is the intention of Maker and Payee to
comply with applicable usury laws. In furtherance thereof, Maker and Payee
stipulate and agree that, notwithstanding any provision contained in this Note,
or in any other agreement between Maker and Payee, Payee shall never be entitled
to receive, collect or apply as interest on this Note, any amount in excess of
the Maximum Rate, and, in the event Payee ever receives, collects or applies as
interest any such excess, such amount that would be excessive interest shall be
deemed to be a partial prepayment of principal and treated hereunder as such,
and, if the principal amount of the Note is paid in full, any remaining excess
shall forthwith be paid to Maker. In determining whether the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, Maker and
Payee shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payments (other than payments hereunder) as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate and
spread in equal parts the total amount
3
<PAGE>
of interest throughout the entire contemplated term of this Note so that the
interest rate is uniform throughout such term.
10. Pledge and Grant of Security Interest. Maker hereby pledges and grants
to Payee a security interest in the Collateral, and in connection therewith,
Payee shall have all of the rights of a secured party under Chapter 9 of the
Texas Uniform Commercial Code. Maker agrees to execute and deliver such other
documents as may be reasonably necessary to confirm, evidence or perfect such
pledge and security interest. Payee currently holds certificates representing
all Shares currently constituting the Collateral. Unless and until an Event of
Default shall have occurred and be continuing, Maker shall be entitled to vote
all or any part of the Shares constituting the Collateral and to execute
consents and waivers in respect thereof, all with the same force and effect as
if this Note did not exist.
11. Nature of Obligation; Limitation on Liability. The principal amount
of this Note represents the unpaid principal balance and accrued interest as of
December 31, 1998 on that certain Promissory Note dated March 20, 1996 from
Maker to Wyndham Finance Limited Partnership in the original principal amount of
$1,839,006.00 on which no payments have been made as of the date hereof and
which is also secured by the Collateral. This Note is an amendment in its
entirety of such March 20, 1996 Note. Maker agrees that all existing security
interest in the Collateral existing immediately prior to the execution hereof
shall continue to exist and shall secure this Note. THIS NOTE SHALL BE
NONRECOURSE TO MAKER AND MAKER SHALL HAVE NO PERSONAL LIABILITY FOR THE PAYMENT
HEREOF, AND PAYEE SHALL PROCEED SOLELY AGAINST THE COLLATERAL UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT UNDER THIS NOTE.
12. Governing Law and Venue. This Note is being executed and delivered and
is intended to be performed in the State of Texas. This Note shall be construed
as to both validity and performance and enforced in accordance with and governed
by the laws of the State of Texas.
13. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by certified or registered mail, postage prepaid,
with return receipt requested, addressed to Maker or Payee as follows:
If to Payee to:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
Attention: General Counsel
4
<PAGE>
If to Maker to:
Stanley M. Koonce, Jr. at address on file with the Payee
or such other address as shall be furnished in writing by Maker or Payee to the
other, in accordance with the above provisions, and such notice or communication
shall be deemed to have been given as of the date so delivered in the case of
personal delivery or three (3) days after deposit in the mail in the case of
certified or registered mail.
14. Arbitration. Maker and Payee agree that any claim, controversy or
dispute arising out of or relating to this Note that cannot be amicably settled
shall be referred to binding arbitration as hereinafter provided. If arbitration
is required to resolve a dispute between Maker and Payee, Payee will notify the
American Arbitration Association ("AAA") and request AAA to select one person to
act as the arbitrator for resolution of this dispute. The selected arbitrator
will establish the rules for arbitration of the dispute and such rules will be
binding upon all parties to the arbitration proceeding. The arbitrator may use
the rules of the AAA for commercial arbitration but is encouraged to adopt such
rules as the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly, the arbitrator may
(i) dispense with any formal rules of evidence and allow hearsay testimony so as
to limit the number of witnesses required, (ii) minimize discovery procedures as
the arbitrator deems appropriate, (iii) act upon his understanding or
interpretation of the law on any issue without the obligation to research such
issue or accept or act upon briefs of the issue prepared by any party, (iv)
limit the time for presentation of any party's case as well as the amount of
information or number of witnesses to be presented in connection with any
hearing, (v) prevent any party from allowing an attorney to present or argue the
party's case before the arbitrator in any hearing, and (iv) impose any other
rules which the arbitrator believes appropriate to effect a resolution of the
dispute as quickly and inexpensively as possible. The arbitration shall take
place in Dallas, Texas. The arbitrator will have the exclusive authority to
determine and award costs of arbitration and the cost incurred by any party for
attorneys, advisors and consultants. Any award made by the arbitrator shall be
binding on Maker, Payee and all parties to the arbitration and shall be
enforceable to the fullest extent of the law.
5
<PAGE>
15. Tax Matters. Maker acknowledges that Maker has not relied on any
advice from Payee with regard to the tax treatment of the Note.
MAKER
/s/ STANLEY M. KOONCE, JR.
----------------------------
Stanley M. Koonce, Jr.
6
<PAGE>
NO PERSONAL LIABILITY NONRECOURSE PROMISSORY NOTE
Dallas, Texas
$2,163,455.00 April 19, 1999
FOR VALUE RECEIVED, STANLEY M. KOONCE, JR. (referred to herein as the
"Maker"), promises to pay to WYNDHAM INTERNATIONAL, INC., a Delaware corporation
(referred to herein as the "Payee"), or its assigns, the sum of TWO MILLION ONE
HUNDRED SIXTY-THREE THOUSAND FOUR HUNDRED FIFTY-FIVE DOLLARS AND NO CENTS
($2,163,455.00), together with interest on the unpaid principal balance as set
forth below.
1. Certain Definitions. The following terms, when used in this Note,
shall have the meanings assigned to them below:
(a) Collateral. The term "Collateral" shall mean 69,356 paired shares
of the common stock, $.01 par value, of Wyndham International, Inc. and Patriot
American Hospitality, Inc. (the "Shares") and all dividends, distributions and
payments in respect of the Shares ("Proceeds").
(b) Fixed Rate. The term "Fixed Rate" means the rate of six percent
(6%) per annum, compounded annually.
(c) Market Value. The term "Market Value, " when used with reference
to Shares as of any date, shall mean the average of the closing sale prices for
a Share, on the principal national securities exchange on which the Shares are
listed, for each trading day during the 90-day period immediately preceding the
date in question.
(d) Maximum Rate. The term "Maximum Rate" shall mean, on any day, the
highest nonusurious rate of interest (if any) permitted by applicable law on
such day. For purposes of Tex. Rev. Civ. Stat. Ann. Art. 5069-1.04(b), as it
may from time to time be amended, the "applicable rate ceiling" shall be the
"indicated rate" ceiling from time to time in effect as limited by Art.
5069-1.04(b); provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable rate ceiling" from time to
time by further notice and disclosure to Maker; and, provided further, that the
"highest nonusurious rate of interest permitted by applicable law" for purposes
of this Note shall not be limited to the applicable rate ceiling under Art.
5069-1.04 if federal laws or other state laws now or hereafter in effect and
applicable to this Note (and the interest contracted for, charged and collected
hereunder) shall permit a higher rate of interest.
2. Interest Rate. The unpaid principal balance from the date hereof until
maturity shall bear interest at a rate per annum equal to the lesser of the
Fixed Rate or the Maximum Rate. Interest on the unpaid principal balance hereof
shall be calculated at a daily rate equal to 1/365th of the rate per annum
herein provided, and shall be charged and collected on the actual number of days
elapsed. After maturity, unpaid principal and, to the extent permitted by law,
<PAGE>
interest on this Note shall bear interest at a rate equal to the lesser of four
(4) percentage points over the Fixed Rate, or the Maximum Rate.
3. Payment of Principal and Interest. The entire principal balance and
accrued interest on this Note shall become due and payable on the earlier of
April 19, 2002, or ten (10) days after Maker's termination of employment with
Payee.
4. Mandatory Prepayment. Prior to maturity, all Proceeds to which Maker
is entitled in respect of the Shares shall be applied, at the time Maker is
entitled to receive such Proceeds, to payment of this Note, with such payments
to be applied first to accrued interest and then to the outstanding principal
balance of this Note. By execution of this Note, Maker hereby irrevocably
authorizes and hereby grants to Payee a special power of attorney irrevocably
making, constituting and appointing Payee, with unrestricted power of
substitution and resubstitution, as the attorney-in-fact for Maker, with power
and authority to apply the payments referred to in this Paragraph in accordance
with the provisions hereof and to execute, acknowledge and deliver any and all
such documents and instruments as may be necessary or appropriate to carry out
the provisions of this Paragraph 4.
5. Events of Default.
(a) The occurrence of any one or more of the following events shall be
deemed an event of default hereunder ("Event of Default"):
(i) The failure of Maker to make any payment on this Note when
the same becomes due and payable and such failure continues for ten
(10) days after notice of such failure to pay is received by Maker
from Payee; or
(ii) Maker shall commence any case, proceeding or other action
seeking reorganization, arrangement or adjustment of its debts under
any bankruptcy, insolvency or reorganization law, or seek the
appointment of a receiver, trustee or custodian for Maker or for all
of its property; or
(iii) Any case, proceeding or other action shall be commenced
against Maker seeking reorganization, arrangement or adjustment of its
debts under any bankruptcy, insolvency or reorganization law or
seeking the appointment of a receiver, custodian or trustee for Maker
or for all or substantially all of its property, and such case,
proceeding or other action remains undismissed for a period of sixty
(60) days after commencement thereof; or
(iv) The dissolution or liquidation of Maker.
(b) Upon the occurrence of an Event of Default hereunder, Payee, at
its option, may declare the entire unpaid principal balance and accrued interest
on this Note to be immediately due and payable without notice of any kind to
Maker and without any other
2
<PAGE>
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by Maker, and may, at its option, exercise any other right or
remedy existing at law or in equity. Failure to exercise any such right or
remedy shall not constitute a waiver of the right to exercise the same in the
event of any subsequent default.
(c) Upon the occurrence of an Event of Default hereunder, Payee shall
purchase the Collateral from Maker for an amount equal to the Market Value of
the Collateral, or the entire principal balance and accrued interest due on the
Note, whichever is higher. Such payment shall be applied towards the repayment
of the outstanding amount of the Note. If the Market Value of the Collateral
exceeds the outstanding amount of the Note, the excess Collateral remaining
after full satisfaction of the Note shall be returned to Maker without offset of
any kind and free andclear of all liens, claims or encumbrances in favor of
Payee.
6. Voluntary Prepayment. Maker shall have the right and privilege from
time to time to prepay in whole or in part the unpaid principal of this Note
without premium or penalty, provided that the accrued interest on the amount
prepaid is likewise paid, and the accrual of interest shall immediately cease on
any amount so prepaid.
7. Waiver. Maker waives demand, presentment for payment, notice of
nonpayment, protest and notice of protest and agrees to any substitution,
subordination or release of any parties primarily or secondarily liable hereon.
No waiver by Payee of any of its rights or remedies hereunder or under any other
document evidencing or securing this Note or otherwise shall be considered a
waiver of any other subsequent right or remedy of Payee; and no delay or
omission in the exercise or enforcement by Payee of any rights or remedies shall
be construed as a waiver of any right or remedy of Payee.
8. Attorneys' Fees. If this Note is not paid pursuant to the terms
hereof and is placed in the hands of an attorney for collection, or if it is
collected through bankruptcy or any other court proceeding after maturity, then
Payee shall be entitled to reasonable attorneys' fees for collection.
9. Limitation on Agreements. It is the intention of Maker and Payee to
comply with applicable usury laws. In furtherance thereof, Maker and Payee
stipulate and agree that, notwithstanding any provision contained in this Note,
or in any other agreement between Maker and Payee, Payee shall never be entitled
to receive, collect or apply as interest on this Note, any amount in excess of
the Maximum Rate, and, in the event Payee ever receives, collects or applies as
interest any such excess, such amount that would be excessive interest shall be
deemed to be a partial prepayment of principal and treated hereunder as such,
and, if the principal amount of the Note is paid in full, any remaining excess
shall forthwith be paid to Maker. In determining whether the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, Maker and
Payee shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payments (other than payments hereunder) as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate and
spread in equal parts the total amount
3
<PAGE>
of interest throughout the entire contemplated term of this Note so that the
interest rate is uniform throughout such term.
10. Pledge and Grant of Security Interest. Maker hereby pledges and grants
to Payee a security interest in the Collateral, and in connection therewith,
Payee shall have all of the rights of a secured party under Chapter 9 of the
Texas Uniform Commercial Code. Maker agrees to execute and deliver such other
documents as may be reasonably necessary to confirm, evidence or perfect such
pledge and security interest. Payee currently holds certificates representing
all Shares currently constituting the Collateral. Unless and until an Event of
Default shall have occurred and be continuing, Maker shall be entitled to vote
all or any part of the Shares constituting the Collateral and to execute
consents and waivers in respect thereof, all with the same force and effect as
if this Note did not exist.
11. Nature of Obligation; Limitation on Liability. The principal amount
of this Note represents the unpaid principal balance and accrued interest as
of December 31, 1998 on that certain Promissory Note dated March 20, 1996 from
Maker to Wyndham Finance Limited Partnership in the original principal amount
of $1,839,006.00 on which no payments have been made as of the date hereof and
which is also secured by the Collateral. This Note is an amendment in its
entirety of such March 20, 1996 Note. Maker agrees that all existing security
interest in the Collateral existing immediately prior to the execution hereof
shall continue to exist and shall secure this Note. THIS NOTE SHALL BE
NONRECOURSE TO MAKER AND MAKER SHALL HAVE NO PERSONAL LIABILITY FOR THE PAYMENT
HEREOF, AND PAYEE SHALL PROCEED SOLELY AGAINST THE COLLATERAL UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT UNDER THIS NOTE.
12. Governing Law and Venue. This Note is being executed and delivered and
is intended to be performed in the State of Texas. This Note shall be construed
as to both validity and performance and enforced in accordance with and governed
by the laws of the State of Texas.
13. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by certified or registered mail, postage prepaid,
with return receipt requested, addressed to Maker or Payee as follows:
If to Payee to:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
Attention: General Counsel
<PAGE>
If to Maker to:
Stanley M. Koonce, Jr. at address on file with the Payee
or such other address as shall be furnished in writing by Maker or Payee to the
other, in accordance with the above provisions, and such notice or communication
shall be deemed to have been given as of the date so delivered in the case of
personal delivery or three (3) days after deposit in the mail in the case of
certified or registered mail.
14. Arbitration. Maker and Payee agree that any claim, controversy or
dispute arising out of or relating to this Note that cannot be amicably settled
shall be referred to binding arbitration as hereinafter provided. If arbitration
is required to resolve a dispute between Maker and Payee, Payee will notify the
American Arbitration Association ("AAA") and request AAA to select one person to
act as the arbitrator for resolution of this dispute. The selected arbitrator
will establish the rules for arbitration of the dispute and such rules will be
binding upon all parties to the arbitration proceeding. The arbitrator may use
the rules of the AAA for commercial arbitration but is encouraged to adopt such
rules as the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly, the arbitrator may
(i) dispense with any formal rules of evidence and allow hearsay testimony so as
to limit the number of witnesses required, (ii) minimize discovery procedures as
the arbitrator deems appropriate, (iii) act upon his understanding or
interpretation of the law on any issue without the obligation to research such
issue or accept or act upon briefs of the issue prepared by any party, (iv)
limit the time for presentation of any party's case as well as the amount of
information or number of witnesses tO be presented in connection with any
hearing, (v) prevent any party from allowing an attorney to present or argue the
party's case before the arbitrator in any hearing, and (iv) impose any other
rules which the arbitrator believes appropriate to effect a resolution of the
dispute as quickly and inexpensively as possible. The arbitration shall take
place in Dallas, Texas. The arbitrator will have the exclusive authority to
determine and award costs of arbitration and the cost incurred by any party for
attorneys, advisors and consultants. Any award made by the arbitrator shall be
binding on Maker, Payee and all parties to the arbitration and shall be
enforceable to the fullest extent of the law.
5
<PAGE>
15. Tax Matters. Maker acknowledges that Maker has not relied on any
advice from Payee with regard to the tax treatment of the Note.
MAKER
/s/ STANLEY M. KOONCE, JR.
-----------------------------------
Stanley M. Koonce, Jr.
6
<PAGE>
EXHIBIT 10.7
EXECUTIVE EMPLOYMENT AGREEMENT
AS AMENDED AND RESTATED
This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is
made as of the 19th day of April, 1999, between Wyndham International, Inc., a
Delaware corporation (the "Company"), and Carla S. Moreland ("Executive").
WHEREAS, Executive is currently employed by the Company in a senior
executive capacity;
WHEREAS, the Company desires to continue to employ Executive and Executive
desires to continue to be employed by the Company;
WHEREAS, the Company and Executive desire to amend and restate Executive's
existing Executive Employment Agreement with the Company, as set forth herein;
WHEREAS, the Company and Executive acknowledge that regardless of the
provisions of Paragraph 8 of this Agreement, upon the closing of the Securities
Purchase Agreement by and among Patriot American Hospitality, Inc., Wyndham
International, Inc., Patriot American Hospitality, L.P. and the Investors named
therein, all options and other stock-based awards granted to Executive prior to
the date of this Agreement shall immediately accelerate and become exercisable
or non-forfeitable as of such date;
WHEREAS, as an additional inducement to Executive to enter into this
Agreement, the Company shall, on the Commencement Date (as hereinafter defined),
grant Executive an option to purchase a certain number of Paired Shares of
common stock of the Company and of common stock of Patriot American Hospitality,
Inc. as set forth in the agreement attached hereto as Exhibit A (the "Option");
and
WHEREAS, Executive is desirous of committing to serve the Company on the
terms herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment. The term of this Agreement shall extend from the date hereof
(the "Commencement Date") until the third anniversary of the Commencement Date;
provided, however, that the term of this Agreement shall automatically be
extended for one additional year on the third anniversary of the Commencement
Date and each anniversary thereafter unless, not less than 90 days prior to each
such date, either party shall have given notice to the other that it does not
wish to extend this Agreement; provided, further, that if a Change in Control
occurs during the original or extended term of this Agreement, the term of this
Agreement shall continue in effect for a period of not less than eighteen (18)
months beyond the month in which the Change in Control occurred. The term of
this Agreement shall be
<PAGE>
subject to termination as provided in Paragraph 6 and may be referred to herein
as the "Period of Employment."
2. Position and Duties. During the Period of Employment, Executive shall serve
as an Executive Vice President and General Counsel of the Company, shall have
supervision and control over and responsibility for the day-to-day business and
affairs of those functions and operations of the Company and shall have such
other powers and duties as may from time to time be prescribed by the Chairman
of the Board of the Company (the "Chairman") or the Chief Executive Officer of
the Company (the "CEO") or other executive authorized by the Chairman or CEO,
provided that such duties are consistent with Executive's position or other
positions that he may hold from time to time. Executive shall devote his full
working time and efforts to the business and affairs of the Company.
Notwithstanding the foregoing, Executive may serve on other boards of directors,
with the approval of the Chairman or CEO, or engage in religious, charitable or
other community activities as long as such services and activities are disclosed
to the Chairman or CEO and do not materially interfere with Executive's
performance of his duties to the Company as provided in this Agreement.
3. Compensation and Related Matters.
(a) Base Salary and Incentive Compensation. Executive's initial annual
base salary ("Base Salary") shall be $300,000.00. Executive's Base Salary shall
be redetermined at least thirty (30) days before each annual compensation
determination date established by the Company during the Period of Employment in
an amount to be fixed by the Board of Directors of the Company or a Committee
thereof or a duly authorized officer (the "Board"). The Base Salary, as
redetermined, may be referred to herein as "Adjusted Base Salary." The Base
Salary or Adjusted Base Salary shall be payable in substantially equal bi-weekly
installments and shall in no way limit or reduce the obligations of the Company
hereunder. In addition to Base Salary or Adjusted Base Salary, Executive shall
be eligible to receive cash incentive compensation as determined by the Board
from time to time, and shall also be eligible to participate in such incentive
compensation plans as the Board shall determine from time to time for employees
of the same status within the hierarchy of the Company.
(b) Expenses. Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by him (in accordance with the policies and
procedures then in effect and established by the Company for its senior
executive officers) in performing services hereunder during the Period of
Employment, provided that Executive properly accounts therefor in accordance
with Company policy.
(c) Other Benefits. During the Period of Employment, Executive shall be
entitled to continue to participate in or receive benefits under all of the
Company's Employee Benefit Plans in effect on the date hereof, or under plans or
arrangements that provide Executive with at least substantially equivalent
benefits to those provided under such Employee Benefit Plans. As used herein,
"Employee Benefit Plans" include, without limitation, each pension and
retirement plan; supplemental pension, retirement and deferred compensation
plan; savings and
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profit-sharing plan; stock ownership plan; stock purchase plan; stock option
plan; life insurance plan; medical insurance plan; disability plan; and health
and accident plan or arrangement established and maintained by the Company on
the date hereof for employees of the same status within the hierarchy of the
Company. To the extent that the scope or nature of benefits described in this
section are determined under the policies of the Company based in whole or in
part on the seniority or tenure of an employee's service, Executive shall be
deemed to have a tenure with the Company equal to the actual time of Executive's
service with Company. During the Period of Employment, Executive shall be
entitled to participate in or receive benefits under any employee benefit plan
or arrangement which may, in the future, be made available by the Company to its
executives and key management employees, subject to and on a basis consistent
with the terms, conditions and overall administration of such plan or
arrangement. Any payments or benefits payable to Executive under a plan or
arrangement referred to in this Subparagraph 3(c) in respect of any calendar
year during which Executive is employed by the Company for less than the whole
of such year shall, unless otherwise provided in the applicable plan or
arrangement, be prorated in accordance with the number of days in such calendar
year during which he is so employed. Should any such payments or benefits accrue
on a fiscal (rather than calendar) year, then the proration in the preceding
sentence shall be on the basis of a fiscal year rather than calendar year.
(d) Life Insurance. The Company shall pay the premiums on, and maintain
in effect throughout the Period of Employment, a life insurance policy on the
life of Executive in an amount not less than the amount of Executive's then
current Base Salary or Adjusted Base Salary. Executive shall have the right to
designate the beneficiary under such policy.
(e) Vacations. Executive shall be entitled to the number of paid vacation
days in each calendar year determined by the Company from time to time for
executives at the same level as Executive. Executive shall also be entitled to
all paid holidays given by the Company to its executives. To the extent that the
scope or nature of benefits described in this section are determined under the
policies of the Company based in whole or in part on the seniority or tenure of
an employee's service, Executive shall be deemed to have a tenure with the
Company equal to the actual time of Executive's service with Company.
(f) Disability Insurance. The Company shall pay the premiums on, and
maintain in effect through the Period of Employment, long-term disability
insurance providing for payment of benefits at rates not less than sixty percent
(60%) of Executive's current Base Salary or Adjusted Base Salary.
4. Unauthorized Disclosure.
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(a) Confidential Information. Executive acknowledges that in the course
of his employment with the Company (and, if applicable, its predecessors), he
has been allowed to become, and will continue to be allowed to become,
acquainted with the Company's business affairs, information, trade secrets, and
other matters which are of a proprietary or confidential nature, including but
not limited to the Company's and its predecessors' operations, business
opportunities, price and cost information, finance, customer information,
business plans, various sales techniques, manuals, letters, notebooks,
procedures, reports, products, processes, services, and other confidential
information and knowledge (collectively the "Confidential Information")
concerning the Company's and its predecessors' business. The Company agrees to
provide on an ongoing basis such Confidential Information as the Company deems
necessary or desirable to aid Executive in the performance of his duties.
Executive understands and acknowledges that such Confidential Information is
confidential, and he agrees not to disclose such Confidential Information to
anyone outside the Company except to the extent that (i) Executive deems such
disclosure or use reasonably necessary or appropriate in connection with
performing his duties on behalf of the Company, (ii) Executive is required by
order of a court of competent jurisdiction (by subpoena or similar process) to
disclose or discuss any Confidential Information, provided that in such case,
Executive shall promptly inform the Company of such event, shall cooperate with
the Company in attempting to obtain a protective order or to otherwise restrict
such disclosure, and shall only disclose Confidential Information to the minimum
extent necessary to comply with any such court order; (iii) such Confidential
Information becomes generally known to and available for use by the hotel and
hospitality industry (the "Hotel Industry"), other than as a result of any
action or inaction by Executive; or (iv) such information has been rightfully
received by a member of the Hotel Industry or has been published in a form
generally available to the Hotel Industry prior to the date Executive proposes
to disclose or use such information. Executive further agrees that he will not
during employment and/or at any time thereafter use such Confidential
Information in competing, directly or indirectly, with the Company. At such time
as Executive shall cease to be employed by the Company, he will immediately turn
over to the Company all Confidential Information, including papers, documents,
writings, electronically stored information, other property, and all copies of
them provided to or created by him during the course of his employment with the
Company.
(b) Heirs, successors, and legal representatives. The foregoing
provisions of this Paragraph 4 shall be binding upon Executive's heirs,
successors, and legal representatives. The provisions of this Paragraph 4 shall
survive the termination of this Agreement for any reason.
5. Covenant Not to Compete. The following provisions of this Paragraph 5 are
agreed to by Executive in consideration for the Option and for Executive's
employment by the Company under the terms provided in this Agreement and as a
means to aid in the performance and enforcement of the terms of the Unauthorized
Disclosure provisions of Paragraph 4.
(a) Executive is a licensed attorney and recognizes that he is bound by
the ethical principles governing the legal profession including duties to
preserve confidential client information as defined and presently codified in
Rule 1.05 of the Texas Disciplinary Rules of
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Professional Conduct and further to honor and preserve the attorney client
privilege. Executive recognizes and agrees that these obligations are permanent
and survive the period of Executive's employment by the Company and survive the
period of time that he remains a licensed attorney.
(b) Executive recognizes that if he were to attempt to perform as an
employee of or an attorney for a competitor of the Company, there would be a
genuine and inevitable threat that Executive would use or disclose privileged or
confidential client information, and Executive agrees that during Executive's
employment with the Company and for a period of twenty-four (24) months
thereafter, Executive will not perform as an employee of or an attorney for a
competitor of the Company. Executive agrees that the Company's remedy against
Executive for money damages for a breach of his duties of confidentiality to the
Company would be inadequate, and Executive agrees that an injunction against him
for any such threatened breach is an appropriate remedy.
(c) Executive agrees that during the term of Executive's employment with
the Company and for a period of twenty-four (24) months thereafter, regardless
of the reason for termination of employment, Executive will not, directly or
indirectly, either for himself or for any other business, operation,
corporation, partnership, association, agency, or other person or entity, call
upon, compete for, solicit, divert, or take away, or attempt to divert or take
away any of the customers (including, without limitation, any hotel owner,
lessor or lessee, asset manager, trustee, consumer with whom the Company from
time to time (i) has an existing agreement or business relationship; or (ii) has
included as a prospect in its applicable pipeline) or vendors of the Company in
any of the areas or territories in which the Company conducts operations if such
action has the intent or effect of interfering with the Company's relationship
with the vendor or customer.
(d) Executive agrees that during the term of Executive's employment with
the Company and for a period of twenty-four (24) months thereafter, regardless
of the reason for termination of employment, Executive will not directly or
indirectly solicit or induce any present or future employee of the Company to
accept employment with Executive or with any business, operation, corporation,
partnership, association, agency, or other person or entity with which Executive
may be associated, and Executive will not employ or cause any business,
operation, corporation, partnership, association, agency, or other person or
entity with which Executive may be associated to employ any present or future
employee of the Company without providing the Company with ten (10) days' prior
written notice of such proposed employment.
Should Executive violate the provisions of this Paragraph, then in addition
to all other rights and remedies available to the Company at law or in equity,
the duration of this covenant shall automatically be extended for the period of
time from which Executive began such violation until he permanently ceases such
violation.
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6. Termination. Executive's employment hereunder may be terminated without any
breach of this Agreement under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If, as a result of Executive's incapacity due to physical
or mental illness, Executive shall have been absent from his duties hereunder on
a full-time basis for one hundred eighty (180) calendar days in the aggregate in
any twelve (12) month period, the Company may terminate Executive's employment
hereunder.
(c) Termination by Company For Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder for Cause
if such termination is approved by not less than a majority of the Board of
Directors of the Company at a meeting of such Board of Directors called and held
for such purpose. For purposes of this Agreement "Cause" shall mean: (A)
conduct by Executive constituting a material act of willful misconduct in
connection with the performance of his duties, including, without limitation,
misappropriation of funds or property of the Company or any of its affiliates
other than the occasional, customary and de minimis use of Company property for
personal purposes; (B) criminal or civil conviction of Executive, a plea of nolo
contendere by Executive or conduct by Executive that would reasonably be
expected to result in material injury to the reputation of the Company if he
were retained in his position with the Company, including, without limitation,
conviction of a felony involving moral turpitude; (C) continued, willful and
deliberate non-performance by Executive of his duties hereunder (other than by
reason of Executive's physical or mental illness, incapacity or disability) and
such non-performance has continued for more than thirty (30) days following
written notice of such non-performance from the Board; (D) a breach by Executive
of any of the provisions contained in Paragraphs 4 and 5 of this Agreement; or
(E) a violation by Executive of the Company's employment policies and such
violation has continued following written notice of such violation from the
Board.
(d) Termination Without Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder without
Cause if such termination is approved by a majority of the Board at a meeting of
the Board called and held for such purpose. Any termination by the Company of
Executive's employment under this Agreement which does not constitute a
termination for Cause under Subparagraph 6(c) or result from the death or
disability of the Executive under Subparagraph 6(a) or (b) shall be deemed a
termination without Cause. If the Company provides notice to the Executive
under Paragraph 1 that it does not wish to extend the Period of Employment, such
action shall be deemed a termination without Cause.
(e) Termination by Executive. At any time during the Period of
Employment, Executive may terminate his employment hereunder for any reason,
including but not limited to Good Reason. If Executive provides notice to the
Company under Paragraph 1 that he does not wish to extend the Period of
Employment, such action shall be deemed a voluntary
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termination by Executive and one without Good Reason. For purposes of this
Agreement, "Good Reason" shall mean that Executive has complied with the "Good
Reason Process" (hereinafter defined) following the occurrence of any of the
following events: (A) a substantial diminution or other substantive adverse
change, not consented to by Executive, in the nature or scope of Executive's
responsibilities, authorities, powers, functions or duties, other than a change
in Executive's position or reporting relationship; (B) any removal, during the
Period of Employment, from Executive of his title of Executive Vice President;
(C) an involuntary reduction in Executive's Base Salary or Adjusted Base Salary
or involuntary reduction in cash incentive compensation plan (but not reduction
in incentive compensation appropriate for level of performance) except for
across-the-board salary reductions similarly affecting all or substantially all
management employees; (D) a breach by the Company of any of its other material
obligations under this Agreement and the failure of the Company to cure such
breach within thirty (30) days after written notice thereof by Executive; (E)
the involuntary relocation of the Company's offices at which Executive is
principally employed or the involuntary relocation of the offices of Executive's
primary workgroup to a location more than thirty (30) miles from such offices
(other than a relocation in either event to Dallas, Texas), or the requirement
by the Company for Executive to be based anywhere other than the Company's
offices at such location or in Dallas, Texas on an extended basis, except for
required travel on the Company's business to an extent substantially consistent
with Executive's business travel obligations; or (F) the requirement that
Executive report to a person who is below the level of an Executive Vice
President. "Good Reason Process" shall mean that (i) the Executive reasonably
determines in good faith that a "Good Reason" event has occurred; (ii) Executive
notifies the Company in writing of the occurrence of the Good Reason event;
(iii) Executive cooperates in good faith with the Company's efforts, for a
period not less than ninety (90) days following such notice, to modify
Executive's employment situation in a manner acceptable to Executive and
Company; and (iv) notwithstanding such efforts, one or more of the Good Reason
events continues to exist and has not been modified in a manner acceptable to
Executive. If the Company cures the Good Reason event during the ninety (90) day
period, Good Reason shall be deemed not to have occurred.
(f) Notice of Termination. Except for termination as specified in
Subparagraph 6(a), any termination of Executive's employment by the Company or
any such termination by Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(g) Date of Termination. "Date of Termination" shall mean: (A) if
Executive's employment is terminated by his death, the date of his death; (B) if
Executive's employment is terminated on account of disability under Subparagraph
6(b) or by the Company for Cause under Subparagraph 6(c), the date on which
Notice of Termination is given; (C) if Executive's employment is terminated by
the Company under Subparagraph 6(d), sixty (60) days after the date on which a
Notice of Termination is given; and (D) if Executive's employment is terminated
by Executive under Subparagraph 6(e), thirty (30) days after the date on which a
Notice of Termination is given.
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7. Compensation Upon Termination or During Disability.
(a) If Executive's employment terminates by reason of his death, the
Company shall, within ninety (90) days of death, pay in a lump sum amount to
such person as Executive shall designate in a notice filed with the Company or,
if no such person is designated, to Executive's estate, Executive's accrued and
unpaid Base Salary or, if applicable, his Adjusted Base Salary, to the date of
his death, plus his accrued and unpaid incentive compensation, if any, under
Subparagraph 3(a). For a period of one (1) year following the Date of
Termination, the Company shall pay such health insurance premiums as may be
necessary to allow Executive's spouse and dependents to receive health insurance
coverage substantially similar to coverage they received prior to the Date of
Termination. In addition to the foregoing, any payments to which Executive's
spouse, beneficiaries, or estate may be entitled under any employee benefit plan
shall also be paid in accordance with the terms of such plan or arrangement.
Such payments, in the aggregate, shall fully discharge the Company's obligations
hereunder.
(b) During any period that Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, Executive
shall continue to receive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary and accrued and unpaid incentive compensation payments,
if any, under Subparagraph 3(a), until Executive's employment is terminated due
to disability in accordance with Subparagraph 6(b) or until Executive terminates
his employment in accordance with Subparagraph 6(e), whichever first occurs. For
a period of one (1) year following the Date of Termination, the Company shall
pay such health insurance premiums as may be necessary to allow Executive,
Executive's spouse and dependents to receive health insurance coverage
substantially similar to coverage they received prior to the Date of
Termination. Upon termination due to death prior to the termination first to
occur as specified in the preceding sentence, Subparagraph 7(a) shall apply.
(c) If Executive's employment is terminated by Executive other than for
Good Reason as provided in Subparagraph 6(e), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given. Thereafter, the Company shall have no further obligations
to Executive except as otherwise expressly provided under this Agreement,
provided any such termination shall not adversely affect or alter Executive's
rights under any employee benefit plan of the Company in which Executive, at the
Date of Termination, has a vested interest, unless otherwise provided in such
employee benefit plan or any agreement or other instrument attendant thereto.
(d) If Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e) or if Executive's employment is terminated by the Company
without Cause as provided in Subparagraph 6(d), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given and his accrued and unpaid
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incentive compensation, if any, under Subparagraph 3(a). In addition, subject to
signing by Executive of a general release of claims in a form and manner
satisfactory to the Company,
(i) the Company shall continue Executive's compensation at a rate
equal to the sum of Executive's Average Base Salary and his Average
Incentive Compensation payable for the remaining length of the Period of
Employment after the Date of Termination (the "Severance Amount"), but in
no event for fewer than twenty-four (24) months. The Severance Amount
shall be paid out in substantially equal bi-weekly installments, in
arrears; provided, however, that in the event Executive commences any
employment during such period, the Company shall be entitled to set-off
against the remaining Severance Amount seventy-five percent (75%) of the
amount of any cash compensation received by Executive from the new
employer. From time to time, Executive may be asked to certify to the
Company that he has not accepted employment with a new employer (including,
without limitation, contract and consulting agreements). For purposes of
this Agreement, "Average Base Salary" shall mean the average of the annual
Base Salary or, if applicable, Adjusted Base Salary received by Executive
for each of the three (3) immediately preceding fiscal years or such fewer
number of complete fiscal years as Executive may have been employed by the
Company. For purposes of this Agreement, "Average Incentive Compensation"
shall mean the average of the annual incentive compensation under
Subparagraph 3(a) received by Executive for the three (3) immediately
preceding fiscal years or such fewer number of complete fiscal years as
Executive may have been employed by the Company. In no event shall
"Average Incentive Compensation" include any sign-on bonus, retention bonus
or any other special bonus. Notwithstanding the foregoing, if the
Executive breaches any of the provisions contained in Paragraphs 4 and 5 of
this Agreement, all payments of the Severance Amount shall immediately
cease. Notwithstanding the foregoing, in the event Executive terminates
his employment for Good Reason as provided in Subparagraph 6(e), he shall
be entitled to the Severance Amount only if he provides the Notice of
Termination provided for in Subparagraph 6(f) within thirty (30) days after
the occurrence of the event or events which constitute such Good Reason as
specified in clauses (A), (B), (C), (D), (E) and (F) of Subparagraph 6(e);
(ii) in addition to any other benefits to which Executive may be
entitled in accordance with the Company's then existing severance policies,
the Company shall, for a period of one (1) year commencing on the Date of
Termination, pay such health insurance premiums as may be necessary to
allow Executive, Executive's spouse and dependents to continue to receive
health insurance coverage substantially similar to the coverage they
received prior to his termination of employment.
(e) If Executive's employment is terminated by the Company for Cause as
provided in Subparagraph 6(c), then the Company shall, through the Date of
Termination, pay Executive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary at the rate in effect at the time Notice of Termination
is given. Thereafter, the Company shall have no
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further obligations to Executive except as otherwise expressly provided under
this Agreement, provided any such termination shall not adversely affect or
alter Executive's rights under any employee benefit plan of the Company in which
Executive, at the Date of Termination, has a vested interest, unless otherwise
provided in such employee benefit plan or any agreement or other instrument
attendant thereto.
(f) Regardless of the reason for termination, for a period of five (5)
years beginning on the Date of Termination, the Company will provide such
reasonable assistance and support to Executive as he shall reasonably require in
connection with the preparation and filing of tax returns, statements and forms
insofar as such returns, statements or forms relate to Executive's association
with the Company or any of its predecessors or affiliates. At the Company's
election, such assistance and support shall be provided by either tax personnel
from the Company or certified public accountants selected and compensated by the
Company.
(g) Nothing contained in the foregoing Subparagraphs 7(a) through 7(f)
shall be construed so as to affect Executive's rights or the Company's
obligations relating to agreements or benefits which are unrelated to
termination of employment.
8. Change in Control Payment. The provisions of this Paragraph 8 set forth
certain terms of an agreement reached between Executive and the Company
regarding Executive's rights and obligations upon the occurrence of a Change in
Control of the Company. These provisions are intended to assure and encourage
in advance Executive's continued attention and dedication to his assigned duties
and his objectivity during the pendency and after the occurrence of any such
event. These provisions shall apply in lieu of, and expressly supersede, the
provisions of Subparagraph 7(d)(i) regarding severance pay upon a termination of
employment, if such termination of employment occurs within eighteen (18) months
after the occurrence of the first event constituting a Change of Control;
provided that such first event occurs during the Period of Employment. These
provisions shall terminate and be of no further force or effect beginning
eighteen (18) months after the occurrence of a Change of Control.
(a) Change in Control.
(i) If within eighteen (18) months after the occurrence of the first
event constituting a Change in Control, Executive's employment is
terminated by the Company without Cause as provided in Subparagraph 6(d) or
Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e), then the Company shall pay Executive the Severance
Amount as provided in Subparagraph 7(d)(i) in substantially bi-weekly
installments, in arrears, over twenty-four (24) months. Notwithstanding
the foregoing, if the Executive breaches any of the provisions contained in
Paragraphs 4 and 5 of this Agreement, all payments of the Severance Amount
shall immediately cease; and
(ii) Within fifteen (15) days after Executive becomes entitled to
receive the Severance Amount under (i) above, the Company shall place funds
in an amount equal to the estimated Severance Amount in escrow, pursuant to
arrangements that are
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mutually acceptable to the Company and Executive (the "Escrow
Arrangement"). The Escrow Arrangement shall be maintained until the final
installment payment of the Severance Amount has been made;
(iii) Notwithstanding anything to the contrary in any applicable
option agreement or stock-based award agreement, if Executive terminates
his employment for Good Reason as provided in Subparagraph 6(e) or if
Executive's employment is terminated by the Company without Cause as
provided in Subparagraph 6(d) within eighteen (18) months of a Change in
Control, all stock options and other stock-based awards granted to
Executive by the Company shall immediately accelerate and become
exercisable or non-forfeitable as of the Date of Termination, and Executive
shall have 360 days to exercise all his stock options. Executive shall
also be entitled to any other rights and benefits with respect to stock-
related awards, to the extent and upon the terms provided in the employee
stock option or incentive plan or any agreement or other instrument
attendant thereto pursuant to which such options or awards were granted;
and
(iv) The Company shall, for a period of one (1) year commencing on
the Date of Termination, pay such health insurance premiums as may be
necessary to allow Executive, Executive's spouse and dependents to continue
to receive health insurance coverage substantially similar to the coverage
they received prior to his termination of employment.
(b) Gross Up Payment.
(i) Excess Parachute Payment. If Executive incurs the tax (the
"Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986
(the "Code") on "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code, the Company will pay to Executive an amount (the
"Gross Up Payment") such that the net amount retained by Executive, after
deduction of any Excise Tax on the excess parachute payment and any
federal, state and local income taxes and employment taxes (together with
penalties and interest) and Excise Tax upon the payment provided for by
this Subparagraph 8(c)(i), will be equal to the Severance Amount.
(ii) Applicable Rates. For purposes of determining the amount of
the Gross Up Payment, Executive will be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation in the calendar
year in which the Gross Up Payment is to be made and state and local income
taxes at the highest marginal rates of taxation in the state and locality
of Executive's residence on the date of Executive's Termination, net of the
maximum reduction in federal income taxes that could be obtained from
deduction of such state and local taxes.
(iii) Determination of Gross Up Payment Amount. The determination of
whether the Excise Tax is payable and the amount thereof will be based upon
the
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opinion of tax counsel selected by Executive and approved by the Company,
which approval will not be unreasonably withheld. If such opinion is not
finally accepted by the Internal Revenue Service (or state and local taxing
authorities), then appropriate adjustments to the Excise Tax will be
computed and additional Gross Up Payments will be made in the manner
provided by this Subparagraph (c).
(iv) Time For Payment. The Company will pay the estimated amount of
the Gross Up Payment in cash to Executive at such time or times when the
Excise Tax is due. Executive and the Company agree to reasonably cooperate
in the determination of the actual amount of the Gross Up Payment.
Further, Executive and the Company agree to make such adjustments to the
estimated amount of the Gross Up Payment as may be necessary to equal the
actual amount of the Gross Up Payment, which in the case of Executive will
refer to refunds of prior overpayments and in the case of the Company will
refer to makeup of prior underpayments.
(c) Definitions. For purposes of this Paragraph 8, the following terms
shall have the following meanings:
"Change in Control" shall mean any of the following:
(a) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (the
"Acquiring Person"), other than the Company, or any of its Subsidiaries or
any Investor or Excluded Group, of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of the
combined voting power or economic interests of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors; provided, however, that any transfer from any Investor or
Excluded Group will not result in a Change in Control if such transfer was
part of a series of related transactions the effect of which, absent the
transfer to such Acquiring Person by the Investor or Excluded Group, would
not have resulted in the acquisition by such Acquiring Person of 35% or
more of the combined voting power or economic interests of the then
outstanding voting securities; or
(b) during any period of 12 consecutive months after the Issuance
Date, the individuals who at the beginning of any such 12-month period
constituted a majority of the Class A Directors and Class C Directors (the
"Incumbent Non-Investor Majority") cease for any reason to constitute at
least a majority of such Class A Directors and Class C Directors; provided
that (i) any individual becoming a director whose election, or nomination
for election by the Company's stockholders, was approved by a vote of the
stockholders having the right to designate such director and (ii) any
director whose election to the Board or whose nomination for election by
the stockholders of the Company was approved by the requisite vote of
directors entitled to vote on such election or nomination in accordance
with the Restated Certificate of Incorporation of the Company, shall, in
each such case, be considered as though such individual were a
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member of the Incumbent Non-Investor Majority, but excluding, as a member
of the Incumbent Non-Investor Majority, any such individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) and further excluding any person who is an affiliate or
associate of an Acquiring Person having or proposing to acquire beneficial
ownership of 25% or more of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in
the election of directors; or
(c) the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who were the
respective beneficial owners of the voting securities of the Company
immediately prior to such reorganization, merger or consolidation do not,
following such reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 57.5% of the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of directors of the Company resulting from such reorganization,
merger or consolidation; or
(d) the sale or other disposition of assets representing 50% or
more of the assets of the Company in one transaction or series of related
transactions .
All defined terms used in the definition of "Change in Control" shall have
the same meaning as set forth in the Form of Certificate of Designation of
Series B Convertible Preferred Stock of Wyndham International, Inc.
"Company" shall mean not only Wyndham International, Inc., but also
its successors by merger or otherwise.
9. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
if to the Executive:
At his home address as shown
in the Company's personnel records;
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if to the Company:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
Attention: Senior Vice President of Human Resources
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10. Miscellaneous. No provisions of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Texas (without regard to principles of
conflicts of laws).
11. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. The invalid portion of this Agreement, if any, shall be modified by any
court having jurisdiction to the extent necessary to render such portion
enforceable.
12. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
13. Arbitration; Other Disputes. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the applicable rules of the American Arbitration Association before
resorting to arbitration. In the event such dispute or controversy remains
unresolved in whole or in part for a period of thirty (30) days after it arises,
the parties will settle any remaining dispute or controversy exclusively by
arbitration in Dallas, Texas, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding the above,
the Company shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
14
<PAGE>
Paragraph 4 or 5 hereof. Furthermore, should a dispute occur concerning
Executive's mental or physical capacity as described in Subparagraph 6(b), 6(c)
or 7(b), a doctor selected by Executive and a doctor selected by the Company
shall be entitled to examine Executive. If the opinion of the Company's doctor
and Executive's doctor conflict, the Company's doctor and Executive's doctor
shall together agree upon a third doctor, whose opinion shall be binding. Any
amount to which Executive is entitled under this Agreement (including any
disputed amount), which is not paid when due, shall bear interest at a rate
equal to the lesser of eighteen percent (18%) per annum or the maximum lawful
rate.
14. Third-Party Agreements and Rights. Executive represents to the Company
that Executive's execution of this Agreement, Executive's employment with the
Company and the performance of Executive's proposed duties for the Company will
not violate any obligations Executive may have to any employer or other party,
and Executive will not bring to the premises of the Company any copies or other
tangible embodiments of non-public information belonging to or obtained from any
such previous employment or other party.
15. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company;
provided, however, that such cooperation shall not materially and adversely
affect Executive or expose Executive to an increased probability of civil or
criminal litigation. Executive's cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after Executive's
employment, Executive also shall cooperate fully with the Company in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Executive was employed by the Company. The Company shall
also provide Executive with compensation on an hourly basis (to be derived from
the sum of his Base Compensation or, if applicable, Adjusted Base Salary and
Average Incentive Compensation) for requested litigation and regulatory
cooperation that occurs after his termination of employment, and reimburse
Executive for all costs and expenses incurred in connection with his performance
under this Paragraph 15, including, but not limited to, reasonable attorneys'
fees and costs.
16. Gender Neutral. Wherever used herein, a pronoun in the masculine gender
shall be considered as including the feminine gender unless the context clearly
indicates otherwise.
15
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year first above written.
WYNDHAM INTERNATIONAL, INC.
By:
_______________________________
Its:
_______________________________
_______________________________
Carla S. Moreland
16
<PAGE>
Exhibit A
WYNDHAM INTERNATIONAL, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Dated as of April 19, 1999
Wyndham International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby grants to Carla S. Moreland, an Employee of the
Company (the "Optionee"), as of April 19, 1999 (the "Date of Grant"), a non-
qualified option (the "Option") to purchase from the Company 300,000 Paired
Shares, at the price of $5.00 per Paired Share, subject to the terms and
conditions set forth below. Such grant is pursuant to the Wyndham International,
Inc. 1997 Incentive Plan (the "Plan") and is made as an inducement to Optionee
to enter into the Employment Agreement between Optionee and the Company of even
date herewith (the "Employment Agreement").
1. Option Subject to Acceptance of Option Agreement and Employment Agreement.
The Option may not be exercised unless the Optionee accepts this Option
Agreement and the Employment Agreement by executing both the Option
Agreement and the Employment Agreement and returning such original
execution copies to the Company.
2. Time and Manner of Exercise of Option.
a. Maximum Term of Option. The Expiration Date of this Option is the date
that is ten years from the Date of Grant. This Option may not be
exercised on or after the Expiration Date.
b. Vesting Schedule. No portion of this Option may be exercised until
such portion shall have vested. Except as set forth in Section 3 of
this Agreement, this Option shall be vested and exercisable with
respect to the following number of Paired Shares on the date indicated
below provided that Optionee remains employed by the Company on such
date:
===============================================
Vesting Schedule A
===============================================
Number of Paired
Shares Exercisable Vesting Date
-----------------------------------------------
300,000 (100%) February 13, 2009
===============================================
Notwithstanding the foregoing, upon the closing (the "Closing") of the
Securities Purchase Agreement (the "Securities Purchase Agreement") by
and among Patriot American Hospitality, Inc., Wyndham International,
Inc., Patriot American Hospitality Partnership, L.P. and the
Investors named therein dated as of February 28, 1999, as amended from
time to time, the foregoing vesting
<PAGE>
schedule shall not apply and except as set forth in Section 3 of this
Agreement, this Option shall be vested and exercisable with respect to
the following number of Paired Shares on the dates indicated below
provided that Optionee remains employed by the Company on such dates:
===============================================
Vesting Schedule B
===============================================
Number of Paired
Shares Exercisable Vesting Date
-----------------------------------------------
60,000 (20%) 1 year after Date of Grant
-----------------------------------------------
60,000 (20%) 2 years after Date of Grant
-----------------------------------------------
60,000 (20%) 3 years after Date of Grant
-----------------------------------------------
60,000 (20%) 4 years after Date of Grant
-----------------------------------------------
60,000 (20%) 5 years after Date of Grant
===============================================
In the event of a Change in Control of the Company (as defined in the
Employment Agreement), if within 18 months of such Change in Control,
the Optionee's employment with the Company is terminated by the
Company without Cause (as defined in the Employment Agreement) or for
Good Reason (as defined in the Employment Agreement)), any unvested
portions of this Option shall fully vest and become exercisable.
Notwithstanding the foregoing, the purchase of securities by the
Investors pursuant to the Securities Purchase Agreement shall not be
deemed to be a Change in Control.
A partial exercise of this Option shall not affect Optionee's right to
exercise this Option with respect to the remaining Paired Shares.
c. Method of Exercise of Option. Subject to the limitations set forth in
this Agreement, the Option may be exercised by the Optionee (1) by
giving written notice to the Company specifying the number of whole
Paired Shares to be purchased and accompanied by payment of the Option
price in full (or arrangement made for such payment to the Company's
satisfaction) either (i) in cash or cash equivalent acceptable to the
Committee, (ii) in previously owned Paired Shares (which the Optionee
has held for at least six months prior to the delivery of such Paired
Shares or which the Optionee purchased on the open market and for
which the Optionee has good title, free and clear of all liens and
encumbrances) having a Fair Market Value, determined as of the date of
exercise, equal to the aggregate purchase price payable pursuant to
the Option by reason of such exercise, (iii) in cash or a check
payable and acceptable to the Company by a broker-dealer acceptable to
the Company to whom the Optionee has submitted an irrevocable notice
of exercise or (iv) a combination of two or
2
<PAGE>
more of the foregoing, and (2) by executing such documents as the
Company may reasonably request. Any fraction of a Paired Share which
would be required to pay such purchase price shall be disregarded and
the remaining amount due shall be paid in cash by the Optionee.
The delivery of certificates representing the Paired Shares subject to
the Option will be contingent upon the Company's receipt from Optionee
of (1) full payment of the Option price, as set forth above, and (2)
any agreement, statement or other evidence that the Company may
require to satisfy itself that the issuance of Paired Shares to be
purchased pursuant to the exercise of the Option and the subsequent
resale of Paired Shares will be in compliance with applicable laws and
regulations.
3. Exercise After Termination of Employment. If the Optionee's employment by
the Company or an Affiliate is terminated, the period within which to
exercise the Option may be subject to earlier termination as set forth
below. The Board's determination of the reason for termination of the
Optionee's employment shall be conclusive and binding on the Optionee and
his or her legal representatives or legatees. Any transfer of employment
from the Company to any Affiliate of the Company shall not be deemed to be
a termination of employment for purposes of this Agreement.
a. Termination Due to Death. If, on or after the Closing, the Optionee's
employment terminates by reason of death, the Option held by the
Optionee shall vest and become exercisable in accordance with the
Vesting Schedule B as set forth in Section 2(b), plus an additional
number of Paired Shares that would have vested on the next vesting
anniversary date. The Optionee's legal representative or legatee may
exercise the Option to the extent exercisable in accordance with this
Section 3(a), for a period of 360 days from the date of death or until
the Expiration Date, if earlier. Any portion of the Option that is not
exercisable at the time of death shall terminate immediately and be of
no further force or effect.
Notwithstanding the foregoing, if the Optionee's employment terminates
by reason of death on or after the Date of Grant but before the
Closing, the Option held by the Optionee shall vest and become
exercisable in accordance with Vesting Schedule A as set forth in
Section 2(b).
b. Termination Due to Disability. If, on or after the Closing, the
Optionee's employment terminates by reason of incapacity due to
physical or mental illness which resulted in his or her absence from
his or her duties with the Company on a full-time basis for 180
calendar days in the aggregate in any 12-month period, the Option held
by the Optionee shall vest and become exercisable in accordance with
the Vesting Schedule B as set forth in Section 2(b), plus an
additional number of Paired Shares that would have vested on the next
vesting anniversary
3
<PAGE>
date. The Optionee may exercise the Option to the extent exercisable
in accordance with this Section 3(b), for a period of 360 days from
the date of termination of employment or until the Expiration Date, if
earlier. Any portion of the Option that is not exercisable upon
termination of employment shall terminate immediately and be of no
further force or effect.
Notwithstanding the foregoing, if, on or after the Date of Grant but
before the Closing, the Optionee's employment terminates by reason of
incapacity due to physical or mental illness which resulted in his or
her absence from his or her duties with the Company on a full-time
basis for 180 calendar days in the aggregate in any 12-month period,
the Option held by the Optionee shall vest and become exercisable in
accordance with Vesting Schedule A as set forth in Section 2(b).
c. Termination without Cause or for Good Reason. If, on or after the
Closing, the Optionee's employment is terminated by the Company
without Cause (as defined in the Employment Agreement) or the Optionee
resigns from the Company for Good Reason (as defined in the Employment
Agreement), the Option held by the Optionee shall continue to vest and
become exercisable in accordance with the Vesting Schedule B as set
forth in Section 2(b) for an additional 24 months. The Optionee may
exercise the Option, to the extent exercisable in accordance with this
Section 3(c), for a period of 360 days after the end of the 24-month
period or until the Expiration Date, if earlier. Any portion of the
Option that is not exercisable at the end of 24 months following
termination of employment shall terminate immediately and be of no
further force or effect.
Notwithstanding the foregoing, if Optionee breaches any of the
provisions contained in Paragraph 4 or 5 of the Employment Agreement,
(i) any portion of the Option that vested or will vest by virtue of
this Section 3(c) shall immediately terminate and be of no force and
effect, and (ii) to the extent any portion of the Option that vested
by virtue of this Section 3(c) has been exercised, Optionee shall be
required to disgorge to the Company the difference between the fair
market value per Paired Share on the date of exercise and the Option
price per Paired Share, multiplied by the number of Paired Shares
acquired by Optionee.
Furthermore, notwithstanding the foregoing, if the Optionee's
employment is terminated by the Company without Cause (as defined in
the Employment Agreement) or the Optionee resigns from the Company for
Good Reason (as defined in the Employment Agreement) on or after the
Date of Grant but before the Closing or a Change in Control, the
Option held by the Optionee shall vest and become exercisable in
accordance with Vesting Schedule A as set forth in Section 2(b).
4
<PAGE>
d. Termination for Cause. If the Optionee's employment is terminated for
Cause (as defined in the Employment Agreement), the Option held by the
Optionee shall terminate immediately and be of no further force and
effect.
e. Other Termination. If the Optionee's employment terminates for any
reason not covered in Subsections (a), (b), (c) or (d) of this Section
3, the Option held by the Optionee may be exercised, to the extent
exercisable on the date of termination pursuant to the applicable
vesting schedule in Section 2(b), for a period of three (3) months
from the date of termination or until the Expiration Date, if earlier.
Any portion of the Option that is not exercisable at such time shall
terminate immediately and be of no further force or effect.
4. Incorporation of Plan. Notwithstanding anything herein to the contrary,
this Option shall be subject to and governed by all the terms and
conditions of the Plan. Capitalized terms in this Agreement shall have the
meaning specified in the Plan, unless a different meaning is specified
herein. All references herein to the Plan shall mean the Plan in effect as
of the date hereof. In the event of any conflict between the provisions in
the Plan and the provisions in this Agreement, the provisions of the Plan
shall govern.
5. Additional Terms and Conditions of Option.
a. Nontransferability of Option. This Agreement is personal to the
Optionee, is non-assignable and is not transferable in any manner, by
operation of law or otherwise, other than by will or the laws of
descent and distribution. This Option is exercisable, during the
Optionee's lifetime, only by the Optionee, and thereafter only by the
Optionee's legal representative or legatee.
b. Delivery of Certificates. Upon the exercise of the Option, in whole or
in part, the Company shall deliver or cause to be delivered one or
more certificates representing the number of Paired Shares purchased
against full payment therefor. The Company shall pay all original
issue or transfer taxes and all fees and expenses incident to such
delivery.
c. Option Confers No Rights as Stockholder. The Optionee shall not be
entitled to any privileges of ownership with respect to Paired Shares
subject to the Option unless and until purchased and delivered upon
the exercise of the Option, in whole or in part, and the Optionee
becomes a stockholder of record with respect to such delivered Paired
Shares; and the Optionee shall not be considered a stockholder of the
Company with respect to any such Paired Shares not so purchased and
delivered.
d. Decisions of Committee. The Committee shall have the right to resolve
all questions which may arise in connection with the Option or its
exercise. Any
5
<PAGE>
interpretation, determination or other action made or taken by the
Committee regarding this Agreement shall be final, binding and
conclusive.
e. Reservation of Paired Shares. The Company shall at all times prior to
the expiration or termination of the Option reserve or cause to be
reserved and keep or cause to be kept available, either in its
treasury or out of its authorized but unissued shares of common stock,
the full number of shares of common stock of the Company subject to
the Option from time to time. In addition, pursuant to Section 2(c) of
the Pairing Agreement, the Company shall request Patriot American
Hospitality, Inc. to issue the number of shares of common stock of
Patriot American Hospitality, Inc. subject to the Option so that the
Optionee shall receive Paired Shares upon exercise of the Option.
f. Change in Capital Structure. The terms of this Option shall be
adjusted as the Committee determines is equitably required in the
event the Company effects one or more stock dividends, stock split-
ups, subdivisions or consolidations of shares or other similar changes
in capitalization.
g. Fractional Shares. Fractional shares shall not be issuable hereunder,
and when any provision hereof may entitle Optionee to a fractional
share such fraction shall be disregarded.
6. Tax Withholding. The Optionee shall, not later than the date as of which
the exercise of this Option becomes a taxable event for Federal income tax
purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any Federal, state, and local taxes required by
law to be withheld on account of such taxable event. Subject to the
approval of the Committee, the Optionee may elect to have such tax
withholding obligation satisfied, in whole or in part, by (i) authorizing
the Company to withhold from Paired Shares to be issued, or (ii)
transferring to the Company a number of previously owned whole Paired
Shares (which the Optionee has held for at least six months prior to the
delivery of such Paired Shares or which the Optionee purchased on the open
market and for which the Optionee has good title, free and clear of all
liens and encumbrances) having an aggregate Fair Market Value, determined
as of the date of exercise, that would satisfy the withholding amount due.
7. Miscellaneous Provisions.
a. Designation as Non-qualified Stock Option. The Option is hereby
designated as not constituting an "incentive stock option" within the
meaning of section 422 of the Code. This Agreement shall be
interpreted and treated consistently with such designation.
b. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person
or persons who
6
<PAGE>
shall, upon the death of the Optionee, acquire any rights hereunder in
accordance with this Agreement or the Plan.
c. Notices. All notices, requests or other communications provided for in
this Agreement shall be made, if to the Company, to the Secretary of
the Company at the Company's principal executive office, and if to the
Optionee, to his or her address on the books of the Company (or to
such other address as the Company or the Optionee may give to the
other for purposes of notice hereunder).
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to
the party entitled thereto, (b) by facsimile with confirmation of
receipt, (c) by mailing in the United States mail to the last known
address of the party entitled thereto or (d) by express courier
service. The notice, request or other communication shall be deemed to
be received upon personal delivery, upon confirmation of receipt of
facsimile transmission or upon receipt by the party entitled thereto
if by United States mail or express courier service; provided,
however, that if a notice, request or other communication in not
received during regular business hours, it shall be deemed to be
received on the next succeeding business day of the Company.
d. Governing Law. This Agreement and all determinations made and actions
taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State
of Delaware and construed in accordance therewith without giving
effect to principles of conflicts of laws.
e. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
f. Further Assurances. The Company and the Optionee shall execute and
deliver such further instruments and take such additional action as
each party may reasonably request to effect, consummate, confirm or
evidence the grant of the Option to the Optionee, and they shall each
execute such documents as may be reasonably necessary to assist each
other in preserving or perfecting their respective rights in the
Option.
g. No Right to Continued Employment. This Agreement does not confer upon
Optionee any right to continue in the employ of the Company or an
Affiliate,
7
<PAGE>
nor shall it interfere in any way with the right of the Company or an
Affiliate to terminate such employment at any time.
WYNDHAM INTERNATIONAL, INC.
By: /s/ James D. Carreker
---------------------------------
Title: Chairman and CEO
---------------------------------
Accepted this 11th day of June, 1999.
/s/ Carla S. Moreland
- ---------------------------------
Name: Carla S. Moreland
"Optionee"
8
<PAGE>
EXHIBIT 10.9
WYNDHAM INTERNATIONAL, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Dated as of May 7, 1999
Wyndham International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby grants to Richard Mahoney, an employee of the
Company (the "Optionee"), as of May 7, 1999 (the "Date of Grant"), a non-
qualified option or other award of securities (the "Option") to purchase from
the Company 850,000 Paired Shares, at the price of $4.75 [at least 100% of FMV]
per Paired Share, subject to the terms and conditions set forth below. Such
grant is pursuant to the Wyndham International, Inc. 1997 Incentive Plan (the
"Plan").
1. Option Subject to Acceptance of Agreement. The Option may not be exercised
unless the Optionee accepts this Agreement by executing it in the space
provided below and returning such original execution copy to the Company.
2. Time and Manner of Exercise of Option.
a. Maximum Term of Option. The Expiration Date of this Option is the date
that is ten years from the Date of Grant. This Option may not be
exercised on or after the Expiration Date.
b. Vesting Schedule. No portion of this Option may be exercised until
such portion shall have vested. Except as set forth in Section 3
of this Agreement, and subject to the discretion of the Committee or
the Board of Directors to accelerate the vesting schedule hereunder,
this Option shall be vested and exercisable with respect to the
following number of Paired Shares on the dates indicated:
==========================================
Vesting Schedule: Vesting Date
------------------------------------------
20% May 7, 2000
------------------------------------------
20% May 7, 2001
------------------------------------------
20% May 7, 2002
------------------------------------------
20% May 7, 2003
------------------------------------------
20% May 7, 2004
==========================================
In the event of a Change of Control of the Company, unless otherwise
provided by the Committee or the Board of Directors at or prior to
such time, any unvested portions of this Option shall not vest.
A partial exercise of this Option shall not affect Optionee's right to
exercise this Option with respect to the remaining Paired Shares.
<PAGE>
c. Method of Exercise of Option. Subject to the limitations set forth in
this Agreement, the Option may be exercised by the Optionee (1) by
giving written notice to the Company specifying the number of whole
Paired Shares to be purchased and accompanied by payment of the Option
price in full (or arrangement made for such payment to the Company's
satisfaction) either (i) in cash or cash equivalent acceptable to the
Committee, (ii) in previously owned whole Paired Shares (which the
Optionee has held for at least six months prior to the delivery of
such Paired Shares or which the Optionee purchased on the open market
and for which the Optionee has good title, free and clear of all liens
and encumbrances) having a Fair Market Value, determined as of the
date of exercise, equal to the aggregate purchase price payable
pursuant to the Option by reason of such exercise, (iii) in cash or a
check payable and acceptable to the Company by a broker-dealer
acceptable to the Company to whom the Optionee has submitted an
irrevocable notice of exercise or (iv) a combination of two or more of
the foregoing, and (2) by executing such documents as the Company may
reasonably request. Any fraction of a Paired Share which would be
required to pay such purchase price shall be disregarded and the
remaining amount due shall be paid in cash by the Optionee.
The delivery of certificates representing the Paired Shares subject to
the Option will be contingent upon the Company's receipt from
Participant of (1) full payment of the Option price, as set forth
above, and (2) any agreement, statement or other evidence that the
Company may require to satisfy itself that the issuance of Paired
Shares to be purchased pursuant to the exercise of the Option and the
subsequent resale of Paired Shares will be in compliance with
applicable laws and regulations.
3. Exercise After Termination of Employment. If the Optionee's employment by
the Company or an Affiliate is terminated, the period within which to
exercise the Option may be subject to earlier termination as set forth
below. The Chairman's determination of the reason for termination of the
Optionee's employment shall be conclusive and binding on the Optionee and
his or her legal representatives or legatees. Any transfer of employment
from the Company to Patriot American Hospitality, Inc. or the Affiliate of
either of them shall not be deemed to be a termination of employment for
purposes of this Agreement.
a. Termination Due to Death. If the Optionee's employment terminates by
reason of death, any Option held by the Optionee shall become fully
exercisable and may thereafter be exercised by the Optionee's legal
representative or legatee for a period of twelve (12) months from the
date of death or until the Expiration Date, if earlier.
b. Termination Due to Disability. If the Optionee's employment terminates
by reason of Disability (as defined in Section 22(e)(3) of the
Internal Revenue Code of 1986, as amended (the "Code")), any Option
held by the Optionee shall
2
<PAGE>
become fully exercisable and may thereafter be exercised by the
Optionee for a period of twelve (12) months from the date
of termination or until the Expiration Date, if earlier.
c. Termination for Cause. If the Optionee's employment terminates for
"Cause", any Option held by the Optionee shall terminate immediately
and be of no further force and effect. For purposes of this Agreement
"Cause" shall mean: (A) conduct by Optionee constituting a material
act of willful misconduct in connection with the performance of his or
her duties, including, without limitation, misappropriation of funds
or property of the Company or any of its Affiliates other than the
occasional, customary and de minimis use of Company property for
personal purposes; (B) criminal or civil conviction or conduct by
Optionee that would reasonably be expected to result in material
injury to the reputation of the Company if he or she were retained in
his or her position with the Company, including, without limitation,
conviction of a felony involving moral turpitude; (C) continued,
willful and deliberate non-performance by Optionee of his or her
duties for the Company (other than by reason of Optionee's physical or
mental illness, incapacity or Disability) and such non-performance has
continued for more than thirty (30) days following written notice
of such non-performance from the Company; or (D) a breach by Optionee
of any of the provisions in his or her employment agreement, if any,
with regard to non-disclosure of confidential information or covenant
not to compete.
d. Other Termination. If the Optionee's employment terminates for any
reason other than death, Disability or Cause, and unless otherwise
determined by the Committee, any Option held by the Optionee may be
exercised, to the extent exercisable on the date of termination, for a
period of three (3) months from the date of termination or until the
Expiration Date, if earlier. Any Option that is not exercisable at
such time shall terminate immediately and be of no further force or
effect.
4. Incorporation of Plan. Notwithstanding anything herein to the contrary,
this Option shall be subject to and governed by all the terms and
conditions of the Plan. Capitalized terms in this Agreement shall have the
meaning specified in the Plan, unless a different meaning is specified
herein. All references herein to the Plan shall mean the Plan in effect as
of the date hereof. In the event of any conflict between the provisions in
the Plan and the provisions in this Agreement, the provisions of the Plan
shall govern.
5. Additional Terms and Conditions of Option.
a. Nontransferability of Option. This Agreement is personal to the
Optionee, is non-assignable and is not transferable in any manner, by
operation of law or otherwise, other than by will or the laws of
descent and distribution. This Option is
3
<PAGE>
exercisable, during the Optionee's lifetime, only by the Optionee, and
thereafter only by the Optionee's legal representative or legatee.
b. Delivery of Certificates. Upon the exercise of the Option, in whole or
in part, the Company shall deliver or cause to be delivered one or
more certificates representing the number of Paired Shares purchased
against full payment therefor. The Company shall pay all original
issue or transfer taxes and all fees and expenses incident to such
delivery.
c. Option Confers No Rights as Stockholder. The Optionee shall not be
entitled to any privileges of ownership with respect to Paired Shares
subject to the Option unless and until purchased and delivered upon
the exercise of the Option, in whole or in part, and the Optionee
becomes a stockholder of record with respect to such delivered Paired
Shares; and the Optionee shall not be considered a stockholder of the
Company with respect to any such Paired Shares not so purchased and
delivered.
d. Decisions of Committee. The Committee shall have the right to resolve
all questions which may arise in connection with the Option or its
exercise. Any interpretation, determination or other action made or
taken by the Committee regarding this Agreement shall be final,
binding and conclusive.
e. Reservation of Shares. The Company shall at all times prior to the
expiration or termination of the Option reserve or cause to be
reserved and keep or cause to be kept available, either in its
treasury or out of its authorized but unissued shares of common stock,
the full number of shares of common stock of the Company subject to
the Option from time to time. In addition, pursuant to Section 2(c) of
the Pairing Agreement, the Company shall request Patriot American
Hospitality, Inc. to issue the number of shares of common stock of
Patriot American Hospitality, Inc. subject to the Option so that the
Optionee shall receive Paired Shares upon exercise of the Option.
f. Change in Capital Structure. The terms of this Option shall be
adjusted as the Committee determines is equitably required in the
event the Company effects one or more stock dividends, stock split-
ups, subdivisions or consolidations of shares or other similar changes
in capitalization.
g. Fractional Shares. Fractional shares shall not be issuable hereunder,
and when any provision hereof may entitle Optionee to a fractional
share such fraction shall be disregarded.
6. Tax Withholding. The Optionee shall, not later than the date as of which
the exercise of this Option becomes a taxable event for Federal income tax
purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any Federal, state, and local taxes required by
law to be withheld on account of such taxable event. Subject to the
approval of the Committee, the Optionee may elect to have such tax
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withholding obligation satisfied, in whole or in part, by (i) authorizing
the Company to withhold from Paired Shares to be issued, or (ii)
transferring to the Company a number of previously owned whole Paired
Shares (which the Optionee has held for at least six months prior to the
delivery of such Paired Shares or which the Optionee purchased on the open
market and for which the Optionee has good title, free and clear of all
liens and encumbrances) having an aggregate Fair Market Value, determined
as of the date of exercise, that would satisfy the withholding amount due.
7. Miscellaneous Provisions.
a. Designation as Non-qualified Stock Option. The Option is hereby
designated as not constituting an "incentive stock option" within the
meaning of section 422 of the Code. This Agreement shall be
interpreted and treated consistently with such designation.
b. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person
or persons who shall, upon the death of the Optionee, acquire any
rights hereunder in accordance with this Agreement or the Plan.
c. Notices. All notices, requests or other communications provided for in
this Agreement shall be made, if to the Company, to the Secretary of
the Company at the Company's principal executive office, and if to the
Optionee, to his or her address on the books of the Company (or to
such other address as the Company or the Optionee may give to the
other for purposes of notice hereunder).
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to
the party entitled thereto, (b) by facsimile with confirmation of
receipt, (c) by mailing in the United States mail to the last known
address of the party entitled thereto or (d) by express courier
service. The notice, request or other communication shall be deemed to
be received upon personal delivery, upon confirmation of receipt of
facsimile transmission or upon receipt by the party entitled thereto
if by United States mail or express courier service; provided,
however, that if a notice, request or other communication in not
received during regular business hours, it shall be deemed to be
received on the next succeeding business day of the Company.
d. Governing Law. This Agreement and all determinations made and actions
taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State
of Delaware and construed in accordance therewith without giving
effect to principles of conflicts of laws.
e. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
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f. Further Assurances. The Company and the Optionee shall execute and
deliver such further instruments and take such additional action as
each party may reasonably request to effect, consummate, confirm or
evidence the grant of the Option to the Optionee, and they shall each
execute such documents as may be reasonably necessary to assist each
other in preserving or perfecting their respective rights in the
Option.
g. Conflict with Employment Agreement. If Optionee is a party to an
employment agreement with the Company, and there shall be any conflict
between provisions in this Agreement and the provisions in the
employment agreement, the provisions of the employment agreement shall
govern.
h. No Right to Continued Employment. This Agreement does not confer upon
Participant any right to continue in the employ of the Company or an
Affiliate, nor shall it interfere in any way with the right of the
Company or an Affiliate to terminate such employment at any time.
WYNDHAM INTERNATIONAL, INC.
By: /s/ CHARLES E. GRIFFIN
-------------------------------------------
Title: Senior Vice President, Human Resources
---------------------------------------
Accepted this 3 day of 1999.
Optionee Name: Richard Mahoney
Signature: /s/ RICHARD MAHONEY
____________________
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EXHIBIT 10.12
EXECUTIVE EMPLOYMENT AGREEMENT
AS AMENDED AND RESTATED
This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is
made as of the 19th day of April, 1999, between Wyndham International, Inc., a
Delaware corporation (the "Company"), and Anne L. Raymond ("Executive").
WHEREAS, Executive is currently employed by the Company in a senior
executive capacity;
WHEREAS, the Company desires to continue to employ Executive and Executive
desires to continue to be employed by the Company;
WHEREAS, the Company and Executive desire to amend and restate Executive's
existing Executive Employment Agreement with the Company to make certain changes
therein and to eliminate the requirement of an escrow arrangement upon a Change
in Control of the Company;
WHEREAS, the Company and Executive acknowledge that regardless of the
provisions of Paragraph 8 of this amended and restated Agreement, upon the
closing of the Securities Purchase Agreement by and among Patriot American
Hospitality, Inc., Wyndham International, Inc., Patriot American Hospitality,
L.P. and the Investors named therein, all options and other stock-based awards
granted to Executive prior to the date of this Agreement shall immediately
accelerate and become exercisable or non-forfeitable as of such date;
WHEREAS, as an additional inducement to Executive to enter into this
amended and restated Agreement, the Company shall, on the Commencement Date (as
hereinafter defined), grant Executive an option to purchase a certain number of
Paired Shares of common stock of the Company and of common stock of Patriot
American Hospitality, Inc. as set forth in the agreement attached hereto as
Exhibit A (the "Option") and to enter into a new promissory note attached hereto
as Exhibit B (the "Note"); and
WHEREAS, Executive is desirous of committing to serve the Company on the
terms herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment. The term of this Agreement shall extend from the date hereof
(the "Commencement Date") until the third anniversary of the Commencement Date;
provided, however, that the term of this Agreement shall automatically be
extended for one additional year on the third anniversary of the Commencement
Date and each anniversary thereafter unless, not less than 90 days prior to each
such date, either party shall have given notice to the other that it does not
wish to extend this Agreement; provided, further, that if a Change in
<PAGE>
Control occurs during the original or extended term of this Agreement, the term
of this Agreement shall continue in effect for a period of not less than
eighteen (18) months beyond the month in which the Change in Control occurred.
The term of this Agreement shall be subject to termination as provided in
Paragraph 6 and may be referred to herein as the "Period of Employment."
2. Position and Duties. During the Period of Employment, Executive shall serve
as an Executive Vice President and Chief Investment Officer of the Company,
shall have supervision and control over and responsibility for the day-to-day
business and affairs of those functions and operations of the Company and shall
have such other powers and duties as may from time to time be prescribed by the
Chairman of the Board of the Company (the "Chairman") or the Chief Executive
Officer of the Company (the "CEO") or other executive authorized by the Chairman
or CEO, provided that such duties are consistent with Executive's position or
other positions that he may hold from time to time. Executive shall devote his
full working time and efforts to the business and affairs of the Company.
Notwithstanding the foregoing, Executive may serve on other boards of directors,
with the approval of the Chairman or CEO, or engage in religious, charitable or
other community activities as long as such services and activities are disclosed
to the Chairman or CEO and do not materially interfere with Executive's
performance of his duties to the Company as provided in this Agreement.
3. Compensation and Related Matters.
(a) Base Salary and Incentive Compensation. Executive's initial annual base
salary ("Base Salary") shall be $325,000.00. Effective July 1, 1999, Base Salary
shall be adjusted to $350,000.00. Executive's Base Salary shall be redetermined
at least thirty (30) days before each annual compensation determination date
established by the Company during the Period of Employment in an amount to be
fixed by the Board of Directors of the Company or a Committee thereof or a duly
authorized officer (the "Board"). The Base Salary, as redetermined, may be
referred to herein as "Adjusted Base Salary." The Base Salary or Adjusted Base
Salary shall be payable in substantially equal bi-weekly installments and shall
in no way limit or reduce the obligations of the Company hereunder. In addition
to Base Salary or Adjusted Base Salary, Executive shall be eligible to receive
cash incentive compensation as determined by the Board from time to time, and
shall also be eligible to participate in such incentive compensation plans as
the Board shall determine from time to time for employees of the same status
within the hierarchy of the Company.
(b) Expenses. Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by him (in accordance with the policies and
procedures then in effect and established by the Company for its senior
executive officers) in performing services hereunder during the Period of
Employment, provided that Executive properly accounts therefor in accordance
with Company policy.
(c) Other Benefits. During the Period of Employment, Executive shall be
entitled to continue to participate in or receive benefits under all of the
Company's Employee Benefit
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Plans in effect on the date hereof, or under plans or arrangements that provide
Executive with at least substantially equivalent benefits to those provided
under such Employee Benefit Plans. As used herein, "Employee Benefit Plans"
include, without limitation, each pension and retirement plan; supplemental
pension, retirement and deferred compensation plan; savings and profit-sharing
plan; stock ownership plan; stock purchase plan; stock option plan; life
insurance plan; medical insurance plan; disability plan; and health and accident
plan or arrangement established and maintained by the Company on the date hereof
for employees of the same status within the hierarchy of the Company. To the
extent that the scope or nature of benefits described in this section are
determined under the policies of the Company based in whole or in part on the
seniority or tenure of an employee's service, Executive shall be deemed to have
a tenure with the Company equal to the actual time of Executive's service with
Company. During the Period of Employment, Executive shall be entitled to
participate in or receive benefits under any employee benefit plan or
arrangement which may, in the future, be made available by the Company to its
executives and key management employees, subject to and on a basis consistent
with the terms, conditions and overall administration of such plan or
arrangement. Any payments or benefits payable to Executive under a plan or
arrangement referred to in this Subparagraph 3(c) in respect of any calendar
year during which Executive is employed by the Company for less than the whole
of such year shall, unless otherwise provided in the applicable plan or
arrangement, be prorated in accordance with the number of days in such calendar
year during which he is so employed. Should any such payments or benefits accrue
on a fiscal (rather than calendar) year, then the proration in the preceding
sentence shall be on the basis of a fiscal year rather than calendar year.
(d) Life Insurance. The Company shall pay the premiums on, and maintain in
effect throughout the Period of Employment, a life insurance policy on the life
of Executive in an amount not less than the amount of Executive's then current
Base Salary or Adjusted Base Salary. Executive shall have the right to designate
the beneficiary under such policy.
(e) Vacations. Executive shall be entitled to the number of paid vacation
days in each calendar year determined by the Company from time to time for
executives at the same level as Executive. Executive shall also be entitled to
all paid holidays given by the Company to its executives. To the extent that the
scope or nature of benefits described in this section are determined under the
policies of the Company based in whole or in part on the seniority or tenure of
an employee's service, Executive shall be deemed to have a tenure with the
Company equal to the actual time of Executive's service with Company.
(f) Disability Insurance. The Company shall pay the premiums on, and
maintain in effect through the Period of Employment, long-term disability
insurance providing for payment of benefits at rates not less than sixty percent
(60%) of Executive's current Base Salary or Adjusted Base Salary.
(g) Tax Loan. Upon the maturity of the Note, if Executive is still employed
by the Company, the Company shall provide Executive with a loan (the "Tax Loan")
in an amount sufficient to enable Executive to pay taxes due upon the maturity
of the Note. The Tax Loan
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shall (i) be personal recourse, (ii) have a term of four (4) years, (iii) bear
interest at (a) six percent (6%) per annum, compounded annually from the date of
making the Tax Loan through April 18, 2002 and (b) from and after April 19,
2002, shall be at the Company's revolver interest rate, and (iv) require
Executive to prepay with fifty percent (50%) of the net after-tax proceeds of
the sale of any shares of stock of the Company acquired through option exercises
and with twenty-five percent (25%) of the net after-tax amount of any bonus
payment from the Company.
4. Unauthorized Disclosure.
(a) Confidential Information. Executive acknowledges that in the course of
his employment with the Company (and, if applicable, its predecessors), he has
been allowed to become, and will continue to be allowed to become, acquainted
with the Company's business affairs, information, trade secrets, and other
matters which are of a proprietary or confidential nature, including but not
limited to the Company's and its predecessors' operations, business
opportunities, price and cost information, finance, customer information,
business plans, various sales techniques, manuals, letters, notebooks,
procedures, reports, products, processes, services, and other confidential
information and knowledge (collectively the "Confidential Information")
concerning the Company's and its predecessors' business. The Company agrees to
provide on an ongoing basis such Confidential Information as the Company deems
necessary or desirable to aid Executive in the performance of his duties.
Executive understands and acknowledges that such Confidential Information is
confidential, and he agrees not to disclose such Confidential Information to
anyone outside the Company except to the extent that (i) Executive deems such
disclosure or use reasonably necessary or appropriate in connection with
performing his duties on behalf of the Company, (ii) Executive is required by
order of a court of competent jurisdiction (by subpoena or similar process) to
disclose or discuss any Confidential Information, provided that in such case,
Executive shall promptly inform the Company of such event, shall cooperate with
the Company in attempting to obtain a protective order or to otherwise restrict
such disclosure, and shall only disclose Confidential Information to the minimum
extent necessary to comply with any such court order; (iii) such Confidential
Information becomes generally known to and available for use by the hotel and
hospitality industry (the "Hotel Industry"), other than as a result of any
action or inaction by Executive; or (iv) such information has been rightfully
received by a member of the Hotel Industry or has been published in a form
generally available to the Hotel Industry prior to the date Executive proposes
to disclose or use such information. Executive further agrees that he will not
during employment and/or at any time thereafter use such Confidential
Information in competing, directly or indirectly, with the Company. At such time
as Executive shall cease to be employed by the Company, he will immediately turn
over to the Company all Confidential Information, including papers, documents,
writings, electronically stored information, other property, and all copies of
them provided to or created by him during the course of his employment with the
Company.
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(b) Heirs, successors, and legal representatives. The foregoing provisions
of this Paragraph 4 shall be binding upon Executive's heirs, successors, and
legal representatives. The provisions of this Paragraph 4 shall survive the
termination of this Agreement for any reason.
5. Covenant Not to Compete. In consideration for the Option and the Loan and
for Executive' s employment by the Company under the terms provided in this
Agreement and as a means to aid in the performance and enforcement of the terms
of the Unauthorized Disclosure provisions of Paragraph 4, Executive agrees that
(a) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, as an
owner, director, principal, agent, officer, employee, partner, consultant,
servant, or otherwise, carry on, operate, manage, control, or become involved in
any manner with any business, operation, corporation, partnership, association,
agency, or other person or entity which is in the business of owning, operating,
managing or granting franchise rights with respect to hotels, motels or other
lodging facilities in any area or territory in which the Company conducts
operations; provided, however, that the foregoing shall not prohibit Executive
from owning up to one percent (1%) of the outstanding stock of a publicly held
company engaged in the hospitality business. Notwithstanding the foregoing,
Executive shall be permitted to engage in such activities with respect to any
other hotel, motel or lodging facility that would be immaterial to the
operations of the Company in the area or territory in question. Immateriality,
for purposes of the foregoing sentence, shall be determined in the sole
discretion of the Board in good faith.
(b) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, either
for himself or for any other business, operation, corporation, partnership,
association, agency, or other person or entity, call upon, compete for, solicit,
divert, or take away, or attempt to divert or take away any of the customers
(including, without limitation, any hotel owner, lessor or lessee, asset
manager, trustee, consumer with whom the Company from time to time (i) has an
existing agreement or business relationship; or (ii) has included as a prospect
in its applicable pipeline) or vendors of the Company in any of the areas or
territories in which the Company conducts operations if such action has the
intent or effect of interfering with the Company's relationship with the vendor
or customer.
(c) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not directly or indirectly solicit or
induce any present or future employee of the Company to accept employment with
Executive or with any business, operation, corporation, partnership,
association, agency, or other person or entity with which Executive may be
associated, and Executive will not employ or cause any business, operation,
corporation, partnership, association, agency, or other person or entity with
which Executive may be
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associated to employ any present or future employee of the Company without
providing the Company with ten (10) days' prior written notice of such proposed
employment.
Should Executive violate the provisions of this Paragraph, then in addition
to all other rights and remedies available to the Company at law or in equity,
the duration of this covenant shall automatically be extended for the period of
time from which Executive began such violation until he permanently ceases such
violation.
6. Termination. Executive's employment hereunder may be terminated without any
breach of this Agreement under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his death.
(b) Disability. If, as a result of Executive's incapacity due to physical
or mental illness, Executive shall have been absent from his duties hereunder on
a full-time basis for one hundred eighty (180) calendar days in the aggregate in
any twelve (12) month period, the Company may terminate Executive's employment
hereunder.
(c) Termination by Company For Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder for Cause
if such termination is approved by not less than a majority of the Board of
Directors of the Company at a meeting of such Board of Directors called and held
for such purpose. For purposes of this Agreement "Cause" shall mean: (A) conduct
by Executive constituting a material act of willful misconduct in connection
with the performance of his duties, including, without limitation,
misappropriation of funds or property of the Company or any of its affiliates
other than the occasional, customary and de minimis use of Company property for
personal purposes; (B) criminal or civil conviction of Executive, a plea of nob
contendere by Executive or conduct by Executive that would reasonably be
expected to result in material injury to the reputation of the Company if he
were retained in his position with the Company, including, without limitation,
conviction of a felony involving moral turpitude; (C) continued, willful and
deliberate non-performance by Executive of his duties hereunder (other than by
reason of Executive's physical or mental illness, incapacity or disability) and
such non-performance has continued for more than thirty (30) days following
written notice of such non-performance from the Board; (D) a breach by Executive
of any of the provisions contained in Paragraphs 4 and 5 of this Agreement; or
(E) a violation by Executive of the Company's employment policies and such
violation has continued following written notice of such violation from the
Board.
(d) Termination Without Cause. At any time during the Period of Employment,
the Company may terminate Executive's employment hereunder without Cause if such
termination is approved by a majority of the Board at a meeting of the Board
called and held for such purpose. Any termination by the Company of Executive's
employment under this Agreement which does not constitute a termination for
Cause under Subparagraph 6(c) or result from the death or disability of the
Executive under Subparagraph 6(a) or (b) shall be
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deemed a termination without Cause. If the Company provides notice to the
Executive under Paragraph 1 that it does not wish to extend the Period of
Employment, such action shall be deemed a termination without Cause.
(e) Termination by Executive. At any time during the Period of Employment,
Executive may terminate his employment hereunder for any reason, including but
not limited to Good Reason. If Executive provides notice to the Company under
Paragraph 1 that he does not wish to extend the Period of Employment, such
action shall be deemed a voluntary termination by Executive and one without Good
Reason. For purposes of this Agreement, "Good Reason" shall mean that Executive
has complied with the "Good Reason Process" (hereinafter defined) following the
occurrence of any of the following events: (A) a substantial diminution or other
substantive adverse change, not consented to by Executive, in the nature or
scope of Executive's responsibilities, authorities, powers, functions or duties,
other than a change in Executive's position or reporting relationship; (B) any
removal, during the Period of Employment, from Executive of his title of
Executive Vice President; (C) an involuntary reduction in Executive's Base
Salary or Adjusted Base Salary or involuntary reduction in cash incentive
compensation plan (but not reduction in incentive compensation appropriate for
level of performance) except for across-the-board salary reductions similarly
affecting all or substantially all management employees; (D) a breach by the
Company of any of its other material obligations under this Agreement and the
failure of the Company to cure such breach within thirty (30) days after written
notice thereof by Executive; (E) the involuntary relocation of the Company's
offices at which Executive is principally employed or the involuntary relocation
of the offices of Executive's primary workgroup to a location more than thirty
(30) miles from such offices (other than a relocation in either event to Dallas,
Texas), or the requirement by the Company for Executive to be based anywhere
other than the Company's offices at such location or in Dallas, Texas on an
extended basis, except for required travel on the Company's business to an
extent substantially consistent with Executive's business travel obligations; or
(F) the requirement that Executive report to a person who is below the level of
an Executive Vice President. "Good Reason Process" shall mean that (i) the
Executive reasonably determines in good faith that a "Good Reason" event has
occurred; (ii) Executive notifies the Company in writing of the occurrence of
the Good Reason event; (iii) Executive cooperates in good faith with the
Company's efforts, for a period not less than ninety (90) days following such
notice, to modify Executive's employment situation in a manner acceptable to
Executive and Company; and (iv) notwithstanding such efforts, one or more of the
Good Reason events continues to exist and has not been modified in a manner
acceptable to Executive. If the Company cures the Good Reason event during the
ninety (90) day period, Good Reason shall be deemed not to have occurred.
(f) Notice of Termination. Except for termination as specified in
Subparagraph 6(a), any termination of Executive's employment by the Company or
any such termination by Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
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(g) Date of Termination. "Date of Termination" shall mean: (A) if
Executive's employment is terminated by his death, the date of his death; (B) if
Executive's employment is terminated on account of disability under Subparagraph
6(b) or by the Company for Cause under Subparagraph 6(c), the date on which
Notice of Termination is given; (C) if Executive's employment is terminated by
the Company under Subparagraph 6(d), sixty (60) days after the date on which a
Notice of Termination is given; and (D) if Executive's employment is terminated
by Executive under Subparagraph 6(e), thirty (30) days after the date on which a
Notice of Termination is given.
7. Compensation Upon Termination or During Disability.
(a) If Executive's employment terminates by reason of his death, the
Company shall, within ninety (90) days of death, pay in a lump sum amount to
such person as Executive shall designate in a notice filed with the Company or,
if no such person is designated, to Executive's estate, Executive's accrued and
unpaid Base Salary or, if applicable, his Adjusted Base Salary, to the date of
his death, plus his accrued and unpaid incentive compensation, if any, under
Subparagraph 3(a). For a period of one (1) year following the Date of
Termination, the Company shall pay such health insurance premiums as may be
necessary to allow Executive's spouse and dependents to receive health insurance
coverage substantially similar to coverage they received prior to the Date of
Termination. In addition to the foregoing, any payments to which Executive's
spouse, beneficiaries, or estate may be entitled under any employee benefit plan
shall also be paid in accordance with the terms of such plan or arrangement.
Such payments, in the aggregate, shall fully discharge the Company's obligations
hereunder.
(b) During any period that Executive fails to perform his duties hereunder
as a result of incapacity due to physical or mental illness, Executive shall
continue to receive his accrued and unpaid Base Salary or, if applicable, his
Adjusted Base Salary and accrued and unpaid incentive compensation payments, if
any, under Subparagraph 3(a), until Executive's employment is terminated due to
disability in accordance with Subparagraph 6(b) or until Executive terminates
his employment in accordance with Subparagraph 6(e), whichever first occurs. For
a period of one (1) year following the Date of Termination, the Company shall
pay such health insurance premiums as may be necessary to allow Executive,
Executive's spouse and dependents to receive health insurance coverage
substantially similar to coverage they received prior to the Date of
Termination. Upon termination due to death prior to the termination first to
occur as specified in the preceding sentence, Subparagraph 7(a) shall apply.
(c) If Executive's employment is terminated by Executive other than for
Good Reason as provided in Subparagraph 6(e), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given. Thereafter, the Company shall have no further obligations
to Executive except as otherwise expressly provided under this Agreement,
provided any such termination shall not adversely affect or alter Executive's
rights under any employee benefit plan of the Company in which Executive, at the
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Date of Termination, has a vested interest, unless otherwise provided in such
employee benefit plan or any agreement or other instrument attendant thereto.
(d) If Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e) or if Executive's employment is terminated by the Company
without Cause as provided in Subparagraph 6(d), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given and his accrued and unpaid incentive compensation, if any,
under Subparagraph 3(a). In addition, subject to signing by Executive of a
general release of claims in a form and manner satisfactory to the Company,
(i) the Company shall continue Executive's compensation at a rate
equal to the sum of Executive's Average Base Salary and his Average
Incentive Compensation payable for the remaining length of the Period of
Employment after the Date of Termination (the "Severance Amount"), but in
no event for fewer than twenty-four (24) months. The Severance Amount shall
be paid out in substantially equal bi-weekly installments, in arrears;
provided, however, that in the event Executive commences any employment
during such period, the Company shall be entitled to set-off against the
remaining Severance Amount seventy-five percent (75%) of the amount of any
cash compensation received by Executive from the new employer. From time to
time, Executive may be asked to certify to the Company that he has not
accepted employment with a new employer (including, without limitation,
contract and consulting agreements). For purposes of this Agreement,
"Average Base Salary" shall mean the average of the annual Base Salary or,
if applicable, Adjusted Base Salary received by Executive for each of the
three (3) immediately preceding fiscal years or such fewer number of
complete fiscal years as Executive may have been employed by the Company.
For purposes of this Agreement, "Average Incentive Compensation" shall mean
the average of the annual incentive compensation under Subparagraph 3(a)
received by Executive for the three (3) immediately preceding fiscal years
or such fewer number of complete fiscal years as Executive may have been
employed by the Company. In no event shall "Average Incentive Compensation"
include any sign-on bonus, retention bonus or any other special bonus.
Notwithstanding the foregoing, if the Executive breaches any of the
provisions contained in Paragraphs 4 and 5 of this Agreement, all payments
of the Severance Amount shall immediately cease. Notwithstanding the
foregoing, in the event Executive terminates his employment for Good Reason
as provided in Subparagraph 6(e), he shall be entitled to the Severance
Amount only if he provides the Notice of Termination provided for in
Subparagraph 6(f) within thirty (30) days after the occurrence of the event
or events which constitute such Good Reason as specified in clauses (A),
(B), (C), (D) (E) and (F) of Subparagraph 6(e);
(ii) in addition to any other benefits to which Executive may be
entitled in accordance with the Company's then existing severance policies,
the Company shall, for a period of one (1) year commencing on the Date of
Termination, pay such health
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<PAGE>
insurance premiums as may be necessary to allow Executive, Executive's
spouse and dependents to continue to receive health insurance coverage
substantially similar to the coverage they received prior to his
termination of employment.
(e) If Executive's employment is terminated by the Company for Cause as
provided in Subparagraph 6(c), then the Company shall, through the Date of
Termination, pay Executive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary at the rate in effect at the time Notice of Termination
is given. Thereafter, the Company shall have no further obligations to Executive
except as otherwise expressly provided under this Agreement, provided any such
termination shall not adversely affect or alter Executive's rights under any
employee benefit plan of the Company in which Executive, at the Date of
Termination, has a vested interest, unless otherwise provided in such employee
benefit plan or any agreement or other instrument attendant thereto.
(f) Regardless of the reason for termination, for a period of five (5)
years beginning on the Date of Termination, the Company will provide such
reasonable assistance and support to Executive as he shall reasonably require in
connection with the preparation and filing of tax returns, statements and forms
insofar as such returns, statements or forms relate to Executive's association
with the Company or any of its predecessors or affiliates. At the Company's
election, such assistance and support shall be provided by either tax personnel
from the Company or certified public accountants selected and compensated by the
Company.
(g) Nothing contained in the foregoing Subparagraphs 7(a) through 7(f)
shall be construed so as to affect Executive's rights or the Company's
obligations relating to agreements or benefits which are unrelated to
termination of employment.
8. Change in Control Payment. The provisions of this Paragraph 8 set forth
certain terms of an agreement reached between Executive and the Company
regarding Executive's rights and obligations upon the occurrence of a Change in
Control of the Company. These provisions are intended to assure and encourage in
advance Executive's continued attention and dedication to his assigned duties
and his objectivity during the pendency and after the occurrence of any such
event. These provisions shall apply in lieu of, and expressly supersede, the
provisions of Subparagraph 7(d)(i) regarding severance pay upon a termination of
employment, if such termination of employment occurs within eighteen (18) months
after the occurrence of the first event constituting a Change of Control;
provided that such first event occurs during the Period of Employment. These
provisions shall terminate and be of no further force or effect beginning
eighteen (18) months after the occurrence of a Change of Control.
(a) Change in Control.
(i) If within eighteen (18) months after the occurrence of the first
event constituting a Change in Control, Executive's employment is
terminated by the Company without Cause as provided in Subparagraph 6(d) or
Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e), then the Company shall pay Executive the Severance
Amount as provided in Subparagraph 7(d)(i) in
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<PAGE>
substantially bi-weekly installments, in arrears, over twenty-four (24)
months. Notwithstanding the foregoing, if the Executive breaches any of the
provisions contained in Paragraphs 4 and 5 of this Agreement, all payments
of the Severance Amount shall immediately cease; and
(ii) Within fifteen (15) days after Executive becomes entitled to
receive the Severance Amount under (i) above, the Company shall place funds
in an amount equal to the estimated Severance Amount in escrow, pursuant to
arrangements that are mutually acceptable to the Company and Executive (the
"Escrow Arrangement"). The Escrow Arrangement shall be maintained until the
final installment payment of the Severance Amount has been made;
(iii) Notwithstanding anything to the contrary in any applicable
option agreement or stock-based award agreement, if Executive terminates
his employment for Good Reason as provided in Subparagraph 6(e) or if
Executive's employment is terminated by the Company without Cause as
provided in Subparagraph 6(d) within eighteen (18) months of a Change in
Control, all stock options and other stock-based awards granted to
Executive by the Company shall immediately accelerate and become
exercisable or non-forfeitable as of the Date of Termination, and Executive
shall have 360 days to exercise all his stock options. Executive shall also
be entitled to any other rights and benefits with respect to stock-related
awards, to the extent and upon the terms provided in the employee stock
option or incentive plan or any agreement or other instrument attendant
thereto pursuant to which such options or awards were granted; and
(iv) The Company shall, for a period of one (1) year commencing on
the Date of Termination, pay such health insurance premiums as may be
necessary to allow Executive, Executive's spouse and dependents to continue
to receive health insurance coverage substantially similar to the coverage
they received prior to his termination of employment.
(b) Gross Up Payment.
(i) Excess Parachute Payment. If Executive incurs the tax (the
"Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986
(the "Code") on "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code, the Company will pay to Executive an amount (the
"Gross Up Payment") such that the net amount retained by Executive, after
deduction of any Excise Tax on the excess parachute payment and any
federal, state and local income taxes and employment taxes (together with
penalties and interest) and Excise Tax upon the payment provided for by
this Subparagraph 8(c)(i), will be equal to the Severance Amount.
(ii) Applicable Rates. For purposes of determining the amount of the
Gross Up Payment, Executive will be deemed to pay federal income taxes at
the highest
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<PAGE>
marginal rate of federal income taxation in the calendar year in which the
Gross Up Payment is to be made and state and local income taxes at the
highest marginal rates of taxation in the state and locality of Executive's
residence on the date of Executive's Termination, net of the maximum
reduction in federal income taxes that could be obtained from deduction of
such state and local taxes.
(iii) Detennination of Gross Up Payment Amount. The determination of
whether the Excise Tax is payable and the amount thereof will be based upon
the opinion of tax counsel selected by Executive and approved by the
Company, which approval will not be unreasonably withheld. If such opinion
is not finally accepted by the Internal Revenue Service (or state and local
taxing authorities), then appropriate adjustments to the Excise Tax will be
computed and additional Gross Up Payments will be made in the manner
provided by this Subparagraph (c).
(iv) Time For Payment. The Company will pay the estimated amount of
the Gross Up Payment in cash to Executive at such time or times when the
Excise Tax is due. Executive and the Company agree to reasonably cooperate
in the determination of the actual amount of the Gross Up Payment. Further,
Executive and the Company agree to make such adjustments to the estimated
amount of the Gross Up Payment as may be necessary to equal the actual
amount of the Gross Up Payment, which in the case of Executive will refer
to refunds of prior overpayments and in the case of the Company will refer
to makeup of prior underpayments.
(c) Definitions. For purposes of this Paragraph 8, the following terms
shall have the following meanings:
"Change in Control" shall mean any of the following:
(a) the acquisition by any individual, entity or group (within the
meaning of Section 1 3(d)(3) or 14(d)(2) of the Exchange Act) (the
"Acquiring Person"), other than the Company, or any of its Subsidiaries or
any Investor or Excluded Group, of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of the
combined voting power or economic interests of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors; provided, however, that any transfer from any Investor or
Excluded Group will not result in a Change in Control if such transfer was
part of a series of related transactions the effect of which, absent the
transfer to such Acquiring Person by the Investor or Excluded Group, would
not have resulted in the acquisition by such Acquiring Person of 35% or
more of the combined voting power or economic interests of the then
outstanding voting securities; or
(b) during any period of 12 consecutive months after the Issuance
Date, the individuals who at the beginning of any such 12-month period
constituted a majority of the Class A Directors and Class C Directors (the
"Incumbent Non-Investor Majority")
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<PAGE>
cease for any reason to constitute at least a majority of such Class A
Directors and Class C Directors; provided that (i) any individual becoming
a director whose election, or nomination for election by the Company's
stockholders, was approved by a vote of the stockholders having the right
to designate such director and (ii) any director whose election to the
Board or whose nomination for election by the stockholders of the Company
was approved by the requisite vote of directors entitled to vote on such
election or nomination in accordance with the Restated Certificate of
Incorporation of the Company, shall, in each such case, be considered as
though such individual were a member of the Incumbent Non-Investor
Majority, but excluding, as a member of the Incumbent Non-Investor
Majority, any such individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of the Company (as such terms are used in Rule
14a-1 1 of Regulation 14A promulgated under the Exchange Act) and further
excluding any person who is an affiliate or associate of an Acquiring
Person having or proposing to acquire beneficial ownership of 25% or more
of the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors; or
(c) the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who were the
respective beneficial owners of the voting securities of the Company
immediately prior to such reorganization, merger or consolidation do not,
following such reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 57.5% of the combined voting power of
the then outstanding voting securities entitled to vote generally in the
election of directors of the Company resulting from such reorganization,
merger or consolidation; or
(d) the sale or other disposition of assets representing 50% or more
of the assets of the Company in one transaction or series of related
transactions.
All defined terms used in the definition of "Change in Control" shall have
the same meaning as set forth in the Form of Certificate of Designation of
Series B Convertible Preferred Stock of Wyndham International, Inc.
"Company" shall mean not only Wyndham International, Inc., but also
its successors by merger or otherwise.
9. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
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if to the Executive:
At his home address as shown
in the Company's personnel records;
if to the Company:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
Attention: Senior Vice President of Human Resources and General
Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10. Miscellaneous. No provisions of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Texas (without regard to principles of
conflicts of laws).
11. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. The invalid portion of this Agreement, if any, shall be modified by any
court having jurisdiction to the extent necessary to render such portion
enforceable.
12. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
13. Arbitration; Other Disputes. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the applicable rules of the American Arbitration Association before
resorting to arbitration. In the event such dispute or controversy remains
unresolved in whole or in part for a period of thirty (30) days after it
14
<PAGE>
arises, the parties will settle any remaining dispute or controversy exclusively
by arbitration in Dallas, Texas, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding the above,
the Company shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
Paragraph 4 or 5 hereof. Furthermore, should a dispute occur concerning
Executive's mental or physical capacity as described in Subparagraph 6(b), 6(c)
or 7(b), a doctor selected by Executive and a doctor selected by the Company
shall be entitled to examine Executive. If the opinion of the Company's doctor
and Executive's doctor conflict, the Company's doctor and Executive's doctor
shall together agree upon a third doctor, whose opinion shall be binding. Any
amount to which Executive is entitled under this Agreement (including any
disputed amount), which is not paid when due, shall bear interest at a rate
equal to the lesser of eighteen percent (18%) per annum or the maximum lawful
rate.
14. Third-Party Agreements and Rights. Executive represents to the Company that
Executive's execution of this Agreement, Executive's employment with the Company
and the performance of Executive's proposed duties for the Company will not
violate any obligations Executive may have to any employer or other party, and
Executive will not bring to the premises of the Company any copies or other
tangible embodiments of non-public information belonging to or obtained from any
such previous employment or other party.
15. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company;
provided, however, that such cooperation shall not materially and adversely
affect Executive or expose Executive to an increased probability of civil or
criminal litigation. Executive's cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after Executive' s
employment, Executive also shall cooperate fully with the Company in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Executive was employed by the Company. The Company shall
also provide Executive with compensation on an hourly basis (to be derived from
the sum of his Base Compensation or, if applicable, Adjusted Base Salary and
Average Incentive Compensation) for requested litigation and regulatory
cooperation that occurs after his termination of employment, and reimburse
Executive for all costs and expenses incurred in connection with his performance
under this Paragraph 15, including, but not limited to, reasonable attorneys'
fees and costs.
16. Gender Neutral. Wherever used herein, a pronoun in the masculine gender
shall be considered as including the feminine gender unless the context clearly
indicates otherwise.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year first above written.
WYNDHAM INTERNATIONAL, INC.
By:
----------------------------------------
Its: Chairman and Chief Executive Officer
/s/ Anne L. Raymond
----------------------------------------
Anne L. Raymond
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Exhibit A
WYNDHAM INTERNATIONAL, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Dated as of April 19, 1999
Wyndham International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby grants to Anne L. Raymond, an Employee of the
Company (the "Optionee"), as of April 19, 1999 (the "Date of Grant"), a non-
qualified option (the "Option") to purchase from the Company 400,000 Paired
Shares, at the price of $5.00 per Paired Share, subject to the terms and
conditions set forth below. Such grant is pursuant to the Wyndham International,
Inc. 1997 Incentive Plan (the "Plan") and is made as an inducement to Optionee
to enter into the Employment Agreement between Optionee and the Company of even
date herewith (the "Employment Agreement").
1. Option Subject to Acceptance of Option Agreement and Employment Agreement.
The Option may not be exercised unless the Optionee accepts this Option
Agreement and the Employment Agreement by executing both the Option
Agreement and the Employment Agreement and returning such original
execution copies to the Company.
2. Time and Manner of Exercise of Option.
1. Maximum Term of Option. The Expiration Date of this Option is the date
that is ten years from the Date of Grant. This Option may not be
exercised on or after the Expiration Date.
2. Vesting Schedule. No portion of this Option may be exercised until
such portion shall have vested. Except as set forth in Section 3 of
this Agreement, this Option shall be vested and exercisable with
respect to the following number of Paired Shares on the date indicated
below provided that Optionee remains employed by the Company on such
date:
==================================================
Vesting Schedule A
--------------------------------------------------
Number of Paired
Shares Exercisable Vesting Date
==================================================
400,000 (100%) February 13, 2009
==================================================
Notwithstanding the foregoing, upon the closing (the "Closing") of the
Securities Purchase Agreement (the "Securities Purchase Agreement") by
and among Patriot American Hospitality, Inc., Wyndham International,
Inc., Patriot American Hospitality Partnership, L.P. and the
Investors named therein dated as of February 28, 1999, as amended from
time to time, the foregoing vesting
<PAGE>
schedule shall not apply and except as set forth in Section 3 of this
Agreement, this Option shall be vested and exercisable with respect to
the following number of Paired Shares on the dates indicated below
provided that Optionee remains employed by the Company on such dates:
==================================================
Vesting Schedule B
--------------------------------------------------
Number of Paired
Shares Exercisable Vesting Date
==================================================
80,000 (20%) 1 year after Date of Grant
--------------------------------------------------
80,000 (20%) 2 years after Date of Grant
--------------------------------------------------
80,000 (20%) 3 years after Date of Grant
--------------------------------------------------
80,000 (20%) 4 years after Date of Grant
--------------------------------------------------
80,000 (20%) 5 years after Date of Grant
==================================================
In the event of a Change in Control of the Company (as defined in the
Employment Agreement), if within 18 months of such Change in Control,
the Optionee's employment with the Company is terminated by the
Company without Cause (as defined in the Employment Agreement) or for
Good Reason (as defined in the Employment Agreement)), any unvested
portions of this Option shall fully vest and become exercisable.
Notwithstanding the foregoing, the purchase of securities by the
Investors pursuant to the Securities Purchase Agreement shall not be
deemed to be a Change in Control.
A partial exercise of this Option shall not affect Optionee's right
to exercise this Option with respect to the remaining Paired Shares.
3. Method of Exercise of Option. Subject to the limitations set forth in
this Agreement, the Option may be exercised by the Optionee (1) by
giving written notice to the Company specifying the number of whole
Paired Shares to be purchased and accompanied by payment of the Option
price in full (or arrangement made for such payment to the Company's
satisfaction) either (i) in cash or cash equivalent acceptable to the
Committee, (ii) in previously owned Paired Shares (which the Optionee
has held for at least six months prior to the delivery of such Paired
Shares or which the Optionee purchased on the open market and for
which the Optionee has good title, free and clear of all liens and
encumbrances) having a Fair Market Value, determined as of the date of
exercise, equal to the aggregate purchase price payable pursuant to
the Option by reason of such exercise, (iii) in cash or a check
payable and acceptable to the Company by a broker-dealer acceptable to
the Company to whom the Optionee
2
<PAGE>
has submitted an irrevocable notice of exercise or (iv) a combination
of two or more of the foregoing, and (2) by executing such documents
as the Company may reasonably request. Any fraction of a Paired Share
which would be required to pay such purchase price shall be
disregarded and the remaining amount due shall be paid in cash by the
Optionee.
The delivery of certificates representing the Paired Shares subject to
the Option will be contingent upon the Company's receipt from Optionee
of (1) full payment of the Option price, as set forth above, and (2)
any agreement, statement or other evidence that the Company may
require to satisfy itself that the issuance of Paired Shares to be
purchased pursuant to the exercise of the Option and the subsequent
resale of Paired Shares will be in compliance with applicable laws and
regulations.
3. Exercise After Termination of Employment. If the Optionee's employment by
the Company or an Affiliate is terminated, the period within which to
exercise the Option may be subject to earlier termination as set forth
below. The Board's determination of the reason for termination of the
Optionee's employment shall be conclusive and binding on the Optionee and
his or her legal representatives or legatees. Any transfer of employment
from the Company to any Affiliate of the Company shall not be deemed to be
a termination of employment for purposes of this Agreement.
1. Termination Due to Death. If, on or after the Closing, the Optionee's
employment terminates by reason of death, the Option held by the
Optionee shall vest and become exercisable in accordance with the
Vesting Schedule B as set forth in Section 2(b), plus an additional
number of Paired Shares that would have vested on the next vesting
anniversary date. The Optionee's legal representative or legatee may
exercise the Option to the extent exercisable in accordance with this
Section 3(a), for a period of 360 days from the date of death or until
the Expiration Date, if earlier. Any portion of the Option that is not
exercisable at the time of death shall terminate immediately and be of
no further force or effect.
Notwithstanding the foregoing, if the Optionee's employment terminates
by reason of death on or after the Date of Grant but before the
Closing, the Option held by the Optionee shall vest and become
exercisable in accordance with Vesting Schedule A as set forth in
Section 2(b).
2. Termination Due to Disability. If, on or after the Closing, the
Optionee's employment terminates by reason of incapacity due to
physical or mental illness which resulted in his or her absence from
his or her duties with the Company on a full-time basis for 180
calendar days in the aggregate in any 12-month period, the Option held
by the Optionee shall vest and become exercisable in accordance with
the Vesting Schedule B as set forth in Section 2(b), plus an
additional
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<PAGE>
number of Paired Shares that would have vested on the next vesting
anniversary date. The Optionee may exercise the Option to the extent
exercisable in accordance with this Section 3(b), for a period of 360
days from the date of termination of employment or until the
Expiration Date, if earlier. Any portion of the Option that is not
exercisable upon termination of employment shall terminate immediately
and be of no further force or effect.
Notwithstanding the foregoing, if, on or after the Date of Grant but
before the Closing, the Optionee's employment terminates by reason of
incapacity due to physical or mental illness which resulted in his or
her absence from his or her duties with the Company on a full-time
basis for 180 calendar days in the aggregate in any 12-month period,
the Option held by the Optionee shall vest and become exercisable in
accordance with Vesting Schedule A as set forth in Section 2(b).
3. Termination without Cause or for Good Reason. If, on or after the
Closing, the Optionee's employment is terminated by the Company
without Cause (as defined in the Employment Agreement) or the Optionee
resigns from the Company for Good Reason (as defined in the Employment
Agreement), the Option held by the Optionee shall continue to vest and
become exercisable in accordance with the Vesting Schedule B as set
forth in Section 2(b) for an additional 24 months. The Optionee may
exercise the Option, to the extent exercisable in accordance with this
Section 3(c), for a period of 360 days after the end of the 24-month
period or until the Expiration Date, if earlier. Any portion of the
Option that is not exercisable at the end of 24 months following
termination of employment shall terminate immediately and be of no
further force or effect.
Notwithstanding the foregoing, if Optionee breaches any of the
provisions contained in Paragraph 4 or 5 of the Employment Agreement,
(i) any portion of the Option that vested or will vest by virtue of
this Section 3(c) shall immediately terminate and be of no force and
effect, and (ii) to the extent any portion of the Option that vested
by virtue of this Section 3(c) has been exercised, Optionee shall be
required to disgorge to the Company the difference between the fair
market value per Paired Share on the date of exercise and the Option
price per Paired Share, multiplied by the number of Paired Shares
acquired by Optionee.
Furthermore, notwithstanding the foregoing, if the Optionee's
employment is terminated by the Company without Cause (as defined in
the Employment Agreement) or the Optionee resigns from the Company for
Good Reason (as defined in the Employment Agreement) on or after the
Date of Grant but before the Closing or a Change in Control, the
Option held by the Optionee shall vest and become exercisable in
accordance with Vesting Schedule A as set forth in Section 2(b).
4
<PAGE>
4. Termination for Cause. If the Optionee's employment is terminated for
Cause (as defined in the Employment Agreement), the Option held by the
Optionee shall terminate immediately and be of no further force and
effect.
5. Other Termination. If the Optionee's employment terminates for any
reason not covered in Subsections (a), (b), (c) or (d) of this
Section 3, the Option held by the Optionee may be exercised, to the
extent exercisable on the date of termination pursuant to the
applicable vesting schedule in Section 2(b), for a period of three (3)
months from the date of termination or until the Expiration Date, if
earlier. Any portion of the Option that is not exercisable at such
time shall terminate immediately and be of no further force or effect.
4. Incorporation of Plan. Notwithstanding anything herein to the contrary,
this Option shall be subject to and governed by all the terms and
conditions of the Plan. Capitalized terms in this Agreement shall have the
meaning specified in the Plan, unless a different meaning is specified
herein. All references herein to the Plan shall mean the Plan in effect as
of the date hereof. In the event of any conflict between the provisions in
the Plan and the provisions in this Agreement, the provisions of the Plan
shall govern.
5. Additional Terms and Conditions of Option.
1. Nontransferability of Option. This Agreement is personal to the
Optionee, is non-assignable and is not transferable in any manner, by
operation of law or otherwise, other than by will or the laws of
descent and distribution. This Option is exercisable, during the
Optionee's lifetime, only by the Optionee, and thereafter only by the
Optionee's legal representative or legatee.
2. Delivery of Certificates. Upon the exercise of the Option, in whole or
in part, the Company shall deliver or cause to be delivered one or
more certificates representing the number of Paired Shares purchased
against full payment therefor. The Company shall pay all original
issue or transfer taxes and all fees and expenses incident to such
delivery.
3. Option Confers No Rights as Stockholder. The Optionee shall not be
entitled to any privileges of ownership with respect to Paired Shares
subject to the Option unless and until purchased and delivered upon
the exercise of the Option, in whole or in part, and the Optionee
becomes a stockholder of record with respect to such delivered Paired
Shares; and the Optionee shall not be considered a stockholder of the
Company with respect to any such Paired Shares not so purchased and
delivered.
5
<PAGE>
4. Decisions of Committee. The Committee shall have the right to resolve
all questions which may arise in connection with the Option or its
exercise. Any interpretation, determination or other action made or
taken by the Committee regarding this Agreement shall be final,
binding and conclusive.
5. Reservation of Paired Shares. The Company shall at all times prior to
the expiration or termination of the Option reserve or cause to be
reserved and keep or cause to be kept available, either in its
treasury or out of its authorized but unissued shares of common stock,
the full number of shares of common stock of the Company subject to
the Option from time to time. In addition, pursuant to Section 2(c) of
the Pairing Agreement, the Company shall request Patriot American
Hospitality, Inc. to issue the number of shares of common stock of
Patriot American Hospitality, Inc. subject to the Option so that the
Optionee shall receive Paired Shares upon exercise of the Option.
6. Change in Capital Structure. The terms of this Option shall be
adjusted as the Committee determines is equitably required in the
event the Company effects one or more stock dividends, stock split-
ups, subdivisions or consolidations of shares or other similar changes
in capitalization.
7. Fractional Shares. Fractional shares shall not be issuable hereunder,
and when any provision hereof may entitle Optionee to a fractional
share such fraction shall be disregarded.
6. Tax Withholding. The Optionee shall, not later than the date as of which
the exercise of this Option becomes a taxable event for Federal income tax
purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any Federal, state, and local taxes required by
law to be withheld on account of such taxable event. Subject to the
approval of the Committee, the Optionee may elect to have such tax
withholding obligation satisfied, in whole or in part, by (i) authorizing
the Company to withhold from Paired Shares to be issued, or (ii)
transferring to the Company a number of previously owned whole Paired
Shares (which the Optionee has held for at least six months prior to the
delivery of such Paired Shares or which the Optionee purchased on the open
market and for which the Optionee has good title, free and clear of all
liens and encumbrances) having an aggregate Fair Market Value, determined
as of the date of exercise, that would satisfy the withholding amount due.
7. Miscellaneous Provisions.
1. Designation as Non-qualified Stock Option. The Option is hereby
designated as not constituting an "incentive stock option" within the
meaning of section 422 of the Code. This Agreement shall be
interpreted and treated consistently with such designation.
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2. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person
or persons who shall, upon the death of the Optionee, acquire any
rights hereunder in accordance with this Agreement or the Plan.
3. Notices. All notices requests or other communications provided for
in this Agreement shall be made, if to the Company, to the Secretary
of the Company at the Company's principal executive office, and if to
the Optionee, to his or her address on the books of the Company (or to
such other address as the Company or the Optionee may give to the
other for purposes of notice hereunder).
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to
the party entitled thereto, (b) by facsimile with confirmation of
receipt, (c) by mailing in the United States mail to the last known
address of the party entitled thereto or (d) by express courier
service. The notice, request or other communication shall be deemed to
be received upon personal delivery, upon confirmation of receipt of
facsimile transmission or upon receipt by the party entitled thereto
if by United States mail or express courier service; provided,
however, that if a notice, request or other communication in not
received during regular business hours, it shall be deemed to be
received on the next succeeding business day of the Company.
4. Governing Law. This Agreement and all determinations made and actions
taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State
of Delaware and construed in accordance therewith without giving
effect to principles of conflicts of laws.
5. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
6. Further Assurances. The Company and the Optionee shall execute and
deliver such further instruments and take such additional action as
each party may reasonably request to effect, consummate, confirm or
evidence the grant of the Option to the Optionee, and they shall each
execute such documents as may be reasonably necessary to assist each
other in preserving or perfecting their respective rights in the
Option.
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7. No Right to Continued Employment. This Agreement does not confer upon
Optionee any right to continue in the employ of the Company or an
Affiliate, nor shall it interfere in any way with the right of the
Company or an Affiliate to terminate such employment at any time.
WYNDHAM INTERNATIONAL, INC.
By: /s/ STANLEY M. KOONE
-----------------------------------
Title:
-----------------------------------
Accepted this 27 day of October, 1999.
/s/ ANNE L. RAYMOND
- -----------------------------------
Anne L. Raymond
"Optionee"
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Exhibit B
NO PERSONAL LIABILITY NONRECOURSE PROMISSORY NOTE
Dallas , Texas
$5,196,959.00 April 19, 1999
FOR VALUE RECEIVED, ANNE L. RAYMOND (referred to herein as the "Maker"),
promises to pay to WYNDHAM INTERNATIONAL, INC., a Delaware corporation (referred
to herein as the "Payee"), or its assigns, the sum of FIVE MILLION ONE HUNDRED
NINETY-SIX THOUSAND NINE HUNDRED FIFTY-NINE DOLLARS AND NO CENTS
($5,196,959.00), together with interest on the unpaid principal balance as set
forth below .
1. Certain Definitions. The following terms, when used in this Note,
shall have the meanings assigned to them below:
(a) Collateral. The term "Collateral" shall mean 166,603 paired shares
of the common stock, $.01 par value, of Wyndham International, Inc. and Patriot
American Hospitality, Inc. (the "Shares") and all dividends, distributions and
payments in respect of the Shares ("Proceeds").
(b) Fixed Rate. The term "Fixed Rate" means the rate of six percent
(6%) per annum, compounded annually.
(c) Market Value. The term "Market Value," when used with reference
to Shares as of any date, shall mean the average of the closing sale prices for
a Share, on the principal national securities exchange on which the Shares are
listed, for each trading day during the 90-day period immediately preceding the
date in question.
(d) Maximum Rate. The term "Maximum Rate" shall mean, on any day, the
highest nonusurious rate of interest (if any) permitted by applicable law on
such day. For purposes of Tex. Rev. Civ. Stat. Ann. Art. 5069-1.04(b), as it may
from time to time be amended, the "applicable rate ceiling" shall be the
"indicated rate" ceiling from time to time in effect as limited by Art.
5069-1.04(b); provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable rate ceiling" from time to
time by further notice and disclosure to Maker; and, provided further, that the
"highest nonusurious rate of interest permitted by applicable law" for purposes
of this Note shall not be limited to the applicable rate ceiling under Art.
5069-1.04 if federal laws or other state laws now or hereafter in effect and
applicable to this Note (and the interest contracted for, charged and collected
hereunder) shall permit a higher rate of interest.
2. Interest Rate. The unpaid principal balance from the date hereof until
maturity shall bear interest at a rate per annum equal to the lesser of the
Fixed Rate or the Maximum Rate. Interest on the unpaid principal balance hereof
shall be calculated at a daily rate equal to
<PAGE>
1/365th of the rate per annum herein provided, and shall be charged and
collected on the actual number of days elapsed. After maturity, unpaid principal
and, to the extent permitted by law, interest on this Note shall bear interest
at a rate equal to the lesser of four (4) percentage points over the Fixed Rate,
or the Maximum Rate.
3. Payment of Principal and Interest. The entire principal balance and
accrued interest on this Note shall mature and become due and payable on demand,
or if demand has not been previously made on the earlier of April 19, 2002, or
ten (10) days after Maker's termination of employment with Payee.
4. Mandatory Prepayment. Prior to maturity, all Proceeds to which Maker
is entitled in respect of the Shares shall be applied, at the time Maker is
entitled to receive such Proceeds, to payment of this Note, with such payments
to be applied first to accrued interest and then to the outstanding principal
balance of this Note. By execution of this Note, Maker hereby irrevocably
authorizes and hereby grants to Payee a special power of attorney irrevocably
making, constituting and appointing Payee, with unrestricted power of
substitution and resubstitution, as the attorney-in-fact for Maker, with power
and authority to apply the payments referred to in this Paragraph in accordance
with the provisions hereof and to execute, acknowledge and deliver any and all
such documents and instruments as may be necessary or appropriate to carry out
the provisions of this Paragraph 4.
5. Events of Default.
(a) The occurrence of any one or more of the following events shall be
deemed an event of default hereunder ("Event of Default"):
(i) The failure of Maker to make any payment on this Note when
the same becomes due and payable and such failure continues for ten
(10) days after notice of such failure to pay is received by Maker
from Payee; or
(ii) Maker shall commence any case, proceeding or other action
seeking reorganization, arrangement or adjustment of its debts under
any bankruptcy, insolvency or reorganization law, or seek the
appointment of a receiver, trustee or custodian for Maker or for all
of its property; or
(iii) Any case, proceeding or other action shall be commenced
against Maker seeking reorganization, arrangement or adjustment of its
debts under any bankruptcy, insolvency or reorganization law or
seeking the appointment of a receiver, custodian or trustee for Maker
or for all or substantially all of its property, and such case,
proceeding or other action remains undismissed for a period of sixty
(60) days after commencement thereof; or
(iv) The dissolution or liquidation of Maker.
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<PAGE>
(b) Upon the occurrence of an Event of Default hereunder, Payee, at
its option, may declare the entire unpaid principal balance and accrued interest
on this Note to be immediately due and payable without notice of any kind to
Maker and without any other presentment, demand, protest or notice of any kind,
all of which are hereby expressly waived by Maker, and may, at its option,
exercise any other right or remedy existing at law or in equity. Failure to
exercise any such right or remedy shall not constitute a waiver of the right to
exercise the same in the event of any subsequent default.
(c) Upon the occurrence of an Event of Default hereunder, Payee shall
purchase the Collateral from Maker for an amount equal to the Market Value of
the Collateral, or the entire principal balance and accrued interest due on the
Note, whichever is higher. Such payment shall be applied towards the repayment
of the outstanding amount of the Note. If the Market Value of the Collateral
exceeds the outstanding amount of the Note, the excess Collateral remaining
after full satisfaction of the Note shall be returned to Maker without offset
of any kind and free and clear of all liens, claims or encumbrances in favor of
Payee.
6. Voluntary Prepayment. Maker shall have the right and privilege from
time to time to prepay in whole or in part the unpaid principal of this Note
without premium or penalty, provided that the accrued interest on the amount
prepaid is likewise paid, and the accrual of interest shall immediately cease on
any amount so prepaid.
7. Waiver. Maker waives demand, presentment for payment, notice of
nonpayment, protest and notice of protest and agrees to any substitution,
subordination or release of any parties primarily or secondarily liable hereon.
No waiver by Payee of any of its rights or remedies hereunder or under any other
document evidencing or securing this Note or otherwise shall be considered a
waiver of any other subsequent right or remedy of Payee; and no delay or
omission in the exercise or enforcement by Payee of any rights or remedies shall
be construed as a waiver of any right or remedy of Payee.
8. Attorneys' Fees. If this Note is not paid pursuant to the terms
hereof and is placed in the hands of an attorney for collection, or if it is
collected through bankruptcy or any other court proceeding after maturity, then
Payee shall be entitled to reasonable attorneys' fees for collection.
9. Limitation on Agreements. It is the intention of Maker and Payee to
comply with applicable usury laws. In furtherance thereof, Maker and Payee
stipulate and agree that, notwithstanding any provision contained in this Note,
or in any other agreement between Maker and Payee, Payee shall never be entitled
to receive, collect or apply as interest on this Note, any amount in excess of
the Maximum Rate, and, in the event Payee ever receives, collects or applies as
interest any such excess, such amount that would be excessive interest shall be
deemed to be a partial prepayment of principal and treated hereunder as such,
and, if the principal amount of the Note is paid in full, any remaining excess
shall forthwith be paid to Maker. In determining whether the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, Maker and
Payee shall, to the maximum extent permitted under
4
<PAGE>
applicable law, (i) characterize any non-principal payments (other than payments
hereunder) as an expense, fee or premium rather than as interest, (ii) exclude
voluntary prepayments and the effects thereof, and (iii) amortize, prorate,
allocate and spread in equal parts the total amount of interest throughout the
entire contemplated term of this Note so that the interest rate is uniform
throughout such term.
10. Pledge and Grant of Security Interest. Maker hereby pledges and grants
to Payee a security interest in the Collateral, and in connection therewith,
Payee shall have all of the rights of a secured party under Chapter 9 of the
Texas Uniform Commercial Code. Maker agrees to execute and deliver such other
documents as may be reasonably necessary to confirm, evidence or perfect such
pledge and security interest. Payee currently holds certificates representing
all Shares currently constituting the Collateral. Unless and until an Event of
Default shall have occurred and be continuing, Maker shall be entitled to vote
all or any part of the Shares constituting the Collateral and to execute
consents and waivers in respect thereof, all with the same force and effect as
if this Note did not exist.
11. Nature of Obligation: Limitation on Liability. The principal amount of
this Note represents the unpaid principal balance and accrued interest as of
December 31, 1998 on that certain Promissory Note dated March 20, 1996 from
Maker to Wyndham Finance Limited Partnership in the original principal amount of
$4,417,588.00 on which no payments have been made as of the date hereof and
which is also secured by the Collateral. This Note is an amendment in its
entirety of such March 20, 1996 Note. Maker agrees that all existing security
interest in the Collateral existing immediately prior to the execution hereof
shall continue to exist and shall secure this Note. THIS NOTE SHALL BE
NONRECOURSE TO MAKER AND MAKER SHALL HAVE NO PERSONAL LIABILITY FOR THE PAYMENT
HEREOF, AND PAYEE SHALL PROCEED SOLELY AGAINST THE COLLATERAL UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT UNDER THIS NOTE.
12. Governing Law and Venue. This Note is being executed and delivered and
is intended to be performed in the State of Texas. This Note shall be construed
as to both validity and performance and enforced in accordance with and governed
by the laws of the State of Texas.
13. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by certified or registered mail, postage prepaid,
with return receipt requested, addressed to Maker or Payee as follows:
If to Payee to:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
5
<PAGE>
Attention: General Counsel
If to Maker to:
Anne L. Raymond at address on file with the Payee
or such other address as shall be furnished in writing by Maker or Payee to the
other, in accordance with the above provisions, and such notice or
communication shall be deemed to have been given as of the date so delivered in
the case of personal delivery or three (3) days after deposit in the mail in the
case of certified or registered mail.
14. Arbitration. Maker and Payee agree that any claim, controversy or
dispute arising out of or relating to this Note that cannot be amicably settled
shall be referred to binding arbitration as hereinafter provided. If arbitration
is required to resolve a dispute between Maker and Payee, Payee will notify the
American Arbitration Association ("AAA") and request AAA to select one person to
act as the arbitrator for resolution of this dispute. The selected arbitrator
will establish the rules for arbitration of the dispute and such rules will be
binding upon all parties to the arbitration proceeding. The arbitrator may use
the rules of the AAA for commercial arbitration but is encouraged to adopt such
rules as the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly, the arbitrator may
(i) dispense with any formal rules of evidence and allow hearsay testimony so as
to limit the number of witnesses required, (ii) minimize discovery procedures as
the arbitrator deems appropriate, (iii) act upon his understanding or
interpretation of the law on any issue without the obligation to research such
issue or accept or act upon briefs of the issue prepared by any party, (iv)
limit the time for presentation of any party's case as well as the amount of
information or number of witnesses to be presented in connection with any
hearing, (v) prevent any party from allowing an attorney to present or argue the
party's case before the arbitrator in any hearing, and (iv) impose any other
rules which the arbitrator believes appropriate to effect a resolution of the
dispute as quickly and inexpensively as possible. The arbitration shall take
place in Dallas, Texas. The arbitrator will have the exclusive authority to
determine and award costs of arbitration and the cost incurred by any party for
attorneys, advisors and consultants. Any award made by the arbitrator shall be
binding on Maker, Payee and all parties to the arbitration and shall be
enforceable to the fullest extent of the law.
6
<PAGE>
15. Tax Matters. Maker acknowledges that Maker has not relied on any
advice from Payee with regard to the tax treatment of the Note.
MAKER
/s/ ANNE L. RAYMOND
-----------------------------------
Anne L. Raymond
<PAGE>
EXHIBIT 10.13
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of the 12th
day of August, 1999, between Wyndham International, Inc., a Delaware corporation
(the "Company"), and Fred J. Kleisner ("Executive"), but it shall become
effective only on the date set forth in Paragraph 19 below (the "Effective
Date").
WHEREAS, the Company desires to employ Executive as its President and
Chief Operating Officer; and
WHEREAS, as an additional inducement to Executive to enter into this
Agreement, the Company shall, on the Effective Date, (a) pay to Executive a
signing bonus of $550,000.00, (b) aid Executive in the purchase of a Dallas
residence, up to and including a bridge loan, (c) grant Executive an option to
purchase a certain number of shares of Class A Common Stock of the Company, as
set forth in the agreement attached hereto as Exhibit A (the "Option"), (d)
grant Executive a certain number of shares of Class A Common Stock of the
Company as set forth in the agreement attached hereto as Exhibit B (the "Stock
Grant"); and (e) enter into a promissory note in the form attached hereto as
Exhibit C (the "Note"); and
WHEREAS, Executive desires to be employed by the Company on the terms
herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment. The term of this Agreement shall extend from the Effective Date
until the third anniversary of the Effective Date; provided, however, that the
term of this Agreement shall automatically be extended for one additional year
on the third anniversary of the Effective Date and each anniversary thereafter
unless, not less than 90 days prior to each such date, either party shall have
given notice to the other that it does not wish to extend this Agreement;
provided, further, that if a Change in Control occurs during the original or
extended term of this Agreement, the term of this Agreement shall continue in
effect for a period of not less than eighteen (18) months beyond the month in
which the Change in Control occurred. The term of this Agreement shall be
subject to termination as provided in Paragraph 7 and may be referred to herein
as the "Period of Employment."
2. Position and Duties. During the Period of Employment, Executive shall serve
as President and Chief Operating Officer of the Company, shall have supervision
and control over and responsibility for the day-to-day business and affairs of
those functions and operations of the Company and shall have such other powers
and duties as may from time to time be prescribed by the Chairman of the Board
of the Company (the "Chairman") or the Chief Executive Officer of the Company
(the "CEO"), provided that such duties are consistent with the normal and
customary duties of the Executive's position or other positions that he may hold
from time to time. Executive shall devote his full working time and efforts to
the business and affairs of the
1
<PAGE>
Company. Notwithstanding the foregoing, Executive may serve on other boards of
directors, with the approval of the Chairman or CEO, or engage in religious,
charitable or other community activities as long as such services and activities
are disclosed to the Chairman or CEO and do not materially interfere with
Executive's performance of his duties to the Company as provided in this
Agreement.
3. Compensation and Related Matters.
(a) Base Salary. Executive's initial annual base salary ("Base Salary")
shall be $550,000.00. Thereafter, Executive's Base Salary shall be redetermined
at least thirty (30) days before each annual compensation determination date
established by the Company during the Period of Employment but in any event not
later than the first quarter of the applicable fiscal year (the "Annual
Compensation Determination Date") in an amount to be fixed by the Board of
Directors (the "Board") based upon merit, but in no event shall such re-
determined Base Salary be less than $550,000.00. The Base Salary, as
redetermined, is referred to herein as the "Adjusted Base Salary." The Base
Salary or, if applicable, the Adjusted Base Salary, shall be payable in
substantially equal bi-weekly installments.
(b) Incentive Compensation. In addition to Base Salary or, if applicable,
Adjusted Base Salary, Executive shall be eligible to receive in each fiscal year
during the Period of Employment, on or about the Annual Compensation
Determination Date (or earlier as provided in Paragraph 8 and 9 of this
Agreement), cash incentive compensation (the "Incentive Compensation") in an
amount determined annually by the Compensation Committee of the Board based on
individual performance, "Employer EBITDA Achievement" (as hereinafter defined),
and total return to shareholders. Incentive Compensation shall equal from zero
to two times the then current Base Salary or, if applicable, Adjusted Base
Salary. "Employer EBITDA Achievement" is the degree to which the annual budget
established by Employer for earnings before interest, taxes, depreciation, and
amortization is achieved. Incentive Compensation shall equal at least
$750,000.00 for the remainder of 1999, which shall be payable to Executive not
later than March 31, 2000. Thereafter, Incentive Compensation shall be targeted
at a minimum of 100% of the Base Salary or, if applicable, Adjusted Base Salary
for any year in which Employer EBITDA Achievement is one hundred percent (100%)
or more ("Target Incentive Compensation"). The Company will advance $12,500.00
of Incentive Compensation on a monthly basis, as a draw against annual Incentive
Compensation.
"Pro Rata Incentive Compensation" shall be paid to Executive for any
termination. Pro Rata Incentive Compensation equals the Incentive Compensation
for the fiscal year of termination multiplied by a fraction, the numerator of
which is the number of days in the current fiscal year through Date of
Termination and the denominator is 365.
If, for the purpose of calculating Incentive Compensation or Pro Rata
Incentive Compensation, the Incentive Compensation cannot be determined by the
time required to be paid, Employer shall make a good faith estimate of the pro
rata amount based on an amount Executive would have earned had he continued
employment for the entire fiscal year.
Executive will also participate in such other incentive compensation plans,
policies or practices as the Board shall determine.
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<PAGE>
(c) Expenses. Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by him (in accordance with the policies and
procedures then in effect and established by the Company for its senior
executive officers) in performing services hereunder during the Period of
Employment, provided that Executive properly accounts therefor in accordance
with the Company policy.
(d) Other Benefits. During the Period of Employment, Executive shall be
entitled to continue to participate in or receive benefits under all of the
Company's Employee Benefit Plans in effect on the date hereof, or under plans or
arrangements that provide Executive with at least substantially equivalent
benefits to those provided under such Employee Benefit Plans. As used herein,
"Employee Benefit Plans" include, without limitation, each pension and
retirement plan; supplemental pension, retirement and deferred compensation
plan; savings and profit-sharing plan; stock ownership plan; stock purchase
plan; stock option plan; life insurance plan; medical insurance plan; disability
plan; and health and accident plan or arrangement established and maintained by
the Company on the date hereof for employees of the same status within the
hierarchy of the Company. To the extent that the scope or nature of benefits
described in this section are determined under the policies of the Company based
in whole or in part on the seniority or tenure of an employee's service,
Executive shall be deemed to have a tenure with the Company equal to the actual
time of Executive's service with Company. During the Period of Employment,
Executive shall be entitled to participate in or receive benefits under any
employee benefit plan or arrangement which may, in the future, be made available
by the Company to its executive and key management employees, subject to and on
a basis consistent with the terms, conditions, and overall administration of
such plan or arrangement. Any payments or benefits payable to Executive under a
plan or arrangement referred to in this Subparagraph 3(d) in respect of any
calendar year during which Executive is employed by the Company for less than
the whole of such year shall, unless otherwise provided in the applicable plan
or arrangement, be prorated in accordance with the number of days in each
calendar year during which he is so employed. Should any such payments or
benefits accrue on a fiscal (rather than calendar) year, then the proration in
the preceding sentence shall be on the basis of a fiscal year rather than
calendar year.
(e) Life Insurance. The Company shall pay the premiums on, and maintain in
effect throughout the Period of Employment, a life insurance policy on the life
of Executive in an amount not less than $2.0 million. Executive shall have the
right to designate the beneficiary under such policy.
(f) Vacations. Executive shall be entitled to the number of paid vacation
days in each calendar year determined by the Company from time to time for
executives at the same level as Executive. Executive shall also be entitled to
all paid holidays given by the Company to its executives. To the extent that the
scope or nature of benefits described in this section are determined under the
policies of the Company based in whole or in part on the seniority or tenure of
an employee's service, Executive shall be deemed to have a tenure with the
Company equal to the actual time of Executive's service with Company.
(g) Disability Insurance. The Company shall pay the premiums on, and
maintain in effect through the Period of Employment, long-term disability
insurance providing for payment
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of benefits at rates not less than sixty percent (60%) of Executive's current
Base Salary or Adjusted Base Salary.
4. Board Service. Executive agrees to serve as a Director of the Company if so
elected or appointed.
5. Unauthorized Disclosure.
(a) Confidential Information. Executive acknowledges that in the course of
his employment with the Company (and, if applicable, its predecessors), he has
been allowed to become, and will continue to be allowed to become, acquainted
with the Company's business affairs, information, trade secrets, and other
matters which are of a proprietary or confidential nature, including but not
limited to the Company's and its predecessors' operations, business
opportunities, price and cost information, finance, customer information,
business plans, various sales techniques, manuals, letters, notebooks,
procedures, reports, products, processes, services, and other confidential
information and knowledge (collectively the "Confidential Information")
concerning the Company's and its predecessors' business. The Company agrees to
provide on an ongoing basis such Confidential Information as the Company deems
necessary or desirable to aid Executive in the performance of his duties.
Executive understands and acknowledges that such Confidential Information is
confidential, and he agrees not to disclose such Confidential Information to
anyone outside the company except to the extent that (i) Executive deems such
disclosure or use reasonably necessary or appropriate in connection with
performing his duties on behalf of the Company; (ii) Executive is required by
order of a court of competent jurisdiction (by subpoena or similar process) to
disclose or discuss any Confidential Information, provided that in such case,
Executive shall promptly inform the Company of such event, shall cooperate with
the Company in attempting to obtain a protective order or to otherwise restrict
such disclosure, and shall only disclose Confidential Information to the minimum
extent necessary to comply with any such court order; (iii) such Confidential
Information becomes generally known to and available for use by the hotel and
hospitality industry (the "Hotel Industry"), other than as a result of any
action or inaction by Executive; or (iv) such information has been rightfully
received by a member of the Hotel Industry or has been published in a form
generally available to the Hotel Industry prior to the date Executive proposes
to disclose or use such information. Executive further agrees that he will not
during employment and/or at any time thereafter use such Confidential
Information in competing, directly or indirectly, with the Company. At such time
as Executive shall cease to be employed by the Company, he will immediately turn
over to the Company all Confidential Information, including papers, documents,
writings, electronically stored information, other property, and all copies of
them, provided to or created by him during the course of his employment with the
Company.
(b) Heirs, successors, and legal representatives. The foregoing provisions
of this Paragraph 5 shall be binding upon Executive's heirs, successors, and
legal representatives. The provisions of this Paragraph 5 shall survive the
termination of this Agreement for any reason.
6. Covenant Not to Compete. In consideration for the Option, Stock Grant, loan
evidenced by the Note, the Company's promise to provide Confidential Information
as set forth in Paragraph 5 above, and for Executive's employment by the Company
under the terms provided
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<PAGE>
in this Agreement and as a means to aid in the performance and enforcement of
and preserve the rights of the Company pursuant to the terms of the Unauthorized
Disclosure provisions of Paragraph 5, Executive agrees as follows:
(a) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, as an
owner, director, principal, agent, officer, employee, partner, consultant,
servant, or otherwise, carry on, operate, manage, control, or become involved in
any manner with any business, operation, corporation, partnership, association,
agency, or other person or entity which is in the business of owning, operating,
managing or granting franchise rights with respect to hotels, motels or other
lodging facilities in any location in which the Company, or any subsidiary or
affiliate of the Company, operates or has plans or has projected to operate any
facility during Executive's term of Employment including any area within a 50
mile radius of such facility (any "Business Area"); provided, however, that the
foregoing shall not prohibit Executive from owning up to one percent (1%) of the
outstanding stock of a publicly held company engaged in the hospitality
business. Notwithstanding the foregoing, after Executive's employment with the
Company has terminated, upon receiving written permission by the Board,
Executive shall be permitted to engage in such activities with respect to any
other hotel, motel or lodging facility that shall be determined in the sole
discretion of the Board in good faith to be immaterial to the operations of the
Company, or any subsidiary or affiliate of the Company, in the area or territory
in question.
(b) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, either
for himself or for any other business, operation, corporation, partnership,
association, agency, or other person or entity, call upon, compete for, solicit,
divert, or take away, or attempt to divert or take away current or prospective
customers (including, without limitation, any hotel owner, lessor or lessee,
asset manager, trustee, consumer with whom the Company, or any subsidiary or
affiliate of the Company, (i) has an existing agreement or business
relationship; (ii) has had an agreement or business relationship within the two-
year period preceding the Executive's last day of employment with the Company;
or (iii) has included as a prospect in its applicable pipeline) or vendors of
the Company, or any subsidiary or affiliate of the Company, in any Business
Area.
(c) during the term of Executive's employment with the Company and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not directly or indirectly solicit or
induce any current or prospective employee of the Company, or any subsidiary or
affiliate of the Company (including, without limitation, any current or
prospective employee of the Company within the six-month period preceding the
Executive's last day of employment with the Company or within the 24-month
period of this covenant) to accept employment with Executive or with any
business, operation, corporation, partnership, association, agency, or other
person or entity with which Executive may be associated, and Executive will not
employ or cause any business, operation, corporation, partnership, association,
agency, or other person or entity with which Executive may be associated to
employ any current or prospective employee of the Company, or any subsidiary or
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affiliate of the Company, without providing the Company with ten (10) days'
prior written notice of such proposed employment.
(d) Executive agrees and acknowledges that the restrictions contained in
this noncompetition covenant are reasonable in scope and duration and are
necessary to protect the Company's business interests and Confidential
Information after the Effective Date of this Agreement. If any provision of this
noncompetition covenant as applied to any party or to any circumstance is
adjudged by a court to be invalid or unenforceable, the same will no in way
affect any other circumstance or the validity or enforceability of this
Agreement. If any such provision, or any part thereof, is held to be
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision, and/or to delete
specific words or phrases, and in its reduced form, such provision shall then be
enforceable and shall be enforced. The parties agree and acknowledge that the
breach of this noncompetition covenant will cause irreparable damage to the
Company, and upon breach of any provision of this noncompetition covenant, the
Company shall be entitled to injunctive relief, specific performance, or other
equitable relief; provided, however, that this shall in no way limit any other
remedies which the Company may have (including, without limitation, the right to
seek monetary damages).
(e) Should Executive violate the provisions of this Paragraph, then in
addition to all other rights and remedies available to the Company at law or in
equity, the duration of this covenant shall automatically be extended for the
period of time from which Executive began such violation until he permanently
ceases such violation.
7. Termination. Executive's employment hereunder may be terminated without any
breach of this Agreement under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his death.
(b) Disability. If, as a result of Executive's incapacity due to physical
or mental illness, Executive shall have been absent from his duties hereunder on
a full-time basis for one hundred eighty (180) calendar days in the aggregate in
any twelve (12) month period, the Company may terminate Executive's employment
hereunder.
(c) Termination by Company for Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder for Cause
if such termination is approved by not less than a majority of the Board of
Directors of the Company at a meeting of such Board of Directors called and held
for such purpose. For purposes of this Agreement "Cause" shall mean: (A) conduct
by Executive constituting a material act of willful misconduct in connection
with the performance of his duties, including, without limitation,
misappropriation of funds or property of the Company or any of its affiliates
other than the occasional, customary and de minimis use of Company property for
personal purposes; (B) criminal or civil conviction of Executive, a plea of nolo
contendere by Executive or conduct by Executive that, as determined in the sole
discretion of the Board of Directors of the Company, has resulted in, or would
result in if he were retained in his position with the Company, material
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injury to the reputation of the Company, including, without limitation,
conviction of a felony involving moral turpitude; (C) continued, willful and
deliberate non-performance by Executive of his duties hereunder (other than by
reason of Executive's physical or mental illness, incapacity or disability) and
such non-performance has continued for more than thirty (30) days following
written notice of such non-performance from the Board; (D) a breach by Executive
of any of the provisions contained in Paragraphs 5 and 6 of this Agreement; or
(E) a violation by the Executive of the Company's employment policies and such
violation has continued following written notice of such violation from the
Board.
(d) Termination Without Cause. At any time during the Period of Employment,
the Company may terminate Executive's employment hereunder without Cause if such
termination is approved by a majority of the Board at a meeting of the Board
called and held for such purpose. Any termination by the Company or Executive's
employment under this Agreement which does not constitute a termination for
Cause under Subparagraph 7(c) or result from the death or disability of the
Executive under Subparagraph 7(a) or (b) shall be deemed a termination without
Cause. If the Company provides notice to the Executive under Paragraph 1 that it
does not wish to extend the Period of Employment, such action shall be deemed a
termination without Cause.
(e) Termination by Executive. At any time during the Period of Employment,
Executive may terminate his employment hereunder for any reason, including but
not limited to Good Reason. If Executive provides notice to the Company under
Paragraph 1 that he does not wish to extend the Period of Employment, such
action shall be deemed a voluntary termination by Executive and one without Good
Reason. For purposes of this Agreement, "Good Reason" shall mean that Executive
has complied with the "Good Reason Process" (hereinafter defined) following the
occurrence of any of the following events: (A) a substantial diminution or other
substantive adverse change, not consented to by Executive, in the nature or
scope of Executive's responsibilities, authorities, powers, functions or duties,
(B) any removal, during the Period of Employment, from Executive of his titles
of President and Chief Operating Officer; (C) an involuntary reduction in
Executive's Base Salary, Adjusted Base Salary or Incentive Compensation (but not
reduction in Incentive Compensation appropriate for level of performance); (D) a
breach by the Company of any of its other material obligations under this
Agreement and the failure of Company to cure such breach within thirty (30) days
after written notice thereof by Executive; (B) the involuntary relocation of the
Company's offices at which Executive is principally employed or the involuntary
relocation of the offices of Executive's primary workgroup to a location more
than thirty (30) miles from such offices (other than a relocation in either
event to Dallas, Texas), or the requirement by the Company for Executive to be
based anywhere other than the Company's offices at such location or in Dallas,
Texas on an extended basis, except for required travel on obligations; and (F)
Executive shall not have been nominated by the Nominating Committee of the Board
to fill a seat as a Class A Director when the next such vacancy occurs but in
any event prior to the first anniversary of the Effective Date. "Good Reason
Process" shall mean that (i) the Executive reasonably determines in good faith
that a "Good Reason" event has occurred; (ii) Executive notifies the Company in
writing of the occurrence of the Good Reason event; (iii) Executive cooperates
in good faith with the Company's efforts, for a period not less than ninety (90)
days following such notice, to modify Executive's employment situation in a
manner acceptable to Executive and Company; and (iv) notwithstanding such
efforts, one or more of the Good Reason events continues to exist and has
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not been modified in a manner acceptable to Executive. If the Company cures the
Good Reason event during the ninety (90) day period, Good Reason shall be deemed
not to have occurred.
(f) Notice of Term/nation. Except for termination as specified in
Subparagraph 7(a), any termination of Executive's employment by the Company or
any such termination by Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(g) Date of Termination. "Date of Termination" shall mean: (A) if
Executive's employment is terminated by his death, the date of his death; (B) if
Executive's employment is terminated on account of disability under Subparagraph
7(b) or by the Company for Cause under Subparagraph 7(c), the date on which
Notice of Termination is given; (C) if Executive's employment is terminated by
the Company under Subparagraph 7(d), sixty (60) days after the date on which a
Notice of Termination is given; and (D) if Executive's employment is terminated
by Executive under Subparagraph 7(e), thirty (30) days after the date on which a
Notice of Termination is given.
8. Compensation Upon Termination or During Disability.
(a) If Executive's employment terminates by reason of his death, the
Company shall, within ninety (90) days of death, pay in a lump sum amount to
such person as Executive shall designate in a notice filed with the Company or,
if no such person is designated, to Executive's estate, Executive's accrued and
unpaid Base Salary, or, if applicable, his Adjusted Base Salary, to the date of
his death, plus his Pro Rata Incentive Compensation, if any, under Subparagraph
3(b). For a period of one (1) year following the Date of Termination, the
Company shall pay such health insurance premiums as may be necessary to allow
Executive's spouse and dependents to receive health insurance coverage
substantially similar to coverage they received prior to the Date of
Termination. In addition to the foregoing, any payments to which Executive's
spouse, beneficiaries, or estate may be entitled under any employee benefit plan
shall also be paid in accordance with the terms of such plan or arrangement.
Such payments, in the aggregate, shall fully discharge the Company's obligations
hereunder.
(b) During any period that Executive fails to perform his duties hereunder
as a result of incapacity due to physical or mental illness, Executive shall
continue to receive his accrued arid unpaid Base Salary or, if applicable, his
Adjusted Base Salary and accrued and unpaid Incentive Compensation payments, if
any, under Subparagraph 3(b), until Executive's employment is terminated due to
disability in accordance with Subparagraph 7(b) or until Executive terminates
his employment in accordance with Subparagraph 7(e), whichever first occurs. For
a period of one (1) year following the Date of Termination, the Company shall
pay such health insurance premiums as may be necessary to allow Executive,
Executive's spouse and dependents to receive health insurance coverage
substantially similar to coverage they received prior to the Date of
Termination. Upon termination due to death prior to the termination first to
occur as specified in the preceding sentence, Subparagraph 8(a) shall apply.
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(c) If Executive's employment is terminated by Executive other than for
Good Reason as provided in Subparagraph 7(e), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given. Thereafter, the Company shall have no further obligations
to Executive except as otherwise expressly provided under this Agreement,
provided any such termination shall not adversely affect or alter Executive's
rights under any employee benefit plan of the Company in which Executive, at the
Date of Termination, has a vested interest, unless otherwise provided in such
employee benefit plan or any agreement or other instrument attendant thereto.
(d) If Executive terminates his employment for Good Reason as provided in
Subparagraph 7(e) or if Executive's employment is terminated by the Company
without Cause as provided in Subparagraph 7(d), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary at the rate in effect at the time Notice of
Termination is given and his accrued and unpaid Incentive Compensation, if any,
under Subparagraph 3(b). In addition, subject to signing by Executive of a
general release of claims in a form and manner satisfactory to the Company,
(i) the Company shall continue Executive's compensation at a rate
equal to the sum of Executive's Average Base Salary and his Average
Incentive Compensation payable for the remaining length of the Period of
Employment after the Date of Termination (the "Severance Amount"), but in
no event for fewer than twenty-four (24) months. The Severance Amount shall
be paid out in substantially equal bi-weekly installments, in arrears;
provided, however, that in the event Executive commences any employment
with an employer other than the Company during the twelve month period
ending on the first anniversary of the Date of termination, the Company
shall be entitled to set-off against the remaining Severance Amount fifty
percent (50%) of the amount of any cash compensation received by Executive
from the new employer during such period, provided further that, in the
event Executive commences any employment with, or is employed by, any
employer other than the Company during the twelve month period ending on
the second anniversary of the Date of Termination, the Company shall be
entitled to set-off against the remaining Severance Amount twenty-five
percent (25%) of the amount of any cash received by Executive from such
employer during such period. From time to time, Executive may be asked to
certify to the Company that he has not accepted employment with a new
employer (including, without limitation, contract and consulting
agreements). For purposes of this Agreement, "Average Base Salary" shall
mean the average of the annual Base Salary or, if applicable, Adjusted Base
Salary received by Executive for each of the three (3) immediately
preceding fiscal years or such fewer number of complete fiscal years as
Executive may have been employed by the Company. For purposes of this
Agreement, "Average Incentive Compensation" shall mean the average of the
annual Incentive Compensation under Subparagraph 3(b) received by Executive
for the three (3) immediately preceding fiscal years or such fewer numbers
of complete fiscal years as Executive may have been employed by the
Company. In no event shall "Average Incentive Compensation" include any
sign-on bonus, retention bonus or any other special bonus. Notwithstanding
the foregoing, if the Executive breaches any of the provisions contained in
Paragraphs 5 and 6 of this
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Agreement, all payments of the Severance Amount shall immediately cease.
Notwithstanding the foregoing, in the event Executive terminates his
employment for Good Reason as provided in Subparagraph 7(e), he shall be
entitled to the Severance Amount only if he provides the Notice of
Termination provided for in Subparagraph 7(f) within thirty (30) days after
the occurrence of the event or events which constitute such Good Reason as
specified in clauses (A), (B), (C), (D), (E) and (F) of Subparagraph 7(e).
(ii) in addition to any other benefits to which Executive may be
entitled in accordance with the Company's then existing severance policies,
the Company shall, for a period of one (1) year commencing on the Date of
Termination, pay such health insurance premiums as may be necessary to
allow Executive, Executive's spouse and dependents to continue to receive
health insurance coverage substantially similar to the coverage they
received prior to his termination of employment.
(e) If Executive's employment is terminated by the Company for Cause as
provided in Subparagraph 7(c), then the Company shall, through the Date of
Termination, pay Executive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary at the rate in effect at the time Notice of Termination
is given. Thereafter, the Company shall have no further obligations to Executive
except as otherwise expressly provided under this Agreement, provided any such
termination shall not adversely affect or alter Executive's rights under any
employee benefit plan of the Company in which Executive, at the Date of
Termination, has a vested interest, unless, otherwise provided in such employee
benefit plan or any agreement or other instrument attendant thereto.
(f) Regardless of the reason for termination, for a period of five (5)
years beginning on the Date of Termination, the Company will provide such
reasonable assistance and support to Executive as he shall reasonably require in
connection with the preparation and filing of tax returns, statements and forms
insofar as such returns, statements or forms relate to Executive's association
with the Company or any of its predecessors or affiliates. At the Company's
election, such assistance and support shall be provided by either tax personnel
from the Company or certified public accountants selected and compensated by the
Company.
(g) Nothing contained in the foregoing Subparagraphs 8(a) through 8(f)
shall be construed so as to effect Executive's rights or the Company's
obligations relating to agreements or benefits which are unrelated to
termination of employment.
9. Change in Control Payment. The provisions of this Paragraph 9 set forth
certain terms of an agreement reached between Executive and the Company
regarding Executive's rights and obligations upon the occurrence of a Change in
Control of the Company. These provisions are intended to assure and encourage in
advance Executive's continued attention and dedication to his assigned duties
and his objectivity during the pendency and after the occurrence of any such
event. These provisions shall apply in lieu of, and expressly supersede, the
provisions of Subparagraph 8(d)(i) regarding severance pay upon a termination of
employment, if such termination of employment occurs within eighteen (18) months
after the occurrence of the first event constituting a Change in Control;
provided that such first event occurs during the Period of
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Employment. These provisions shall terminate and be of no further force or
effect beginning eighteen (18) months after the occurrence of a Change in
Control.
(a) Change in Control
(i) If within eighteen (18) months after the occurrence of the first
event constituting a Change in Control, Executive's employment is
terminated by the Company without Cause as provided in Subparagraph 7(d) or
Executive terminates his employment for Good Reason as provided in
Subparagraph 7(e), then the Company shall pay Executive the Severance
Amount as provided in Subparagraph 8(d)(i) in substantially biweekly
installments, in arrears, over twenty-four (24) months. Notwithstanding the
foregoing, if the Executive breaches any of the provisions contained in
Paragraphs 5 and 6 of this Agreement, all payments of the Severance Amount
shall immediately cease;
(ii) Within fifteen (15) days after Executive becomes entitled to
receive the Severance Amount under (i) above, the Company shall place funds
in an amount equal to the estimated Severance Agreement in escrow, pursuant
to arrangements that are mutually acceptable to the Company and Executive
(the "Escrow Arrangement"). The Escrow Arrangement shall be maintained
until the final installment payment of the Severance Amount has been made;
(iii) Notwithstanding anything to the contrary in any applicable
option agreement or stock-based award agreement, if Executive terminates
his employment for Good Reason as provided in Subparagraph 7(e) or if
Executive's employment is terminated by the Company without Cause as
provided in Subparagraph 7(d) within eighteen (18) months of a Change in
Control, all stock options and other stock-based awards granted to
Executive by the Company shall immediately accelerate and become
exercisable or non-forfeitable as of the Date of Termination, and Executive
shall have 360 days to exercise his stock options. Executive shall also be
entitled to any other rights and benefits with respect to stock-related
awards, to the extent and upon the terms provided in the employee stock
option or incentive plan or any agreement or other instrument attendant
thereto pursuant to which such options or awards were granted; and
(iv) The Company shall, for a period of one (1) year commencing on
the Date of Termination, pay such health insurance premiums as may be
necessary to allow Executive, Executive's spouse and dependent to continue
to receive health insurance coverage substantially similar to the coverage
they received prior to his termination employment.
(b) Gross Up Payment.
(i) Excess Parachute Payment. If Executive incurs the tax (the
"Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986
(the "Code") on "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code, the Company will pay to Executive an amount (the
"Gross Up Payment") such that the net amount retained by Executive, after
deduction of any Excise Tax on the excess parachute
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payment and any federal, state and local income taxes and employment taxes
(together with penalties and interest) and Excise Tax upon the payment
provided for by this Subparagraph 8(c)(i), will be equal to the Severance
Amount.
(ii) Applicable Rates. For purposes of determining the amount of the
Gross Up Payment, Executive will be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar year
in which the Gross Up Payment is to be made and state and local income
taxes at the highest marginal rates of taxation in the state and locality
of Executive's residence on the date of Executive's Termination, net of the
maximum reduction in federal income taxes that could be obtained from
deduction of such state and local taxes.
(iii) Determination of Gross Up Payment Amount. The determination of
whether the Excise Tax is payable and the amount thereof will be based upon
the opinion of tax counsel selected by Executive and approved by the
Company, which approval will not be unreasonably withheld. If such opinion
is not finally accepted by the Internal Revenue Service (or state and local
taxing authorities), then appropriate adjustments to the Excise Tax will be
computed and additional Gross Up Payments will be made in the manner
provided by this Subparagraph (c).
(iv) Time For Payment. The Company will pay the estimated amount of
the Gross Up Payment in cash to Executive at such time of times when the
Excise Tax is due. Executive and the Company agree to reasonably cooperate
in the determination of the actual amount of the Gross Up Payment. Further,
Executive and the Company agree to make such adjustments to the estimated
amount of the Gross Up Payment, which in the case of Executive will refer
to refunds of prior overpayments and in the case of the Company will refer
to makeup of prior underpayments.
(c) Definitions. For purpose of this Paragraph 9, the following terms
shall have the following meanings:
"Change in Control" shall mean any of the following:
(a) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (the
"Acquiring Person"), other than the Company, or any of its Subsidiaries or
any Investor or Excluded Group, of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of the
combined voting power or economic interests of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors; provided, however, that any transfer from any Investor or
Excluded Group will not result in a Change in Control if such transfer was
part of a series of related transactions the effect of which, absent the
transfer to such Acquiring Person by the Investor or Excluded Group, would
not have resulted in the acquisition by such Acquiring Person of 35% or
more of the combined voting power or economic interests of the then
outstanding voting securities; or
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(b) during any period of 12 consecutive months after the Issuance
Date, the individuals who are the beginning of any such 12-month period
constituted a majority of the Class A Directors and Class C Directors (the
"Incumbent Non-Investor Majority") cease for any reason to constitute at
least a majority of such Class A Directors and Class C Directors; provided
that (i) any individual becoming a director whose election, or nomination
for election by the Company's stockholders, was approved by a vote of the
stockholders having the right to designate such director and (ii) any
director whose election to the Board or whose nomination for election by
the stockholders of the Company was approved by the requisite vote of
directors entitled to vote on such election or nomination in accordance
with the Restated Certificate of Incorporation of the Company, shall, in
each such case, be considered as though such individual were a member of
the Incumbent Non-Investor Majority, but excluding, as a member of the
Incumbent Non-Investor Majority, any such individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) and further excluding any person who is an affiliate or
associate of an Acquiring Person having or proposing to acquire beneficial
ownership of 25% or more of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in
the election of directors; or
(c) the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who were the
respective beneficial owners of the voting securities of the Company
immediately prior to such reorganization, merger or consolidation do not,
following such reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 57.5% of the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of director of the Company resulting from such reorganization,
merger or consolidation; or
(d) the sale or other disposition of assets representing 50% or more
of the assets of the Company in one transaction or series of related
transactions.
All defined terms used in the definition of "Change in Control" shall have
the same meaning as set forth in the Form of Certificate of Designation of
Series B Convertible Preferred Stock of Wyndham International, Inc.
"Company" shall mean not only Wyndham International, Inc., but also
its successors by merger or otherwise.
10. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
if to the Executive:
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At his home address as shown in the Company's personnel records;
if to the Company:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
Attention: Senior Vice President of Human Resources and General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
11. Miscellaneous. No provisions of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed by the laws of the State of Texas (without regard to principles of
conflicts of laws.)
12. Validity. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect. The
invalid portion of this Agreement, if any, shall be modified by any court having
jurisdiction to the extent necessary to render such portion enforceable.
13. Counterparts. This agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. Arbitration; Other Disputes. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the applicable rules of the American Arbitration Association before
resorting to arbitration. In the event such dispute or controversy remains
unresolved in whole or in part for a period of thirty (30) days after it arises,
the parties will settle any remaining dispute or controversy exclusively by
arbitration in Dallas, Texas in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding the above,
the Company shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
Paragraph 5 or 6 hereof. Furthermore, should a dispute occur concerning
Executive's mental or physical capacity as
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described in Subparagraph 7(b), 7(c) or 8(b), a doctor selected by Executive and
a doctor selected by the Company shall be entitled to examine Executive. If the
opinion of the Company's doctor and Executive's doctor conflict, the Company's
doctor and Executive's doctor shall together agree upon a third doctor, whose
opinion shall be binding. Any amount to which Executive is entitled under this
Agreement (including any disputed amount), which is not paid when due, shall
bear interest at a rate equal to the lesser of eighteen percent (18%) per annum
or the maximum lawful rate.
15. Third-Party Agreements and Rights. Executive represents to the Company that
Executive's execution of this Agreement, Executive's employment with the Company
and the performance of Executive's proposed duties for the Company will not
violate any obligations Executive may have to any employer or other party, and
Executive will not bring to the premises of the Company any copies or other
tangible embodiments of non-public information belonging to or obtained from any
such previous employment or other party.
16. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company;
provided, however, that such cooperation shall not materially and adversely
affect Executive or expose Executive to an increased probability of civil or
criminal litigation. Executive's cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after Executive's
employment, Executive also shall cooperate fully with the Company in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Executive was employed by the Company. The Company shall
also provide Executive with compensation on an hourly basis (to be derived from
the sum of his Base Compensation or, if applicable, Adjusted Base Salary and
Average Incentive Compensation) for requested litigation and regulatory
cooperation that occurs after his termination of employment, and reimburse
Executive for all costs and expenses incurred in connection with his performance
under this Paragraph 14, including, but not limited to, reasonable attorneys'
fees and costs.
17. Gender Neutral. Wherever used herein, a pronoun in the masculine gender
shall be considered as including the feminine gender unless the context clearly
indicates otherwise.
18. Governing Law and Consent. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Texas without
giving effect to any choice of law or conflict provisions or rule (whether of
the State of Texas or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Texas, and Executive
hereby expressly consents to the personal jurisdiction of the state and federal
courts located in Dallas County, Texas for any lawsuit filed by the Company to
seek a restraining order or injunction to prevent any continuation of any
violation of Paragraph 5 or 6 of this Agreement.
19. Effective Date. This Agreement is effective ____________________, 1999.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
WYNDHAM INTERNATIONAL, INC.
By: /s/ JAMES D. CARREKAR
-------------------------------------
Its: Chairman and Chief Executive Officer
/s/ FRED J. KLEISNER
----------------------------------------
Fred J. Kleisner
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Exhibit A
---------
WYNDHAM INTERNATIONAL, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Dated as of August 12, 1999
Wyndham International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby grants to Fred J. Kleisner, an Employee of the
Company (the "Optionee"), as of August 12, 1999 (the "Date of Grant"), a non-
qualified option (the "Option") to purchase from the Company 1,100,000 shares
of its Class A Common Stock (the "Shares"), at the price of $3.75 per Share,
subject to the terms and conditions set forth below. Such grant is pursuant to
the Wyndham International, Inc. 1997 Incentive Plan (the "Plan") and is made as
an inducement to Optionee to enter into the Employment Agreement between
Optionee and the Company of even date herewith (the "Employment Agreement").
1. Option Subject to Acceptance of Optionee Agreement and Employment
Agreement. The Option may not be exercised unless the Optionee accepts
this Option Agreement and the Employment Agreement by executing both the
Option Agreement and the Employment Agreement and returning such original
execution copies to the Company.
2. Time and Manner of Exercise of Option.
a. Maximum Term of Option. The Expiration Date of this Option is the date
that is ten years from the Date of Grant. This Optionee may not be
exercised on or after the Expiration Date.
b. Vesting Schedule. No portion of this Option may be exercised until
such portion shall have vested. Except as set forth in Section 3 of
this Agreement, this Option shall be vested and exercisable with
respect to the following number of Shares on the dates indicted below
provided that Optionee remains employed by the Company on such dates:
- --------------------------------------------------------------------------------
Vesting Schedule
- --------------------------------------------------------------------------------
Number of
Shares Exercisable Vesting Date
- --------------------------------------------------------------------------------
220,000 (20%) 1 year after Date of Grant
- --------------------------------------------------------------------------------
220,000 (20%) 2 years after Date of Grant
- --------------------------------------------------------------------------------
220,000 (20%) 3 years after Date of Grant
- --------------------------------------------------------------------------------
220,000 (20%) 4 years after Date of Grant
- --------------------------------------------------------------------------------
220,000 (20%) 5 years after Date of Grant
- --------------------------------------------------------------------------------
In the event of a Change in Control of the Company (as defined in the
Employment Agreement), the vesting date for any unvested portions
of the Option
1
<PAGE>
shall be accelerated by two years. In the event of a Change in Control of
the Company (as defined in the Employment Agreement), if within 18 months
after such Change in Control the Optionee's employment with the Company is
terminated by the Company without Cause (as defined in the Employment
Agreement) or for Good Reason (as defined in the Employment Agreement), any
unvested portions of this Option shall fully vest and become exercisable.
A partial exercise of this Option shall not affect Optionee's right to
exercise this Option with respect to the remaining Shares.
c. Method of Exercise of Option. Subject to limitations set forth in this
Agreement, the Option may be exercised by the Optionee (1) by giving
written notice to the Company specifying the number of whole Shares to be
purchased and accompanied by payment of the Option price in full (or
arrangement made for such payment to the Company's satisfaction) either (i)
in cash or cash equivalents acceptable to the Committee, (ii) in previously
owned Shares (which the Optionee has held for at least six months prior to
the delivery of such Shares or which the Optionee purchased on the open
market and for which the Optionee has good title, free and clear of all
liens and encumbrances) having a Fair Market Value, determined as of the
date of exercise, equal to the aggregate purchase price payable pursuant to
the Option by reason of such exercise, (iii) in cash or a check payable and
acceptable to the Company by a broker-dealer acceptable to the Company to
whom the Optionee has submitted an irrevocable notice of exercise or (iv) a
combination of two or more of the foregoing, and (2) by executing such
documents as the Company may reasonable request. Any fraction of a Share
which would be required to pay such purchase price shall be disregarded and
the remaining amount due shall be paid in cash by the Optionee.
The delivery of certificates representing the Shares subject to the Option
will be contingent upon the Company's receipt from Optionee of (1) full
payment of the Option price, as set forth above, and (2) any agreement,
statement or other evidence that the Company may require to satisfy itself
that the issuance of Shares to be purchased pursuant to the exercise of the
Option and the subsequent resale of Shares will be in compliance with
applicable laws and regulations.
d. Piggyback Registration Rights. At any time after the date hereof, if the
Company determines that it will file a registration statement under the
Securities Act of 1933, as amended (the "1933 Act") (other than a
registration statement on a Form S-4 or S-8 or filed in connection with an
exchange offer, an offering of securities solely to the Company's existing
stockholders or a rights offering by the Company) on any form that would
also permit the registration of the Shares acquired pursuant to the
exercise of the Option, to the extent certificates are delivered therefor
pursuant to Section 5(b) hereof, which the number of such shares shall be
measured as of the date such registration statement is initially filed with
the Securities and Exchange Commission (the "Registrable Stock"), and such
filing is to be on the Company's behalf and/or on behalf of selling holders
of
2
<PAGE>
its securities for the general registration of its Class A Common
Stock to be sold for cash, at such time the Company will within thirty
(30) days of such determination give the Participant written notice of
such determination setting forth the date on which the Company
proposes to file such registration statement, which date will be no
earlier than thirty (30) days from the date of such notice, and
advising the Participant of his right to have Registrable Stock
included in such registration. Upon the written request of the
Participant received by the Company no later than fifteen (15) days
after the date of the Company's notice, the Company will use its best
efforts to cause to be registered under the 1933 Act all of the
Registrable Stock that the Participant has so requested to be
registered. If, in the opinion of the managing underwriter or
underwriters (or, in the case of a non-underwritten offering, in the
opinion of the Company), the total amount of such securities to be so
registered, including such Registrable Stock, will exceed the maximum
amount of the Company's securities that can be marketed (i) at a price
reasonably related to the then current market value of such
securities, or (ii) without otherwise materially and adversely
affecting the entire offering, then the Registrable Stock shall not be
included in such registration.
3. Exercise After Termination of Employment. If the Optionee's employment by
the Company or an Affiliate is terminated, the period within which to
exercise the Option may be subject to earlier termination as set forth
below. The Board's determination of the reason for termination of the
Optionee's employment shall be conclusive and binding on the Optionee and
his or her legal representatives or legatees. Any transfer of employment
from the Company to any Affiliate of the Company shall not be deemed to be
a termination of employment for purposes of this Agreement.
a. Termination Due to Death. If the Optionee's employment terminates by
reason of death, the Option held by the Optionee shall vest and become
exercisable in accordance with the Vesting Schedule as set forth in
Section 2(b), plus an additional number of Shares that would have
vested on the next vesting anniversary date. The Optionee's legal
representative or legatee may exercise the Option, to the extent
exercisable in accordance with this Section 3(a), for a period of 360
days from the date of death or until the Expiration Date, if earlier.
Any portion of the Option that is not exercisable at the time of death
shall terminate immediately and be of no further force or effect.
b. Termination Due to Disability. If the Optionee's employment terminates
by reason of incapacity due to physical or mental illness which
resulted in his or her absence from his or her duties with the Company
on a full-time basis for 180 calendar days in the aggregate in any 12-
month period, the Option held by the Optionee shall vest and become
exercisable in accordance with the Vesting Schedule as set forth in
Section 2(b), plus an additional number of Shares that would have
vested on the next vesting anniversary date. The Optionee may exercise
the Option, to the extent exercisable in accordance with this Section
3(b), for a period of 360 days from the date of termination of
employment or until the Expiration Date, if earlier. Any portion of
the Option that is not exercisable upon
3
<PAGE>
termination of employment shall terminate immediately and be of no
further force or effect.
c. Termination for Cause. If the Optionee's employment is terminated for
Cause (as defined in the Employment Agreement), the Option held by the
Optionee shall terminate immediately and be of no further force and
effect.
d. Termination without Cause or for Good Reason. If the Optionee's
employment is terminated by the Company without Cause (as defined in
the Employment Agreement) or the Optionee resigns from the Company for
Good Reason (as defined in the Employment Agreement), the Option held
by the Optionee shall continue to vest and become exercisable in
accordance with the Vesting Schedule as set forth in Section 2(b) for
an additional 36 months. The Optionee may exercise the Option, to the
extent exercisable in accordance with this Section 3(d), for a period
of 360 days after the end of the 36-month period or until the
Expiration Date, if earlier. Any portion of the Option that is not
exercisable at the end of 36 months following termination of
employment shall terminate immediately and be of no further force or
effect.
Notwithstanding the foregoing, if Optionee breaches any of the
provisions contained in Paragraph 5 or 6 of the Employment Agreement,
(i) any portion of the Option that vested or will vest by virtue of
this Section 3(d) shall immediately terminate and be of no force and
effect, and (ii) to the extent any portion of the Option that vested
by virtue of this Section 3(d) has been exercised, Optionee shall be
required to disgorge to the Company the difference between the fair
market value per Share on the date of exercise and the Option price
per Share, multiplied by the number of Shares acquired by Optionee.
e. Other Termination. If the Optionee's employment terminates for any
reason not covered in Subsections (a), (b), (c) or (d) of this Section
3, the Option held by the Optionee may be exercised, to the extent
exercisable on the date of termination pursuant to the applicable
vesting schedule in Section 2(b), for a period of three (3) months
from the date of termination or until the Expiration Date, if earlier.
Any portion of the Option that is not exercisable at such time shall
terminate immediately and be of no further force or effect.
4. Incorporation of the Plan. Notwithstanding anything herein to the contrary,
this Option shall be subject to and governed by all the terms and
conditions of the Plan. Capitalized terms in this Agreement shall have the
meaning specified in the Plan, unless a different meaning is specified
herein. All references herein to the Plan shall mean the Plan in effect as
of the date hereof. In the event of any conflict between the provisions in
the Plan and the provisions in this Agreement, the provisions of the Plan
shall govern.
5. Additional Terms and Conditions of Option.
4
<PAGE>
a. Transferability of Option. To the extent permitted by the Plan, the Option
in this Agreement may be transferred by Executive to his children,
grandchildren, spouse, one or more trusts for the benefit of such family
members, or a partnership in which such family members are the only
partners, provided, however, that (1) Executive may not receive any
consideration for the transfer, and (2) the holder(s) of the transferred
Option shall be bound by the same terms and conditions that governed the
Option during the period that it was held by Executive. Otherwise, this
Agreement (1) is personal to the Optionee, is non-assignable and is not
transferable in any manner, by operation of law or otherwise, other than by
will or the laws of descent and distribution, and (2) is exercisable,
during the Optionee's lifetime, only by the Optionee, and thereafter only
by the Optionee's legal representative or legatee.
b. Delivery of Certificates. Upon the exercise of the Option, in whole or in
part, the Company shall deliver or cause to be delivered one or more
certificates representing the number of Shares purchased against full
payment therefor. The Company shall pay all original issue or transfer
taxes and all fees and expenses incident to such delivery.
c. Option Confers No Rights as Stockholder. The Optionee shall not be entitled
to any privileges of ownership with respect to Shares subject to the Option
unless and until purchased and delivered upon the exercise of the Option,
in whole or in part, and the Optionee becomes a stockholder of record with
respect to such delivered Shares; and the Optionee shall not be considered
a stockholder of the Company with respect to any such Shares not so
purchased and delivered.
d. Decisions of Committee. The Committee shall have the right to resolve all
questions which may arise in connection with the Option or its exercise.
Any interpretation, determination or other action made or taken by the
Committee regarding this Agreement shall be final, binding and conclusive.
e. Reservation of Shares. The Company shall at all times prior to the
expiration or termination of the Option reserve or cause to be reserved and
keep or cause to be kept available, either in its treasury or out of its
authorized but unissued shares of common stock, the full number of shares
of common stock of the Company subject to the Option from time to time.
f. Change in Capital Structure. The terms of this Option shall be adjusted as
the Committee determines is equitably required in the event the Company
effects one or more stock dividends, stock split-ups, subdivisions or
consolidations of shares or other similar changes in capitalization.
g. Fractional Shares. Fractional shares shall not be issuable hereunder, and
when any provision hereof may entitle Optionee to a fractional share such
fraction shall be disregarded.
5
<PAGE>
6. Tax Withholding. The Optionee shall, not later than the date as of which
the exercise of this Option becomes a taxable event for Federal income tax
purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any Federal, state, and local taxes required by
law to be withheld on account of such taxable event. Subject to the
approval of the Committee, the Optionee may elect to have such tax
withholding obligation satisfied, in whole or in part, by (i) authorizing
the Company to withhold from Shares to be issued, or (ii) transferring to
the Company a number of previously owned whole Shares (which the Optionee
has held for at least six months prior to the delivery of such Shares or
which the Optionee purchased on the open market and for which the Optionee
has good title, free and clear of all liens and encumbrances) having an
aggregate Fair Market Value, determined as of the date of exercise, that
would satisfy the withholding amount due.
7. Miscellaneous Provisions.
a. Designation as Non-qualified Stock Option. The Option is hereby
designated as not constituting an "incentive stock option" within the
meaning of section 422 of the Code. This Agreement shall be
interpreted and treated consistently with such designation.
b. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person
or persons who shall, upon the death of the Optionee, acquire any
rights hereunder in accordance with this Agreement or the Plan.
c. Notices. All notices, requests or other communications provided for in
this Agreement shall be made, if to the Company, to the Secretary of
the Company at the Company's principal executive office, and if to the
Optionee, to his or her address on the books of the Company (or to
such other address as the Company or the Optionee may give to the
other for purposes of notice hereunder).
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to
the party entitled thereto, (b) facsimile with confirmation of
receipt, (c) by mailing in the United States mail to the last known
address of the party entitled thereto or (d) by express courier
service. The notice, request or other communication shall be deemed to
be received upon personal delivery, upon confirmation of receipt of
facsimile transmission or upon receipt by the party entitled thereto
if by United States mail or express courier service; provided,
however, that if a notice, request or other communication is not
received during regular business hours, it shall be deemed to be
received on the next succeeding business day of the Company.
d. Governing Law. This Agreement and all determinations made and actions
taken pursuant hereto and thereto, to the extent not governed by the
laws of the United
6
<PAGE>
States, shall be governed by the laws of the State of Delaware and
construed in accordance therewith without giving effect to principles
of conflicts of laws.
e. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
f. Further Assurances. The Company and the Optionee shall execute and
deliver such further instruments and take such additional action as
each party may reasonably request to effect, consummate, confirm or
evidence the grant of the Option to the Optionee, and they shall each
execute such documents as may be reasonably necessary to assist each
other in preserving or perfecting their respective rights in the
Option.
g. No Right to Continued Employment. This Agreement does not confer upon
Optionee any right to continue in the employ of the Company or an
Affiliate, nor shall it interfere in any way with the right of the
Company or an Affiliate to terminate such employment at any time.
WYNDHAM INTERNATIONAL, INC.
By: /s/ JAMES D. CARREKER
-----------------------------
Title: Chairman & CEO
--------------------------
Accepted this 12 August, 1999.
/s/ FRED J. KLEISNER
-------------------------------
Fred J. Kleisner
"Optionee"
7
<PAGE>
Exhibit B
---------
WYNDHAM INTERNATIONAL, INC.
RESTRICTED UNIT AWARD AGREEMENT
Dated as of August 12, 1999
Wyndham International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby awards to Fred J. Kleisner (the "Participant"),
as of the date hereof (the "Award Date"), a Restricted Unit Award (the "Award")
covering the right to receive 203,000 shares of Class A Common Stock (the
"Shares") of the Company, subject to the terms and conditions set forth below.
Such grant is pursuant to the Wyndham International, Inc. 1997 Incentive Plan
(the "Plan").
1. Award Subject to Acceptance of Agreement. The Award shall not be valid and
binding unless the Participant accepts this Agreement by executing it in
the space provided below and returning such original execution copy to the
Company.
2. Vesting of Award. No portion of this Award may be exercised until such
portion shall have vested (such unvested portion of the Award, the
"Restricted Units"). Except as set forth in Section 3 of this Agreement,
and subject to the discretion of the Committee or the Board of Directors to
accelerate the vesting schedule hereunder, this Award shall be vested and
nonforfeitable with respect to the following number of Restricted Units on
the dates indicated:
- --------------------------------------------------------------------------------
Number of Restricted Units
Subject to Vesting Date Restrictions Lapse
- --------------------------------------------------------------------------------
67,666 (33 1/3%) 1 year after Award Date
- --------------------------------------------------------------------------------
67,667 (33 1/3%) 2 years after Award Date
- --------------------------------------------------------------------------------
67,667 (33 1/3%) 3 years after Award Date
- --------------------------------------------------------------------------------
3. Termination of Employment. If the Participant's employment by the Company
or an Affiliate is terminated prior to the dates the restrictions lapse as
set forth above, Participant shall forfeit all Restricted Units which have
not yet vested, except as provided below. The Committee's or the Board of
Directors' determination of the reason for termination of the Participant's
employment shall be conclusive and binding on the Participant and his or
her legal representatives or legatees. Any transfer of employment from the
Company to an Affiliate shall not be deemed to be a termination of
employment for purposes of this Agreement.
1
<PAGE>
Exhibit C
---------
NO PERSONAL LIABILITY NONRECOURSE PROMISSORY NOTE
Dallas, Texas
$850,000.00 , 1999
--------
FOR VALUE RECEIVED, FRED J. KLEISNER (referred to herein as the "Maker"),
promises to pay to WYNDHAM INTERNATIONAL, INC., a Delaware corporation (referred
to herein as the "Payee"), or its assigns, the sum of EIGHT HUNDRED FIFTY
THOUSAND DOLLARS AND NO CENTS ($850,000.00), together with interest on the
unpaid principal balance as set forth below.
1. Certain Definitions. The following items, when.used in this Note,
shall have the meanings assigned to them below:
(a) Stated Rate. The term "Stated Rate" means the interest rate, as
the same may be adjusted from time to time, paid by Payee during the term of
this Note pursuant to the revolving line of credit of the Payee as it may exist
from time to time.
(b) Maximum Rate. The term "Maximum Rate" shall mean, on any day, the
highest nonusurious rate of interest (if any) permitted by applicable law on
such day. For purposes of Tex. Rev. Civ. Stat. Ann. Art. 5069-1.04(b), as it may
from time to time be amended, the "applicable rate ceiling" shall be the
"indicated rate" ceiling from time to time in effect as limited by Art. 5069.
1.04(b); provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable rate ceiling" from time to
time by further notice and disclosure to Maker; and, provided further, that the
"highest nonusurious rate of interest permitted by applicable law" for purposes
of this Note shall not be limited to the applicable rate ceiling under Art.
5069-1.04 if federal laws or other state laws now or hereafter in effect and
applicable to this Note (and the interest contracted for, charged and collected
hereunder) shall permit a higher rate of interest.
2. Interest Rate. The unpaid principal balance from the date hereof until
maturity shall bear interest at a rate per annum equal to the lesser of the
Stated Rate or the Maximum Rate. Interest on the unpaid principal balance
hereof shall be calculated at a daily rate equal to 1/365th of the rate per
annum herein provided, and shall be charged and collected on the actual number
of days elapsed. After maturity, unpaid principal and, to the extent permitted
by law, interest on this Note shall bear interest at a rate equal to the lesser
of (i) four (4) percentage points over the Stated Rate or (ii) the Maximum Rate.
3. Payment of Principal and Interest. The entire principal balance and
accrued interest on this Note shall become due and payable on the earlier of (i)
the third anniversary of the date hereof or (ii) ten (10) days after termination
of Maker's employment with Payee.
<PAGE>
4. Events of Default.
(a) The occurrence of any one or more of the following events shall be
deemed an event of default hereunder ("Event of Default"):
(i) The failure of Maker to make any payment on this Note when
the same becomes due and payable and such failure continues for ten
(10) days after notice of such failure to pay is received by Maker
from Payee; or
(ii) Maker shall commence any case, proceeding or other action
seeking reorganization, arrangement or adjustment of his debts under
any bankruptcy, insolvency or reorganization law, or seek the
appointment of a receiver, trustee or custodian for Maker or for all
of his property; or
(iii) Any case, proceeding or other action shall be commenced
against Maker seeking reorganization, arrangement or adjustment of his
debts under any bankruptcy, insolvency or reorganization law or
seeking the appointment of a receiver, custodian or trustee for Maker
or for all or substantially all of his property, and such case,
proceeding or other action remains undismissed for a period of sixty
(60) days after commencement thereof.
(b) Upon the occurrence of an Event of Default hereunder, Payee, at its
option, may declare the entire unpaid principal balance and accrued interest on
this Note to be immediately due and payable without notice of any kind to Maker
and without any other presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by Maker, and may, at its option, exercise any
other right or remedy existing at law or in equity. Failure to exercise any such
right or remedy shall not constitute a waiver of the right to exercise the same
in the event of any subsequent default.
5. Voluntary Prepayment. Maker shall have the right and privilege from
time to time to prepay in whole or in part the unpaid principal of this Note
without premium or penalty, provided that the accrued interest on the amount
prepaid is likewise paid, and the accrual of interest shall immediately cease on
any amount so prepaid.
6. Waiver. Maker waives demand, presentment for payment, notice of
nonpayment, protest and notice of protest and agrees to any substitution,
subordination or release of any parties primarily or secondarily liable hereon.
No waiver by Payee of any of its rights or remedies hereunder or under any other
document evidencing or securing this Note or otherwise shall be considered a
waiver of any other subsequent right to remedy of Payee; and no delay or
omission in the exercise or enforcement by Payee of any rights or remedies shall
be construed as a waiver of any right or remedy of Payee.
7. Attorneys' Fees. If this Note is not paid pursuant to the terms hereof
and is placed in the hands of an attorney for collection, or if it is collected
through bankruptcy or any other court proceeding after maturity, then Payee
shall be entitled to reasonable attorneys' fees for collection.
2
<PAGE>
8. Limitation on Agreements. It is the intention of Maker and Payee to
comply with applicable usury laws. In furtherance thereof, Maker and Payee
stipulate and agree that, notwithstanding any provision contained in this Note,
or in any other agreement between Maker and Payee, Payee shall never be entitled
to receive, collect or apply as interest on this Note, any amount in excess of
the Maximum Rate, and, in the event Payee ever receives, collects or applies as
interest any such excess, such amount that would be excessive interest shall be
deemed to be a partial prepayment of principal and treated hereunder as such,
and if the principal amount of the Note is paid in full, any remaining excess
shall forthwith be paid to Maker. In determining whether the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, Maker and
Payee shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payments (other than payments hereunder) as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate and
spread in equal parts the total amount of interest throughout the entire
contemplated term of this Note so that the interest rate is uniform throughout
such term.
9. Limitation on Liability. THIS NOTE SHALL BE NONRECOURSE TO MAKER AND
MAKER SHALL HAVE NO PERSONAL LIABILITY FOR THE PAYMENT HEREOF.
10. Governing Law and Venue. This Note is being executed and delivered and
is intended to be performed in the State of Texas. This Note shall be construed
as to both validity and performance and enforced in accordance with and governed
by the laws of the State of Texas.
11. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by certified or registered mail, postage prepaid,
with return receipt requested, addressed to Maker or Payee as follows:
If to Payee to:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
Attention: General Counsel
If to Maker to:
Fred J. Kleisner at address on file with the
Payee
or such other address as shall be furnished in writing by Maker or Payee to the
other, in accordance with the above provisions, and such notice or communication
shall be deemed to
3
<PAGE>
have been given as of the date so delivered in the case of personal delivery or
three (3) days after deposit in the mail in the case of certified or registered
mail
12. Arbitration. Maker and Payee agree that any claim, controversy or
dispute arising out of or relating to this Note that cannot be amicably settled
shall be referred to binding arbitration as hereinafter provided. If arbitration
is required to resolve a dispute between Maker and Payee, Payee will notify the
American Arbitration Association ("AAA") and request AAA to select one person to
act as the arbitrator for resolution of this dispute. The selected arbitrator
will establish the rule for arbitration of the dispute and such rules will be
binding upon all parties to the arbitration proceeding. The arbitrator may use
the rules of the AAA for commercial arbitration but is encouraged to adopt such
rules as the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly, the arbitrator may
(i) dispense with any formal rules of evidence and allow hearsay testimony so as
to limit the number of witnesses required, (ii) minimize discovery procedures as
the arbitrator deems appropriate, (iii) act upon his understanding or
interpretation of the law on any issue without the obligation to research such
issue or accept or act upon briefs of the issue prepared by any party, (iv)
limit the time for presentation of any party's case as well as the amount of
information or number of witnesses to be presented in connection with any
hearing, (v) prevent any party from allowing an attorney to present or argue the
party's case before the arbitrator in any hearing, and (vi) impose any. other
rules which the arbitrator believes appropriate to effect a resolution of the
dispute as quickly and inexpensively as possible. The arbitration shall take
place in Dallas, Texas. The arbitrator will have the exclusive authority to
determine and award costs of arbitration and the cost incurred by any party for
attorneys, advisors and consultants. Any award made by the arbitrator shall be
binding on Maker, Payee and all parties to the arbitration and shall be
enforceable to the fullest extent of the law.
13. Tax Matters. Maker acknowledges that Maker has not relied on any
advice from Payee with regard to the tax treatment of the Note.
MAKER
/s/ FRED J. KLEISNER
----------------------------
Fred J. Kleisner
4
<PAGE>
EXHIBIT 10.14
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of the 18th
day of August, 1999, between Wyndham International, Inc., a Delaware corporation
("Employer"), and James D. Carreker ("Executive"), but it shall become effective
only on the date set forth in paragraph 25 below (the "Effective Date").
WHEREAS, Executive has previously had a valued association with Patriot
American Hospitality, Inc., a Virginia corporation ("Previous Employer") and a
predecessor of Previous Employer, Wyndham Hotel Corporation, a Delaware
corporation ("WHC");
WHEREAS, Executive has previously entered into an Executive Employment
Agreement with Previous Employer, which has been subsequently assumed and
honored by Employer (the "Prior Agreement");
WHEREAS, Executive currently serves as CEO of Employer.
WHEREAS, Employer, acting by and through the Board of Directors of Employer
(the "Board"), now desires to terminate the Prior Agreement and supercede the
Prior Agreement with this Agreement to better ensure the future of Employer by
establishing a continuing relationship with Executive;
WHEREAS, Executive, seeking to serve the best interests of Employer, is
agreeable to terminating the Prior Agreement and superceding the Prior Agreement
with this Agreement on the terms herein provided;
WHEREAS, as an additional inducement to Executive to enter into this
Agreement,
<PAGE>
Employer shall, on the Effective Date enter into a separate "indemnification
agreement" with Executive in the form attached hereto as Exhibit A (the
"Indemnification Agreement");
WHEREAS, as an additional inducement to Executive to enter into this
Agreement, Employer shall, as of the Effective Date grant Executive an option
(such option being herein referred to as the "Stock Options") to purchase a
certain number of "Shares" (herein so called) of common stock of Employer at a
floor price of $5.00 per each of the Shares and as otherwise set forth in the
Agreement attached hereto as Exhibit B (the "Option Agreement"); and
WHEREAS, Executive is desirous of committing himself to serve Employer on
the terms herein provided,
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration,, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment. The initial term of this Agreement shall extend from the
Effective Date until the fifth anniversary of the Effective Date. On the third
anniversary of the Effective Date and every even-numbered calendar year
anniversary date thereafter (e.g., 2004, 2006. . .), the term of this Agreement
shall be automatically extended for an additional two (2) years unless either
party otherwise elects by notice in writing delivered to the other at least
ninety (90) days prior to the third anniversary or ninety (90) days prior to the
concerned even-numbered calendar year anniversary date thereafter; provided,
however that this sentence shall not be deemed to reduce the five (5) year
initial term of this Agreement; provided, further, that if a Change in Control
(as hereinafter defined) occurs during the initial or extended term of this
Agreement, the term of this Agreement shall continue in effect for a period of
not less than eighteen (18) months
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beyond that month in which that Change in Control occurred. The term of the
Agreement shall be subject to termination only as provided in paragraph 7. The
term of this Agreement may be referred to herein as the "Period of Employment."
2. Position and Duties. During the Period of Employment, Executive shall serve
as Chairman and Chief Executive Officer of Employer, reporting to the Board;
shall have supervision and control over and responsibility for the day-to-day
business and affairs of Employer; and shall have such other powers and duties as
may from time to time be prescribed by the Board, provided that such duties are
consistent with the normal and customary responsibilities of a Chairman and
Chief Executive Officer. Should, during the Period of Employment, Executive not
be nominated to serve (or, if nominated, not be elected to serve) as a director
or member of the Board, then Executive may, as provided in subparagraph 7(e),
terminate his employment hereunder, which termination shall be deemed to be for
Good Reason, as defined in subparagraph 7(e). Except as provided otherwise
herein, Executive shall devote his full working time and working efforts to the
business and affairs of Employer and Previous Employer. Notwithstanding the
foregoing, Executive may serve on other boards of directors or engage in
religious, charitable, or other community activities as long as such services
and activities are disclosed to the Board and do not materially interfere with
Executive's performance of his duties as provided in this Agreement.
3. Compensation and Related Matters
(a) Base Salary. Initially, Executive shall receive an annual minimum base
salary ("Base Salary") equal to Six Hundred Thousand Dollars and No/100 Cents
($600,000.00). Thereafter, Executive's Base Salary shall be redetermined at
least thirty (30) days before each
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annual compensation determination date established by Employer during the Period
of Employment but in any event no later than the first quarter of the applicable
fiscal year (the "Annual Compensation Determination Date") in an amount to be
fixed by the Board, but in no event shall such re-determined Base Salary be less
than $600,000.00. The Base Salary, as redetermined, is referred to herein as the
"Adjusted Base Salary." The Base Salary or, if applicable, the Adjusted Base
Salary, shall be payable in substantially equal bi-weekly installments.
(b) Incentive Compensation. In addition to Base Salary or, if applicable,
Adjusted Base Salary, Executive shall be eligible to receive in each fiscal year
during the Period of Employment, on or about the Annual Compensation
Determination Date (or earlier as provided in Paragraph 8 and 9 of this
Agreement), cash incentive compensation (the "Incentive Compensation") in an
amount determined annually by the Compensation Committee of the Board based on
individual performance, "Employer EBITDA Achievement" (as hereinafter defined),
and total return to shareholders. Incentive Compensation shall equal from zero
to three times the then current Base Salary or, if applicable, Adjusted Base
Salary. "Employer EBITDA Achievement" is the degree to which the annual budget
established by Employer for earnings before interest, taxes, depreciation, and
amortization is achieved. Notwithstanding the foregoing, the Incentive
Compensation shall equal at least one hundred fifty percent (150%) of the Base
Salary or, if applicable, Adjusted Base Salary for any year in which Employer
EBITDA Achievement is one hundred percent (100%) or more ("Target Incentive
Compensation").
"Pro Rata Incentive Compensation" shall be paid to Executive for any
termination. Pro Rata Incentive Compensation equals the Incentive Compensation
for the fiscal year of termination multiplied by a fraction, the numerator of
which is the number of days in the current
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fiscal year through Date of Termination and the denominator is 365.
If, for the purpose of calculating Incentive Compensation or Pro Rata
Incentive Compensation, the Incentive Compensation cannot be determined by the
time required to be paid, Employer shall make a good faith estimate of this
amount, resolving all doubts in favor of Executive and, in calculating the Pro
Rata Incentive Compensation, such good faith estimate shall be based on an
amount Executive would have earned had he continued employment for the entire
fiscal year.
Executive will also participate in such other incentive compensation plans,
policies or practices as the Board shall determine.
(c) Expenses. Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by him (in accordance with the policies
and procedures then in effect and established by Employer for its senior
executive officers) in performing services hereunder during the Period of
Employment, provided that Executive properly accounts therefor in accordance
with Employer policy.
(d) Country Club Entertainment Benefit. Employer shall, if Executive so
requests, provide Executive with a country club membership at Preston Trails
Golf Club (or an equivalent club selected by Executive) and pay or reimburse
Executive for all charges for goods and services incurred relating to Employer's
business and for all membership costs and dues incurred with regard thereto by
or on behalf of Executive.
(e) Automobile Allowance. Employer shall provide Executive with a company
car or allowance therefor, which car or allowance shall be for, or sufficient
for, a BMW 750i or
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equivalent selected by Executive.
(f) Air Travel Allowance. Executive, and, when requested by Executive, his
spouse, shall be provided with or reimbursed for the cost of first-class or
private aircraft travel when Executive is traveling on Employer's business, as
and when Executive deems such travel to be required or convenient.
(g) Other Benefits. During the Period of Employment, Executive shall be
entitled to continue to participate in or receive benefits under all of
Employer's Employee Benefit Plans in effect on the date hereof, or under plans
or arrangements that provide Executive with at least substantially equivalent
benefits to those provided under such Employee Benefit Plans. As used herein,
"Employee Benefit Plans" include, without. limitation, each pension and
retirement plan, supplemental pension, retirement and deferred compensation
plan, savings and profit-sharing plan, stock ownership plan, stock purchase
plan, stock option plan, life insurance plan, medical insurance plan, disability
plan, and health and accident plan, or arrangement established and maintained by
Employer on the date hereof and enhancements thereof hereafter made. To the
extent that the scope or nature of benefits described in this section are
determined based in whole or in part on the seniority or tenure of an employee's
service, Executive shall be deemed to have a tenure with Employer equal to the
actual time of Executive's service with Employer plus the actual service by
Executive to the Previous Employer and to WHC. During the Period of Employment,
Executive shall be entitled to participate in or receive benefits under any of
the Employee Benefit Plans or arrangements that may, in the future, be made
available by Employer to its executives and key management employees, subject to
and on a basis consistent with the terms, conditions, and overall administration
of such plans or arrangements. Nothing paid to Executive under the Employee
Benefit Plans presently in effect or any employee benefit plan or
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arrangement that may be made available in the future shall be deemed to be in
lieu of compensation otherwise payable to Executive under subparagraphs 3(a) and
3(b) and elsewhere in this Agreement. Any payments or benefits payable to
Executive under a plan or arrangement referred to in this subparagraph 3(g) in
respect of any calendar year during which Executive is employed by Employer for
less than the whole of such year shall, unless otherwise provided in such plan
or arrangement, be prorated in accordance with the number of days in such
calendar year during which he is so employed. Should any such payments or
benefits accrue on a fiscal (rather than calendar) year, then the proration in
the preceding sentence shall be on the basis of a fiscal year rather than
calendar year.
(h) Life Insurance. Employer shall pay the premiums on, and maintain in
effect throughout the Period of Employment, a life insurance policy on the life
of Executive in an amount of not less than $2,000,000.00. Executive shall have
the right to designate the beneficiary under such policy.
(i) Vacations. Executive shall be entitled to a minimum of twenty (20)
days of paid vacation in each calendar year or such greater number of days as is
determined by Employer from time to time for its senior executive officers.
Executive shall also be entitled to all paid holidays given by Employer to its
senior executive officers. To the extent that the scope or nature of benefits
described in this section are determined under the policies of Employer, based
in whole or in part on the seniority or tenure of an employee's service,
Executive shall be deemed to have a tenure with Employer equal to the actual
time of Executive's service with Employer plus the actual service by Executive
to the Previous Employer and WHC.
(j) Disability Insurance. Employer shall pay the premiums on, and maintain
in
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effect throughout the Period of Employment, long-term disability insurance
providing for payment of benefits at rates not less than 60% of Executive's Base
Salary or, if applicable, his Adjusted Base Salary.
(k) Employer Property Usage Policy. During the Period of Employment and
thereafter, unless Executive's employment by Employer terminates "For Cause" as
that term is defined in subparagraph 7(c), Executive shall be provided with
rights and benefits comparable to the standard rights and benefits provided to
the Directors who are currently serving on the Board.
(l) Comparability. Notwithstanding anything to the contrary in the
foregoing provisions of this paragraph 3, so long as Executive serves as the CEO
of Employer, the sum of Executive's Base Salary or, if applicable, Adjusted Base
Salary, and Target Incentive Compensation shall in no event be less than one
hundred fifty percent (15 0%) of the sum of the Salary and Target Incentive
Compensation paid to the next highest paid employee of the Employer and one
hundred percent (100%) of each and all benefits under Employee Benefit Plans or
otherwise awarded to any other employee of Employer. All other terms and
provisions of this Agreement shall at all times be deemed amended to the end
that such terms and provisions are at all times, and from time to time, at least
as favorable to Executive as such terms and provisions would be under any other
employment agreement to which Employer is a party.
4. Board Service. Executive agrees to serve as a director of Employer and
Previous Employer, if elected or appointed, provided he is forever indemnified
for serving in such capacities as set forth in the Indemnification Agreement,
which indemnity shall survive the termination of the Indemnification Agreement
and the termination of this Agreement. Employer will provide appropriate
Directors' and Officers' Insurance naming Executive as a named
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insured with limits of no less than provided to other officers and directors.
5. Unauthorized Disclosure.
(a) Confidential Information. Executive acknowledges that in the course of
his employment with Employer (and, if applicable, the predecessors of Employer
or Previous Employer or WHC), he has been allowed to become, and will continue
to be allowed to become, acquainted with Employer's business affairs,
information, trade secrets, and other matters that are of a proprietary or
confidential nature, such as business opportunities, price and cost information,
finance, customer information, business plans, various sales techniques,
manuals, letters, notebooks, procedures, reports, products, processes, services,
and other confidential information and knowledge (collectively, the
"Confidential Information") concerning Employer's, Previous Employer's, and
their respective predecessors' business. Employer agrees to provide, on an
ongoing basis, such Confidential Information as Employer deems necessary or
desirable to aid Executive in the performance of his duties. Executive
understands and acknowledges that such Confidential Information is confidential,
and he agrees not to disclose such Confidential Information to anyone outside
Employer, except as he deems reasonably necessary or appropriate in connection
with performing his duties on behalf of Employer. Executive further agrees that
he will not during employment and/or at any time thereafter use such
Confidential Information in competing, directly or indirectly, with Employer or
Previous Employer. At such time as Executive shall cease to be employed by
Employer, he will immediately turn over to Employer all Confidential
Information, including papers, documents, writings, electronically stored
information, other property, and all copies of them provided to or created by
him during the course of his employment with Employer (or, if applicable,
Previous Employer).
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(b) Heirs, successors, and legal representatives. The foregoing provisions
of this paragraph 5 shall be binding upon Executive's heirs, successors, and
legal representatives. The provisions of this paragraph 5 shall survive the
termination of this Agreement for any reason.
6. Covenant Not to Compete. In consideration for the Option Agreement, the
Employer's promise to provide Confidential Information as set forth in Paragraph
5 above, and for Executive's employment by the Employer under the terms provided
in this Agreement, and as a means to aid in the performance and enforcement of
and preserve the rights of the Employer pursuant to the terms of the
Unauthorized Disclosure provisions of Paragraph 5, Executive agrees as follows:
(a) during the term of Executive's employment with the Employer and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, as an
owner, director, principal, agent, officer, employee, partner, consultant,
servant, or otherwise, carry on, operate, manage, control, or become involved in
any manner with any business, operation, corporation, partnership, association,
agency, or other person or entity which is in the business of owning, operating,
managing or granting franchise rights with respect to the top ten branded hotel
companies, as defined by accepted industry consultants, such as Price Waterhouse
Coopers, in any city in which the Employer, or any subsidiary or affiliate of
the Employer, operates any facility during Executive's term of Employment;
provided, however, that the foregoing shall not prohibit Executive from owning
up to one percent (1%) of the outstanding stock of a publicly held company
engaged in the hospitality business or holding as a purely passive investor of
less than a controlling interest in any other entity. Notwithstanding the
foregoing, after Executive's employment with the Employer has terminated, upon
receiving written permission by the Board,
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Executive shall be permitted to engage in such activities with respect to any
other hotel, motel or lodging facility that shall be determined in the sole
discretion of the Board in good faith to be immaterial to the operations of the
Employer, or any subsidiary or affiliate of the Employer, in the area or
territory in question.
(b) during the term of Executive's employment with the Employer and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not, directly or indirectly, either
for himself or for any other business, operation, corporation, partnership,
association, agency, or other person or entity, call upon, compete for, solicit,
divert, or take away, or attempt to divert or take away current or prospective
customers (including, without limitation, any hotel owner, lessor or lessee,
asset manager, trustee, consumer with whom the Employer, or any subsidiary or
affiliate of the Employer, (i) has an existing agreement or business
relationship; (ii) has had an agreement or business relationship within the two-
year period preceding the Executive's last day of employment with the Employer;
or (iii) has included as a prospect in its applicable pipeline) or any
subsidiary or affiliate of the Employer.
(c) during the term of Executive's employment with the Employer and for a
period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, Executive will not directly or indirectly solicit or
induce any current or prospective employee of the Employer, or any subsidiary or
affiliate of the Employer (including, without limitation, any current or
prospective employee of the Employer within the six-month period preceding the
Executive's last day of employment with the Employer or within the 24-month
period of this covenant) to accept employment with Executive or with any
business, operation, corporation, partnership, association, agency, or other
person or entity with which Executive may be associated, and Executive will not
employ or cause any business, operation, corporation,
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partnership, association, agency, or other person or entity with which Executive
may be associated to employ any current or prospective employee of the Employer,
or any subsidiary or affiliate of the Employer, without providing the Employer
with ten (10) days' prior written notice of such proposed employment.
(d) Executive agrees and acknowledges that the restrictions contained in
this noncompetition covenant are reasonable in scope and duration and are
necessary to protect the Employer's business interests and Confidential
Information after the Effective Date of this Agreement. If any provision of this
noncompetition covenant as applied to any party or to any circumstance is
adjudged by a court to be invalid or unenforceable, the same will no in way
affect any other circumstance or the validity or enforceability of this
Agreement. If any such provision, or any part thereof, is held to be
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision, and/or to delete
specific words or phrases, and in its reduced form, such provision shall then be
enforceable and shall be enforced. The parties agree and acknowledge that the
breach of this noncompetition covenant will cause irreparable damage to the
Employer, and upon breach of any provision of this noncompetition covenant, the
Employer shall be entitled to injunctive relief, specific performance, or other
equitable relief provided, however, that this shall in no way limit any other
remedies which the Employer may have (including, without limitation, the right
to seek monetary damages).
(e) Should Executive violate the provisions of this Paragraph, then in
addition to all other rights and remedies available to the Employer at law or in
equity, the duration of this covenant shall automatically be extended for the
period of time from which Executive began
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such violation until he permanently ceases such violation.
(f) Should, however, Employer fail to timely pay any sums or otherwise
fail to timely provide any benefit due and owing to Executive, his family, or
his estate within ten (10) days after Executive or a representative or his
family or estate notifies Employer in writing of a failure to timely pay any
such sums or timely provide any such benefits, the provisions of this paragraph
6 shall no longer be binding and shall have no force or effect, unless and until
Executive is, after a full and final hearing, found to be in material breach of
this Agreement in an arbitrator's award made by an arbitrator appointed under
paragraph 18 of this Agreement.
7. Termination. Executive's employment hereunder may be terminated without
any breach of this Agreement under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. Employer shall be entitled to terminate the Executive's
employment because of the Executive's Disability during the Period of
Employment. "Disability" means that as a result of Executive's incapacity due to
physical or mental illness Executive shall have been absent from his duties
hereunder or a full-time basis for one hundred eighty (180) calendar days in the
aggregate in any twelve (12) month period (such period to not include, however,
any time that Executive is on leave of absence as authorized by this Agreement
or Employer's leave policies). A termination of the Executive's employment by
Employer for Disability, shall after the 180 calendar day period described above
in this subparagraph (7(b), be communicated to the Executive by written notice,
and shall be effective on the 60th day after receipt of such notice by the
Executive (the "Disability Effective Date"), unless the Executive returns to
full-time performance of the Executive's duties before the Disability Effective
Date.
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(c) Termination by Employer For Cause. At any time during the Period of
Employment, Employer may terminate Executive's employment hereunder for Cause if
such termination is approved by not less than a majority of the entire
membership of the Board at a meeting of the Board called and held for such
purpose. For purposes of this Agreement "Cause" shall mean: (i) the willful and
continued failure of the Executive substantially to perform the Executive's
duties under this Agreement (other than as a result of physical or mental
illness or injury), after the Board delivers to the Executive a written demand
for substantial performance and such nonperformance has continued for more than
60 days following written notice of nonperformance from the Board that
specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive's duties (provided,
however, that Executive shall not be deemed to be in nonperformance if within
such 60-day time period following receipt by Executive of such notice he has
taken steps reasonably calculated to resolve such nonperformance); (ii) illegal
conduct or gross misconduct by the Executive, that has resulted in material
injury to the reputation of Employer; or (iii) a material breach by Executive of
the covenants contained in paragraph 5 of this Agreement.
(d) Termination Without Cause. At any time during the Period of Employment,
Employer may terminate Executive's employment hereunder without (i.e., not for)
Cause if such termination is approved by not less than a majority of the entire
membership of the Board at a meeting of the Board called and held for such
purpose. Further, any termination by Employer of Executive's employment that is
not otherwise governed by this paragraph 7 shall also be deemed a termination
without, or not for, Cause.
(e) Termination by Executive. At any time during the Period of Employment,
Executive may terminate his employment hereunder for any reason, including but
not limited to
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"Good Reason" (as hereinafter defined). For purposes of this Agreement, "Good
Reason" shall mean that Executive has complied with the "Good Reason Process"
(as hereinafter defined) following the occurrence of any of the following events
(referred to individually as a "Good Reason Event" and collectively as "Good
Reason Events"): (A) any substantial adverse change, not consented to by
Executive in a writing signed by him, in the nature or scope of Executive's
responsibilities, authorities, powers, functions, or duties exercised by
Executive immediately prior to the Effective Date, except as provided in
paragraph 11; (B) any removal, during the Period of Employment, of Executive
from, or any failure by management to nominate, or, if nominated, any failure by
the stockholders to re-elect Executive to, any of the positions indicated in
paragraph 2; (C) an involuntary reduction in Executive's Base Salary or Adjusted
Base Salary or Target Incentive Compensation; (D) a breach by Employer of any of
its other material obligations under this Agreement and the failure of Employer
to cure such breach within thirty (30) days after written notice thereof by
Executive; (B) the relocation of Employer's primary offices at which Executive
is principally employed to a location more than thirty (30) miles from
Executive's current offices, or the requirement by Employer for Executive to be
based anywhere other than Employer's primary offices at such current location
[or more than 30 miles therefrom] on an extended basis, except for required
travel on Employer's business to an extent substantially consistent with
Executive's current business travel obligations; or (F) Employer gives notice of
non-extension of the Period of Employment under paragraph 1 of this Agreement.
"Good Reason Process" shall mean that (i) the Executive reasonably determines in
good faith that a Good Reason Event has occurred; (ii) Executive notifies
Employer in writing of the occurrence of the Good Reason Event; (iii) Executive
cooperates in good faith with Employer's efforts, for a period not more than
thirty (30) days following such notice, to modified Executive's employment
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situation in a manner acceptable to Executive and Employer; and (iv)
notwithstanding such efforts, one or more of the Good Reason Events continues to
exist for a period of more than thirty (30) days following such notice and has
not been modified in a manner acceptable to Executive.
(f) Notice of Termination. Except for termination as specified in
subparagraph 7(a), any termination of Executive's employment by Employer or any
such termination by Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice that shall indicate the specific provision
in this Agreement relied upon.
(g) Date of Termination. "Date of Termination" shall mean: (A) if
Executive's employment is terminated by his death, the date of his death; (B) if
Executive's employment is terminated on account of Disability under subparagraph
7(b) on the Disability Effective Date unless Executive returns to full-time
performance of Executive's duties before the Disability Effective Date; (C) if
Executive's employment is terminated by Employer under subparagraphs 7(c) or (d)
thirty (30) days after the date on which a Notice of Termination is given; and
(D) if Executive's employment is terminated by Executive under subparagraph
7(e), thirty (30) days after the date on which a Notice of Termination is given.
8. Compensation Upon Termination or During Disability
(a) Death. If Executive's employment terminates by reason of his death,
Employer shall, within thirty (30) days of death, pay in a lump sum amount to
such person as his estate shall designate in a notice filed with Employer or, if
no such person is designated, to Executive's estate, (i) Executive's accrued and
unpaid Base Salary or, if applicable, his Adjusted Base
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Salary, through the date of his deaths and (ii) any accrued and any unpaid
Incentive Compensation and Pro Rata Incentive Compensation. Upon such death, all
unvested stock options and stock-based grants shall immediately vest in
Executive's estate or other legal representatives and become exercisable, and
Executive's estate or other legal representatives shall have one (1) year from
the Date of Termination, or remaining option term, if later, to exercise the
stock options. For a period of five (5) years following the Date of Termination,
Employer shall pay such health insurance premiums as may be necessary to allow
Executive's spouse and other dependents to receive health insurance coverage
substantially similar to the coverage they received prior to the Date of
Termination.
(b) Disability. During any period that Executive is unable to perform his
duties hereunder as a result of incapacity due to physical or mental illness or
injury, Executive shall continue to receive his accrued and unpaid Base Salary
or, if applicable, his Adjusted Base Salary, and accrued and unpaid Incentive
Compensation payments under subparagraph 3(b), until and unless Executive's
employment is terminated due to Disability in accordance with subparagraph 7(b)
or until Executive terminates his employment in accordance with subparagraph
7(e), whichever first occurs. In the event of termination due to Disability
Employer shall, within thirty (30) days of the Disability Effective Date, pay in
a lump sum amount to Executive (i) his accrued and unpaid Base Salary or, if
applicable, his Adjusted Base Salary through the Date of Termination, plus (ii)
any accrued and unpaid Incentive Compensation and Pro Rata Incentive
Compensation. Upon the Disability Effective Date, all unvested stock options and
stock-based grants shall immediately vest and become exercisable and Executive
shall have one (1) year from the Date of Termination, or the remaining option
term, if later, to exercise the stock options. For a period of two (2) years
following the Date of
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Termination, Employer shall pay such health insurance premiums as may be
necessary to allow Executive and Executive's spouse and other dependents, to
receive health insurance coverage substantially similar to the coverage they
received prior to the Date of Termination. Upon termination due to death prior
to the Disability Effective Date, subparagraph 8(a) shall apply.
(c) By Executive Not for Good Reason. If Executive's employment is
terminated by Executive other than for Good Reason as provided in subparagraph
7(e), then Employer shall, through the Date of Termination, pay Executive (i)
his accrued and unpaid Base Salary or, if applicable, his Adjusted Base Salary
at the rate in effect on the date Notice of Termination is given, and (ii) any
accrued, earned, and unpaid Incentive Compensation plus, (iii) such other
benefits as are available under any Employer policy or practice then in effect.
If Executive's employment is terminated by Executive other than for Good Reason
as provided in subparagraph 7(e), all unvested stock options are forfeited on
the Date of Termination and Executive shall have 90 clays from the Date of
Termination to exercise any previously unexercised but then vested stock
options.
(d) By Executive for Good Reason; by Employer Without Cause. If Executive
terminates his employment for Good Reason as provided in subparagraph 7(e) or if
Executive's employment is terminated by Employer without Cause as provided in
subparagraph 7(d), then Employer shall, through the Date of Termination, pay
Executive (i) his accrued and unpaid Base Salary or, if applicable, his Adjusted
Base Salary at the rate in effect on the date Notice of Termination is given,
plus (ii) any accrued and unpaid Incentive Compensation and Pro Rata Incentive
Compensation. Upon the Date of Termination, all unvested stock options and
stock-based grants shall immediately vest and become exercisable, and Executive
shall have one (1) year from the Date of Termination, or the remaining option
term (not to exceed three (3) years),
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if later, to exercise the stock options. For a period of three (3) years
following the Date of Termination, Employer shall pay such health insurance
premiums as may be necessary to allow Executive and Executive's spouse and other
dependents to receive health insurance coverage substantially similar to
coverage they received prior to the Date of Termination. In addition, subject to
signing by Executive of a general release of claims in a form and manner
satisfactory to the Executive and Employer:
(1) Employer shall pay Executive, on the Date of Termination, such
additional amounts to which Executive may be entitled in accordance with
Employer's then current severance policies (the "Severance Amount"), provided
that, at a minimum, Executive shall be entitled to receive an amount in a lump
sum (the "Minimum Severance Amount") equal to the greater of(A) $3,000,000.00 or
(B) three (3) times the sum of the "Applicable Base Salary" plus the "Average
Incentive Compensation."
For purposes of this Agreement, "Applicable Base Salary" shall mean the
greater of (aa) $600,000, or, (bb) such of the following alternatives as is
applicable:
(aaa) prior to January 1, 2000, Executive's Base Salary, or if
applicable, Adjusted Base Salary; or
(bbb) on or after January 1, 2000, the average of the annual
Base Salary and, if applicable, Adjusted Base Salary, payable to Executive for
the year of termination and the immediately preceding complete fiscal year which
he was employed by Employer. The fiscal year ending December 31, 1999, shall be
treated as a complete fiscal year.
For purposes of this Agreement, "Average Incentive Compensation" shall mean
such of
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the following alternatives as is applicable:
(aaaa) prior to January 1, 2000, Executive's Target Incentive
Compensation;
(bbbb) on or after January 1, 2000, and before January 1, 2001,
the sum of Executive's Incentive Compensation for the fiscal year ending
December 31, 1999, and Executive's Target Incentive Compensation for the fiscal
year ending December 31, 2000, divided by two (2);
(cccc) on or after January 1, 2001, the total of the annual
Incentive Compensation payable to Executive for the two (2) immediately
preceding complete fiscal years divided by two (2). The fiscal year ending
December 31, 1999, shall be treated as a complete fiscal year.
The Applicable Base Salary and Average Incentive Compensation shall each be
determined as of the date of Notice of Termination or the Termination Date,
whichever is more favorable to Executive.
Notwithstanding the foregoing, in the event Executive terminates his
employment for Good Reason as provided in subparagraph 7(e), he shall be
entitled to the Severance Amount or, if applicable, the Minimum Severance Amount
only if he provides the Notice of Termination provided for in subparagraph 7(f)
within one hundred and twenty (120) days after Executive has informed Employer
in writing of the occurrence of the Good Reason Event(s), on which his
termination is based, pursuant to the provisions of subparagraph 7(e).
Should Executive commence any new employment as an employee during the
twenty-
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EXECUTIVE EMPLOYMENT AGREEMENT Page 20
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four (24) months following the Date of Termination, then Employer shall be
entitled to (1) 50% of the lesser of (i) all Executive's Base Salary, or if
applicable, Adjusted Base Salary in effect at the Date of Termination or (ii)
all sums paid to Executive as base compensation for such new employment (but not
as incentive or other compensation) within the first twelve (12) months
following the Date of Termination; and (2) 25% of the lesser of (i) all
Executive's Base Salary, or if applicable, Adjusted Base Salary in effect at the
Date of Termination or (ii) all sums paid to Executive as base compensation for
such new employer (but not as incentive or other compensation) within the second
twelve (12) months following the Date of Termination. The provisions of the
preceding sentence shall not, however, apply to payments of the "Parachute
Amount" (as herein defined).
(2) In addition to any other benefits to which Executive may be
entitled in accordance with Employer's then existing severance plans, policies
or practices (for which Executive shall not be required to sign the above-
referenced general release of claims), Employer shall:
(aa) for a period of three (3) years commencing on the Date of
Termination, provide Executive, at Employer's expense, with an office and all
reasonable occupancy expenses associated therewith, and related telephone and
telefax facilities, and an assistant at a location of Executive's choosing,
provided that the office facilities shall be comparable to Executive's office at
Employer on the Date of Termination; and,
(bb) for a period of one (1) year commencing on the Date of
Termination, pay for the cost of executive outplacement services selected by
Executive for use in connection with obtaining alternate employment.
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(e) For Cause. If Executive's employment is terminated by Employer for
Cause as provided in subparagraph 7(c), then Employer shall, through the Date of
Termination, pay Executive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary at the rate in effect on the date Notice of Termination
is given, plus his accrued, earned and unpaid Incentive Compensation.
(f) Continuing Assistance. Regardless of the reason for the termination of
Executive's employment, for a period of five (5) years beginning on the Date of
Termination or the end of the Period of Employment, Employer will provide such
reasonable assistance and support to Executive or his estate as he or such
estate shall reasonably require in connection with the preparation and filing of
tax returns, statements, and forms insofar as such returns, statements, or forms
relate to Executive's employment or other association with Employer, Previous
Employer, or any of their respective predecessors or affiliates. At Employer's
election, such assistance and support shall be provided by either tax personnel
from Employer or certified public accountants selected and compensated by
Employer.
(g) Payment Place and Due Date. All amounts due under this Agreement to
Executive or his estate by Employer following the Date of Termination or the end
of the Period of Employment shall be due and payable in Dallas County, Texas. On
or before the tenth (1 0th) day following such Date of Termination or the date
upon which the end of the Period of Employment occurs, except as otherwise
expressly set forth in this Agreement, Employer shall (i) escrow all amounts due
to Executive or his estate for the severance amount or minimum severance amount
whichever is applicable (the "Escrowed Severance Payment"), and (ii) pay to
Executive or his estate all other amounts due to Executive or his estate. The
Escrowed Severance Payment shall be due and payable to Executive or his estate
without notice or demand
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EXECUTIVE EMPLOYMENT AGREEMENT Page 22
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of any kind, in thirty-six (36) equal monthly payments, with the first such
payment being due and payable thirty (30) days following the Date of Termination
or the end of the Period of Employment, provided however:
(aa) that in the event a payment of Escrowed Severance Payment is for
any reason not paid within 10 days after Executive notifies Employer in writing
of a failure to timely make such payment, then, in that event, without further
notice or demand of any kind the entire unpaid balance of the Escrowed Severance
Payment shall at once become due and payable in full to Executive or his estate,
unless, prior to that time, Executive shall, after full and final hearing, be
found to be in material breach of this Agreement by an arbitrator appointed
under paragraph 18 of this Agreement, and
(bb) advances of the payments of the Escrowed Severance Payment
shall, if Executive so requests, be made to Executive to the extent income taxes
on unpaid payments are reasonably determined by Executive to be due, with such
advances to be proportionately offset against all unpaid future payments.
If Executive so elects at any time, the unpaid balance of the Escrowed
Severance Payment shall be paid over by Employer to an independent third party
escrow keeper, to be held pursuant to written arrangements mutually acceptable
to Employer and Executive providing for timely payment to Executive of the
payments due therefrom, whereupon such escrowed funds shall no longer be an
asset of the Employer.
(h) Other Obligations. The foregoing subparagraphs 8(a) through 8(g) shall
not adversely affect or alter Executive's rights (or the rights of his estate,
spouse or other dependents) under any Employee Benefit Plan or other plans of
Employer, except to the extent
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EXECUTIVE EMPLOYMENT AGREEMENT Page 23
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otherwise expressly provided therein or in any agreement or other instrument
attendant thereto.
9. Parachute Payment. The provisions of this paragraph 9 set forth the terms
of an agreement reached between Executive and Employer regarding Executive's
rights and obligations upon the occurrence of a "Change in Control" (as
hereinafter defined) of Employer. These provisions are intended to assure and
encourage in advance Executive's continued attention and dedication to his
assigned duties and his objectivity during the pendency and after the occurrence
of any such Change in Control. These provisions shall apply in lieu of, and
expressly supersede, the provisions of subparagraph 8(d)( 1) if Executive's
employment is terminated or Notice of Termination is given ninety (90) days
prior to or within eighteen (18) months after the occurrence of an event
constituting a Change in Control.
(a) Escrow. Within fifteen (15) days after the occurrence of the first
event constituting a Change in Control (irrespective of whether Executive has
actual knowledge of such event), Employer shall place immediately negotiable
funds in escrow in an amount equal to the Five Million Dollars ($5,000,000.00)
attributable to subparagraph 9(c), plus such additional amount as equals the
"Gross Up Payment" (as hereinafter defined) thereon. Such escrow shall be
conducted pursuant to written arrangements that are mutually acceptable to
Employer and Executive providing for the timely payment to Executive of the
amounts held in such escrow in the event Executive becomes entitled thereto
under the applicable provisions of this Agreement (the "Escrow Arrangement").
Further, the remaining portion of the "Parachute Amount" (as hereinafter
defined) shall also, within such fifteen (15) days after the occurrence of the
first event constituting a "Hostile Takeover" (as hereinafter defined), be
funded by Employer in immediately negotiable funds into such escrow pursuant to
such Escrow Arrangement. The Escrow Arrangement shall be maintained until the
earlier of (A) nineteen (19) months after the
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occurrence of an event constituting a Change in Control or (B) the payment to
Executive of all sums escrowed.
(b) Change in Control If, within 90 days prior to, or within eighteen (18)
months after the occurrence of an event constituting a Change in Control,
Executive's employment is terminated or a Notice of Termination is given for any
reason other than (A) his death, (B) his Disability, or (C) by Executive Without
Good Reason, then such termination shall be deemed to be a "Termination Due to
Change in Control" (herein so called), in which event Employer shall pay
Executive, in a lump sum, on or prior to the tenth (10th) day following the
Executive's Date of Termination:
(1) an amount equal to the applicable Parachute Amount (including any
Gross Up Payment); and
(2) Executive's accrued and unpaid Base Salary or, if applicable, his
Adjusted Base Salary, through such Date of Termination; and
(3) accrued and unpaid Incentive Compensation and Pro Rata Incentive
Compensation.
(c) Stock Option Floor. Upon the occurrence of the first event
constituting a Change in Control, all stock options and other stock--based
grants to Executive by Employer shall, irrespective of any provisions of the
Option Agreement, immediately and irrevocably vest and become exercisable as of
the date of such first event whereupon, at any time during the Option Term as
defined in the Option Agreement (but not to exceed five (5) years after such
event), Executive or his estate may by five (5) days' advance written notice
given to Employer, and
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EXECUTIVE EMPLOYMENT AGREEMENT Page 25
<PAGE>
irrespective of whether Executive is then employed by Employer or then living,
and solely at the election of Executive or his estate, require Employer to:
(1) immediately purchase all Stock Options from Executive or his
estate in exchange for the sum of Five Million Dollars ($5,000,000.00) cash
delivered in immediately negotiable funds in Dallas County, Texas, to Executive
or his estate, or,
(2) allow Executive to exercise all or any part of such Stock Options
at the option prices therefor specified in the grant of the Stock Options.
Employer shall also loan to Executive pursuant to the provisions of the Master
Note otherwise referenced and described in this Agreement all funds due by
Executive for income taxes (federal, state, or local), including but not limited
to on capital gains as well as on ordinary income, by reason of the provisions
of the existence of any of the provisions of this subparagraph 9(c) or the
carrying out of all or any part of such provisions. Taxes for purposes of the
above computation shall be computed at the highest marginal rate of federal
income taxation for the tax year for which such taxes are or will be due, and
state and local taxes at the highest marginal rate at the end of such year, net
of the maximum reduction (if any) in federal income taxes that could be obtained
from the deduction of deductible state and local taxes.
(d) Gross Up Payment.
(1) Excess Parachute Payment. If Executive incurs the tax (the
"Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986 (the
"Code") on "Excess Parachute Payments" within the meaning of Section 280G(b)(l)
of the Code, Employer will pay to Executive an amount (the "Gross Up Payment")
such that the net amount retained by
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EXECUTIVE EMPLOYMENT AGREEMENT Page 26
<PAGE>
Executive, after deduction of any Excise Tax on both the Excess Parachute
Payment and any federal, state and local income tax (together with penalties and
interest) as well as the Excise Tax upon the payment provided for by this
subparagraph 9(d)(1), will be equal to the Parachute Amount.
(2) Applicable Rates. For purposes of determining the amount of the
Gross Up Payment, Executive will be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in the calendar year in which
the Gross Up Payment is to be made and state and local income taxes at the
highest marginal rates of taxation in the state and locality where taxes thereon
are lawfully due, net of the maximum reduction (if any) in federal income taxes
that could be obtained from deduction of deductible state and `local taxes.
(3) Determination of Gross Up Payment Amount. The determination of
whether the Excise Tax is payable and the amount thereof will be based upon the
opinion of tax counsel selected by Executive and approved by Employer, which
approval will not be unreasonably withheld or delayed. If such opinion is not
finally accepted by the Internal Revenue Service (or state and local taxing
authorities), then appropriate adjustments to the Excise Tax will be computed
and additional Gross Up Payments will be made in the manner provided by this
subparagraph (d).
(4) Payment. Employer will pay the estimated amount of the Gross Up
Payment in cash to Executive at the time specified in this Agreement. Executive
and Employer agree to reasonably cooperate in the determination of the actual
amount of the Gross Up Payment. Further, Executive and Employer agree to make
such adjustments to the estimated amount of the Gross Up Payment as may be
necessary to equal the actual amount of the Gross
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EXECUTIVE EMPLOYMENT AGREEMENT Page 27
<PAGE>
Up Payment, which in the case of Executive will refer to refunds of prior
overpayments by Employer and in the case of Employer will refer to additional
payments to Executive to make up for prior underpayments.
(e) Definitions. For purposes of this paragraph 9, the following terms
shall have the following meanings:
"Change in Control" shall mean any of the following:
(1) the acquisition by any individual, entity, or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (the "Acquiring
Person"), other than Employer, or any of its Subsidiaries or any Investor or
Excluded Group, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 35% or more of the combined voting power
or economic interests of the then outstanding voting securities of Employer
entitled to vote generally in the election of directors; provided however, that
any transfer from any Investor or Excluded Group will not result in a Change in
Control if such transfer was part of a series of related transactions the effect
of which, absent the transfer to such Acquiring Person by the Investor or
Excluded Group, would not have resulted in the acquisition by such Acquiring
Person of 35% or more of the combined voting power or economic interests of the
then outstanding voting securities; or
(2) during any period of 12 consecutive months after the Issuance
Date, the individuals who at the beginning of any such 12-month period
constituted a majority of the Class A Directors and Class C Directors (the
"Incumbent Non-Investor Majority") cease for any reason to constitute at least a
majority of such Class A Directors and Class C Directors; provided that (i) any
individual becoming a director whose election, or nomination for election by
Employer's
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stockholders, was approved by a vote of the stockholders having the right to
designate such director and (ii) any director whose election to the Board or
whose nomination for election by the stockholders of Employer was approved by
the requisite vote of directors entitled to vote on such election or nomination
in accordance with the Restated Certificate of Incorporation of Employer, shall,
in each such case, be considered as though such individual were a member of the
Incumbent Non-Investor Majority, but excluding, as a member of the Incumbent
Non-Investor Majority, any such individual whose initial assumption of office is
in connection with an actual or threatened election contest relating to the
election of the directors of Employer (as such terms are used in Rule 14a-1 1 of
Regulation 14A promulgated under the Exchange Act) and further excluding any
person who is an affiliate or associate of an Acquiring Person having or
proposing to acquire beneficial ownership of 25% or more of the combined voting
power of the then outstanding voting securities of Employer entitled to vote
generally in the election of directors; or
(3) the approval by the stockholders of Employer of a reorganization,
merger or consolidation, in each case, with respect to which all or
substantially all of the individuals and entities who were the respective
beneficial owners of the voting securities of Employer immediately prior to such
reorganization, merger, or consolidation do not, following such reorganization,
merger, or consolidation, beneficially own, directly or indirectly, more than
57.5% of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of Employer resulting
from such reorganization, merger, or consolidation; or
(4) the sale or other disposition of assets representing 50% or more
of the assets of Employer in one transaction or series of related transactions;
or
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(5) a "Fundamental Change in Business" as hereinafter defined.
Except as otherwise specified herein, defined terms used in the definition of
"Change in Control" shall have the same meaning as set forth in the Form of
Certificate of Designation of Series B Convertible Preferred Stock of Wyndham
International, Inc.
"Employer" shall mean not only Wyndham International, Inc., but also
its successors by merger or otherwise.
"Fundamental Change in Business" shall mean that Employer, at any
time, no longer earns at least fifty percent (50%) of its gross revenues from
hotel, or hotel-related businesses.
"Hostile Takeover" shall mean any Change in Control which at any time
is declared by at least a majority of the Board, directly or indirectly, to be
hostile or not in the best interests of Employer, or in which an attempt is made
(irrespective of whether successful) to wrest control away from the incumbent
management of Employer, or with respect to which the Board makes any effort to
resist.
"Parachute Amount" shall mean an amount equal to (i) the greater of
$3,000,000.00 or the Severance Amount or, if applicable, the Minimum Severance
Amount provided for in subparagraph 8(d)(1), plus (ii) any amount computed by
reference to subparagraphs 9(c) or 9(d) of this Agreement or otherwise which are
deemed to be a "Parachute Payment" within the meaning of Section 280G(b)(2) of
the Code.
10. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when
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EXECUTIVE EMPLOYMENT AGREEMENT Page 30
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delivered or mailed by United States certified mail, return receipt requested,
postage prepaid, addressed as follows:
if to the Executive:
At his home address as shown
in Employer's personnel records;
if to Employer:
Wyndham International, Inc.
2001 Bryan Street, Suite 2300
Dallas, Texas 75201-3075
Attn.: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
11. Extended Leave of Absence (Family-Related Illness and Bereavement).
Executive may, at Executive's option, during the Period of Employment, take a
leave of absence for purposes of a family-related illness and/or bereavement.
Such leave of absence may extend for an aggregate period during the life of this
Agreement of up to twelve (12) months, plus any vacation available to him under
this Agreement, during which time Executive shall be entitled to all benefits
under this Agreement and any stock option agreement, including all compensation
and rights of tenure and pursuant to paragraph 9 of this Agreement.
Provided, however, Employer by action of a majority vote of the Board, may,
if, by reason of such leave of absence, Executive shall have worked less than
ten (10) calendar days (or any portion thereof) in any seventy (70) consecutive
calendar day period, give Executive written notice of intent to appoint some
other person as Chairman of the Board or Chief Executive Officer, and Executive
must, within sixty (60) days of receipt of such notice, either elect to
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return from such leave of absence, or accept the position of Chairman of the
Board or the position of Chief Executive Officer for the remaining portion of
the Period of Employment, at the same rate of compensation and with all the
rights and benefits provided to Executive in this Agreement. Acceptance of the
position of Chairman of the Board or Chief Executive Officer shall not
constitute grounds for termination of this Agreement for Good Reason by
Executive.
12. Tag Along and Piggyback Rights. Employer shall make best efforts to allow
Executive an equitable opportunity to participate to the extent of any shares of
stock he may then own in Employer or any affiliate of or successor to Employer
(or have the right to own by the exercise of then vested options held by
Executive) in any shelf offering, secondary offering, or follow-up offering. Any
resulting costs for the registration of such shares of Executive shall be paid
by Employer. Further, if at any time or times from and after the date hereof
during the Period of Employment, Employer intends to file a registration
statement for the registration of common stock with a governmental body
permitting the registration of registrable stock, then Employer shall notify
Executive at least thirty (30) days prior to each such filing of such intention
to file such a registration statement. Such notice shall state the amount and
type of securities proposed to be registered thereby, the underwriters involved,
if any, and whether such underwriting is to be distributed on a firm commitment
or best efforts basis. Upon the written request of Executive given within 20
days after receipt of any such notice stating the number of shares of
registrable stock to be disposed of by the Executive and the intended method of
disposition, Employer will use its best efforts to cause the aggregate of the
registrable stock designated by Executive to be included in such registration so
as to permit the disposition (in accordance with the methods specified by
Executive) of the registrable stock so registered, subject to the following:
(a) If the proposed registration involves an underwritten offering of
common stock,
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whether or not for sale for the account of Employer, to be distributed (on a
best efforts or firm commitment basis) by or through one or more underwriters,
and the managing underwriter of such underwritten offering shall advise Employer
in writing that, in its opinion, the registration of all or a specified portion
of registrable stock concurrently with the common stock will adversely affect
the distribution of such common stock by such underwriters, then Employer may
require, by written notice to Executive that the distribution of all or a
specified portion of the registrable stock be excluded from such registration;
(b) Employer may in its discretion withdraw any registration statement
filed pursuant to this subparagraph subsequent to its filing and prior to its
effective date without liability to the Executive; and
(c) If the preferred stock series B shareholders of Employer restrict the
registration of common shares of Employer held by other holders of common shares
of Employer then, in that event, they may also so restrict to the same extent
the registration rights hereunder of Executive.
Employer shall, and hereby does, indemnify and hold harmless, to the extent
permitted by law, Executive against all losses, claims, damages, liabilities,
and expenses resulting from any untrue or misleading statement or alleged untrue
or misleading statement of a material fact contained in any registration
statement or prospectus (preliminary or otherwise), whether or not such untrue
or misleading statement or. alleged untrue or misleading statement is caused by
Executive's negligence, except in so far as such losses, claims, damages,
liabilities, or expenses are caused by any untrue statement intentionally
furnished or made by Executive. The foregoing indemnity is in addition to, and
does not limit, Executive's right to indemnity, or actual indemnity provided by
Employer, pursuant to the Indemnification Agreement, any Directors' and
Officers'
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insurance provided to Executive under paragraph 4 of this Agreement, or any
other agreement or insurance.
13. Loans.
(a) Existing Debt. Executive is currently indebted to Employer in the
original principal amount of $4,904,573.00, which debt is witnessed by a
promissory note, a duplicate of which is attached hereto as Exhibit C (the
"Original Note"), and secured as set forth in the Original Note. All right,
title, and interest in and to the Original Note is currently held by Employer,
and the original of the Original Note is in the possession of Employer, having
been heretofore duly endorsed by the payee therein named and delivered to
Employer. Employer and Executive mutually recognize and agree that the Original
Note is in good standing and ;that no payments have been heretofore made on the
Original Note. Employer and Executive mutually desire to amend the provisions of
the Original Note, and each herewith agrees that the Original Note is
concurrently herewith and without further action amended to read as set forth in
the attached Exhibit D (the "Amended Original Note"), which Amended Original
Note is being concurrently herewith signed by Executive and delivered to
Employer. The original of the Original Note is herewith delivered by Employer to
Executive, marked cancelled; Employer and Executive agree that, as of this date,
the Amended Original Note shall for all purposes be deemed effective as of the
date of the Original Note.
(b) Existing Debt Tax Loan. If, at the time of such repayment, Executive
is employed by Employer, Employer shall loan to Executive or his estate such
funds as are required to pay any income taxes due by reason of the repayment by
Executive or his estate of the Original Note, as amended by the Amended Original
Note, with the "Collateral" as such term is defined in the Amended Original Note
attached hereto as Exhibit D. Such loan for income taxes
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shall be unsecured and shall be due and payable in accordance with the "Master
Note" (herein so called) hereinafter described and attached hereto as Exhibit E.
(c) 1997 Salary Advance. The amount owed by Executive to Employer for a
1997 salary advance will be as of June 30, 1999, $421,214.02 (the "Salary
Advance Balance"). The 1997 Salary Advance Balance will, contemporaneously
herewith be deemed to be documented and made as of July 1, 1999, in accordance
with the provisions of the Master Note hereinafter described, except that such
amount shall be due and payable four (4) years from July 1, 1999.
(d) Master Note Provisions. Attached hereto as Exhibit E is a non-
negotiable and unsecured Master Note executed by Executive and payable to
Employer. Without further action, all loans hereafter made by Employer to
Executive pursuant to the provisions of this Agreement (other than the Original
Note as amended by the Amended Original Note) shall be deemed to have been made
pursuant to the provisions of the Master Note dated as of the date the funds are
advanced for concerned loans (except as herein otherwise specified for the 1997
Salary Advance) and in the original principal amount equal to the amount of such
funding and due and payable four (4) years from the date of the concerned
advance.
14. Miscellaneous. No provisions of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of Employer as may be
specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party that are not set forth
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<PAGE>
expressly in this Agreement. The validity, interpretation, construction, and
performance of the Agreement shall be governed by the laws of the State of Texas
(without regard to principles of conflicts of laws) and, where applicable, the
laws of the United States.
15. Validity. The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect. The
invalid portion of this Agreement, if any, shall be modified by any court having
jurisdiction to the extent necessary to render such portion enforceable.
16. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
17. No Mitigation. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and such amounts
shall not be reduced, regardless of whether the Executive obtains other
employment, except strictly as provided in subparagraph 8(d)(i) of this
Agreement.
18. Arbitration; Other Disputes. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the applicable rules of the American Arbitration Association before
resorting to arbitration. In the event such dispute or controversy remains
unresolved in whole or in part for a period of thirty (30) days after it arises,
the parties will settle any remaining dispute or controversy exclusively by
arbitration in Dallas, Texas in accordance
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with the rules of the American Arbitration Association then in effect. Judgment
may be entered on the arbitrator's award in any court having jurisdiction. All
administration fees and arbitration fees shall be paid solely by Employer.
Notwithstanding the above, Employer shall be entitled to seek a restraining
order or injunction in any court of competent jurisdiction to prevent any
continuation of any violation of paragraph 5 or 6 hereof. The prevailing party
may recover attorneys' fees in any dispute or controversy arising under or in
connection with this Agreement. Should a dispute occur concerning Executive's
mental or physical capacity as described in subparagraphs 7(b) or 8(b), a doctor
selected by Executive and a doctor selected by Employer shall be entitled to
examine Executive. If the opinion of Employer's doctor and Executive's doctor
conflict, Employer's doctor and Executive's doctor shall together agree upon a
third doctor, whose opinion shall be binding. Any amount to which Executive is
entitled under this Agreement (including any disputed amount) which is not paid
when due shall bear interest from the date due but not paid at a rate equal to
the lesser of eighteen percent (18%) per annum or the maximum lawful rate.
19. Third-Party Agreements and Rights. Executive represents to Employer that
upon Executive's execution of this Agreement, Executive's employment with
Employer, and the performance of Executive's proposed duties for Employer, will
not violate any obligations Executive may have to any employer prior to WHC, and
Executive will not bring to the premises of Employer any copies of other
tangible embodiments of non-public information belonging to or obtained from any
such previous employment prior to WHC.
20. Legal Fees. Employer agrees to pay all legal fees incurred by the Executive
in connection with the negotiation and preparation of this Agreement, up to a
maximum of sixty thousand dollars ($60,000.00).
- --------------------------------------------------------------------------------
EXECUTIVE EMPLOYMENT AGREEMENT Page 37
<PAGE>
21. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with Employer in the defense or
prosecution of any claims or actions now in existence or that may be brought in
the future against or on behalf of Employer that relate to events or occurrences
that transpired while Executive was employed by Employer; provided, however,
that such cooperation shall not materially and adversely affect Executive or
expose Executive to an. increased probability of civil or criminal litigation.
Executive's cooperation in connection with such claims or actions shall include,
but not be limited to, being available to meet with counsel to prepare for
discovery or trial and to act as a witness on behalf of Employer at mutually
convenient times. During and after Executive's employment, Executive also shall
cooperate fully with Employer in connection with any investigation or review by
any federal, state, or local regulatory authority as any such investigation or
review relates to events or occurrences that transpired while Executive was
employed by Employer. Employer shall also provide Executive with compensation on
an hourly basis calculated at his final Annual Base Salary, or if applicable,
Annual Adjusted Base Salary divided by 2000 hours for requested litigation and
regulatory cooperation that occurs after his termination of employment, and
shall reimburse Executive for all costs and expenses incurred in connection with
his performance under this paragraph 21, including, but not limited to,
reasonable attorneys' fees and costs.
22. Conflicts. In the event of any conflict between the provisions of this
Agreement and the Option Agreement, any other option granted heretofore or
hereafter made, or any agreement between Executive and Employer heretofore
executed, this Agreement shall govern and rule supreme.
23. Note prepayment. Executive shall, at the time of receipt of same, pay to
Maker as payment on the Master Note (but not on the Amended Original Note) to
the extent such Master
- --------------------------------------------------------------------------------
EXECUTIVE EMPLOYMENT AGREEMENT Page 38
<PAGE>
Note is unpaid, twenty-five percent (25%) of the after tax Incentive
Compensation and a total of fifty percent (50%) of any after tax gain received
as the result of the exercise and sale of any options provided to Executive
under the Option Agreement. For purposes of this paragraph, Executive will be
deemed to pay federal income taxes at the highest marginal rate of federal
taxation in the applicable calendar year and state and local taxes at the
highest marginal rates of taxation in the state and. locality where taxes
thereon are lawfully due, net of the maximum reduction (if any) in federal
income taxes that could be obtained from deduction of deductible state and local
taxes.
24. Effective Date. This Agreement is effective April 19, 1999.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year above written.
WYNDHAM INTERNATIONAL, INC.
By: /s/ CARLA S. MORELAND
--------------------------------------------
Carla S. Moreland
Its: Executive Vice President - General Counsel
/S/ JAMES D. CARREKER
------------------------------------------------
James D. Carreker
- --------------------------------------------------------------------------------
EXECUTIVE EMPLOYMENT AGREEMENT Page 39
<PAGE>
Exhibit A
AGREEMENT OF RATIFICATION AND RENEWAL OF INDEMNIFICATION
This Agreement of Ratification and Renewal of Indemnification made and
entered into as of this 19th day of April, 1999 ("Agreement"), by and Wyndham
International, Inc. (the "Company" which term shall include, where appropriate,
any Entity (as hereinafter defined) controlled directly or indirectly by the
Company) and James D. Carreker ("Indemnitee"):
WHEREAS, it is essential to the Company that it be able to retain and
attract as directors and/or officers the most capable persons available;
WHEREAS, increased corporate litigation has subjected directors and/or
officers to litigation risks and expenses, and the limitations on the
availability of directors and officers liability insurance have made it
increasingly difficult for the Company to attract and retain such persons;
WHEREAS, each of the Company's by-laws require it to indemnify its directors
and/or officers to the fullest extent permitted by law and permit it to make
other indemnification arrangements and agreements;
WHEREAS, Company, together with Patriot American Hospitality, Inc.
("Patriot") had previously entered into that certain Indemnification Agreement
dated as of May 28, 1998 with Indemnitee, whereby the Company and Patriot
provided Indemnitee with specific contractual assurance of Indemnitee's rights
to indemnification against litigation risks and expenses arising out of
Indemnitee's performance of its responsibilities on behalf of Company and
Patriot; and
WHEREAS, of even date herewith, Company has entered into a new employment
agreement with Indemnitee and, in connection therewith, has agreed to ratify and
renew its specific contractual assurance of Indemnitee's rights to
indemnification against litigation risks and expenses (regardless, among other
things, of any amendment to or revocation of any such by-laws or any change in
the ownership of the Company or the composition of their respective Board of
Directors):
NOW, THEREFORE, in consideration of the promises and the covenants contained
herein, the Company and Indemnitee do hereby covenant and agree as follows:
1. Definitions.
(a) "Corporate Status" describes the status of a person who is serving
or has served (i) as a director or officer of the Company, (ii) in any
capacity with respect to any employee benefit plan of the Company, or
(iii) as a director, partner, trustee, officer, employee, or agent of
any other Entity at the request of the Company. For purposes of
subsection (iii) of this Section 1(a), an officer or director of the
Company who is serving or has served as a director, partner,
<PAGE>
trustee, officer, employee or agent of a Subsidiary shall be deemed to
be serving at the request of the Company.
(b) "Entity" shall mean any corporation, partnership, limited
liability Company, joint venture, trust, foundation, association,
organization or other legal entity.
(c) "Expenses" shall mean all fees, costs and expenses incurred in
connection with any Proceeding (as defined below), including, without
limitation, attorneys' fees, disbursements and retainers (including,
without limitation, any such fees, disbursements and retainers
incurred by Indemnitee pursuant to Sections 10 and 11(c) of this
Agreement), fees and disbursements of expert witnesses, private
investigators and professional advisors (including, without
limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating,
printing and binding costs, telephone and fax transmission charges,
postage, delivery services, secretarial services, and other
disbursements and expenses.
(d) "Indemnifiable Expenses," "Indemnifiable Liabilities" and
"Indemnifiable Amounts" shall have the meanings ascribed to those
terms in Section 3(a) below.
(e) "Liabilities" shall mean judgments, damages, liabilities, losses,
penalties, excise taxes, fines and amounts paid in settlement.
(f) "Proceeding" shall mean any threatened, pending or completed
claim, action, suit, arbitration, alternate dispute resolution
process, investigation, administrative hearing, appeal, or any other
proceeding, whether civil, criminal, administrative, arbitrative or
investigative, whether formal or informal, including a proceeding
initiated by Indemnitee pursuant to Section 10 of this Agreement to
enforce Indemnitee's rights hereunder.
(g) "Subsidiary" shall mean any corporation, partnership, limited
liability Company, joint venture, trust or other Entity of which the
Company owns (either directly or through or together with another
Subsidiary of the Company) either (i) a general partner, managing
member or other similar interest or (ii) (A) 50% or more of the
voting power of the voting capital equity interests of such
corporation, partnership, limited liability company, joint venture or
other Entity, or (B) 50% or more of the outstanding voting capital
stock or other voting equity interests of such corporation,
partnership, limited liability company, joint venture or other Entity.
2. Services of Indemnitee. In consideration of the Company's covenants
and commitments hereunder, Indemnitee agrees to serve or continue to serve as an
officer and/or director of the Company. However, this Agreement shall not impose
any obligation on
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<PAGE>
Indemnitee or the Company to continue Indemnitee's service to the Company beyond
any period otherwise required by law or by other agreements or commitments of
the parties, if any.
3. Agreement to Indemnify. The Company agrees to indenmify Indemnitee as
follows:
(a) Subject to the exceptions contained in Section 4(a) below, if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding (other than an action by or in the right of the
Company) by reason of Indemnitee's Corporate Status, Indemnitee shall
be indemnified by the Company against all Expenses and Liabilities
incurred or paid by Indemnitee in connection with such Proceeding
(referred to herein as "Indemnifiable Expenses" and "Indemnifiable
Liabilities," respectively, and collectively as "Indemnifiable
Amounts").
(b) Subject to the exceptions contained in Section 4(b) below, if
Indemnitee was or is a party or is threatened to be made a party to
any Proceeding by or in the right of the Company to procure a judgment
in its favor by reason of Indemnitee's Corporate Status, Indemnitee
shall be indemnified by the Company against all Indemniflable
Expenses.
4. Exceptions to Indemnification. Indemnitee shall be entitled to
indemnification under Sections 3(a) and 3(b) above in all circumstances other
than the following:
(a) If indemnification is requested under Section 3(a) and it has been
adjudicated finally by a court of competent jurisdiction that, in
connection with the subject of the Proceeding out of which the claim
for indemnification has arisen, Indemnitee failed to act (i) in good
faith and (ii) in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company, or, with respect to
any criminal action or proceeding, Indemnitee had reasonable cause to
believe that Indemnitee's conduct was unlawful, Indemnitee shall not
be entitled to payment of Indemnifiable Amounts hereunder.
(b) If indemnification is requested under Section 3(b) and
(i) it has been adjudicated finally by a court of competent
jurisdiction that, in connection with the subject of the
Proceeding out of which the claim for indemnification has
arisen, Indemnitee failed to act (A) in good faith and (B)
in a manner Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, Indemnitee
shall not be entitled to payment of Indemnifiable Expenses
hereunder; or
(ii) it has been adjudicated finally by a court of competent
jurisdiction that Indemnitee is liable to the Company with
respect
3
<PAGE>
to any claim, issue or matter involved in the Proceeding out
of which the claim for indemnification has arisen,
including, without limitation, a claim that Indemnitee
received an improper personal benefit, no Indemnifiable
Expenses shall be paid with respect to such claim, issue or
matter unless the Court of Chancery or another court in
which such Proceeding was brought shall determine upon
application that, despite the adjudication of liability, but
in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnity for such
Indemnifiable Expenses which such court shall deem proper.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall submit
to the Company a written request specifying the Indemnifiable Amounts for which
Indemnitee seeks payment under Section 3 of this Agreement and a short
description of the basis for the claim. The Company shall pay such Indemnifiable
Amounts to Indemnitee within twenty (20) calendar days of receipt of the
request. At the request of the Company, Indemnitee shall furnish such
documentation and information as are reasonably available to Indemnitee and
necessary to establish that Indemnitee is entitled to indemnification hereunder.
6. Indemnification for Expenses of a Party Who is Wholly or Partly
Successful. Notwithstanding any other provision of this Agreement, and without
limiting any such provision, to the extent that Indemnitee is, by reason of
Indemnitee's Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, Indemnitee shall be indemnified against all
Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in
connection therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee's behalf in connection with each successfully resolved claim, issue
or matter. For purposes of this Agreement, the termination of any claim, issue
or matter in such a Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or matter.
7. Effect of Certain Resolutions. Neither the settlement or termination of
any Proceeding nor the failure of the Company to award indemnification or to
determine that indemnification is payable shall create an adverse presumption
that Indemnitee is not entitled to indemnification hereunder. In addition, the
termination of any proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not create a presumption
that Indemnitee did not act in good faith and in a manner which Indemnitee
reasonably believed to be in or not opposed to the best interests of the Company
or, with respect to any criminal action or proceeding, had reasonable cause to
believe that Indemnitee's action was unlawful.
8. Agreement to Advance Expenses; Conditions. The Company shall pay to
Indemnitee all Indemnifiable Expenses incurred by Indemnitee in connection with
any
4
<PAGE>
Proceeding, including a Proceeding by or in the right of the Company, in advance
of the final disposition of such Proceeding. To the extent required by Delaware
law, Indemnitee hereby undertakes to repay the amount of Indemnifiable Expenses
paid to Indemnitee if it is finally determined by a court of competent
jurisdiction that Indemnitee is not entitled under this Agreement to
indemnification with respect to such Expenses. This undertaking is an unlimited
general obligation of Indemnitee.
9. Procedure for Advance Payment of Expenses. Indemnitee shall submit to
the Company a written request specifying the Indemnifiable Expenses for which
Indemnitee seeks an advancement under Section 8 of this Agreement, together with
documentation evidencing that Indemnitee has incurred such Indemnifiable
Expenses. Payment of Indeninifiable Expenses under Section 8 shall be made no
later than twenty (20) calendar days after the Company's receipt of such
request.
10. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a
request for payment of Indemnifiable Amounts under Sections 3 and 5
above or a request for an advancement of Indemnifiable Expenses
under Sections 8 and 9 above and the Company fails to make such
payment or advancement in a timely manner pursuant to the terms of
this Agreement, Indemnitee may petition the Court of Chancery to
enforce the Company's obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under Section
10(a) above, the Company shall have the burden of proving that
Indemnitee is not entitled to payment of Indemnifiable Amounts
hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for
any Expenses incurred by Indemnitee in connection with investigating,
preparing for, litigating, defending or settling any action brought by
Indemnitee under Section 10(a) above, or in connection with any claim
or counterclaim brought by the Company in connection therewith.
(d) Validity of Agreement. The Company shall be precluded from
asserting in any Proceeding, including, without limitation, an action
under Section 10(a) above, that the provisions of this Agreement are
not valid, binding and enforceable or that there is insufficient
consideration for this Agreement and shall stipulate in court that the
Company is bound by all the provisions of this Agreement.
(e) Failure to Act Not a Defense. The failure of the Company
(including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to make a determination
concerning the permissibility of the payment of Indemnifiable Amounts
or the advancement of Indemnifiable
5
<PAGE>
Expenses under this Agreement shall not be a defense in any action
brought under Section 10(a) above, and shall not create a presumption
that such payment or advancement is not permissible.
11. Defense of the Underlying Proceeding.
(a) Notice by Indemnitee. Indemnitee agrees to notify the Company
promptly upon being served with any summons, citation, subpoena,
complaint, indictment, information, or other document relating to any
Proceeding which may result in the payment of Indemnifiable Amounts or
the advancement of Indemnifiable Expenses hereunder; provided, however,
that the failure to give any such notice shall not disqualify Indemnitee
from the right to receive payments of Indemnifiable Amounts or
advancements of Indemnifiable Expenses unless the Company's ability to
defend in such Proceeding is materially and adversely prejudiced thereby.
(b) Defense by Company. Subject to the provisions of the last sentence of
this Section 11(b) and of Section 11(c) below, the Company shall have
the right to defend Indemnitee in any Proceeding which may give rise to
the payment of Indemnifiable Amounts hereunder; provided, however that
the Company shall notify Indemnitee of any such decision to defend within
ten (10) days of receipt of notice of any such Proceeding under Section
11(a) above. The Company shall not, without the prior written consent of
Indemnitee, consent to the entry of any judgment against Indemnitee or
enter into any settlement or compromise which (i) includes an admission
of fault of Indemnitee or (ii) does not include, as an unconditional term
thereof, the full release of Indemnitee from all liability in respect of
such Proceeding, which release shall be in form and substance reasonably
satisfactory to Indemnitee. This Section 11(b) shall not apply to a
Proceeding brought by Indemnitee under Section 10(a) above or pursuant to
Section 19 below.
(c) Indemnitee's Right to Counsel. Notwithstanding the provisions of
Section 11(b) above, if in a Proceeding to which Indemnitee is a party
by reason of Indemnitee's Corporate Status, Indemnitee reasonably
concludes that it may have separate defenses or counterclaims to assert
with respect to any issue which may not be consistent with the position
of other defendants in such Proceeding, or if the Company fails to assume
the defense of such proceeding in a timely manner, Indemnitee shall be
entitled to be represented by separate legal counsel of Indemnitee's
choice at the expense of the Company. In addition, if the Company fails
to comply with any of its obligations under this Agreement or in the
event that the Company or any other person takes any action to declare
this Agreement void or unenforceable, or institutes any action, suit or
proceeding to deny or to recover from Indemnitee the benefits intended to
be provided to Indemnitee hereunder, Indemnitee shall have the right to
retain counsel of
6
<PAGE>
Indemnitee's choice, at the expense of the Company, to represent
Indemnitee in connection with any such matter.
12. Representations and Warranties of the Company. The Company hereby
represents and warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary power and authority to
enter into, and be bound by the terms of, this Agreement, and the
execution, delivery and performance of the undertakings contemplated
by this Agreement have been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered by the
Company in accordance with the provisions hereof, shall be a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting the enforcement of creditors'
rights generally.
13. Insurance. The Company shall, from time to time, make the good faith
determination whether or not it is practicable for the Company to obtain and
maintain a policy or policies of insurance with a reputable insurance Company
providing the Indemnitee with coverage for losses from wrongful acts, and to
ensure the Company's performance of its indemnification obligations under this
Agreement. Among other considerations, the Company will weigh the costs of
obtaining such insurance coverage against the protection afforded by such
coverage. In all policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company's officers and directors. Notwithstanding the foregoing,
the Company shall have no obligation to obtain or maintain such insurance if the
Company determines in good faith that such insurance is not reasonably
available, if the premium costs for such insurance are disproportionate to the
amount of coverage provided, or if the coverage provided by such insurance is
limited by exclusions so as to provide an insufficient benefit. The Company
shall promptly notify Indemnitee of any good faith determination not to provide
such coverage.
14. Contract Rights Not Exclusive. The rights to payment of Indemnifiable
Amounts and advancement of Indemnifiable Expenses provided by this Agreement
shall be in addition to, but not exclusive of, any other rights which Indemnitee
may have at any time under applicable law, the Company's by-laws or certificate
of incorporation, or any other agreement, vote of stockholders or directors (or
a committee of directors), or otherwise, both as to action in Indemnitee's
official capacity and as to action in any other capacity as a result of
Indemnitee's serving as an officer and/or director of the Company.
15. Successors. This Agreement shall be (a) binding upon all successors and
assigns of the Company (including any transferee of all or a substantial portion
of the business,
7
<PAGE>
stock and/or assets of the Company and any direct or indirect successor by
merger or consolidation or otherwise by operation of law) and (b) binding on
and shall inure to the benefit of the heirs, personal representatives,
executors and administrators of Indemnitee. This Agreement shall continue for
the benefit of Indemnitee and such heirs, personal representatives, executors
and administrators after Indemnitee has ceased to have Corporate Status.
16. Subrogation. In the event of any payment of Indemnifiable Amounts
under this Agreement, the Company shall be subrogated to the extent of such
payment to all of the rights of contribution or recovery of Indemnitee against
other persons, and Indemnitee shall take, at the request of the Company, all
reasonable action necessary to secure such rights, including the execution of
such documents as are necessary to enable the Company to bring suit to enforce
such rights.
17. Change in Law. To the extent that a change in Delaware law (whether
by statute or judicial decision) shall permit broader indemnification or
advancement of expenses than is provided under the terms of the by-laws of the
Company and this Agreement, Indemnitee shall be entitled to such broader
indemnification and advancements, and this Agreement shall be deemed to be
amended to such extent.
18. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement, or any clause thereof,
shall be determined by a court of competent jurisdiction to be illegal, invalid
or unenforceable, in whole or in part, such provision or clause shall be
limited or modified in its application to the minimum extent necessary to make
such provision or clause valid, legal and enforceable, and the remaining
provisions and clauses of this Agreement shall remain fully enforceable and
binding on the parties.
19. Indemnitee as Plaintiff. Except as provided in Section 10(c) of this
Agreement and in the next sentence, Indemnitee shall not be entitled to payment
of Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect
to any Proceeding brought by Indemnitee against the Company, any Entity which
it (or either of Patriot or Wyndham) controls, any director or officer thereof,
or any third party, unless the Company has consented to the initiation of such
Proceeding. This Section shall not apply to counterclaims or affirmative
defenses asserted by Indemnitee in an action brought against Indemnitee.
20. Modifications and Waiver. Except as provided in Section 17 above
with respect to changes in Delaware law which broaden the right of Indemnitee
to be indemnified by the Company, no supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by each of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions of this Agreement
(whether or not similar), nor shall such waiver constitute a continuing waiver.
8
<PAGE>
21. General Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand, (b) when transmitted by facsimile and
receipt is acknowledged, or (c) if mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so
mailed:
(i) If to Indemnitee, to:
At his home address as shown
in the Company's personnel records;
(ii) If to the Company, to:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
Attention: Chief Financial Officer and Legal Department
or to such other address as may have been furnished in the same manner by any
party to the others.
22. Governing Law. This Agreement shall be governed by and construed and
enforced under the laws of Delaware without giving effect to the provisions
thereof relating to conflicts of law.
23. Consent to Jurisdiction. The Company hereby irrevocably and
unconditionally consents to the jurisdiction of the courts of the State of
Delaware and the United States District Court for the District of Delaware. The
Company hereby irrevocably and unconditionally waives any objection to the
laying of venue of any Proceeding arising out of or relating to this Agreement
in the courts of the State of Delaware or the United States District Court for
the District of Delaware, and hereby irrevocably and unconditionally waives and
agrees not to plead or claim that any such Proceeding brought in any such court
has been brought in an inconvenient forum.
[END OF TEXT]
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
WYNDHAM INTERNATIONAL, INC.
By: ______________________________
Its:
INDEMNITEE
__________________________________
JAMES D. CARREKER
10
<PAGE>
Exhibit B
---------
WYNDHAM INTERNATIONAL, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Dated as of August 20, 1999, but effective as of April 19, 1999
Wyndham International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby grants to James D. Carreker, an Employee of the
Company (the "Optionee"), as of August 20, 1999 but effective as of April 19,
1999 (the "Date of Grant"), a non-qualified option (the "Option") to purchase
from the Company 1,300,000.00 shares of its Class A Common Stock (the "Shares"),
at the price of $5.00 per Share, subject to the terms and conditions set forth
below. Such grant is pursuant to the Wyndham International, Inc. 1997 Incentive
Plan (the "Plan") and is made as an inducement to Optionee to enter into the
Employment Agreement between Optionee and the Company of even date herewith (the
"Employment Agreement").
1. Option Subject to Acceptance of Optionee Agreement and Employment Agreement.
The Option may not be exercised unless the Optionee accepts this Option
Agreement and the Employment Agreement by executing both the Option
Agreement and the Employment Agreement and returning such original execution
copies to the Company.
2. Time and Manner of Exercise of Option.
a. Maximum Term of Option. The Expiration Date of this Option is the date
that is ten years from the Date of Grant. This Optionee may not be
exercised on or after the Expiration Date.
b. Vesting Schedule. No portion of this Option may be exercised until
such portion shall have vested. Except as set forth in Section 3 of
this Agreement, this Option shall be vested and exercisable with
respect to the following number of Shares on the dates indicated below
provided that Optionee remains employed by the Company on such dates:
Vesting Schedule
----------------------------------------------------------------
Number of Vesting Date
Shares Exercisable
----------------------------------------------------------------
260,000.00 (20%) 1 year after Date of Grant
----------------------------------------------------------------
260,000.00 (20%) 2 years after Date of Grant
----------------------------------------------------------------
260,000.00 (20%) 3 years after Date of Grant
----------------------------------------------------------------
260,000.00 (20%) 4 years after Date of Grant
----------------------------------------------------------------
260,000.00 (20%) 5 years after Date of Grant
----------------------------------------------------------------
1
<PAGE>
In the event of a Change in Control of the Company (as defined in the
Employment Agreement), the vesting date for any unvested portions
of the Option shall be accelerated by two years. In the event of a
Change in Control of the Company (as defined in the Employment
Agreement), if within 18 months after such Change in Control the
Optionee's employment with the Company is terminated by the Company
without Cause (as defined in the Employment Agreement) or for Good
Reason (as defined in the Employment Agreement), any unvested portions
of this Option shall fully vest and become exercisable.
A partial exercise of this Option shall not affect Optionee's right to
exercise this Option with respect to the remaining Shares.
c. Method of Exercise of Option. Subject to limitations set forth in this
Agreement, the Option may be exercised by the Optionee (1) by giving
written notice to the Company specifying the number of whole Shares to
be purchased and accompanied by payment of the Option price in full
(or arrangement made for such payment to the Company's satisfaction)
either (i) in cash or cash equivalents acceptable to the Committee,
(ii) in previously owned Shares (which the Optionee has held for at
least six months prior to the delivery of such Shares or which the
Optionee purchased on the open market and for which the Optionee has
good title, free and clear of all liens and encumbrances) having a
Fair Market Value, determined as of the date of exercise, equal to the
aggregate purchase price payable pursuant to the Option by reason of
such exercise, (iii) in cash or a check payable and acceptable to the
Company by a broker-dealer acceptable to the Company to whom the
Optionee has submitted an irrevocable notice of exercise or (iv) a
combination of two or more of the foregoing, and (2) by executing such
documents as the Company may reasonable request. Any fraction of a
Share which would be required to pay such purchase price shall be
disregarded and the remaining amount due shall be paid in cash by the
Optionee.
The delivery of certificates representing the Shares subject to the
Option will be contingent upon the Company's receipt from Optionee of
(1) full payment of the Option price, as set forth above, and (2) any
agreement, statement or other evidence that the Company may require to
satisfy itself that the issuance of Shares to be purchased pursuant to
the exercise of the Option and the subsequent resale of Shares will be
in compliance with applicable laws and regulations.
d. Piggyback Registration Rights. At any time after the date hereof, if
the Company determines that it will file a registration statement
under the Securities Act of 1933, as amended (the "1933 Act") (other
than a registration statement on a Form S-4 or S-8 or filed in
connection with an exchange offer, an offering of securities solely to
the Company's existing stockholders or a rights offering by the
Company) on any form that would also permit the registration of the
Shares acquired pursuant to the exercise of the Option, to the extent
certificates are delivered therefor pursuant to Section 5(b) hereof,
which the number of such shares shall be measured as of the date such
registration statement is initially filed
2
<PAGE>
with the Securities and Exchange Commission (the "Registrable Stock"),
and such filing is to be on the Company's behalf and/or on behalf of
selling holders of its securities for the general registration of its
Class A Common Stock to be sold for cash, at such time the Company
will within thirty (30) days of such determination give the
Participant written notice of such determination setting forth the
date on which the Company proposes to file such registration
statement, which date will be no earlier than thirty (30) days from
the date of such notice, and advising the Participant of his right to
have Registrable Stock included in such registration. Upon the written
request of the Participant received by the Company no later than
fifteen (15) days after the date of the Company's notice, the Company
will use its best efforts to cause to be registered under the 1933 Act
all of the Registrable Stock that the Participant has so requested to
be registered. If, in the opinion of the managing underwriter or
underwriters (or, in the case of a non-underwritten offering, in the
opinion of the Company), the total amount of such securities to be so
registered, including such Registrable Stock, will exceed the maximum
amount of the Company's securities that can be marketed (i) at a price
reasonably related to the then current market value of such
securities, or (ii) without otherwise materially and adversely
affecting the entire offering, then the Registrable Stock shall not be
included in such registration.
3. Exercise After Termination of Employment. If the Optionee's employment by
the Company or an Affiliate is terminated, the period within which to
exercise the Option may be subject to earlier termination as set forth
below. The Board's determination of the reason for termination of the
Optionee's employment shall be conclusive and binding on the Optionee and
his or her legal representatives or legatees. Any transfer of employment
from the Company to any Affiliate of the Company shall not be deemed to be a
termination of employment for purposes of this Agreement.
a. Termination Due to Death. If the Optionee's employment terminates by
reason of death, the Option held by the Optionee shall vest and become
exercisable in accordance with the Vesting Schedule as set forth in
Section 2(b), plus an additional number of Shares that would have
vested on the next vesting anniversary date. The Optionee's legal
representative or legatee may exercise the Option, to the extent
exercisable in accordance with this Section 3(a), for a period of 360
days from the date of death or until the Expiration Date, if earlier.
Any portion of the Option that is not exercisable at the time of death
shall terminate immediately and be of no further force or effect.
b. Termination Due to Disability. If the Optionee's employment terminates
by reason of incapacity due to physical or mental illness which
resulted in his or her absence from his or her duties with the Company
on a full-time basis for 180 calendar days in the aggregate in any 12-
month period, the Option held by the Optionee shall vest and become
exercisable in accordance with the Vesting Schedule as set forth in
Section 2(b), plus an additional number of Shares that would have
vested on the next vesting anniversary date. The Optionee may exercise
the Option, to the extent exercisable in accordance with this Section
3(b),
3
<PAGE>
for a period of 360 days from the date of termination of employment or
until the Expiration Date, if earlier. Any portion of the Option that
is not exercisable upon termination of employment shall terminate
immediately and be of no further force or effect.
c. Termination for Cause. If the Optionee's employment is terminated for
Cause (as defined in the Employment Agreement), the Option held by the
Optionee shall terminate immediately and be of no further force and
effect.
d. Termination without Cause or for Good Reason. If the Optionee's
employment is terminated by the Company without Cause (as defined in
the Employment Agreement) or the Optionee resigns from the Company for
Good Reason (as defined in the Employment Agreement), the Option held
by the Optionee shall continue to vest and become exercisable in
accordance with the Vesting Schedule as set forth in Section 2(b) for
an additional 36 months. The Optionee may exercise the Option, to the
extent exercisable in accordance with this Section 3(d), for a period
of 360 days after the end of the 36-month period or until the
Expiration Date, if earlier. Any portion of the Option that is not
exercisable at the end of 36 months following termination of
employment shall terminate immediately and be of no further force or
effect.
Notwithstanding the foregoing, if Optionee breaches any of the
provisions contained in Paragraph 5 or 6 of the Employment Agreement,
(i) any portion of the Option that vested or will vest by virtue of
this Section 3(d) shall immediately terminate and be of no force and
effect, and (ii) to the extent any portion of the Option that vested
by virtue of this Section 3(d) has been exercised, Optionee shall be
required to disgorge to the Company the difference between the fair
market value per Share on the date of exercise and the Option price
per Share, multiplied by the number of Shares acquired by Optionee.
e. Other Termination. If the Optionee's employment terminates for any
reason not covered in Subsections (a), (b), (c) or (d) of this Section
3, the Option held by the Optionee may be exercised, to the extent
exercisable on the date of termination pursuant to the applicable
vesting schedule in Section 2(b), for a period of three (3) months
from the date of termination or until the Expiration Date, if earlier.
Any portion of the Option that is not exercisable at such time shall
terminate immediately and be of no further force or effect.
4. Incorporation of the Plan. Notwithstanding anything herein to the contrary,
this Option shall be subject to and governed by all the terms and conditions
of the Plan. Capitalized terms in this Agreement shall have the meaning
specified in the Plan, unless a different meaning is specified herein. All
references herein to the Plan shall mean the Plan in effect as of the date
hereof. In the event of any conflict between the provisions in the Plan and
the provisions in this Agreement, the provisions ofthe Plan shall govern.
5. Additional Terms and Conditions of Option.
4
<PAGE>
a. Transferability of Option. To the extent permitted by the Plan from time to
time, the Option in this Agreement may be transferred by Executive to his
children, grandchildren, spouse, one or more trusts for the benefit of such
family members or Executive, or a partnership in which such family members
are the only partners, provided, however, that (1) Executive may not
receive any consideration for the transfer, and (2) the holder(s) of the
transferred Option shall be bound by the same terms and conditions that
governed the Option during the period that it was held by Executive.
Otherwise, this Agreement (1) is personal to the Optionee, is non-
assignable and is not transferable in any manner, by operation of law or
otherwise, other than by will or the laws of descent and distribution, and
(2) is exercisable, during the Optionee's lifetime, only by the Optionee,
and thereafter only by the optionee's legal representative or legatee.
b. Delivery of Certificates. Upon the exercise of the Option, in whole or in
part, the Company shall deliver or cause to be delivered one or more
certificates representing the number of Shares purchased against full
payment therefor. The Company shall pay all original issue or transfer
taxes and all fees and expenses incident to such delivery.
c. Option Confers No Rights as Stockholder. The Optionee shall not be
entitled to any privileges of owners with respect to Shares subject to the
Option unless and until purchased and delivered upon the exercise of the
Option, in whole or in part, and the Optionee becomes a stockholder of
record with respect to such delivered Shares; and the Optionee shall not
be considered a stockholder of the Company with respect to any such Shares
not so purchased and delivered.
d. Decisions of Committee. The Committee shall have the right to resolve all
questions which may arise in connection with the Option or its exercise.
Any interpretation, determination or other action made or taken by the
Committee regarding this Agreement shall be final, binding and conclusive.
e. Reservation of Shares. The Company shall at all times prior to the
expiration or termination of the Option reserve or cause to reserved and
keep or cause to be kept available, either in its treasury or out of its
authorized but unissued shares of common stock, the full number of shares
of common stock of the Company subject to the Option from time to time.
f. Change in Capital Structure. The terms of this Option shall be adjusted as
the Committee determines is equitably required in the event the Company
effects one or more stock dividends, stock split-ups, subdivisions or
consolidations of shares or other similar changes in capitalization.
g. Fractional Shares. Fractional shares shall not be issuable hereunder, and
when any provision hereof may entitle Optionee to a fractional share such
fraction shall be disregarded.
5
<PAGE>
6. Tax Withholding. The Optionee shall, not later than the date as of which the
exercise of this Option becomes a taxable event for Federal income tax
purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any Federal, state, and local taxes required by law
to be withheld on account of such taxable event. Subject to the approval
of the Committee, the Optionee may elect to have such tax withholding
obligation satisfied, in whole or in part, by (i) authorizing the Company to
withhold from Shares to be issued, or (ii) transferring to the Company a
number of previously owned whole Shares (which the Optionee has held for at
least six months prior to the delivery of such Shares or which the Optionee
purchased on the open market and for which the Optionee has good title, free
and clear of all liens and encumbrances) having an aggregate Fair Market
Value, determined as of the date of exercise, that would satisfy the
withholding amount due.
7. Miscellaneous Provisions.
a. Designation as Non-qualified Stock Option. The Option is hereby
designated as not constituting an "incentive stock option" within the
meaning of section 422 of the Code. This Agreement shall be
interpreted and treated consistently with such designation.
b. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person
or persons who shall, upon the death of the Optionee, acquire any
rights hereunder in accordance with this Agreement or the Plan.
c. Notices. All notices, requests or other communications provided for in
this Agreement shall be made, if to the Company, to the Secretary of
the Company at the Company's principal executive office, and if to the
Optionee, to his or her address on the books ofthe Company (or to such
other address as the Company or the Optionee may give to the other for
purposes ofnotice hereunder).
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to
the party entitled thereto, (b) facsimile with confirmation of
receipt, (c) by mailing in the United States mail to the last known
address of the party entitled thereto or (d) by express courier
service. The notice, request or other communication shall be deemed to
be received upon personal delivery, upon confirmation of receipt of
facsimile transmission or upon receipt by the party entitled thereto
if by United States mail or express courier service; provided,
however, that if a notice, request or other communication is not
received during regular business hours, it shall be deemed to be
received on the next succeeding business day of the Company.
d. Governing Law. This Agreement and all determinations made and actions
taken pursuant hereto and thereto, to the extent not governed by the
laws of the United
6
<PAGE>
States, shall be governed by the laws of the State of Delaware and
construed in accordance therewith without giving effect to principles
of conflicts of laws.
e. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
f. Further Assurances. The Company and the Optionee shall execute and
deliver such further instruments and take such additional action as
each party may reasonably request to effect, consummate, confirm or
evidence the grant of the Option to the Optionee, and they shall each
execute such documents as may be reasonably necessary to assist each
other in preserving or perfecting their respective rights in the
Option.
g. No Right to Continued Employment. This Agreement does not confer upon
Optionee any right to continue in the employ of the Company or an
Affiliate, nor shall it interfere in any way with the right of the
Company or an Affiliate to terminate such employment at any time.
WYNDHAM INTERNATIONAL, INC.
By: /s/ CARLA S. MORELAND
------------------------------------
Title:
---------------------------------
Accepted this 20 day of August, 1999.
/s/ JAMES D. CARREKER
- ---------------------------------
James D. Carreker
"Optionee"
7
<PAGE>
Exhibit C
---------
PROMISSORY NOTE
Dallas, Texas
$4,904,573 March 20, 1996
FOR VALUE RECEIVED, JAMES D. CARREKER (referred to herein as the "Maker"),
promises to pay to WYNDHAM FINANCE LIMITED PARTNERSHIP, a Texas limited
partnership (referred to herein as the "Payee"), or its assigns, the sum of FOUR
MILLION NINE HUNDRED FOUR THOUSAND FIVE HUNDRED SEVENTY-THREE DOLLARS AND NO
CENTS ($4,904,573.00), together with interest on the unpaid principal balance as
set forth below.
1. Certain Definitions. The following terms, when used in this Note,
shall have the meanings assigned to them below:
(a) Collateral. The term "Collateral" shall mean (i) shares or the
common stock, $.01 par value, of Wyndham Corporation (the "Shares"), the
number of which shall be determined as of the IPO Date and shall be
adjusted as of each December 31 thereafter and (x) as of the IPO Date,
shall be a number (rounded to the nearest whole Share) equal to the total
of the unpaid principal balance and accrued interest on this Note on the
IPO Date, divided by the price per Share to the public in the IPO and (y)
as of each December 31 after the IPO Date, shall be a number (rounded to
the nearest whole Share) equal to the total of the unpaid principal balance
and accrued interest on this Note on such December 31, divided by the
Market Value of a Share as of such December 31; and (ii) all dividends
distributions and payments in respect of the Shares ("Proceeds").
(b) Fixed Rate The term "Fixed Rate" means the rate of six percent
(6%) per annum, compounded annually.
(c) Foundation Agreement. The term "Foundation Agreement" means that
certain Amended and Restated Foundation Agreement Relating to the Business
of Trammel Crow Company effective as of January 1, 1987.
(d) Market Value. The term "Market Value", when used with reference to
Shares as of any date, shall mean the average of the closing sale prices
for a Share, on the principal national securities exchange on which the
Shares are listed, for each trading day during the 90-day period
immediately preceding the date in question.
(e) Maximum Rate. The term "Maximum Rate" shall mean, on any day, the
highest nonusurious rate of interest (if any) permitted by applicable law
on such day. For purposes of Tex. Rev. Civ. Stat. Ann. Art. 50-1.04(b), as
it may from time to time be amended, the "applicable rate ceiling" shall be
the "indicated rate" ceiling from time to time in effect as
<PAGE>
limited by Art. 5069-1.04(b); provided, however, that to the extent
permitted by applicable law, Payee reserves the right to change the
"applicable rate ceiling" from time to time by further notice and
disclosure to Maker; and, provided further, that the "highest nonusurious
rate of interest permitted by applicable law" for purposes of this Note
shall not be limited to the applicable rate ceiling under Art. 5069-1.04 if
federal laws or other state laws now or hereafter in effect and applicable
to this Note (and the interest contracted for, charged and collected
hereunder) shall permit a higher rate of interest.
(f) Negative DAB. The term "Negative DAB" means a negative Divisional
Account Balance (as such term is defined in and determined in accordance
with the terms of the Foundation Agreement).
(g) The term "IPO" means the proposed initial public offering of
Shares by Wyndham Corporation.
(h) IPO Date. The term "IPO Date" means the date on which the IPO is
consummated.
(i) Wyndham Corporation. The term "Wyndham Corporation" means
Wyndham Hotel Corporation, a Delaware corporation.
2. Interest Rate. The unpaid principal balance from the date hereof
until maturity shall bear interest at a rate per annum equal to the lesser of
the Fixed Rate or the Maximum Rate. Interest on the unpaid principal balance
hereof shall be calculated at a daily rate equal to 1/365th of the rate per
annum herein provided, and shall be charged and collected on the actual number
of days elapsed. After maturity, unpaid principal and, to the extent permitted
by law, interest on this Note shall bear interest at a rate equal to the lesser
of four (4) percentage points over the Fixed Rate, or the Maximum Rate.
3. Payment of Principal and Interest. The entire principal balance and
accrued interest on this Note shall become due and payable on the fifth
anniversary of the date of this Note.
4. Mandatory Prepayment. Prior to maturity, all Proceeds to which Maker
is entitled in respect of the Shares shall be applied, at the time Maker is
entitled to receive such Proceeds, to payment of this Note, with such payments
to be applied first to accrued interest and then to the outstanding principal
balance of this Note. By execution of this Note, Maker hereby irrevocably
authorizes and hereby grants to Payee a special power of attorney irrevocably
making, constituting and appointing Payee, with unrestricted power of
substitution and resubstitution, as the attorney-in-fact for Maker, with power
and authority to apply the payments referred to in this Paragraph in accordance
with the provisions hereof and to execute, acknowledge and deliver any and all
such document and instruments as may be necessary or
-2-
<PAGE>
appropriate to carry out the provisions of this Paragraph 4.
5. Events of Default. (a) The occurrence of any one or more of the
following events shall be deemed an event of default hereunder ("Event of
Default"):
(i) The failure of Maker to make any payment on this Note when the
same becomes due and payable and such failure continues for ten (10) days
after notice of such failure to pay is received by Maker from Payee; or
(ii) Maker shall commence any case, proceeding or other action
seeking reorganization, arrangement or adjustment of its debts under any
bankruptcy, insolvency or reorganization law, or seek the appointment of a
receiver, trustee or custodian for Maker or for all of its property; or
(iii) Any case, proceeding or other action shall be commenced against
Maker seeking reorganization, arrangement or adjustment of its debts under
any bankruptcy, insolvency or reorganization law or seeking the appointment
of a receiver, custodian or trustee for Maker or for all or substantially
all of its property, and such, proceeding or other action remains
undismissed for a period of sixty (60) days after commencement thereof; or
(iv) The dissolution or liquidation of Maker.
(b) Upon the occurrence of an Event of Default hereunder, at its
option, may declare the entire unpaid principal balance and accrued interest on
this Note to be immediately due and payable without notice of any kind to Maker
and without any other presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by Maker, and may, at his option, exercise any
other right or remedy existing at law or in equity. Failure to exercise any such
right or remedy shall not constitute a waiver of the right to exercise the same
in the event of any subsequent default.
6. Voluntary Prepayment Maker shall have the right end privilege from
time to time to prepay in whole or in part the unpaid principal of this Note
without premium or penalty, provided that the accrued interest on the amount
prepaid is likewise paid, and the accrual of interest shall immediately cease on
any amount so prepaid.
7. Waiver.Maker waives demand, presentment for payment, notice of
nonpayment, protest and notice of protest and agrees to any substitution,
subordination or release of any parties primarily or secondarily liable hereon.
No waiver by payee of any of its rights or remedies hereunder or under any other
document evidencing or securing this Note or otherwise shall be considered a
waiver of any other subsequent right or remedy of Payee; and no delay or
omission in the exercise or enforcement by Payee of any rights or
-3-
<PAGE>
remedies shall be construed, as a waiver of any right or remedy of Payee.
8. Attorneys' Fees. If this Note is not paid pursuant to the terms hereof
and is placed in the hands of an attorney for collection, or if it is collected
through bankruptcy or any other court proceeding after maturity, then Payee
shall be entitled to reasonable attorneys' fees for collection.
9. Limitation on Agreements. It is the intention of Maker and Payee to
comply with applicable usury laws. In furtherance thereof, Maker and Payee
stipulate and agree that, notwithstanding any provision contained in this Note,
or in any other agreement between Maker and Payee, Payee shall never be entitled
to receive, collect or apply as interest on this Note, any amount in excess of
the Maximum Rate, and, in the event Payee ever receives, collects or applies as
interest any such excess, such amount that would be excessive interest shall be
deemed to be a partial prepayment of principal and treated hereunder as such,
and, if the principal amount of the Note is paid in full, any remaining excess
shall forthwith be paid to Maker. In determining whether the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, Maker and
Payee shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payments (other than payments hereunder) as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate and
spread in equal parts the total amount of interest throughout the entire
contemplated term of this Note so that the interest rate is uniform throughout
such term.
10. Pledge and Grant of Security Interest. Effective as of the IPO Date
and in order to secure performance of Maker's obligations under this Note, Maker
hereby pledges and grants to Payee a security interest in the Collateral, and in
connection therewith, Payee shall have all of the rights of a secured party
under chapter 9 of the Texas Uniform Commercial Code. Maker agrees to execute
and deliver such other documents as may be reasonably necessary to confirm,
evidence or perfect such pledge and security interest. Unless otherwise directed
by Payee, Maker shall, promptly following the IPO Date, deliver to Payee
certificates representing all Shares initially constituting the Collateral and,
promptly following each December 31 thereafter, deliver certificates
representing any additional Shares that become a part of the Collateral, in each
case accompanied by a stock power duly executed by Maker in blank. Certificates
representing Shares that no longer constitute a part of the Collateral shall be
promptly returned by Payee upon request by Maker. Unless and until an event of
Default shall have occurred and be continuing, Maker shall be entitled to vote
all or any part of the Shares constituting the Collateral and to execute
consents and waivers in respect thereof, all with the same force and effect as
if this Note did not exist. Payee acknowledges and agrees, by its acceptance of
this Note, that the Shares constituting the Collateral will be subject to the
-4-
<PAGE>
provisions of a Stockholders' Agreement among Wyndham Corporation, Maker and
certain other stockholders of Wyndham. Payee agrees to be bound by the
Stockholders' Agreement and to execute and deliver such further instruments and
documents as may be reasonably requested to evidence its agreement to be so
bound.
11. Nature of Obligation: Limitation on Liability. The original principal
amount of this Note represents the unpaid principal balance end accrued interest
as of December 31, 1995 on that certain Promissory Note dated December 31, 1993
from Maker to Payee, and to that extent, this Note is executed and delivered in
replacement and substitution for such Promissory Note. In the event this Note or
any portion hereof becomes due and payable prior to the IPO Date, it shall be
payable solely out of the assets of Maker, and in the manner and subject to the
terms, conditions and limitations, set forth in the Foundation Agreement with
respect to the payment of a Negative DAB. Without in any way effecting or
characterizing the foregoing nature of Maker's obligation under this Note prior
to the IPO Date, from and after the IPO Date and anything in this Note or
applicable law to the contrary notwithstanding, this Note shall be nonrecourse
to Maker and Maker shall have no personal liability for the payment hereof, and
Maker shall proceed solely against the Collateral upon the occurrence of an
Event of a Default under this Note.
12. Governing Law and Venue. This Note is being executed and delivered and
is intended to be performed in the State of Texas. This Note shall be construed
as to both validity and performance and enforced in accordance with and governed
by the laws of the State of Texas.
13. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by certified or registered mail, postage prepaid,
with return receipt requested, addressed to Maker or Payee as follows:
If to Payee to:
Wyndham Finance Limited Partnership
Suite 3200
2001 Ross Avenue
Dallas, Texas 75201
Attention: Susan T. Groenteman
If to Maker to:
James D. Carreker
Suite 2300
2001 Bryan Street
Dallas, Texas 75201
or such other address as shall be furnished in writing by Maker or Payee to the
other, in accordance with the above provisions, and
-5-
<PAGE>
such notice or communication shall be deemed to have been given as of the date
so delivered in the case of personal delivery or three (3) days after deposit in
the mail in the case of certified or registered mail.
14. Arbitration. Maker and Payee agree that any claim, controversy or
dispute arising out of or relating to this Note that cannot be amicably settled
shall be referred to binding arbitration as hereinafter provided. If arbitration
is required to resolve a dispute between Maker and Payee, Payee will notify the
American Arbitration Association ("AAA") and request AAA to select one person to
act as the arbitrator for resolution of this dispute. The selected arbitrator
will establish the rules for arbitration of the dispute and such rules will be
binding upon all parties to the arbitration proceeding. The arbitrator may use
the rules of the AAA for commercial arbitration but is encouraged to adopt such
rules as the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly, the arbitrator may
(i) dispense with any formal rules of evidence and allow hearsay testimony so as
to limit the number of witnesses required, (ii) minimize discovery procedures as
the arbitrator deems appropriate, (iii) act upon his understanding or
interpretation of the law on any issue without the obligation to research such
issue or accept or act upon briefs of the issue prepared by any party, (iv)
limit the time for presentation of any parties case as well as the amount of
information or number of witnesses to be presented in connection with any
hearing, (v) prevent any party from allowing an attorney to present or argue the
party's case before the arbitrator in any hearing, and (iv) impose any other
rules which the arbitrator believes appropriate to effect a resolution of the
dispute as quickly and inexpensively as possible. The arbitration shall take
place in Dallas, Texas. The arbitrator will have the exclusive authority to
determine and award costs of arbitration and the cost incurred by any party for
attorneys, advisors and consultants. Any award made by the arbitrator shall be
binding on Maker, Payee and all parties to the arbitration and shall be
enforceable to the fullest extent of the law.
MAKER
/s/ JAMES D. CARREKER CSM
-----------------------------------
James D. Carreker
-6-
<PAGE>
ALLONGE
FOR VALUE RECEIVED, the undersigned, the payee under that certain
promissory note which this Allonge is affixed (the "Note"), hereby absolutely
assigns, transfers, endorses, negotiates and sets over to and makes payable to
the order of BANKERS TRUST COMPANY, a New York banking corporation ("Assignee"),
without recourse or warranty, the Note, all interest, principal and other sums
due or to become due under the Note, and all other rights of any nature accrued
or to accrue under the Note.
Dated: May 31, 1996
WYNDHAM HOTEL CORPORATION
a Texas corporation
/s/ MICHAEL R. SILVERMAN
----------------------------------
Michael R. Silverman
Authorized Signatory
<PAGE>
STOCK POWER AND ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_____________________________________________, ("Assignee"), __________________
(__) shares (the "Shares") of common stock, $.01 par value per share, of Wyndham
Hotel Corporation, a Delaware corporation (the "Corporation"), standing in the
name of the undersigned on the books of the Corporation and represented by
Certificate Nos._______________, and does hereby irrevocably constitute and
appoint ________________________________________________________________________
________________ attorney to transfer the Shares on the books of the Corporation
with full power of substitution in the premises.
The transfer effected by this Stock Power and Assignment is made pursuant to
and in accordance with that certain Promissory Note dated March 20, 1996 in the
principal amount of $4,904,573 made by the undersigned in favor of Wyndham
Finance Limited Partnership, a Texas limited partnership.
/s/ JAMES D. CARREKER
--------------------------------
James D. Carreker
Date:
<PAGE>
[LETTERHEAD OF WYNDHAM INTERNATIONAL]
August 17, 1999
Mr. James D. Carreker
6801 Baltimore
Dallas 7X75203
Dear Jim:
I am writing this letter to confirm the understanding between Wyndham
International, Inc. and you concerning your minimum Incentive Compensation for
fiscal year 1999. This understanding supplements The Executive Employment
Agreement between Wyndham International, Inc. and you dated August 17, 1999, but
effective April 19, 1999. Notwithstanding paragraph 3(b) of that Agreement, your
Incentive Compensation for fiscal year 1999 shall, in any event, equal at least
100% of Base Salary.
Sincerely yours,
/s/ SCOTT SCHOAN
Scott Schoan
For the Compensation Committee of
the Board of Directors
<PAGE>
Exhibit D
AMENDED ORIGINAL NOTE
NO PERSONAL LIABILITY NONRECOURSE PROMISSORY NOTE
Dallas, Texas
$5,769,861.00 April 19, 1999
FOR VALUE RECEIVED, JAMES D. CARREKER (referred to herein as the "Maker"),
promises to pay to WYNDHAM INTERNATIONAL, INC., a Delaware corporation (referred
to herein as the "Payee"), or its assigns, the sum of FIVE MILLION SEVEN HUNDRED
SIXTY NINE THOUSAND EIGHT HUNDRED SIXTY ONE AND NO CENTS ($5,769,861.00),
together with interest on the unpaid principal balance as set forth below.
1. Certain Definitions. The following terms, when used in this Note,
shall have the meanings assigned to them below:
(a) Collateral. The term "Collateral" shall mean 184,970 paired
shares of the common stock, $.01 par value, of Wyndham International, Inc. and
Patriot American Hospitality, Inc. (the "Shares") and all dividends,
distributions and payments in respect of the Shares ("Proceeds").
(b) Employment Agreement. The term "Employment Agreement" shall mean
the Executive Employment Agreement between Maker and Payee.
(c) Fixed Rate. The term "Fixed Rate" means the rate of six percent
(6%) per annum, compounded annually.
(d) Market Value. The term "Market Value," when used with reference to
Shares as of any date, shall mean the average of the closing sale prices for a
Share, on the principal national securities exchange on which the Shares are
listed, for each trading day during the 90-day period immediately preceding the
date in question.
(e) Maximum Rate. The term "Maximum Rate" shall mean, on any day, the
highest nonusurious rate of interest (if any) permitted by applicable law on
such day. For purposes of Tex. Rev. Civ. Stat. Ann. Art. 5069-1.04(b), as it
may from time to time be amended, the "applicable rate ceiling" shall be the
"indicated rate" ceiling from time to time in effect as limited by Art.
5069-1.04(b); provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable rate ceiling" from time to
time by further notice and disclosure to Maker; and, provided further, that the
"highest nonusurious rate of interest permitted by applicable law" for purposes
of this Note shall not be limited to the applicable rate ceiling under Art.
5069-1.04 if federal laws or other state laws now or hereafter in effect and
applicable to this Note (and the interest contracted for, charged and collected
hereunder) shall permit a higher rate of interest.
2. Interest Rate. The unpaid principal balance from the date hereof until
maturity shall bear interest at a rate per annum equal to the lesser of the
Fixed Rate or the Maximum Rate.
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Interest on the unpaid principal balance hereof shall be calculated at a daily
rate equal to 1/365th of the rate per annum herein provided, and shall be
charged and collected on the actual number of days elapsed. After maturity,
unpaid principal and, to the extent permitted by law, interest on this Note
shall bear interest at a rate equal to the lesser of four (4) percentage points
over the Fixed Rate, or the Maximum Rate.
3. Payment of Principal and Interest. The entire principal balance and
accrued interest on this Note shall become due and payable on demand, or if
demand has not been previously made on the earlier of the fifth (5th)
anniversary of the date hereof, or thirty (30) days after the "Date of
Termination" (as defined in the Employment Agreement) of Maker's employment with
Payee in the event Maker's employment with Payee is terminated for "Cause" (as
such term is defined in subparagraph 7(c) of the Employment Agreement) or not
for "Good Reason" (as such term is defined in subparagraph 7(e) of the
Employment Agreement).
4. Mandatory Prepayment. Prior to maturity, all Proceeds to which Maker is
entitled in respect of the Shares shall be applied, at the time Maker is
entitled to receive such Proceeds, to payment of this Note, with such payments
to be applied first to accrued interest and then to the outstanding principal
balance of this Note. By execution of this Note, Maker hereby irrevocably
authorizes and hereby grants to Payee a special power of attorney irrevocably
making, constituting and appointing Payee, with unrestricted power of
substitution and resubstitution, as the attorney-in-fact for Maker, with power
and authority to apply the payments referred to in this Paragraph in accordance
with the provisions hereof and to execute, acknowledge and deliver any and all
such documents and instruments as may be necessary or appropriate to carry out
the provisions of this Paragraph 4.
5. Event of Default.
(a) The occurrence of any one or more of the following events shall
be deemed an event of default hereunder ("Event of Default"):
(i) The failure of Maker to make any payment on this Note when
the same becomes due and payable and such failure continues for ten
(10) days after notice of such failure to pay is received by Maker
from Payee; or
(ii) Maker shall commence any case, proceeding or other action
seeking reorganization, arrangement or adjustment of its debts under
any bankruptcy, insolvency or reorganization law, or seek the
appointment of a receiver, trustee or custodian for Maker or for all
of this property; or
(iii) Any case, proceeding or other action shall be commenced
against Maker seeking reorganization, arrangement or adjustment of his
debts under any bankruptcy, insolvency or reorganization law or
seeking the appointment of a receiver, custodian or trustee for Maker
or for all or substantially all of his property, and such case,
proceeding or other action remains undismissed for a period of sixty
(60) days after commencement thereof.
(b) Upon the occurrence of an Event of Default hereunder, Payee, at
its option, may declare the entire unpaid principal balance and accrued interest
on this Note to be
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immediately due and payable without notice of any kind to Maker and without any
other presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived by Maker, and may, at its option, exercise any other
right or remedy existing at law or in equity. Failure to exercise any such right
or remedy shall not constitute a waiver of the right to exercise the same in the
event of any subsequent default.
(c) Upon the occurrence of an Event of Default hereunder, Payee shall
purchase the Collateral from Maker for an amount equal to the Market Value of
the Collateral, or the entire principal balance and accrued interest due on the
Note, whichever is higher. Such payment shall be applied towards the repayment
of the outstanding amount of the Note. If the Market Value of the Collateral
exceeds the outstanding amount of the Note, the excess Collateral remaining
after full satisfaction of the Note shall be returned to Maker without offset of
any kind and free and clear of all liens, claims or encumbrances in favor of
Payee.
6. Voluntary Prepayment. Maker shall have the right and privilege from
time to time to prepay in whole or in part the unpaid principal of this Note
without premium or penalty, provided that the accrued interest on the amount
prepaid is likewise paid, and the accrual of interest shall immediately cease on
any amount so prepaid.
7. Waiver. Maker waives demand, presentment for payment, notice of
nonpayment, protest and notice of protest and agrees to any substitution,
subordination or release of any parties primarily or secondarily liable hereon.
No waiver by Payee of any of its rights or remedies hereunder or under any other
document evidencing or securing this Note or otherwise shall be considered a
waiver of any other subsequent right or remedy of Payee; and no delay or
omission in the exercise or enforcement by Payee of any rights or remedies shall
be construed as a waiver of any right or remedy of Payee.
8. Attorneys' Fees. If this Note is not paid pursuant to the terms hereof
and is placed in the hands of an attorney for collection, or if it is collected
through bankruptcy or any other court proceeding after maturity, then Payee
shall be entitled to reasonable attorneys' fees for collection.
9. Limitation on Agreements. It is the intention of Maker and Payee to
comply with applicable usury laws. In furtherance thereof, Maker and Payee
stipulate and agree that, notwithstanding any provision contained in this Note,
or in any other agreement between Maker and Payee, Payee shall never be entitled
to receive, collect or apply as interest on this Note, any amount in excess
of the Maximum Rate, and, in the event Payee ever receives, collects or applies
as interest any such excess, such amount that would be excessive interest shall
be deemed to be a partial prepayment of principal and treated hereunder as such,
and, if the principal amount of the Note is paid in full, any remaining excess
shall forthwith be paid to Maker. In determining whether the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, Maker and
Payee shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payments (other than payments hereunder) as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate and
spread, in equal parts the total amount of interest throughout the entire
contemplated term of this Note so that the interest rate is uniform throughout
such term.
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10. Pledge and Grant of Security Interest. Maker hereby pledges and grants
to Payee a security interest in the Collateral, and in connection therewith,
Payee shall have all of the rights of a secured party under Chapter 9 of the
Texas Uniform Commercial Code. Maker agrees to execute and deliver such other
documents as may be reasonably necessary to confirm, evidence or perfect such
pledge and security interest. Payee currently holds certificates representing
all Shares currently constituting the Collateral. Unless and until an Event of
Default shall have occurred and be continuing, Maker shall be entitled to vote
all or any part of the Shares constituting the Collateral and to execute
consents and waivers in respect thereof, all with the same force and effect as
if this Note did not exist.
11. Nature of Obligation: Limitation on Liability. The principal amount
of this Note represents the unpaid principal balance and accrued interest as of
December 31, 1998 on that certain Promissory Note dated March 20, 1996 from
Maker to Wyndham Finance Limited Partnership in the original principal amount of
$4,904,573.00 on which no payments have been made as of the date hereof and
which is also secured by the Collateral. This Note is an amendment in its
entirety of such March 20, 1996 Note. Maker agrees that all existing security
interest in the Collateral existing immediately prior to the execution hereof
shall continue to exist and shall secure this Note. THIS NOTE SHALL BE
NONRECOURSE TO MAKER AND MAKER SHALL HAVE NO PERSONAL LIABILITY FOR THE PAYMENT
HEREOF, AND PAYEE SHALL PROCEED SOLELY AGAINST THE COLLATERAL UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT UNDER THIS NOTE.
12. Governing Law and Venue. This Note is being executed and delivered and
is intended to be performed in the State of Texas. This Note shall be construed
as to both validity and performance and enforced in accordance with and governed
by the laws of the State of Texas.
13. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by certified or registered mail, postage prepaid,
with return receipt requested, addressed to Maker or Payee as follows:
If to Payee to:
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
Attention: General Counsel
If to Maker to:
James D. Carreker
6801 Baltimore
Dallas, Texas 75205
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or such other address as shall be furnished in writing by Maker or Payee to the
other, in accordance with the above provisions, and such notice or communication
shall be deemed to have been given as of the date so delivered in the case
of personal delivery or three (3) days after deposit in the mail in the case
of certified or registered mail.
14. Arbitration. Maker and Payee agree that any claim, controversy or
dispute arising out of or relating to this Note that cannot be amicably settled
shall be referred to binding arbitration as hereinafter provided. If arbitration
is required to resolve a dispute between Maker and Payee, Payee will notify the
American Arbitration Association ("AAA") and request AAA to select one person to
act as the arbitrator for resolution of this dispute. The selected arbitrator
will establish the rules for arbitration of the dispute and such rules will be
binding upon all parties to the arbitration proceeding. The arbitrator may use
the rules of the AAA for commercial arbitration but is encouraged to adopt such
rules as the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly, the arbitrator may
(i) dispense with any formal rules of evidence and allow hearsay testimony so as
to limit the number of witnesses required, (ii) minimize discovery procedures as
the arbitrator deems appropriate, (iii) act upon his understanding or
interpretation of the law on any issue without the obligation to research such
issue, or accept or act upon briefs of the issue prepared by any party, (iv)
limit the time for presentation of any party's case as well as the amount of
information or number of witnesses to be presented in connection with any
hearing, (v) prevent any party from allowing an attorney to present or argue the
party's case before the arbitrator in any hearing, and (vi) impose any other
rules which the arbitrator believes appropriate to effect a resolution of the
dispute as quickly and inexpensively as possible. The arbitration shall take
place in Dallas, Texas. The arbitrator will have the exclusive authority to
determine and award costs of arbitration and the cost incurred by any party for
attorneys, advisors and consultants. Any award made by the arbitrator shall be
binding on Maker, Payee and all parties to the arbitration and shall be
enforceable to the fullest extent of the law.
15. Tax Matters. Maker acknowledges that Maker has not relied on any
advice from Payee with regard to the tax treatment of the Note.
MAKER
/s/ JAMES D. CARREKER
---------------------------
James D. Carreker
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Exhibit E
MASTER NOTE
Dallas, Texas
FOR VALUE RECEIVED, JAMES D. CARREKER (referred to herein as the "Maker"),
promises to pay to WYNDHAM INTERNATIONAL, iNC., a Delaware corporation (referred
to herein as the "Payee"), or its assigns, the sum determined pursuant to the
Employment Agreement hereinafter described, together with interest on the unpaid
principal balance as set forth below.
1. Certain Definitions. The following items, when used in this Note,
shall have the meanings assigned to them below:
(a) Stated Rate. Until April 20, 2004, the term "Stated Rate" means
the rate of six percent (6%) per annum, compounded annually, and thereafter, the
term "Stated Rate" means the interest rate as the same may be adjusted from time
to time, paid by Payee during the remaining term of this Note pursuant to the
revolving line of credit of the Payee as it may exist from time to time.
(b) Maximum Rate. The term "Maximum Rate" shall mean, on any day, the
highest nonusurious rate of interest (if any) permitted by applicable law on
such day. For purposes of Tex. Rev. Civ. Stat. Ann. Art. 5069-1.04(b), as it may
from time to time be amended, the "applicable rate ceiling" shall be the
"indicated rate" ceiling from time to time in effect as limited by Art. 5069-
1.04(b); provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable rate ceiling" from time to
time by further notice and disclosure to Maker; and, provided further, that the
"highest nonusurious rate of interest permitted by applicable law" for purposes
of this Note shall not be linuted to the applicable rate ceiling under Art.
5069-1.04 if federal laws or other state laws now or hereafter in effect and
applicabie to this Note (and the interest contracted for, charged and collected
hereunder) shall permit a higher rate of interest. (c) Employment Agreement. The
term "Employment Agreement" shall mean the Executive Employment Agreement made
as of August 17, 1999, between Maker and Payee.
2. Interest Rate. The unpaid principal balance from the date hereof until
maturity shall bear interest at a rate per annum equal to the lesser of the
Stated Rate or the Maximum Rate. Interest on the unpaid principal balance hereof
shall be calculated at a daily rate equal to 1/365th of the rate per annum
herein provided, and shall be charged and collected on the actual number of days
elapsed. After maturity, unpaid principal and, to the extent permitted by law,
interest on this Note shall bear interest at a rate equal to the lesser of (i)
four (4) percentage points over the Stated Rate or (ii) the Maximum Rate.
3. Payment of Principal and Interest. The entire principal balance and
accrued interest on this Note shall become due and payable on the earlier of (i)
the fourth anniversary of the date of the concerned principal advance, or (ii)
thirty (30) days after "Date of Termination" (as defined in the Employment
Agreement) of Maker's employment with Payee in the event
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Maker's employment with Payee is terminated for "Cause" (as such term is defined
in subparagraph 7(c) of the Employment Agreement) or not for "Good Reason" (as
such term is defined in subparagaph 7(e) of the Employment Agreement). Maker
shall also be required to make prepayments on this Note in the amounts and in
the manner required by paragraph 23 of the Employment Agreement.
4. Events of Default.
(a) The occurrence of any one or more of the following events shall
be deemed an event of default hereunder ("Event of Default"):
(i) The failure of Maker to make any payment on this Note when
the same becomes due and payable and such failure continues for ten
(10) days after notice of such failure to pay is received by Maker
from Payee; or
(ii) Maker shall commence any case, proceeding or other action
seeking reorganization, arrangement or adjustment of his debts under
any bankruptcy, insolvency or reorganization law, or seek the
appointment of a receiver, trustee or custodian for Maker or for all
of his property; or
(iii) Any case, proceeding or other action shall be commenced
against Maker seeking reorganization, arrangement or adjustment of his
debts under any bankruptcy, insolvency or reorganization law or
seeking the appointment of a receiver, custodian or trustee for Maker
or for all or substantially all of his property, and such case,
proceedmg or other action remains undismissed for a period of sixty
(60) days after commencement thereof.
(b) Upon the occurrence of an Event of Default hereunder, Payee, at
its option, may declare the entire unpaid principal balance and accrued interest
on this Note to be immediately due and payable without notice any kind to
Maker and without any other presentment, demand, protest or notice of any kind,
all of which are hereby expressly waived by Maker, and may, at its option,
exercise any other right or remedy existing at law or in equity. Failure to
exercise any such right or remedy shall not constitute a waiver of the right to
exercise the same in the event of any subsequent default.
5. Voluntary Prepayment. Maker shall have the right and privilege from
time to time to prepay in whole or in part this Note without premium or penalty.
All such prepayments shall be first applied to all then accrued interest and
then to principal, and the accrual of interest shall immediately cease on any
principal amount so prepaid.
6. Waiver. Maker waives demand, presentment for payment, notice of
nonpayment, protest and notice of protest and agrees to any substitution,
subordination or release of any parties primarily or secondarily liable hereon.
No waiver by Payee of any of its rights or remedies hereunder or under any other
document evidencing or securing this Note or otherwise shall be considered a
waiver of any other subsequent right to remedy of Payee; and no delay or
omission in the exercise or enforcement by Payee of any rights or remedies shall
be construed as a waiver of any right or remedy of Payee.
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7. Attorneys' Fees. If this Note is not paid pursuant to the terms hereof
and is placed in the hands of an attorney for collection, or if it is collected
through bankruptcy or any other court proceeding after maturity, then Payee
shall be entitled to reasonable attorneys' fees for collection.
8. Limitation on Agreements. It is the intention of Maker and Payee to
comply with applicable usury laws. In furtherance thereof, Maker and Payee
stipulate and agree that, notwithstanding any provision contained in this Note,
or in any other agreement between Maker and Payee, Payee shall never be entitled
to receive, collect or apply as interest on this Note, any amount in excess
of the Maximum Rate, and, in the event Payee ever receives, collects or applies
as interest any such excess, such amount that would be excessive interest shall
be deemed to be a partial prepayment of principal and treated hereunder as such,
and if the principal amount of the Note is paid in full, any remaining excess
shall forthwith be paid to Maker. In determining whether the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, Maker and
Payee shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payments (other than payments hereunder) as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate and
spread in equal parts the total amount of interest throughout the entire
contemplated term of this Note so that the interest rate is uniform throughout
such term.
9. Governing Law and Venue. This Note is being executed and delivered and
is intended to be performed by the State of Texas. This Note shall be construed
as to both validity and performance and enforced in accordance with and governed
by the laws of the State of Texas.
10. Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by certified or registered mail, postage prepaid,
with return receipt requested, addressed to Maker or Payee as follows:
If to Payee to:
Wyndham International, Inc.
1950 Stemmons Freeway Suite 6001
Dallas, Texas 75207
Attention: General Counsel
If to Maker to:
James D. Carreker
6801 Baltimore
Dallas, Texas 75205
or such other address as shall be furnished in writing by Maker or Payee to the
other, in accordance with the above provisions, and such notice or communication
shall be deemed to
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have been given as of the date so delivered in the case of personal delivery or
three (3) days after deposit in the mail in the case of certified or registered
mail.
11. Arbitration. Maker and Payee agree that any claim, controversy or
dispute arising out of or relating to this Note that cannot be amicably settled
shall be referred to binding arbitration as hereinafter provided. If arbitration
is required to resolve a dispute between Maker and Payee, Payee will notify the
American Arbitration Association ("AAA") and request AAA to select one person to
act as the arbitrator for resolution of this dispute, The selected arbitrator
will establish the rule for arbitration of the dispute and such rules will be
binding upon all parties to the arbitration proceeding. The arbitrator may use
the rules of the AAA for commercial arbitration but is encouraged to adopt such
rules as the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly, the arbitrator may
(i) dispense with any formal rules of evidence and allow hearsay testimony so as
to limit the number of witnesses required, (ii) minimize discovery procedures as
the arbitrator deems appropriate, (iii) act upon his understanding or
interpretation of the law on any issue without the obligation to research such
issue or accept or act upon briefs of the issue prepared by any party, (iv)
limit the time for presentation of any party's case as well as the amount of
information or number of witnesses to be presented in connection with any
hearing, (v) prevent any party from allowing an attorney to present or argue the
party's case before the arbitrator in any hearing, and (vi) impose any other
rules which the arbitrator believes appropriate to effect a resolution of the
dispute as quickly and inexpensively as possible. The arbitration shall take
place in Dallas, Texas. The arbitrator will have the exclusive authority to
determine and award costs of arbitration and the cost incurred by any party for
attorneys, advisors and consultants. Any award made by the arbitrator shall be
binding on Maker, Payee and all parties to the arbitration and shall be
enforceable to the fullest extent of the law.
12. Master Note. This Note is to the extent specified in the Employment
Agreement intended to document certain principal advances which may hereafter be
made under the Employment Agreement by Payee to Maker This Note shall for
purposes of each separate principal advance be deemed dated as of the date of
the concerned advance;
MAKER
/s/ JAMES D. CARREKER
-------------------------------
James D. Carreker
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EXHIBIT 10.15
AMENDMENT NO. 1
TO
EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 1 to Executive Employment Agreement (this "Amendment")
between Wyndham International, Inc., a Delaware corporation ("Employer"), and
James D. Carreker ("Executive") is made as of March 27, 2000, but effective as
of the time set forth in paragraph 7 below (the "Effective Time"). All
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in that certain Executive Employment Agreement dated as
of August 18, 1999 but effective as of April 19, 1999 between Employer and
Executive (the "Employment Agreement").
WITNESSETH
WHEREAS, Executive presently serves as the Chairman and Chief Executive
Officer of Employer pursuant to the terms of the Employment Agreement; and
WHEREAS, the parties hereto desire to amend the terms of the Employment
Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties hereto hereby agree as follows:
1. Amendment to Paragraph 2
The first sentence of paragraph 2 of the Employment Agreement is hereby
deleted in its entirety and replaced with the following:
"During the Period of Employment, Executive shall serve as Chairman of the
Board of Employer, reporting to the Board. As Chairman of the Board,
Executive shall preside at all meetings of the stockholders of Employer and
of the Board and shall have such other powers and duties as Executive and
Employer may mutually agree. Upon execution of this Amendment, Executive
shall deliver a letter to the Board informing the Board that he intends to
continue to serve on the Executive Committee of the Board, but shall no
longer participate as an ex-officio member of the Audit, Compensation or
Capital Commitments Committees of the Board, unless requested by the Board
to do so."
2. Amendments to Paragraph 3
(a) The third sentence of subparagraph 3(b) of the Employment Agreement is
hereby amended and restated in its entirety as follows:
" "Employer EBITDA Achievement" is the degree to which the annual
budget established by Employer for earnings before interest, taxes,
depreciation and amortization is achieved, provided, however, in no
event shall the measurement of Employer EBITDA Achievement for
Executive differ from the measurement of
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Employer EBITDA Achievement used to determine incentive compensation
payable to the Chief Executive Officer of Employer."
(b) Subparagraph 3(l) of the Employment Agreement is hereby deleted in its
entirety and replaced with the following:
"(l) Office Space. During the Period of Employment and/or the time
period provided for in subparagraph 8(d)(2)(aa), at the option of
either the Executive or Employer, Executive's office space may be
located at premises other than Employer's primary offices, provided
such location and office space is reasonably acceptable to Executive
and Employer."
3. Amendments to Paragraph 7
Subparagraph 7(e) of the Employment Agreement is amended by inserting the
following at the beginning of clause (E) of the first sentence thereof:
"except as permitted by subparagraph 3(1) of this Agreement,"
Subparagraph 7(e) of the Employment Agreement is further amended by adding
the following to the end of such subparagraph:
"In addition to the foregoing provisions of this subparagraph 7(e),
Executive may at any time prior to the first anniversary of the Effective
Time of this Amendment, elect to terminate his employment hereunder for any
reason by delivering to Employer prior to such first anniversary a Notice
of Termination specifying such election, and such election shall constitute
"Good Reason" for all purposes of this Agreement."
4. Amendment to Paragraph 8
The second and third sentences of subparagraph 8(d) of the Employment
Agreement are amended and restated in their entirety as follows:
"Upon the Date of Termination, all unvested stock options and stock based
grants shall immediately vest and become exercisable, and Executive shall
have one (1) year from the Date of Termination, or the remaining option
term (not to exceed four (4) years), if later, to exercise the stock
options. For a period of three (3) years following the Date of Termination,
Employer shall (a) pay such health insurance premiums as may be necessary
to allow Executive and Executive's spouse and other dependents to receive
health insurance coverage substantially similar to coverage they received
prior to the Date of Termination; (b) pay all membership dues and
assessments (but not charges for goods and services) incurred by Executive
with respect to his country club membership at Preston Trails Golf Club or
its equivalent selected by Executive, (c) provide Executive with a company
car or allowance therefor, which car or allowance shall be for, or
sufficient for, a BMW 750i or equivalent selected by Executive; (d) pay
premiums on, and maintain in effect during such three year period, a life
insurance policy on the life of Executive in an amount of not less than
$2,000,000.00, with the beneficiary of such policy being designated by
Executive; and (e) pay such long-term disability insurance
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premiums as may be necessary to allow Executive to receive long-term
disability insurance coverage during such three-year period substantially
similar to the coverage he received prior to the Date of Termination
pursuant to subparagraph 3(j) hereof."
5. Amendment to Paragraph 13
The second sentence of subparagraph 13(d) is amended by adding the
following to the end of such sentence:
"provided, however, that if Executive terminates his employment for Good
Reason or Employer terminates Executive's employment without Cause, then
the due date of any loans made pursuant to the Master Note that are
outstanding on the Date of Termination shall be extended by two years,
provided that there shall not be any Event of Default (as defined in the
Master Note) on the Date of Termination."
6. Endorsements to Notes
Upon effectiveness of this Amendment, Employer and Executive shall execute
endorsements in the forms attached hereto as Exhibits A and B,
respectively, to the Amended Original Note and the Master Note and shall
attach such endorsements to the respective notes. Upon such execution and
attachment, all references in the Employment Agreement to the Amended
Original Note and the Master Note shall be deemed to include the amendments
to such notes as provided in the endorsements.
7. Effective Time
This Amendment shall be subject to and become effective upon execution
following approval of this Amendment by the Board.
8. Press Releases
Employer shall not issue any press release relating to the change in
Executive's position as provided in this Amendment No. 1 without the prior
approval of Executive, which approval shall not be unreasonably withheld.
IN WITNESS WHEREOF, the parties have executed this Agreement, as of the
date first written above, to be effective as of the Effective Time.
WYNDHAM INTERNATIONAL, INC.
By: /S/ CARLA S. MORELAND
-----------------------------------------------
Its: Executive Vice President - General Counsel
-------------------------------------------
/S/ JAMES D. CARREKER
----------------------------------------------------
James D. Carreker
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Exhibit A
AMENDED ORIGINAL NOTE
ENDORSEMENT NO. 1
March 27, 2000
That certain Amended Original Note No Personal Liability Nonrecourse
Promissory Note ("Amended Original Note") dated April 19, 1999 made by James D.
Carreker payable to Wyndham International, Inc., a Delaware corporation, in the
original principal amount of $5,769,861.00, to which this Amended Original Note
Endorsement No. 1 is attached, is hereby amended as follows:
1. Amendment to Paragraph 1(b). Paragraph 1(b) of the Amended Original
Note is hereby amended and restated in its entirety as follows:
"(b) Employment Agreement. The term "Employment Agreement" shall
mean the Executive Employment Agreement between Maker and Payee, as
amended by Amendment No. 1 thereto effective as of the date of this
Amended Original Note Endorsement No. 1."
2. Amendment to Paragraph 3. Paragraph 3 of the Amended Original Note is
hereby amended by adding the following to the end of such paragraph:
"Notwithstanding the foregoing, if Maker shall terminate his
employment with Payee for "Good Reason" (as such term is defined in
subparagraph 7(e) of the Employment Agreement) pursuant to the last
sentence of subparagraph 7(e) of the Employment Agreement, then (a)
this Note shall remain due and payable on demand through the third
anniversary of the Date of Termination, and (b) provided that demand
has not been made prior to such third anniversary and provided that an
Event of Default does not thereafter occur, then the principal balance
and accrued interest on this Note shall become due and payable on
April 19, 2006. Notwithstanding the foregoing, if at any time there
shall occur an Event of Default, Payee, at its option, shall have the
right to accelerate the maturity of the entire unpaid principal
balance and accrued interest on this Note as provided in paragraph 5
below."
/S/ JAMES D. CARREKER
------------------------------------------------------
James D. Carreker
WYNDHAM INTERNATIONAL, INC.
By: /S/ CARLA S. MORELAND
-------------------------------------------------
Its: Executive Vice President - General Counsel
-------------------------------------------
<PAGE>
Exhibit B
MASTER NOTE ENDORSEMENT NO. 1
March 27, 2000
That certain Master Note ("Master Note") made by James D. Carreker payable
to Wyndham International, Inc., a Delaware corporation, to which this Master
Note Endorsement No. 1 is attached, is hereby amended as follows:
1. Amendment to Paragraph 1(c). Paragraph 1(c) of the Master Note is
hereby amended and restated in its entirety as follows:
"(c) Employment Agreement. The term "Employment Agreement"
shall mean the Executive Employment Agreement made as of August 18,
1999, between Maker and Payee, as amended by Amendment No. 1 thereto
effective as of the date of this Master Note Endorsement No. 1."
2. Amendment to Paragraph 3. Paragraph 3 of the Master Note is hereby
amended by inserting the following sentence after the first sentence
of such paragraph:
"Notwithstanding the foregoing, if (a) Maker shall terminate his
employment with Payee for "Good Reason" (as such term is defined in
subparagraph 7(e) of the Employment Agreement) or Payee shall
terminate Maker's employment without "Cause" (as such term is defined
in subparagraph 7(c) of the Employment Agreement) and (b) at the Date
of Termination (as defined in the Employment Agreement) there shall
not be any Event of Default (as defined in paragraph 4 below), then
the date on which the entire principal balance and accrued interest on
this Note shall become due and payable shall be extended to the sixth
anniversary of the date of the concerned principal advance, rather
than the fourth anniversary thereof as set forth in the preceding
sentence."
/S/ JAMES D. CARREKER
------------------------------------------------------
James D. Carreker
WYNDHAM INTERNATIONAL, INC.
By: /S/ CARLA S. MORELAND
-------------------------------------------------
Its: Executive Vice President - General Counsel
-------------------------------------------
<PAGE>
EXHIBIT 10.17
November 3, 1999
Mr. Richard Holtzman
c/o Grand Bay Hotels & Resorts
11811 North Tatum Road
Suite 1060
Phoenix, AZ 85028
Dear Richard:
This letter agreement (the "Agreement") confirms the agreement that we
have reached regarding the termination of your employment with Wyndham
International, Inc. ("WII") and its respective related and affiliated entities
(collectively, the "Companies").
The purpose of this Agreement is to establish mutually agreeable
arrangements for ending your employment and structuring your continuing
relationship with the Companies following your termination. This Agreement does
not constitute and should not be construed as an admission by the Companies that
they have in any way violated any legal obligation that they owe to you or to
any other person or as an admission by you that you have in any way violated any
legal obligation that you owe to the Companies or to any other person. To the
contrary, the parties' willingness to enter into this Agreement demonstrates
that they are continuing to deal with each other fairly and in good faith.
With those understandings and in exchange for the promises set forth
below, you and the Companies agree as follows:
1. Termination
-----------
You hereby acknowledge that your employment with WII has been terminated
by WII effective as of October 22, 1999 (the "Date of Termination"). You and WII
acknowledge that your termination from employment is a Termination Without Cause
as defined by Subparagraph 6(e) of the June 19, 1998 Executive Employment
Agreement between you and WII (the "Employment Agreement") within 12 months of a
Change in Control as defined by Paragraph 8 of the Employment Agreement. Subject
to earlier termination pursuant to Paragraph 6 of the Employment Agreement, WII
will continue your salary and benefits through the Date of Termination pursuant
to Section 7(d) of the Employment Agreement. On the date of Termination, WII
will pay you One Hundred Seventy-four Thousand, Two
<PAGE>
Mr. Richard Holtzman
November 3, 1999
Page 2
Hundred and Sixty-nine Dollars ($174,269), less applicable withholding. You
acknowledge and agree that this amount accurately represents the value of your
accrued vacation and accrued bonus as of the Date of Termination.
2. Compensation and Benefits.
-------------------------
(a) Effect of Termination on Equity Grants. In accordance with
---------------------------------------
Subparagraph 8(b)(ii) of the Employment Agreement, upon the effective date of
the Change in Control, all stock options and other stock-based awards granted to
you by the Companies immediately accelerated and became exercisable or
non-forfeitable. The period of time in which you may exercise your stock options
after the Date of Termination shall be governed by the terms and provisions of
the respective stock option agreements.
(b) Severance. In recognition of your service to WII, and in full
----------
satisfaction of any and all claims you may have against the Companies, as more
fully set forth in Section 5 below, the Companies will pay you Five Hundred
Forty-Eight Thousand, Nine Hundred and Eighty-one Dollars ($548,981) (the
"Severance Payment") pursuant to Paragraph 8 of the Employment Agreement. The
Severance Payment shall be reduced by applicable withholding and shall be
payable by lump sum to you within five (5) business days following the later of
the Date of Termination or the Effective Date (as defined in Section 14(d)
below).
(c) Benefit Continuation. You may continue to participate in WII's
--------------------
group health and dental plans in which, and to the same extent as, you are
currently participating for up to one (1) year from the Date of Termination,
with the cost of the regular premium for such benefits shared in the same
relative proportion by you and WII as in effect for senior executives of WII on
the Date of Termination; provided that nothing in this Section 3(c) shall be
--------
construed to affect your or your dependents' rights, after your rights to cost
sharing under this Section 3(c) end, to receive continuation coverage to the
extent authorized by and consistent with 29 U.S.C. (S) 1161 et seq. (commonly
known as "COBRA") and applicable group health and dental plan terms, entirely at
your or their own cost.
(d) Outplacement. In accordance with Subparagraph 7(d)(ii) of the
------------
Employment Agreement, WII shall, for a period of six months commencing upon
written notice by you when you so elect no later than one (1) year after the
Date of Termination, and ending six (6) months after said notice or through the
date you secure new employment, if earlier, pay for the reasonable costs of
executive outplacement services selected by you for use in connection with
obtaining alternate employment.
<PAGE>
Mr. Richard Holtzman
November 3, 1999
Page 3
(e) Office. WII shall continue to make your current office
------
available to you for your use until the space is sublet or otherwise transferred
by WII. WII will provide you with 30 days advance notice of such sublet or other
transfer. You will be responsible for the cost of any supplies or support you
may need.
(f) Boulders Membership. WII will continue to provide you with
-------------------
membership at the Boulders so long as WII owns the Boulders; provided, however,
--------
that such membership may be terminated at any time by WII if WII, through its
Chairman or President, determines in its sole discretion that you are engaging
or have engaged in activities in violation of any obligations you may have under
paragraphs 4, 5, or 15 of the Employment Agreement, Section 7 of this Agreement,
or that, had you continued to be employed by WII, would have constituted grounds
for termination of said employment under paragraph 6(c) of the Employment
Agreement.
(g) You will be permitted at such time during the Consulting Period
(as that term is defined and used in Section 3 below) as you and the Company
will reasonably agree, to stay one week at any Company owned Golden Door Spa at
the Companies' expense.
(h) Other Benefits. Except as expressly provided above, your
--------------
eligibility to participate in any of the Companies' respective employee benefit
plans and programs ceases on or after the Date of Termination in accordance with
the terms and conditions of each of those benefit plans and programs and your
rights to benefits under any of the employee benefit plans and programs, if any,
are governed by the terms and conditions of each of those employee benefit plans
and programs.
(i) Reservation of WII's Rights. If between now and October 1,
----------------------------
1999, you engage in conduct that results in a Termination for Cause pursuant to
Subparagraph 6(c) of the Employment Agreement, WII is relieved of its
obligations under Sections 3(b)-(g) of this Agreement.
3. Consulting Services
-------------------
(a) You hereby agree to provide non-exclusive consulting services
to the Companies for a period of one (1) year (i.e., from October 1, 1999
through September 30, 2000) (the "Initial Consulting Period"), which period WII
and you may agree to extend for an additional year upon mutually agreeable terms
negotiated in good faith (the "Extended Consulting Period") (the Initial
Consulting Period and Extended Consulting Period, if any, hereafter collectively
referred to as the "Consulting Period").
<PAGE>
Mr. Richard Holtzman
November 3, 1999
Page 4
(b) In your capacity as a consultant to the Companies, you agree
upon request from one or more of the Companies to assist with respect to
transitional matters that may arise in connection with your termination, to
respond to requests for information concerning business matters with which you
became familiar while employed, and to provide assistance with respect to (i)
Manzanillo owner relations, (ii) the Laguna development, and (iii) such other
projects mutually agreed upon by you and the Companies (collectively, the
"Consulting Services"). You agree to make yourself available at reasonable times
and places and with reasonable notice for one day per week on average to provide
Consulting Services.
(c) It is intended and agreed by and between the parties that while
providing Consulting Services, you are, and shall at all times be and remain, an
independent contractor. You understand and agree that during the Consulting
Period, you are not an employee of any of the Companies and shall not be treated
as an employee for any purpose. You understand and agree that as an independent
contractor, you are required to pay and are solely liable for, all applicable
taxes, including, without limitation, federal income tax and state income tax on
remuneration you receive in exchange for the Consulting Services and you may be
required to pay quarterly estimated income taxes. Nothing in this Agreement or
otherwise shall be construed as identifying you as an employee, agent or legal
representative of any of the Companies during the Consulting Period for any
purpose whatsoever. You will not be authorized to transact business, incur
obligations, sell goods, receive payments, solicit orders or assign or create
any obligation of any kind, express or implied, on behalf of any of the
Companies, or to bind in any way whatsoever, or to make any promise, warranty or
representation on behalf of any of the Companies with respect to any matter,
except as expressly authorized in writing by the Companies. You shall not use
any of the Companies' trade names, trademarks, service names or servicemarks
without the prior written approval of the Companies.
During the Consulting Period, you shall be free to pursue other business
opportunities or employment (except to the extent that such other business
opportunities or employment might violate Paragraph 5 (as said Paragraph 5 is
amended in Section 5 below) of the Employment Agreement); provided, however,
-------- -------
that you hereby acknowledge your continuing obligations to the Companies under
Paragraph 4 of the Employment Agreement, and provided further, however, that you
-------- ------- -------
shall remain available to provide and shall provide, Consulting Services to the
Companies pursuant to Section 3(b) of this Agreement.
(d) The Companies shall pay you a fee at the rate of One Hundred
Thousand Dollars ($100,000) per year during the Consulting Period, payable
ratably in monthly installments in arrears. You also shall be paid a success
bonus of Two Hundred Fifty
<PAGE>
Mr. Richard Holtzman
November 3, 1999
Page 5
Thousand Dollars ($250,000) if within two (2) years following the end of the
Consulting Period, the financing arrangements for the Laguna project are
completed with parties with whom you worked in connection with providing
Consulting Services (including, without implication of limitation, Farallon
Capital Partners and Capital Pacific Holdings, Inc.) and a management contract
between Laguna and WII is executed. During the Consulting Period you may stay at
WII-managed hotels at the then applicable employee rate and shall be entitled to
stay one week per year at any WII-owned Golden Door Spa, subject to
availability. The Companies shall promptly reimburse you for all reasonable
disbursements incurred by you in connection with providing Consulting Services,
subject to approval and documentation in accordance with policies for executive
vice presidents of WII as may be in effect from time to time.
4. Release of Claims.
-----------------
(a) Release by Mr. Holtzman. You voluntarily and irrevocably
-----------------------
release and discharge the Companies, their related or affiliated entities, and
their respective predecessors, successors, and assigns, (including but not
limited to Patriot American Hospitality, Inc. ("PAHI")), and the current and
former officers, directors, shareholders, employees, and agents of each of the
foregoing (any and all of which are referred to as "Releasees") generally from
all charges, complaints, claims, promises, agreements, causes of action,
damages, and debts that relate in any manner to your employment with or services
for the Companies, known or unknown ("Claims"), which you have, claim to have,
ever had, or ever claimed to have had against any of the Releasees through the
date on which you execute this Agreement. This general release of Claims
includes, without implication of limitation, all Claims for or related to: the
Employment Agreement; the compensation provided to you by the Companies; your
termination as described in Section 1; wrongful or constructive discharge;
breach of contract; breach of any implied covenant of good faith and fair
dealing; tortious interference with advantageous relations; intentional or
negligent misrepresentation, fraud or deceit; infliction of emotional distress,
and unlawful retaliation or discrimination under the common law or any federal,
state or local statute or law (including, without implication of limitation, the
Employee Retirement Income Security Act, Title VII of the Civil Rights Act of
1964, the American with Disabilities Act, the Age Discrimination in Employment
Act, Ariz. Stat. Ann. (S)41-1461, et seq., and Ariz. Stat. Ann. (S)23-1501, et
seq.). You also waive any Claim for reinstatement, severance, incentive or
retention pay (except as expressly provided in this Agreement), attorney's fees,
or costs, relating to the above waived claims.
You agree that you will not hereafter pursue any Claim against any
Releasee by filing a lawsuit in any local, state or federal court for or on
account of anything which has occurred up
<PAGE>
Mr. Richard Holtzman
November 3, 1999
Page 6
to the present time as a result of your employment, and you shall not seek
reinstatement with, or damages of any nature, severance, incentive or retention
pay, attorney's fees, or costs from the Companies or any of the other Releasees.
(b) Release by the Companies. The Companies, on behalf of
------------------------
themselves and their respective predecessors, successors, assigns, directors
(but only in their capacities as directors of the Companies) and officers (but
only in their capacities as officers of the Companies) voluntarily and
irrevocably release and discharge you and your successors, assigns, heirs and
survivors from any and all charges, complaints, claims, promises, agreements,
causes of action, damages and debts (including attorney's fees and costs
actually incurred) which any of them have, claim to have, ever had or ever
claimed to have had against you through the date hereof, that are known to the
Companies or that presently are not actually known to senior management of the
Companies but that directly or indirectly arise out of, relate to or concern
good faith acts or omissions by you during the course of your employment
undertaken or not undertaken in the reasonable belief that such acts or
omissions were in or not opposed to the best interests of the Companies ("WII
Claims").
The Companies further represent that they do not have any knowledge
at this time of any acts or omissions by you that would give rise claims not
otherwise released in the previous paragraph.
5. Employment Agreement
--------------------
This Agreement supersedes all provisions of the Employment Agreement other
than Paragraphs 4 (Unauthorized Disclosure), 5 (Covenant Not to Compete), 6
(Termination), 7 (Compensation Upon Termination or During Disability), 8
(Parachute Payment), 13 (Arbitration; Other Disputes) and 15 (Litigation and
Regulatory Cooperation) thereof, which provisions are incorporated herein by
reference and shall continue to bind you in accordance with their respective
terms.
6. Return of Property
------------------
All documents, records, material and all copies of any of the foregoing
pertaining to Confidential Information (as defined in Paragraph 4 of the
Employment Agreement), and all software, equipment, and other supplies, whether
or not pertaining to Confidential Information, that have come into your
possession or been produced by you in connection with your employment
("Property") have been and remain the sole property of the Companies. You shall
return all Property to the Companies on or before the Date of Termination. In no
<PAGE>
Mr. Richard Holtzman
November 3, 1999
Page 7
event should this provision be construed to require you to return to the Company
any document or other materials concerning your remuneration and benefits during
your employment with the Companies.
7. Nondisparagement
----------------
You agree not to take any action or make any statement, written or oral,
which disparages or criticizes the Companies or their respective officers,
directors, agents, or management and business practices, or which reasonably
could be expected to and does in fact significantly disrupt or impair the
Companies' normal operations. The Companies, on behalf of themselves, agree (a)
not to take any action or make any statement, written or oral, which disparages
or criticizes you or your management and business practices, and (b) to instruct
their respective directors and officers not to take any action or make any
statement, written or oral, which disparages or criticizes you or your
management and business practices. The provisions of this Section 7 shall not
apply to any truthful statement required by binding legal process to be made by
you or the Companies, as the case may be, in any legal proceeding or
governmental or regulatory investigation.
8. Additional Representations, Warranties and Covenants.
----------------------------------------------------
(a) As a material inducement to the Companies to enter into this
Agreement, you represent, warrant and covenant as follows:
(i) You have not assigned to any third party any Claim
released by this Agreement.
(ii) You have not heretofore filed with any agency or court
any Claim released by this Agreement.
(b) As a material inducement to you to enter into this Agreement,
the Companies represent, warrant and covenant as follows:
(i) The Companies have not assigned to any third party any
WII Claims released by this Agreement; and
(ii) The Companies have not heretofore filed with any agency
or court any WII Claims released by this Agreement.
<PAGE>
Mr. Richard Holtzman
November 3, 1999
Page 8
9. Further Assurances
------------------
Upon the terms and subject to the conditions herein provided, each of the
parties hereto agrees to use its reasonable efforts to take, or cause to be
taken, all action and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, subject, in the case
of the Companies, to the provisions of any credit agreement or financing
agreement or other contract or agreement by which any of the Companies may be
bound.
10. Exclusivity
-----------
This Agreement sets forth all the consideration to which you are entitled
from the Companies by reason of your termination and your duties for the
Companies while employed, and you agree that you shall not be entitled to or
eligible for any payments or benefits under any other Company severance, bonus,
retention or incentive policy, arrangement or plan.
11. Tax Matters
-----------
All payments and other consideration provided to you pursuant to this
Agreement shall be subject to any deductions, withholding or tax reporting that
the Companies reasonably determine to be required for tax purposes.
12. Arbitration of Disputes
-----------------------
Any controversy or claim arising out of or relating to this Agreement or
the breach thereof shall, to the fullest extent permitted by law, be settled by
arbitration in accordance with Paragraph 13 of the Employment Agreement. This
Section 12 shall be specifically enforceable. Notwithstanding the foregoing,
this Section 12 shall not preclude either party from pursuing a court action for
the sole purpose of obtaining a temporary restraining order or a preliminary
injunction in circumstances in which such relief is appropriate; provided that
any other relief shall be pursued through an arbitration proceeding pursuant to
this Section 12.
13. Consent to Jurisdiction
-----------------------
To the extent that any court action is permitted consistent with or to
enforce Section l2 of this Agreement, the parties hereby consent to the
jurisdiction of the state and federal courts in or for Phoenix, Arizona.
Accordingly, with respect to any such court action, you and the Companies (a)
submit to the personal jurisdiction of such courts; (b) consent to service of
<PAGE>
Mr. Richard Holtzman
November 3, 1999
Page 9
process; and (c) waive any other requirement (whether imposed by statute, rule
of court, or otherwise) with respect to personal jurisdiction or service of
process.
14. Notices. Acknowledgments and Other Terms
----------------------------------------
(a) You are advised to consult with an attorney before signing this
Agreement.
(b) You acknowledge and agree that the Companies' promises in this
Agreement constitute consideration in addition to anything of value to which you
are otherwise entitled by reason of the termination of your employment.
(c) By signing this Agreement, you acknowledge that you are doing
so voluntarily and knowingly, fully intending to be bound by this Agreement. You
also acknowledge that you are not relying on any representations by us or any
other representative of the Companies concerning the meaning of any aspect of
this Agreement. You understand that this Agreement shall not in any way be
construed as an admission by the Companies of any liability or any act of
wrongdoing whatsoever by the Companies against you and that the Companies
specifically disclaim any liability or wrongdoing whatsoever against you on the
part of themselves and their respective officers, directors, shareholders,
employees and agents. You understand that if you do not enter into this
Agreement and bring any claims against the Companies, the Companies will dispute
the merits of those claims and contend that they acted lawfully and for good
business reasons with respect to you.
(d) You acknowledge that you have been given the opportunity, if
you so desired, to consider this Agreement for twenty-one (21) days before
executing it. If not signed by you and returned to the General Counsel of WII so
that it is received by close of business on the twenty-second (22nd) day after
your receipt of the Agreement, this Agreement will not be valid. In addition, if
you breach any of the conditions of the Agreement within the twenty-one (21) day
period, the offer of this Agreement will be withdrawn and your execution of the
Agreement will not be valid. In the event that you execute and return this
Agreement within twenty-one (21) days or less of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you had
the opportunity to consider this letter agreement for the entire twenty-one (21)
day period. The Companies acknowledge that for a period of seven (7) days from
the date of the execution of this Agreement, you shall retain the right to
revoke this Agreement by written notice delivered to the General Counsel of WII
before the end of such period, and that this Agreement shall not become
effective or enforceable until the expiration of such revocation period (the
"Effective Date").
<PAGE>
Mr. Richard Holtzman
November 3, 1999
Page 10
(e) In the event of any dispute, this Agreement will be construed
as a whole, will be interpreted in accordance with its fair meaning, and will
not be construed strictly for or against either you or the Companies.
(f) The law of the State of Arizona will govern any dispute about
this Agreement, including any interpretation or enforcement of this Agreement.
(g) In the event that any provision or portion of a provision of
this Agreement shall be determined to be illegal, invalid or unenforceable, the
remainder of this Agreement shall be enforced to the fullest extent possible and
the illegal, invalid or unenforceable provision or portion of a provision will
be amended by a court of competent jurisdiction to reflect the parties' intent
if possible. If such amendment is not possible, the illegal, invalid or
unenforceable provision or portion of a provision will be severed from the
remainder of this Agreement and the remainder of this Agreement shall be
enforced to the fullest extent possible as if such illegal, invalid or
unenforceable provision or portion of a provision was not included.
(h) This Agreement may be modified only by a written agreement
signed by you and authorized representatives of the Companies, which will
include the General Counsel of WII and her successor in that position and such
other representatives as the General Counsel may identify to you in writing.
(i) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements between the parties with respect to any related subject matter,
except as provided in Section 5 hereof.
(j) This Agreement shall be binding upon each of the parties and
upon their respective heirs, administrators, representatives, executors,
successors and assigns, and shall inure to the benefit of each party and to
their heirs, administrators, representatives, executors, successors, and
assigns.
<PAGE>
Mr. Richard Holtzman
November 3, 1999
Page 11
If you agree to these terms, please sign and date below and return this
Agreement to the General Counsel of WII.
Sincerely,
WYNDHAM INTERNATIONAL, INC.
By: /s/ James D. Carreker
------------------------
James D. Carreker
Chief Executive Officer
Accepted and agreed to:
/s/ Richard Holtzman Nov. 5, 1999
- -------------------- -----------------------
Richard Holtzman Date
<PAGE>
EXHIBIT 10.18
November 3, 1999
Mr. Thomas W. Lattin
5911 Bermuda Dunes
Houston, TX 77069
Dear Tom:
This letter agreement (the "Agreement") confirms the agreement that we have
reached regarding your resignation from your regular, full-time employment and
all offices you hold with Wyndham International, Inc. ("WII"), and its related
and affiliated entities (collectively, the "Companies").
The purpose of this Agreement is to establish mutually agreeable
arrangements for ending your employment and structuring your continuing
relationship with the Companies following your resignation. This Agreement does
not constitute and should not be construed as an admission by the Companies that
they have in any way violated any legal obligation that they owe to you or to
any other person or as an admission by you that you have in any way violated any
legal obligation that you owe to the Companies or to any other person. To the
contrary, the parties' willingness to enter into this Agreement demonstrates
that they are continuing to deal with each other fairly and in good faith.
With those understandings and in exchange for the promises set forth below,
you and the Companies agree as follows:
1. Resignation
-----------
You hereby resign as an employee of WII effective as of October 29, 1999
(the "Resignation Date"). You also hereby resign from your offices of Executive
Vice President of WII and any and all employment, offices and board of directors
seats that you may hold with any of the other Companies as of the Resignation
Date. Said resignations are hereby accepted by the Companies.
<PAGE>
Mr. Thomas W. Lattin
November 3, 1999
Page 2
2. Compensation and Benefits
-------------------------
(a) Vesting of Outstanding Options. Effective as of June 30, 1999 (the
------------------------------
"Vesting Date"), all of your outstanding unvested options to purchase shares of
common stock of WII ("Shares") vested and remain fully exercisable following the
Resignation Date to the extent and upon the terms provided in the Employee Stock
Option or Incentive Plan or any other agreement or instrument attendant thereto
pursuant to which such options were granted.
(b) Restricted Paired Units. Effective as of the Vesting Date, the
-----------------------
restrictions lapsed on the remaining restricted Paired Units previously granted
to you by Patriot American Hospitality, Inc. ("PAHI") and WII.
(c) Severance. WII shall pay you severance in a gross amount equal to
---------
Five Hundred Twenty-Eight Thousand Four Hundred and Sixteen Dollars and 59/100
($528,416.59) (the "Severance Payment"). The Severance Payment shall be reduced
by applicable withholding and shall be payable by lump sum to you within five
(5) business days following the Effective Date (as defined in Section 14(d)
below) by check or wire transfer as directed by you.
(d) Benefit Continuation. You may continue to participate in WII's group
--------------------
health and dental plans in which, and to the same extent as, you are currently
participating for up to one (1) year from the Resignation Date, with the cost of
the regular premium for such benefits shared in the same relative proportion by
you and WII as in effect for senior executives of WII on the Resignation Date;
provided that nothing in this Section 3(d) shall be construed to affect your or
- --------
your dependents' rights thereafter to receive continuation coverage to the
extent authorized by and consistent with 29 U.S.C. (S) 1161 et seq. (commonly
known as "COBRA") and applicable group health and dental plan terms, entirely at
your or their own cost after your right to cost sharing under this Section 3(d)
ends.
(e) Outplacement. WII shall pay for the reasonable costs of executive
------------
outplacement services selected by you for use in connection with obtaining other
employment for up to six (6) months from the Resignation Date or through the
date you secure new employment, whichever occurs first.
(f) Other Benefits. Except as expressly provided above, your eligibility
--------------
to participate in any of the Companies' respective employee benefit plans and
programs ceases on or after the Resignation Date in accordance with the terms
and conditions of each of those benefit plans and programs and your rights to
benefits under
<PAGE>
Mr. Thomas W. Lattin
November 3, 1999
Page 3
any of the employee benefit plans and programs, if any, are governed by the
terms and conditions of each of those employee benefit plans and programs.
4. Release of Claims
-----------------
(a) Release by Mr. Lattin. You voluntarily and irrevocably release and
---------------------
discharge the Companies, their related or affiliated entities, and their
respective predecessors, successors, and assigns, and the current and former
officers, directors, shareholders, employees, and agents of each of the
foregoing (any and all of which are referred to as "Releasees") generally from
all charges, complaints, claims, promises, agreements, causes of action,
damages, and debts that relate in any manner to your employment with or services
for the Companies or the termination thereof, known or unknown ("Claims"), which
you have, claim to have, ever had, or ever claimed to have had against any of
the Releasees through the date on which you execute this Agreement. This
general release of Claims includes, without implication of limitation, all
Claims for or related to: the Employment Agreement; the compensation provided to
you by the Companies; your resignations as described in Section 1; wrongful or
constructive discharge; breach of contract; breach of any implied covenant of
good faith and fair dealing; tortious interference with advantageous relations;
intentional or negligent misrepresentation, fraud or deceit; infliction of
emotional distress, and unlawful retaliation or discrimination under the common
law or any federal, state or local statute or law (including, without
implication of limitation, the Employee Retirement Income Security Act, Title
VII of the Civil Rights Act of 1964, the American with Disabilities Act, the Age
Discrimination in Employment Act, Tex. Lab. Code (S)(S) 21.001, et seq., and
Tex. Hum. Res. Code (S)(S) 121.001, et seq.). You also waive any Claim for
reinstatement, severance, incentive or retention pay (except as expressly
provided in this Agreement), attorney's fees, or costs, relating to the above
waived claims.
You agree that you will not hereafter pursue any Claim against any Releasee
by filing a lawsuit in any local, state or federal court for or on account of
anything which has occurred up to the present time as a result of your
employment, and you shall not seek reinstatement with, or damages of any nature,
severance, incentive or retention pay, attorney's fees, or costs from the
Companies or any of the other Releasees; provided, however, that nothing in this
--------
general release shall be construed to bar or limit your rights, if any, to
indemnification subject to and in accordance with the terms of the By-Laws of
WII and the Indemnification Agreement, dated as of May 23, 1998, by and among
you, WII and PAHI (the "Indemnification Agreement"), or to enforce your rights
under this Agreement.
(b) Release by the Companies. The Companies, on behalf of themselves and
------------------------
their respective predecessors, successors, assigns, directors (but only in
<PAGE>
Mr. Thomas W. Lattin
November 3, 1999
Page 4
their capacities as directors of the Companies) and officers (but only in their
capacities as officers of the Companies) voluntarily and irrevocably release and
discharge you and your successors, assigns, heirs and survivors from any and all
charges, complaints, claims, promises, agreements, causes of action, damages and
debts, (including attorney's fees and costs actually incurred) which any of them
have, claim to have, ever had or ever claimed to have had against you through
the date hereof, known or unknown, which relate to good faith acts or omissions
by you during the course of your employment undertaken or not undertaken in the
reasonable belief that such acts or omissions were in the best interests of the
Companies.
The Companies further represent that they do not have any knowledge at this
time of any acts or omissions by you that would give rise claims not otherwise
released in the previous paragraph.
5. Employment Agreement
--------------------
This Agreement supersedes all provisions of any employment agreements,
express or implied, you have entered into with any of the Companies, except that
Paragraphs 4, 5, 13 and 15 of that certain Executive Employment Agreement, dated
as of April 14, 1997, by and between PAHI and you (the "Employment Agreement")
are incorporated herein by reference and shall continue to bind you in
accordance with their respective terms. For purposes of Paragraph 5 of the
Employment Agreement, you acknowledge that the termination of your employment
shall not be deemed to be "solely by reason of the expiration of the Period of
Employment without extension."
6. Return of Property
------------------
All documents, records, material and all copies of any of the foregoing
pertaining to Confidential Information (as defined in Paragraph 4 of the
Employment Agreement), and all software, equipment, and other supplies, whether
or not pertaining to Confidential Information, that have come into your
possession or been produced by you in connection with your employment
("Property") have been and remain the sole property of the Companies. You shall
return all Property to the Companies on or before the Resignation Date. In no
event should this provision be construed to require you to return to the Company
any document or other materials concerning your remuneration and benefits during
your employment with the Companies.
<PAGE>
Mr. Thomas W. Lattin
November 3, 1999
Page 5
7. Nondisparagement
----------------
You agree not to take any action or make any statement, written or oral,
which disparages or criticizes the Companies or their respective officers,
directors, agents, or management and business practices, or which disrupts or
impairs the Companies' normal operations. The Companies, on behalf of
themselves, agree (a) not to take any action or make any statement, written or
oral, which disparages or criticizes you or your management and business
practices, and (b) to instruct their respective directors and officers not to
take any action or make any statement, written or oral, which disparages or
criticizes you or your management and business practices. The provisions of
this Section 7 shall not apply to any truthful statement required to be made by
you or the Companies, as the case may be, in any legal proceeding or
governmental or regulatory investigation.
8. Additional Representations, Warranties and Covenants
----------------------------------------------------
(a) As a material inducement to the Companies to enter into this
Agreement, you represent, warrant and covenant as follows:
(i) You have not assigned to any third party any Claim released by this
Agreement.
(ii) You have not heretofore filed with any agency or court any Claim
released by this Agreement.
(b) As a material inducement to you to enter into this Agreement, the
Companies represent, warrant and covenant as follows:
(i) The Companies have not assigned to any third party any claim against
you released by this Agreement; and
(ii) The Companies have not heretofore filed with any agency or court any
claim against you released by this Agreement.
<PAGE>
Mr. Thomas W. Lattin
November 3, 1999
Page 6
9. Further Assurances
------------------
Upon the terms and subject to the conditions herein provided, each of the
parties hereto agrees to use its reasonable efforts to take, or cause to be
taken, all action and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, subject, in the case
of the Companies, to the provisions of any credit agreement or financing
agreement or other contract or agreement by which any of the Companies may be
bound.
10. Exclusivity
-----------
This Agreement sets forth all the consideration to which you are entitled
from the Companies by reason of your resignation and your duties for the
Companies while employed, and you agree that you shall not be entitled to or
eligible for any payments or benefits under any other Company severance, bonus,
retention or incentive policy, arrangement or plan.
11. Tax Matters
-----------
All payments and other consideration provided to you pursuant to this
Agreement shall be subject to any deductions, withholding or tax reporting that
the Companies reasonably determine to be required for tax purposes. You and the
Companies understand that there may be tax consequences under Section 280G and
4999 of the Internal Revenue Code with respect to the payments and benefits to
you hereunder. The Companies agree to review and discuss with you such tax
consequences, but you understand and agree that none of the Companies hereby are
making any commitment of contractual significance to provide any other payments
to you as a result of such tax consequences.
12. Arbitration of Disputes
-----------------------
Any controversy or claim arising out of or relating to this Agreement or
the breach thereof shall, to the fullest extent permitted by law, be settled by
arbitration in accordance with Paragraph 15 of the Employment Agreement. This
Section 12 shall be specifically enforceable. Notwithstanding the foregoing,
this Section 12 shall not preclude either party from pursuing a court action for
the sole purpose of obtaining a temporary restraining order or a preliminary
injunction in circumstances in which such relief is appropriate; provided that
--------
any other relief shall be pursued through an arbitration proceeding pursuant to
this Section 12.
<PAGE>
Mr. Thomas W. Lattin
November 3, 1999
Page 7
13. Consent to Jurisdiction
-----------------------
To the extent that any court action is permitted consistent with or to
enforce Section 12 of this Agreement, the parties hereby consent to the
jurisdiction of the state and federal courts in or for Dallas, Texas.
Accordingly, with respect to any such court action, you and the Companies (a)
submit to the personal jurisdiction of such courts; (b) consent to service of
process; and (c) waive any other requirement (whether imposed by statute, rule
of court, or otherwise) with respect to personal jurisdiction or service of
process.
14. Notices, Acknowledgments and Other Terms
----------------------------------------
(a) You are advised to consult with an attorney before signing this
Agreement.
(b) You acknowledge and agree that the Companies' promises in this
Agreement constitute consideration in addition to anything of value to which you
are otherwise entitled by reason of the termination of your employment.
(c) By signing this Agreement, you acknowledge that you are doing so
voluntarily and knowingly, fully intending to be bound by this Agreement. You
also acknowledge that you are not relying on any representations by us or any
other representative of the Companies concerning the meaning of any aspect of
this Agreement. You understand that this Agreement shall not in any way be
construed as an admission by the Companies of any liability or any act of
wrongdoing whatsoever by the Companies against you and that the Companies
specifically disclaim any liability or wrongdoing whatsoever against you on the
part of themselves and their respective officers, directors, shareholders,
employees and agents. You understand that if you do not to enter into this
Agreement and bring any claims against the Companies, the Companies will dispute
the merits of those claims and contend that they acted lawfully and for good
business reasons with respect to you.
(d) You acknowledge that you have been given the opportunity, if you so
desired, to consider this Agreement for twenty-one (21) days before executing
it. If not signed by you and returned to the General Counsel of WII so that it
is received by close of business on the twenty-second (22nd) day after your
receipt of the Agreement, this Agreement will not be valid. In addition, if you
breach any of the conditions of the Agreement within the twenty-one (21) day
period, the offer of this Agreement will be withdrawn and your execution of the
Agreement will not be valid. In the event that you execute and return this
Agreement within twenty-one (21) days or less of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you
<PAGE>
Mr. Thomas W. Lattin
November 3, 1999
Page 8
had the opportunity to consider this letter agreement for the entire twenty-one
(21) day period. The Companies acknowledge that for a period of seven (7) days
from the date of the execution of this Agreement, you shall retain the right to
revoke this Agreement by written notice delivered to the General Counsel of WII
before the end of such period, and that this Agreement shall not become
effective or enforceable until the expiration of such revocation period (the
"Effective Date").
(e) In the event of any dispute, this Agreement will be construed as a
whole, will be interpreted in accordance with its fair meaning, and will not be
construed strictly for or against either you or the Companies.
(f) The law of the State of Texas will govern any dispute about this
Agreement, including any interpretation or enforcement of this Agreement.
(g) In the event that any provision or portion of a provision of this
Agreement shall be determined to be illegal, invalid or unenforceable, the
remainder of this Agreement shall be enforced to the fullest extent possible and
the illegal, invalid or unenforceable provision or portion of a provision will
be amended by a court of competent jurisdiction to reflect the parties' intent
if possible. If such amendment is not possible, the illegal, invalid or
unenforceable provision or portion of a provision will be severed from the
remainder of this Agreement and the remainder of this Agreement shall be
enforced to the fullest extent possible as if such illegal, invalid or
unenforceable provision or portion of a provision was not included.
(h) This Agreement may be modified only by a written agreement signed by
you and authorized representatives of the Companies.
(i) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
between the parties with respect to any related subject matter; provided that
--------
the Indemnification Agreement shall remain in full force and effect in
accordance with its terms.
(j) This Agreement shall be binding upon each of the parties and upon their
respective heirs, administrators, representatives, executors, successors and
assigns, and shall inure to the benefit of each party and to their heirs,
administrators, representatives, executors, successors, and assigns.
<PAGE>
Mr. Thomas W. Lattin
November 3, 1999
Page 9
If you agree to these terms, please sign and date below and return this
Agreement to the General Counsel of WII.
Sincerely,
WYNDHAM INTERNATIONAL, INC.
By:
------------------------------------
James D. Carreker
Chairman and Chief Executive Officer
Accepted and agreed to:
- ----------------------------------- ---------------------------------------
Thomas W. Lattin Date
<PAGE>
EXHIBIT 10.19
[LETTERHEAD OF WYNDHAM INTERNATIONAL APPEARS HERE]
March 22, 2000
Mr. Stanley M. Koonce, Jr.
c/o Wyndham International, Inc.
1950 Stemmons Parkway, Suite 6001
Dallas, Texas 75207
Dear Mr. Koonce:
This letter agreement (the " Agreement") confirms the agreement that we
have reached regarding the termination of your employment with Wyndham
International, Inc. ("WII") and its respective related and affiliated entities
(collectively, the "Companies") for a " Good Reason."
The purpose of this Agreement is to establish a mutually agreeable
arrangement for ending your employment. This Agreement does not constitute and
should not be construed as an admission by the Companies that they have in any
way violated any legal obligation that they owe to you or to any other person or
as an admission by you that you have in any way violated any legal obligation
that you owe to the Companies or to any other person. To the contrary, the
parties' willingness to enter into this Agreement demonstrates that they are
continuing to deal with each other fairly and in good faith.
With those understandings and in exchange for the promises set forth below,
you and the Companies agree as follows:
Termination
You hereby acknowledge that your employment with WII will terminate
effective as of April 28, 2000 (the "Date of Termination"). Any offices or
affiliations that you hold with any of the Companies will also terminate as of
the Date of Termination. You and WII acknowledge that your termination from
employment is a Termination for a Good Reason as defined by Subparagraph 6(e) of
the April 19, 1999 (Amended and Restated) Executive Employment Agreement between
you and WII (the " Employment Agreement"). You and WII acknowledge that the
"Good Reason Process" pursuant to such Subparagraph 6(e) has been satisfied in
all respects. Subject to earlier termination in accordance with Paragraph 6 of
the Employment Agreement, WII will continue your salary and benefits through the
Date of Termination pursuant to Paragraph 7(d) of the Employment Agreement and
shall pay you a pro rata bonus of Forty-Three Thousand Six Hundred Eighty
Dollars ($43,680) in respect of 2000 on the Date of Termination.
<PAGE>
2. Compensation and Benefits
(a) Effect of Termination on Equity Grants. You understand and
acknowledge that the Option (as defined in the Employment Agreement) granted to
you on April 19, 1999 will continue to vest for 24 months following the Date of
Termination and remain exercisable thereafter in accordance with and subject to
the terms and conditions of Paragraph 3(c) of the Wyndham International, Inc.
Non-Qualified Stock Option Agreement, dated as of April 19, 1999, by and between
you and WII; all remaining unvested portions of the Option then will lapse. Your
rights to any vested stock options and other stock-based awards granted to you
by the Companies shall survive the Date of Termination in accordance and upon
the terms provided in the employee stock option or incentive plan or any
agreement or other instrument attendant thereto pursuant to which such options
or awards were granted.
(b) Severance. In recognition of your service to WII, and in full
satisfaction of any and all claims you may have against the Companies, as more
fully set forth in Paragraph 3 below, the Companies will pay you Eight Hundred
Ninety Thousand Four Hundred Dollars ($890,400) (the " Severance Payment")
subject to the conditions set forth in Paragraph 7(d)(i) of the Employment
Agreement, including but not limited, your continuing strict adherence to the
restrictions set forth in Paragraphs 4 and 5 of the Employment Agreement. You
acknowledge and agree that this Severance Payment fully and completely satisfies
the Companies' obligation to pay your severance under Paragraph (7)(d)(i) of the
Employment Agreement. The Severance Payment shall be reduced by applicable
withholdings and shall be payable as follows: Eight Hundred Ninety Thousand Four
Hundred Dollars ($890,400) in equal bi-weekly installments over a period of
twenty-four (24) months commencing on April 29,2000 (the "Severance Period"). In
the event that you commence any employment, whether as an employee or through
self-employment, during the Severance Period, the Companies shall be entitled to
set-off against the remaining installments of the Severance Payment fifty
percent (50%) of the amount of any cash compensation received by you from the
new employment. You shall provide the Companies notice of any new employment and
compensation after the Date of Termination.
(c) Health/Dental/Vision/Disability/Life Benefits.
(i) You and your eligible dependents will be eligible to receive
continuation coverage under WII's group health, dental and vision plans to
the extent authorized by and consistent with 29 U.S.C. (S) 1161 et seq.
(commonly known as "COBRA") and applicable group health, dental or vision
plan terms. To the extent you and your eligible dependents elect to
continue coverage in one or more plans under COBRA, the company will pay
the costs of such coverage(s) on your behalf until the earlier of (A)
twelve (12) months after the Date of Termination Date or (B) you become
eligible for similar coverage provided by another employer. WII will permit
you to continue coverage in one or more plans under COBRA at your own cost
until the earlier of (A)
<PAGE>
3
Mr. Stanley M. Koonce, Jr.
March 22, 2000
Page 3
twenty four (24) months after the Date of Termination Date or (B) you
become eligible for similar coverage provided by another employer.
(ii) WII will permit you continue to maintain your coverage under its
group long term disability and term life insurance plans entirely at your
own cost until the earlier of (A) twelve (12) months after the Date of
Termination Date or (B) you become eligible for similar coverage provided
by another employer.
(d) Tax Preparation. The Companies shall provide reasonable
assistance in connection with preparation of tax returns, among other support,
for a period of five (5) years beginning on the Date of Termination, in
accordance with Paragraph 7(f) of the Employment Agreement.
(e) Outplacement. WII shall pay for the reasonable costs (not to
exceed $27,000) of executive outplacement services selected by you for use in
connection with obtaining other employment for up to six (6) months from the
Date of Termination or through the date you secure new employment, whichever
occurs first.
(f) Gross Up Payment. You remain eligible for a Gross Up Payment, if
necessary, as provided for in Paragraph 8(b) of the Employment Agreement.
(g) Other Benefits. Except as expressly provided above, your
eligibility to participate in any of the Companies' respective employee benefit
plans and programs ceases on or after the Date of Termination in accordance with
the terms and conditions of each of those benefit plans and programs and your
rights to benefits under any of the employee benefit plans and programs, if any,
are governed by the terms and conditions of each of those employee benefit plans
and programs.
(h) Promissory Note. Section 3 of that certain No Personal Liability
Nonrecourse Promissory Note, dated April 19, 1999, made by you and attached to
the Employment Agreement as Exhibit B (the " Note") is hereby amended to provide
that so long as you continue to adhere strictly to your continuing obligations
under Paragraphs 4 and 5 of the Employment Agreement, as incorporated and
modified hereinbelow, WII agrees that the principal balance and accrued interest
on the Note shall not become due and payable until April 28, 2002. In the event
you breach any of your continuing obligations under Paragraphs 4 or 5 of the
Employment Agreement, as incorporated and modified hereinbelow, the principal
balance and accrued interest on the Note shall become due and payable
immediately. WII further agrees that in the event you comply faithfully with
your continuing obligations under Paragraphs 4 and 5 of the Employment
Agreement, as incorporated and modified hereinbelow,
<PAGE>
4
Mr. Stanley M. Koonce, Jr.
March 22, 2000
Page 4
through April 28, 2002, the principal balance and accrued interest on the Note
shall not become due and payable until April 28, 2004.
3. Release of Claims.
You voluntarily and irrevocably release and discharge the Companies, their
related or affiliated entities, and their respective predecessors, successors,
and assigns, (including but not limited to Patriot American Hospitality, Inc.
("PAHI")), and the current and former officers, directors, shareholders,
employees, and agents of each of the foregoing (any and all of which are
referred to as "Releasees") generally from all charges, complaints, claims,
promises, agreements, causes of action, damages, and debts that relate in any
manner to your employment with or services for the Companies, known or unknown
("Claims"), which you have, claim to have, ever had, or ever claimed to have
had against any of the Releasees through the date on which you execute this
Agreement. This general release of Claims includes, without implication of
limitation, all Claims for or related to: the Employment Agreement; the
compensation provided to you by the Companies; your termination as described in
Paragraph 1; wrongful or constructive discharge; breach of contract; breach of
any implied covenant of good faith and fair dealing; tortious interference with
advantageous relations; intentional or negligent misrepresentation, fraud or
deceit; infliction of emotional distress, and unlawful retaliation or
discrimination under the common law or any federal, state or local statute or
law (including, without implication of limitation, the Employee Retirement
Income Security Act, Title VII of the Civil Rights Act of 1964, the American
with Disabilities Act, the Age Discrimination in Employment Act, Tex. Lab. Code
(s)(s)21.001, et seq., Tex. Hum. Res. Code (s)(s)121.001, et seq.). You also
waive any Claim for reinstatement, severance, incentive or retention pay (except
as expressly provided in this Agreement), attorney's fees, or costs, relating to
the above waived claims.
You agree that you will not hereafter pursue any Claim against any Releasee
by filing a lawsuit in any local, state or federal court for or on account of
anything which has occurred up to the present time as a result of your
employment, and you shall not seek reinstatement with, or damages of any nature,
severance, incentive or retention pay, attorney's fees, or costs from the
Companies or any of the other Releasees.
<PAGE>
5
Mr. Stanley M. Koonce, Jr.
March 22, 2000
Page 5
4. Employment Agreement
This Agreement supersedes all provisions of the Employment Agreement other
than Paragraphs 4 (Unauthorized Disclosure), 5 (Covenant Not to Compete), 6
(Termination), 7 (Compensation Upon Termination or During Disability), 8(b)
(Gross Up Payment), 13 (Arbitration; Other Disputes) and 15 (Litigation and
Regulatory Cooperation) thereof, which provisions are incorporated herein by
reference and shall continue to bind you in accordance with their respective
terms.
5. Return of Property
All documents, records, material and all copies of any of the foregoing
pertaining to Confidential Information (as defined in Paragraph 4(a) of the
Employment Agreement), and all software, equipment, and other supplies, whether
or not pertaining to Confidential Information, that have come into your
possession or been produced by you in connection with your employment
("Property") have been and remain the sole property of the Companies. You shall
return all Property to the Companies on or before the Date of Termination. In no
event should this provision be construed to require you to return to the Company
any document or other materials concerning your remuneration and benefits during
your employment with the Companies.
6. Nondisparagement
You agree not to take any action or make any statement, written or oral,
which disparages or criticizes the Companies or their respective officers,
directors, agents, or management and business practices, or which disrupts or
impairs the Companies' normal operations. The Companies, on behalf of
themselves, agree (a) not to take any action or make any statement, written or
oral, which disparages or criticizes you or your management and business
practices, and (b) to instruct their respective directors and officers not to
take any action or make any statement, written or oral, which disparages or
criticizes you or your management and business practices. The provisions of this
Paragraph 6 shall not apply to any truthful statement required to be made by you
or the Companies, as the case may be, in any legal proceeding or governmental or
regulatory investigation.
7. Additional Representations, Warranties and Covenants. As a material
inducement to the Companies to enter into this Agreement, you represent, warrant
and covenant as follows:
(a) You have not assigned to any third party any Claim released by
this Agreement.
<PAGE>
6
Mr. Stanley M. Koonce, Jr.
March 22, 2000
Page 6
(b) You have not heretofore filed with any agency or court any Claim
released by this Agreement.
8. Further Assurances
Upon the terms and subject to the conditions herein provided, each of the
parties hereto agrees to use its reasonable efforts to take, or cause to be
taken, all action and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, subject, in the case
of the Companies, to the provisions of any credit agreement or financing
agreement or other contract or agreement by which any of the Companies may be
bound.
9. Exclusivity
This Agreement sets forth all the consideration to which you are entitled
from the Companies by reason of your termination and your duties for the
Companies while employed, and you agree that you shall not be entitled to or
eligible for any payments or benefits under any other Company severance, bonus,
retention or incentive policy, arrangement or plan.
10. Tax Matters
All payments and other consideration provided to you pursuant to this
Agreement shall be subject to any deductions, withholding or tax reporting that
the Companies reasonably determine to be required for tax purposes.
11. Arbitration of Disputes
Any controversy or claim arising out of or relating to this Agreement or
the breach thereof shall, to the fullest extent permitted by law, be settled by
arbitration in accordance with Paragraph 13 of the Employment Agreement. This
Paragraph 11 shall be specifically enforceable. Notwithstanding the foregoing,
this Paragraph 11 shall not preclude either party from pursuing a court action
for the sole purpose of obtaining a temporary restraining order or a preliminary
injunction in circumstances in which such relief is appropriate; provided that
any other relief shall be pursued through an arbitration proceeding pursuant to
this Paragraph 11.
<PAGE>
7
Mr. Stanley M. Koonce, Jr.
March 22, 2000
Page 7
12. Consent to Jurisdiction
To the extent that any court action is permitted consistent with or to
enforce Paragraph 11 of this Agreement, the parties hereby consent to the
jurisdiction of the state and federal courts in or for Dallas, Texas.
Accordingly, with respect to any such court action, you and the Companies (a)
submit to the personal jurisdiction of such courts; (b) consent to service of
process; and (c) waive any other requirement (whether imposed by statute, rule
of court, or otherwise) with respect to personal jurisdiction or service of
process.
13. Notices, Acknowledgments and Other Terms
(a) You are advised to consult with an attorney before signing this
Agreement.
(b) You acknowledge and agree that the Companies' promises in this
Agreement constitute consideration in addition to anything of value to which you
are otherwise entitled by reason of the termination of your employment.
(c) By signing this Agreement, you acknowledge that you are doing so
voluntarily and knowingly, fully intending to be bound by this Agreement. You
also acknowledge that you are not relying on any representations by us or any
other representative of the Companies concerning the meaning of any aspect of
this Agreement. You understand that this Agreement shall not in any way be
construed as an admission by the Companies of any liability or any act of
wrongdoing whatsoever by the Companies against you and that the Companies
specifically disclaim any liability or wrongdoing whatsoever against you on the
part of themselves and their respective officers, directors, shareholders,
employees and agents. You understand that if you do not enter into this
Agreement and bring any claims against the Companies, the Companies will dispute
the merits of those claims and contend that they acted lawfully and for good
business reasons with respect to you.
(d) You acknowledge that you have been given the opportunity, if you
so desired, to consider this Agreement for twenty-one (21) days before executing
it. If not signed by you and returned to the General Counsel of WII so that it
is received by close of business on the twenty-second (22nd) day after your
receipt of the Agreement, this Agreement will not be valid. In addition, if you
breach any of the conditions of the Agreement within the twenty-one (21) day
period, the offer of this Agreement will be withdrawn and your execution of the
Agreement will not be valid. In the event that you execute and return this
Agreement within twenty-one (21) days or less of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you had
the opportunity to consider this letter agreement for the entire twenty-one (21)
day period. The Companies acknowledge that for a
<PAGE>
8
Mr. Stanley M. Koonce, Jr.
March 22, 2000
Page 8
period of seven (7) days from the date of the execution of this Agreement, you
shall retain the right to revoke this Agreement by written notice delivered to
the General Counsel of WII before the end of such period, and that this
Agreement shall not become effective or enforceable until the expiration of such
revocation period (the " Effective Date").
(e) In the event of any dispute, this Agreement will be construed as
a whole, will be interpreted in accordance with its fair meaning, and will not
be construed strictly for or against either you or the Companies.
(f) The law of the State of Texas will govern any dispute about this
Agreement, including any interpretation or enforcement of this Agreement.
(g) In the event that any provision or portion of a provision of this
Agreement shall be determined to be illegal, invalid or unenforceable, the
remainder of this Agreement shall be enforced to the fullest extent possible and
the illegal, invalid or unenforceable provision or portion of a provision will
be amended by a court of competent jurisdiction to reflect the parties' intent
if possible. If such amendment is not possible, the illegal, invalid or
unenforceable provision or portion of a provision will be severed from the
remainder of this Agreement and the remainder of this Agreement shall be
enforced to the fullest extent possible as if such illegal, invalid or
unenforceable provision or portion of a provision was not included.
(h) This Agreement may be modified only by a written agreement signed
by you and authorized representatives of the Companies.
(i) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements between the parties with respect to any related subject matter,
except as provided in Paragraph 4 hereof and except for the Non Recourse
Promissory Note between the parties dated April 19, 1999 (as amended herein) and
except for the WII Non-Qualified Stock Option Agreement dated as of April 19,
1999 (as referenced in sub- paragraph 2 (a) above), which remains in effect in
accordance with its terms.
(j) This Agreement shall be binding upon each of the parties and upon
their respective heirs, administrators, representatives, executors, successors
and assigns, and shall inure to the benefit of each party and to their heirs,
administrators, representatives, executors, successors, and assigns.
<PAGE>
9
Mr. Stanley M. Koonce, Jr.
March 22, 2000
Page 9
If you agree to these terms, please sign and date below and return this
Agreement to the General Counsel of WII within 22 days.
Sincerely,
WYNDHAM INTERNATIONAL, INC.
By: /s/ James D. Carreker
------------------------------------------
James D. Carreker
Chief Executive Officer
Accepted and agreed to:
/s/ Stanley M. Koonce March 24, 2000
- ------------------------------ ------------------------------------------
Stanley M. Koonce Date
<PAGE>
EXHIBIT 10.20
=============
WYNDHAM INTERNATIONAL, INC.
1997 INCENTIVE PLAN
(As Amended and Restated
as of June 29, 1999)
<PAGE>
WYNDHAM INTERNATIONAL, INC.
1997 INCENTIVE PLAN
(As Amended and Restated
as of June 29, 1999)
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
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----
<S> <C> <C>
ARTICLE I - DEFINITIONS..................................................... 1
1.01 Affiliate..................................................... 1
1.02 Agreement..................................................... 1
1.03 Award or Awards............................................... 2
1.04 Board......................................................... 2
1.05 Code.......................................................... 2
1.06 Committee..................................................... 2
1.07 Deferred Unit Award........................................... 2
1.08 Dividend Equivalent Rights.................................... 2
1.09 Effective Date................................................ 2
1.10 Exchange Act.................................................. 2
1.11 Fair Market Value............................................. 2
1.12 Independent Director.......................................... 3
1.13 Company....................................................... 3
1.14 Stock......................................................... 3
1.15 Share Award................................................... 3
1.16 Participant................................................... 3
1.17 Plan.......................................................... 3
1.18 Restricted Unit Award......................................... 3
ARTICLE II - PURPOSES....................................................... 3
ARTICLE III - ADMINISTRATION................................................ 4
ARTICLE IV - ELIGIBILITY.................................................... 5
ARTICLE V - SHARES SUBJECT TO PLAN.......................................... 6
5.01 Shares Issued................................................. 6
5.02 Substitute Awards............................................. 7
ARTICLE VI - OPTIONS........................................................ 7
6.01 Award......................................................... 7
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
6.02 Option Price.................................................. 7
6.03 Stock Options Granted to Independent Directors................ 8
6.04 Maximum Option Period......................................... 8
6.05 Nontransferability............................................ 8
6.06 Transferable Options.......................................... 9
6.07 Employee Status............................................... 9
6.08 Exercise...................................................... 9
6.09 Payment....................................................... 9
6.10 Shareholder Rights............................................ 10
ARTICLE VII - SHARE AWARDS.................................................. 11
ARTICLE VIII - RESTRICTED UNIT AWARDS....................................... 11
8.01 Award......................................................... 11
8.02 Vesting....................................................... 11
8.03 Performance Objectives........................................ 12
8.04 Employee Status............................................... 12
8.05 Shareholder Rights............................................ 12
8.06 Nontransferability............................................ 13
ARTICLE IX - DEFERRED UNIT AWARDS........................................... 13
9.01 Elections to Receive Deferred Unit Awards in Lieu of
Compensation................................................ 13
9.02 Terms and Conditions.......................................... 13
9.03 Form of Payment............................................... 13
9.04 Shareholder Rights............................................ 14
9.05 Nontransferability............................................ 14
ARTICLE X - DIVIDEND EQUIVALENT RIGHTS...................................... 14
10.01 Awards........................................................ 14
10.02 Payment....................................................... 15
10.03 Shareholder Rights............................................ 15
10.04 Nontransferability............................................ 15
ARTICLE XI - CHANGE IN CONTROL PROVISIONS................................... 16
ARTICLE XII - ADJUSTMENT UPON CHANGE IN STOCK............................... 17
12.01 Adjustments................................................... 17
12.02 Mergers or Other Corporate Transactions....................... 17
ARTICLE XIII - COMPLIANCE WITH LAW.......................................... 18
ARTICLE XIV - GENERAL PROVISIONS............................................ 19
14.01 Effect on Employment and Service.............................. 19
14.02 Unfunded Plan................................................. 19
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
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<S> <C> <C>
14.03 Rules of Construction......................................... 20
ARTICLE XV - AMENDMENT...................................................... 20
ARTICLE XVI - EFFECTIVE DATE OF PLAN........................................ 20
ARTICLE XVII - GOVERNING LAW................................................ 21
</TABLE>
(iii)
<PAGE>
WYNDHAM INTERNATIONAL, INC.
1997 INCENTIVE PLAN
(As Amended and Restated as of June 29, 1999)
The name of the plan is the Wyndham International, Inc. 1997 Incentive Plan
(the "Plan"). The purpose of the Plan is to encourage and enable the officers,
employees, Independent Directors and other key persons (including consultants)
of Wyndham International, Inc. (the "Company") and its Affiliates upon whose
judgment, initiative and efforts the Company largely depends for the successful
conduct of its business to acquire a proprietary interest in the Company. It is
anticipated that providing such persons with a direct stake in the Company's
welfare will assure a closer identification of their interests with those of the
Company, thereby stimulating their efforts on the Company's behalf and
strengthening their desire to remain with the Company.
ARTICLE I - DEFINITIONS
-----------------------
1.01 Affiliate means any "subsidiary" or "parent" corporation (within the
---------
meaning of Section 424 of the Code) of the Company or means any corporation or
other entity (other than the Company) in any unbroken chain of corporations or
other entities beginning with the Company if each of the corporations or
entities (other than the last corporation or entity in the unbroken chain) owns
stock or other interests possessing 50 percent or more of the economic interest
or the total combined voting power of all classes of stock or other interests in
one of the other corporations or entities in the chain.
1.02 Agreement means a written agreement (including any amendment or
---------
supplement thereto) between the Company and a Participant specifying the terms
and conditions of an Award.
<PAGE>
1.03 Award or Awards, except when referring to a particular category of
----- ------
grant under the Plan, shall include Options, Share Awards, Restricted Unit
Awards, Deferred Unit Awards, or awards of Dividend Equivalent Rights.
1.04 Board means the Board of Directors of the Company.
-----
1.05 Code means the Internal Revenue Code of 1986, and any amendments
----
thereto.
1.06 Committee means the Compensation Committee of the Board. Each member
---------
of the Committee shall be an "outside director" within the meaning of Section
162(m) of the Code and the regulations promulgated thereunder and a "non-
employee director" within the meaning of Rule 16b-3(b)(3)(i) promulgated under
the Exchange Act.
1.07 Deferred Unit Award means an award granted pursuant to Article IX
-------------------
which entitles the holder to defer receipt of current cash compensation in
exchange for a right to receive shares of Stock in the future at the price or
prices set forth in the Agreement.
1.08 Dividend Equivalent Rights means an award granted pursuant to Article
--------------------------
X which entitles the holder to receive compensation based on cash dividends and
distributions payable with respect to shares of Stock.
1.09 Effective Date means the date on which the Plan is approved by
--------------
shareholders as set forth in Article XVII.
1.10 Exchange Act means the Securities Exchange Act of 1934, as amended
------------
and as in effect on the date of this Agreement.
1.11 Fair Market Value means, on any given date, the closing price of a
-----------------
share of Stock, as reported on the New York Stock Exchange. In any case, if no
sale of shares of Stock
2
<PAGE>
is made on the New York Stock Exchange on that date, then Fair Market Value
shall be determined as of the next preceding day on which there was a sale of
such security.
1.12 Independent Director means a member of the Board who is not also an
--------------------
employee of the Company or any Affiliate.
1.13 Company means Wyndham International, Inc.
-------
1.14 Stock means the Class A common stock of the Company.
-----
1.15 Share Award means shares of Stock awarded to a Participant under
-----------
Article VII as incentive compensation or in lieu of current cash compensation.
1.16 Participant means an employee of the Company or an Affiliate, a
-----------
member of the Board, or an individual whose efforts contribute to the
performance or success of the Company or an Affiliate, who satisfies the
requirements of Article IV and is selected by the Committee to receive an Award
under the Plan.
1.17 Plan means the Wyndham International, Inc. 1997 Incentive Plan.
----
1.18 Restricted Unit Award means an Award granted pursuant to Article VIII
---------------------
which entities the holder to receive a payment of shares of Stock upon the
satisfaction of the vesting restriction period or performance goals.
ARTICLE II - PURPOSES
---------------------
The Plan is intended to assist the Company and its Affiliates in recruiting
and retaining individuals with ability and initiative by enabling such persons
to participate in the future success of the Company and its Affiliates, and to
associate their interests with those of the Company and its shareholders.
3
<PAGE>
The Plan is intended to permit the grant of Options which do not qualify
under Section 422 of the Code as incentive stock options. The Plan is also
intended to permit the grant of Share Awards, Restricted Unit Awards, Deferred
Unit Awards and Dividend Equivalent Rights. The proceeds received by the
Company from the sale of shares of Stock pursuant to this Plan shall be used for
general corporate purposes. Each Option or other Award may be exercised,
terminated, canceled, forfeited, transferred or otherwise disposed of only in
units consisting of shares of Stock.
ARTICLE III - ADMINISTRATION
----------------------------
The Plan shall be administered by the Committee. The Committee shall have
authority to grant any Awards upon such terms (not inconsistent with the
provisions of this Plan) as the Committee may consider appropriate. Such terms
may include conditions (in addition to those contained in this Plan) on the
exercisability of all or any part of an Option or on the transferability or
forfeitability of any Award. The Committee may in connection with the death,
disability or other termination of employment of a Participant or a Change in
Control of the Company accelerate the time at which any Option may be exercised
or, the time at which a Restricted Unit Award may become transferable or
nonforfeitable. In addition, the Committee shall have complete authority to
interpret all provisions of this Plan; to prescribe the form of Agreements; to
adopt, amend, and rescind rules and regulations pertaining to the administration
of the Plan; and to make all other determinations necessary or advisable for the
administration of this Plan. The express grant in the Plan of any specific
power to the Committee shall not be construed as limiting any power or authority
of the Committee. Any decision made, or action taken, by the Committee or in
connection with the administration of
4
<PAGE>
this Plan shall be final and conclusive. No member of the Committee shall be
liable for any act done in good faith with respect to this Plan or any Agreement
or Award. All expenses of administering this Plan shall be borne by the Company.
The Committee, in its discretion, may delegate to one or more officers of
the Company all or part of the Committee's authority and duties with respect to
grants and awards to individuals who are not "covered employees" within the
meaning of Section 162(m) of the Code or subject to the reporting and other
provisions of Section 16 of the Exchange Act. Any such delegation by the
Committee shall include a limitation as to the amount of Awards that may be
granted during the period of the delegation and shall contain guidelines as to
the determination of the exercise price of any Option, the conversion ratio or
price of other Awards and the vesting criteria. The Committee may revoke or
amend the terms of a delegation at any time but such action shall not invalidate
any prior actions of the Committee's delegate or delegates that were consistent
with the terms of the Plan.
ARTICLE IV - ELIGIBILITY
------------------------
Any employee of the Company or an Affiliate (including a corporation or
other entity that becomes an Affiliate after the adoption of this Plan) or a
person whose efforts contribute to the performance or success of the Company or
an Affiliate (including a corporation or other entity that becomes an Affiliate
after the adoption of this Plan), including a consultant, is eligible to
participate in this Plan if the Committee, in its sole discretion, determines
that such person has contributed significantly or can be expected to contribute
significantly to the profits or growth of the Company or an Affiliate.
Independent Directors of the Company are also eligible to participate in this
Plan.
5
<PAGE>
ARTICLE V - SHARES SUBJECT TO PLAN
----------------------------------
5.01 Shares Issued. Subject to adjustment as provided in Section 13.01,
-------------
the aggregate number of shares of Stock available from time to time for all
Awards under this Plan shall be such aggregate number of shares as does not
exceed the sum of (i) 3,000,000 shares; plus (ii) as of the beginning of each
calendar quarter, beginning with October 1, 1997, 10 percent of any net increase
since the beginning of the preceding calendar quarter in the total number of
shares of Stock actually outstanding (assuming all units of partnership interest
in the Patriot American Hospitality Partnership, L.P. and the Wyndham
International Operating Partnership, L.P. that are subject to redemption rights
are converted into shares of Stock)]; reduced by (iii) the aggregate number of
shares of Stock subject to Awards under this Plan. For purposes of this
limitation, if any portion of an Award is forfeited, canceled, reacquired by the
Company, satisfied without the issuance of Stock or otherwise terminated, the
shares of Stock underlying such portion of the Award shall be added back to the
shares of Stock available for issuance under the Plan. Notwithstanding the
foregoing, the maximum number of shares of Stock for which Restricted Unit
Awards, Share Awards and Deferred Unit Awards may be granted under this Plan
during the term of the Plan shall not exceed forty percent (40%) of the shares
of Stock issuable under the Plan, and the maximum number of shares of Stock with
respect to which Awards may be granted during any calendar year period to any
Participant shall not exceed 1,500,000 shares, subject to adjustment as provided
in Section 12.01.
Shares of Stock to be delivered under the Plan shall be made available by
the Company from authorized and unissued shares of Stock issued by the Company
directly to the holder.
6
<PAGE>
5.02 Substitute Awards. The Committee may grant Awards under the Plan in
-----------------
substitute for stock and stock-based awards held by employees of another
employer who become employees of the Company or an Affiliate as the result of a
merger or consolidation of the employer with the Company or an Affiliate, or the
acquisition by the Company or an Affiliate of property or stock of the employer.
The Administrator may direct that the substitute awards be granted on such terms
and conditions as the Administrator consider appropriate in the circumstances
whether or not specifically authorized under the Plan. Unless otherwise
provided by the Administrator, any grants of shares of Stock under this Section
5.02 shall not count against the shares of Stock available for issuance under
the Plan under Section 5.01.
ARTICLE VI - OPTIONS
--------------------
6.01 Award. In accordance with the provisions of Article IV, the Committee
-----
will designate each individual to whom an Option is to be granted and will
specify the number of shares of Stock covered by such awards.
6.02 Option Price. The price per share of Stock purchased on the exercise
------------
of an Option shall be determined by the Committee on the date of grant;
provided, however, that the price per share of Stock purchased on the exercise
of any Option shall not be less than one hundred percent (100%) of the Fair
Market Value of a share of Stock on the date of grant of such Option. Except as
provided in Section 12.01, the Option price may not be reduced after the date of
grant. The foregoing sentence is not intended to, and shall not be interpreted
to, prohibit the Committee from authorizing the exchange of outstanding Options
for new Options
7
<PAGE>
for fewer shares at a reduced exercise price so long as the exchange is made on
a comparable value basis (as determined under a generally recognizable option
pricing model).
6.03 Stock Options Granted to Independent Directors. Prior to 1999, each
----------------------------------------------
Independent Director who was serving as Director of the Company on each annual
meeting of shareholders, beginning with the 1997 annual meeting, was
automatically granted on such day a non-qualified stock option to acquire 10,000
shares of Stock, subject to adjustments as provided in Section 12.01. The
exercise price per share of Stock covered by an Option granted under this
Section 6.03 shall be equal to the Fair Market Value of a share of Stock on the
date of grant.
The Committee, in its discretion, may grant additional Options to
Independent Directors. Any such grant may vary among individual Independent
Directors. Unless otherwise determined by the Committee, an Option granted
under Section 6.03 shall be exercisable in full as of the grant date.
6.04 Maximum Option Period. The maximum period in which an Option may be
---------------------
exercised shall be determined by the Committee on the date of grant and may not
exceed ten years from the date such Option was granted.
6.05 Nontransferability. Except as provided in Section 6.06, each Option
------------------
granted under this Plan shall be nontransferable except by will or by the laws
of descent and distribution. During the lifetime of the Participant to whom the
Option is granted, the Option may be exercised only by the Participant. No
right or interest of a Participant in any Option shall be liable for, or subject
to, any lien, obligation, or liability of such Participant.
8
<PAGE>
6.06 Transferable Options. Section 6.05 to the contrary notwithstanding,
--------------------
the Committee may provide in an Agreement regarding a given Option that an
Option that is not an incentive stock option may be transferred by a Participant
to the Participant's children, grandchildren, spouse, one or more trusts for the
benefit of such family members or a partnership in which such family members are
the only partners; provided, however, that the Participant may not receive any
consideration for the transfer. The holder of an Option transferred pursuant to
this section shall be bound by the same terms and conditions that governed the
Option during the period that it was held by the Participant.
6.07 Employee Status. In the event that the terms of any Option provide
---------------
that it may be exercised only during employment or within a specified period of
time after termination of employment, the Committee may decide to what extent
leaves of absence for governmental or military service, illness, temporary
disability, or other reasons shall not be deemed interruptions of continuous
employment.
6.08 Exercise. Subject to the provisions of this Plan and the applicable
--------
Agreement, an Option may be exercised in whole at any time or in part from time
to time at such times and in compliance with such requirements as the Committee
shall determine. An Option granted under this Plan may be exercised with
respect to any number of whole shares less than the full number for which the
Option could be exercised. A partial exercise of an Option shall not affect the
right to exercise the Option from time to time in accordance with this Plan and
the applicable Agreement with respect to the remaining shares subject to the
Option.
6.09 Payment. Unless otherwise provided by the Agreement, payment of the
-------
Option price shall be made in cash or a cash equivalent acceptable to the
Committee. If the
9
<PAGE>
Agreement provides, payment of all or part of the option price may be made by
surrendering to the Company previously owned whole shares of Stock (which the
Participant has held for at least six months prior to the delivery of such
shares of Stock or which the Participant purchased on the open market and for
which the Participant has good title, free and clear of all liens and
encumbrances). If shares of Stock are used to pay all or part of the Option
price, the sum of the cash, cash equivalent, and the Fair Market Value
(determined as of the day preceding the date of exercise) of the shares of Stock
surrendered must not be less than the option price of the shares of Stock for
which the Option is being exercised. If the Agreement provides, payment of all
or part of the option price may be made by the Participant delivering to the
Company a properly executed exercise notice together with irrevocable
instructions to a broker to promptly deliver to the Company cash or a check
payable and acceptable to the Company to pay the purchase price; provided that
in the event the Participant chooses to pay the purchase price as so provided,
the Participant and the broker shall comply with such procedures and enter into
such agreements of indemnity and other agreements as the Committee shall
prescribe as a condition of such payment procedure. If the Agreement provides
and if the Board has authorized the loan of funds to the Participant for the
purpose of enabling or assisting the Participant to exercise his Option, payment
of the option price may be made by the Participant with a promissory note,
provided that at least so much of the exercise price as represents the par value
of the shares of Stock shall be paid other than with a promissory note.
6.10 Shareholder Rights. No Participant shall have any rights as a
------------------
shareholder with respect to shares of Stock subject to his Option until the date
of exercise of such Option.
10
<PAGE>
ARTICLE VII - SHARE AWARDS
--------------------------
In accordance with the provisions of Article IV, the Committee will
designate each individual to whom a Share Award is to be made and will specify
the number of shares of Stock covered by such award. A Share Award shall be
granted as incentive compensation or in lieu of current cash compensation
otherwise payable to a Participant and shall be free of any vesting
restrictions. The Company shall issue or cause to be issued shares of Stock to
a Participant who receives a Share Award.
ARTICLE VIII - RESTRICTED UNIT AWARDS
-------------------------------------
8.01 Award. In accordance with the provisions of Article IV, the Committee
-----
will designate each individual to whom a Restricted Unit Award is to be made and
will specify the number of shares of Stock covered by such award. Such an award
shall entitle the Participant to receive a payment of shares of Stock upon the
satisfaction of the vesting restriction period or satisfaction of performance
objectives; provided, however, that the Committee may permit a Participant to
elect, pursuant to an advance written election delivered to the Company no later
than the date prescribed to the Committee, to defer receipt of some or all of
the shares of Stock.
8.02 Vesting. The Committee, on the date of the award, shall prescribe
-------
that a Participant's rights in the Restricted Unit Award shall be forfeitable or
otherwise restricted for a period of time or subject to such conditions as may
be set forth in the Agreement. The period of restriction shall be at least
three years; provided, however, that the minimum period of restriction shall be
at least one year in the case of a Restricted Unit Award that will become
transferable and nonforfeitable on account of the satisfaction of performance
objectives
11
<PAGE>
prescribed by the Committee. During the restriction period, the Committee may
provide that the Participant's Restricted Unit Award be credited with Dividend
Equivalent Rights.
8.03 Performance Objectives. In accordance with Section 8.02, the
----------------------
Committee may prescribe that Restricted Unit Awards will become vested,
transferable, or both, based on objectives stated with respect to the Company's,
an Affiliate's, or an operating unit's return on equity, funds from operations,
cash available for distribution, earnings per share, total earnings, earnings
growth, return on capital, return on assets, or Fair Market Value of the shares
of Stock. If the Committee, on the date of the award, prescribes that a
Restricted Unit Award shall become nonforfeitable and transferable only upon the
attainment of performance objectives stated with respect to one or more of the
foregoing criteria, the shares of Stock subject to such Restricted Unit Award
shall become nonforfeitable and transferable only to the extent that the
Committee certifies that such objectives have been achieved.
8.04 Employee Status. In the event that the terms of any Restricted Unit
---------------
Award provide that shares of Stock may become transferable and nonforfeitable
thereunder only after completion of a specified period of employment, the
Committee may decide in each case to what extent leaves of absence for
governmental or military service, illness, temporary disability, or other
reasons shall not be deemed interruptions of continuous employment.
8.05 Shareholder Rights. No Participant shall, as a result of receiving a
------------------
Restricted Unit Award, have any rights as a shareholder until and to the extent
that the Restricted Unit Award is settled by the issuance of shares of Stock.
After the Restricted Unit Award is settled in shares of Stock, a Participant
will have all the rights of a shareholder with respect to such
12
<PAGE>
shares of Stock. The Company shall issue, or cause to be issued, shares of Stock
to the Participant.
8.06 Nontransferability. A Restricted Unit Award shall be nontransferable
------------------
except by will or by the laws of descent and distribution. No right or interest
of a Participant in any Restricted Unit Award shall be liable for, or subject
to, any lien, obligation, or liability of such Participant.
ARTICLE IX - DEFERRED UNIT AWARDS
---------------------------------
9.01 Elections to Receive Deferred Unit Awards in Lieu of Compensation.
-----------------------------------------------------------------
The Committee may, in its sole discretion, permit a Participant to elect,
pursuant to an advance written election delivered to the Company no later than
the date specified by the Committee, to defer receipt of all or a portion of the
cash compensation otherwise due to such Participant. The amount of the deferred
compensation shall be converted to a Deferred Unit Award using the Fair Market
Value of the shares of Stock on the date immediately prior to the date the cash
compensation would otherwise be paid.
9.02 Terms and Conditions. At the time the Participant makes a deferred
--------------------
compensation election, the Committee shall direct the Company to enter into an
Agreement with the Participant which sets forth the terms and conditions of
deferral, including the timing of payment and any vesting schedule. During the
term of deferral, the Participant's Deferred Unit Award will be credited with
Dividend Equivalent Rights.
9.03 Form of Payment. Deferred Unit Award shall be settled in shares of
---------------
Stock, in a single installment or installments. A fractional share of a
Deferred Unit shall be settled in cash. The Company shall issue, or cause to be
issued, shares of Stock to the Participant.
13
<PAGE>
9.04 Shareholder Rights. No Participant shall, as a result of receiving a
------------------
Deferred Unit Award, have any rights as a shareholder until and to the extent
that the Deferred Unit Award is settled by the issuance of shares of Stock.
After the Deferred Unit Award is settled in shares of Stock, a Participant will
have all the rights of a shareholder with respect to such shares of Stock.
9.05 Nontransferability. A Deferred Unit Award shall be nontransferable
------------------
except by will or by the laws of descent and distribution. No right or interest
of a Participant in any Deferred Unit Award shall be liable for, or subject to,
any lien, obligation, or liability of such Participant.
ARTICLE X - DIVIDEND EQUIVALENT RIGHTS
--------------------------------------
10.01 Awards. In accordance with the provisions of Article IV, the
------
Committee will designate each individual to whom an award of Dividend Equivalent
Rights is to be made. An award of Dividend Equivalent Rights entitles the
recipient to receive credits based on cash dividends that would have been paid
on the shares of Stock specified in the award of Dividend Equivalent Rights (or
other award to which it relates) if such shares had been issued to and held by
the recipient. An award of Dividend Equivalent Rights may be granted hereunder
to any Participant as a component of another award or as a freestanding award.
The terms and conditions of Dividend Equivalent Rights shall be specified in the
Agreement. Dividend equivalents credited to the holder of a Dividend Equivalent
Rights may be paid currently or may be deemed to be reinvested in additional
shares of Stock, which may thereafter accrue additional equivalents. Any such
reinvestment shall be at Fair Market Value on the date of reinvestment or such
other price as may then apply under a dividend reinvestment plan
14
<PAGE>
sponsored by the Company, if any. Dividend Equivalent Rights granted as a
component of another award may provide that such Dividend Equivalent Rights
shall be settled upon exercise, settlement, or payment of, or lapse of
restrictions on, such other award, and that such Dividend Equivalent Rights
shall expire or be forfeited or annulled under the same conditions as such other
award. Dividend Equivalent Rights granted as a component of another award may
also contain terms and conditions different from such other award.
10.02 Payment. In the discretion of the Committee and as provided in the
-------
Agreement, Dividend Equivalent Rights may be settled in cash, shares of Stock,
or a combination thereof, in a single installment or installments.
10.03 Shareholder Rights. No Participant shall, as a result of receiving an
------------------
award of Dividend Equivalent Rights, have any rights as a shareholder until and
to the extent that the award of Dividend Equivalent Rights is earned and settled
by the issuance of shares of Stock. After an award of Dividend Equivalent Rights
is earned, if settled completely or partially in shares of Stock, a Participant
will have all the rights of a shareholder with respect to such shares of Stock.
The Company shall issue, or cause to be issued, shares of Stock to the
Participant.
10.04 Nontransferability. Unless otherwise provided in the Agreement,
------------------
Dividend Equivalent Rights granted under this Plan shall be nontransferable
except by will or by the laws of descent and distribution. No right or interest
of a Participant in any Dividend Equivalent Rights shall be liable for, or
subject to, any lien, obligation, or liability of such Participant.
15
<PAGE>
ARTICLE XI - CHANGE IN CONTROL PROVISIONS
-----------------------------------------
(a) A "Change in Control" with respect to the Company shall be deemed to
have taken place if any of the following events occurs:
(i) Any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), other than an Affiliate, a trustee or other fiduciary holding
securities under an employee benefit plan of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of the Company representing 25% or
more of the combined voting power of the Company's then outstanding securities;
or
(ii) individuals who, as of July 2, 1997, constitute the Board and
any new director (other than a director designated by a person who has entered
into an agreement with the Company to effect a transaction described in clauses
(i) or (iii) of this paragraph) whose election by the Board or nomination for
election by the Company's shareholders was approved by a vote of at least eighty
percent (80%) of the directors then still in office who either were directors as
of July 2, 1997 or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the Board; or
(iii) the shareholders of the Company approve a merger or
consolidation of the Company with or into any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least sixty percent (60%) of the combined voting power of
the voting securities of the Company or such surviving entity outstanding
immediately after
16
<PAGE>
such merger or consolidation, or the shareholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's assets.
(b) Upon the occurrence of a Change in Control, unless otherwise provided
in an Agreement, each Participant shall have immediate vesting of, and the
immediate right to, exercise all outstanding Options, and any risk of forfeiture
included in any Restricted Unit Award and Dividend Equivalent Rights shall
lapse.
(c) Notwithstanding the foregoing, this Article XI shall cease to apply
after June 29, 1999.
ARTICLE XII - ADJUSTMENT UPON CHANGE IN STOCK
---------------------------------------------
12.01 Adjustments. The maximum number of shares of Stock as to which awards
-----------
may be granted under this Plan, the terms of outstanding awards and the per
individual limitations on the number of shares of Stock for which Options or
other Awards may be granted, shall be adjusted as the Committee shall determine
to be equitably required in the event that (a) the Company (i) effects one or
more stock dividends, stock split-ups, subdivisions or consolidations of shares
or (ii) engages in a transaction to which Section 424 of the Code applies or (b)
there occurs any other event which, in the judgment of the Committee,
necessitates such action. Any determination made under this Article XII by the
Committee shall be final and conclusive.
12.02 Mergers or Other Corporate Transactions. Upon consummation of a
---------------------------------------
consolidation, merger, or sale of all or substantially all of the assets of the
Company in which outstanding shares of Stock are exchanged for securities, cash,
or other property of an
17
<PAGE>
unrelated corporation or business entity, or in the event of a liquidation of
the Company (in each case, a "Transaction"), the Board, or the board of
directors of any corporation assuming the obligations of the Company, may, in
its discretion, take any one or more of the following actions, as to outstanding
Awards: (i) provide that such Awards shall be assumed or equivalent awards shall
be substituted, by the acquiring or succeeding corporation (or an affiliate
thereof), (ii) upon written notice to the Participants, provide that all Awards
will terminate immediately prior to the consummation of the Transaction. In the
event that, pursuant to clause (ii) above, Awards will terminate immediately
prior to the consummation of the Transaction, all Awards, other than Options,
shall be fully settled in cash or in kind at such appropriate consideration as
determined by the Committee in its sole discretion after taking into account the
consideration payable per share of Stock pursuant to the business combination
(the "Merger Price") and all Options shall be fully settled, in cash or in kind,
in an amount equal to the difference between (A) the Merger Price times the
number of shares of Stock subject to such outstanding Options (to the extent
then exercisable at prices not in excess of the Merger Price) and (B) the
aggregate exercise price of all such outstanding Options; provided, however,
that each Participant shall be permitted, within a specified period determined
by the Committee prior to the consummation of the Transaction, to exercise all
outstanding Options, including those that are not then exercisable, subject to
the consummation of the Transaction.
ARTICLE XIII - COMPLIANCE WITH LAW
AND APPROVAL OF REGULATORY BODIES
---------------------------------
No Option shall be exercisable, no shares of Stock shall be issued, no
certificates for shares of Stock shall be delivered, and no payment shall be
made under this Plan except in compliance with all applicable federal and state
laws and regulations (including, without
18
<PAGE>
limitation, withholding tax requirements), any listing agreement to which the
Company is a party, and the rules of all domestic stock exchanges on which the
Stock may be listed. The Company shall have the right to rely on an opinion of
its counsel as to such compliance. Any share certificate issued to evidence a
share of Stock when a Share Award is granted, or for which an Option is
exercised or a Restricted Unit Award or Deferred Unit Award settled, may bear
such legends and statements as the Committee may deem advisable to assure
compliance with federal and state laws and regulations. No Option shall be
exercisable, no Share Award shall be granted, no share of Stock shall be issued,
no certificate for shares of Stock shall be delivered, and no payment shall be
made under this Plan until the Company has obtained such consent or approval as
the Committee may deem advisable from regulatory bodies having jurisdiction over
such matters.
ARTICLE XIV - GENERAL PROVISIONS
--------------------------------
14.01 Effect on Employment and Service. Neither the adoption of this Plan,
--------------------------------
its operation, nor any documents describing or referring to this Plan (or any
part thereof) shall confer upon any individual any right to continue in the
employ or service of the Company or an Affiliate or in any way affect any right
and power of the Company or an Affiliate to terminate the employment or service
of any individual at any time with or without assigning a reason therefor.
14.02 Unfunded Plan. The Plan, insofar as it provides for grants, shall be
-------------
unfunded, and the Company shall not be required to segregate any assets that may
at any time be represented by grants under this Plan. Any liability of the
Company to any person with respect to any grant under this Plan shall be based
solely upon any contractual obligations that
19
<PAGE>
may be created pursuant to this Plan. No such obligation of the Company shall be
deemed to be secured by any pledge of, or other encumbrance on, any property of
the Company.
14.03 Rules of Construction. Headings are given to the articles and
---------------------
sections of this Plan solely as a convenience to facilitate reference. The
reference to any statute, regulation, or other provision of law shall be
construed to refer to any amendment to or successor of such provision of law.
ARTICLE XV - AMENDMENT
----------------------
The Board may amend or terminate this Plan from time to time; provided,
however, that no amendment may become effective until shareholder approval is
obtained if (i) the amendment increases the aggregate number of shares of Stock
that may be issued under the Plan, (ii) the amendment changes the class of
individuals eligible to become Participants or (iii) the amendment materially
increases the benefits that may be provided under the Plan. No amendment shall,
without a Participant's consent, adversely affect any rights of such Participant
under any award outstanding at the time such amendment is made. Nothing in this
Article XV shall limit the Board's authority to take any action pursuant to
Section 12.02.
ARTICLE XVI - EFFECTIVE DATE OF PLAN
------------------------------------
Options, Restricted Unit Awards, Deferred Unit Awards and Dividend
Equivalent Rights may be granted under this Plan upon its adoption by the Board,
provided that no such Award shall be effective or exercisable unless this Plan
is approved by the holders of a majority of the votes present or represented and
entitled to be cast by the Company's shareholders, voting either in person or by
proxy, at a duly held shareholders' meeting. Share
20
<PAGE>
Awards may be granted under this Plan upon the later of its adoption by the
Board or its approval by shareholders in accordance with the preceding sentence.
ARTICLE XVII - GOVERNING LAW
----------------------------
The Plan and all Awards and action taken thereunder shall be governed by,
and construed in accordance with, the laws of the State of Delaware, applied
without regard to conflict of law principles.
<PAGE>
EXHIBIT 12.1
RATIO OF EARNINGS TO FIXED CHARGES
WYNDHAM INTERNATIONAL, INC.
(in thousands)
<TABLE>
<CAPTION>
Year Year Year Year Inception
Ended Ended Ended Ended Through
12/31/99 12/31/98 12/31/97 12/31/96 12/31/95
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Earnings:
Income before minority interest (491,335) (112,508) $ 4,142 $ 44,813 $ 7,064
Add back: fixed charges 360,137 272,215 53,093 7,471 89
--------- --------- --------- --------- ---------
$(131,198) $ 159,707 $ 57,235 $ 52,284 $ 7,153
========= ========= ========= ========= =========
Fixed Charges:
Interest expense, including
amort of DLC 353,227 260,103 $ 50,531 $ 7,380 $ 89
Capitalized interest 6,910 12,112 2,562 91 --
--------- --------- --------- --------- ---------
$ 360,137 $ 272,215 $ 53,093 $ 7,471 $ 89
========= ========= ========= ========= =========
Ratio (0.36) 0.59 1.08 7.00 80.37
========= ========= ========= ========= =========
</TABLE>
<PAGE>
EXHIBIT 21.1
Subsidiaries of Wyndham International, Inc.
1500 Canal Street Investors II, L.P. DE
Al Jarafe Golf SA Spain
Albuquerque C.I. Associates, L.P. KS
Ambassador Hotels, Ltd. England & Wales
Arcadian (UK) Developments Ltd. England & Wales
Arcadian Group/Services, Ltd. England & Wales
Arcadian Groups Services Limited England & Wales
Arcadian Hotels (Italy) Limited England & Wales
Arcadian Hotels (UK) Limited England & Wales
Arcadian Hotels Limited England & Wales
Arcadian International Limited England & Wales
Arcadian International Resorts, Ltd. England & Wales
Atlanta American Hotel Investors, L.P. DE
Atlanta C. I. Associates II, L.P. KS
Belleggingsmastgchappij Stako II BV Dutch
BJV Realty, Inc. AZ
Boulders Carefree Sewer Corporation AZ
Boulders Joint Venture AZ
Bourbon Orleans Investors II, L.P. DE
Burrllen Enterprises of Maryland MD
C.I. Albuquerque Lessee GP, LLC DE
C.I. Albuquerque Lessee, L.P. DE
C.I. Atlanta Lessee, L.P. DE
C.I. General, L.L.C. KS
C.I. Holding, L.L.C. KS
C.I. Knoxville Lessee, L.P. DE
C.I. Lessee GP, Inc. DE
C.I. Omaha Lessee, L.P. DE
C.I. Overland Park Lessee, L.P. DE
C.I. Wichita General, L.L.C. KS
C.I. Wichita Lessee, L.P. DE
Cambridge Hotel Associates PA
Carefree Management LLC DE
Carnicon Holdings Corp. FL
Carnicon Puerto La Cruz Venezuela
Carnicon Venezuela Hotel Consultants LC Venezuela
Casa Marina Realty Corporation DE
Casa Marina Realty Corporation DE
Casa Marina Realty Partnership, L.P. DE
Centralized Operations, Inc. AZ
CFMB, Inc. DE
CH & S Limited Partnership MA
CHC Biscayne Blvd. Inc. FL
CHC Hotels & Resorts Corp. FL
CHC Lease Partners FL
CHC REIT Lessee Corp. FL
CHC REIT Management Corp. FL
Chicago-ES Holding Corp. DE
Chicago-ES Member Corp. DE
Chicago-ES, LLC DE
Chilston Park Hotel Limited England & Wales
CHMB, Inc. TX
City Centre Partnership L.P. DE
<PAGE>
Clipper Hotels, Ltd. England & Wales
Clipper Inns Limited England & Wales
Clubhouse Inns of America, Inc. KS
Colony International Management Company, L.L.C. DE
Conquistador Holding, Inc. DE
CPHPAH Dos Pueblos Associates L.L.C DE
Criterion Hotel Management Corp. FL
Criterion NY Inc. FL
Crossroads Development Company DE
CSMC Kalamazoo, Inc. MI
CV Ranch L.P. DE
Deuce Management Company LLC TX
DFW/H&R, Inc. TX
Don CeSar Holdings, LLC DE
Dublin Inn, Ltd. OH
El Conquistador Ferryboat, Inc. Puerto Rico
El Conquistador Partnership L.P. DE
El San Juan Holding, Inc. DE
ESC Greenspoint Holding Corp. DE
ESC Greenspoint Lessee, L.P. DE
ESC Greenspoint Member Corp. DE
ESC Greenspoint Member, LLC DE
ESJ Hotel Corporation DE
Ettington Park Group Ltd. England & Wales
Ettington Park Ltd England & Wales
European New Timeshare Limited England & Wales
Family Suites Corporation DE
Family Suites Limited Partnership DE
Family Suites Management Corporation DE
Family Suites Management Partnership, L.P. DE
Fattoria Villa Saletta Srl. Italy
FS Development Corporation DE
GAH-II Corporation DE
GAH-II, L.P. DE
GB Hotel Management de Mexico S. de RL de C.V. Mexico
GH (Cayman) Limited Cayman Islands
GH Trademarks LLC MD
GHALP GP, Inc. DE
GHALP Operating GP, Inc. DE
GHALP Operating Partnership, L.P. DE
GH-Atlanta, LLC MD
GH-Chicago, Inc. IL
GH-Detroit, Inc. MI
GH-Greeneville, Inc. TN
GHMB, Inc. TX
GH-Providence, Inc. RI
GH-San Diego, Inc. DE
GHV-Colorado, Inc. CO
GHV-Galveston, Inc. TX
GH-Wichita, Inc. KS
Glenview Hospitality, L.P. DE
Grand Bay Management Company FL
Grand Heritage Hotels (Europe) Limited United Kingdom
Grand Heritage Hotels, Inc. MD
Grand Heritage Leasing, LLC MD
Grand Heritage Real Estate Group LLC MD
<PAGE>
Grand Management Services, Inc. FL
Great Eastern Hotel Co. Ltd England & Wales
HMG Beverage, Inc. TX
Host/Interstate Partnership, L.P. DE
Hotel Del Coronado Management Corporation DE
Hotel L'Horison Limited Jersey
Hotel Venture Partners, Ltd. FL
IHC II, LLC DE
IHC Member Corporation DE
IHC Miami Mortgage Corporation DE
IHC Realty Corporation DE
IHC Realty Partnership, L.P. DE
IHC Title Agency Corporation DE
IHC/Burlington Corporation VT
IHC/Capital Corporation DE
IHC/Chaz Corporation DE
IHC/Conshohocken Partnership, L.P. DE
IHC/Denver Partnership, L.P. DE
IHC/FS Development Corporation DE
IHC/Houston Partnership, L.P. DE
IHC/Interstone Partnership II, L.P. DE
IHC/Jacksonville Corporation DE
IHC/Jamaica Corporation DE
IHC/Maryville Hotel Corporation DE
IHC/Miami Beach Corporation DE
IHC/Park West Corporation DE
IHC/Pittsburgh Partnership, L.P. DE
IHC/Reach Corporation DE
IHC/Santa Maria Corporation DE
IHC/Texas Corporation DE
IHP Holdings Partnership, L.P. PA
IHP Investment Company, L.L.C. DE
IHP/Class B Partnership, L.P. DE
Interstate Hotels, LLC DE
Interstate/CGL (WC) Partners LP DE
Interstate/Montour Associates, Ltd. PA
Interstone Three Partners I L.P. DE
Interstone Three Partners II L.P. DE
Interstone Three Partners III L.P. DE
Interstone Three Partners IV L.P. DE
Interstone/PAH Partnership LP DE
INTMB, Inc. DE
Isla Verde Tourism Parking Corporation Puerto Rico
Kansas City Hospitality, L.P. DE
Knoxville C.I. Associates, L.P. TN
Las Casitas Development Company Inc. (S.E.) Puerto Rico
Malmaison (ELL) Limited Scotland
Malmaison Brand Ltd. Scotland
Malmaison Hotels Limited England & Wales
Malmaison Limited England & Wales
Malmaison Management Ltd. England & Wales
Malmaison Resources Limited England & Wales
Marina Hospitality, L.P. DE
Marquis Hotel Associates PA
Marquis Hotel Associates (joint venture) PA
Maryville Center Hotel Joint Venture MO
<PAGE>
Maryville Centre CBM Joint Venture MO
MBAH, Inc. TX
Melbourne Hospitality, L.P. DE
Mollington Banastre Hotel Limited England & Wales
Oak Hill Catering Company, Inc. WV
O-H Acquisition, Inc. DE
Omaha C.I. Associates, L.P. KS
Orange Hotel Development Limited Partnership DE
Overland Park C.I. Associates, L.P. KS
Oxford Wyn 633 Investment Company, L.L.C. DE
P.H.G., LLC MD
PA Hunt Valley Investors, L.P. VA
PA Ravinia Partners VA
PA Troy Hospitality Investors, L.P. DE
Pagle Limited England & Wales
PAH Acquisition Corporation DE
PAH Allen Operating Corporation DE
PAH Batterymarch Operating Company, LLC DE
PAH Batterymarch Realty Company, LLC DE
PAH Deuce GP, LLC DE
PAH GAH Holdings, L.P. DE
PAH GAH Holdings, LLC DE
PAH GP, Inc. DE
PAH Leasing LLC DE
PAH LP, Inc. DE
PAH Ravinia, Inc. VA
PAH River House, L.P. DE
PAH Stanly Holding LLC DE
PAH Stanly Ranch LLC DE
PAH Ventana Canyon, L.P. DE
PAH Windwatch LLC DE
PAH Windwatch Partners DE
PAH-Akron, L.L.C. DE
PAH-Beachwood I, L.L.C. DE
PAH-Beachwood II, L.L.C. DE
PAH-Buttes L.L.C. DE
PAH-BV Holding Corp. DE
PAH-BV Palace Corp. DE
PAH-BV Palace, L.P. DE
PAH-BV Palace, L.P. DE
PAH-Cambridge Holdings, LLC DE
PAH-Carefree, L.P. DE
PAH-CI Holding, LLC DE
PAH-Columbus Holding, Inc. DE
PAH-Crossroads Lessee, Inc. DE
PAH-DT Allen Partners, L.P. DE
PAH-DT Chicago O'Hare Partners, L.P. DE
PAH-DT Chicago O'Hare Partners, L.P. DE
PAH-DT Miami Airport Partners. L.P. DE
PAH-DT Minneapolis Suites Partners, L.P. DE
PAH-DT Park Place Partners DE
PAH-DT Tallahassee Partners, L.P. DE
PAH-Franchise Holding, Inc. DE
PAH-GBM, LLC DE
PAH-GP Allen Partners, L.P. DE
PAH-Grand Bay Miami, L.P. DE
<PAGE>
PAH-Hilltop GP, LLC DE
PAH-HVP General Partner Corp. DE
PAH-HVP Holding Corp. DE
PAH-Interest Holding, Inc. DE
PAH-Interstate Holdings, Inc. DE
PAH-Interstate Member, Inc. DE
PAH-Interstone, LLC DE
PAH-IP Holding, Inc. DE
PAH-Management Corporation DE
PAHMB, Inc. TX
PAH-Member, Inc. DE
PAH-Pittsburgh CI Holding, Inc DE
PAH-Pittsburgh, LLC DE
PAH-Real Estate Member, Inc. DE
PAH-RH, LLC DE
PAH-Summerfield Holding Corp. DE
PAH-Summerfield Leasing, Inc. DE
PAH-Summerfield LLC DE
PAH-T, LLC DE
PAH-Tampa, L.P. DE
PAH-Westlake LLC DE
PAH-Westmont CI Holding, Inc. DE
PAH-WMC Holding, Inc. DE
PAH-Xerxes Holding, Inc. DE
Park West Hotel Associates PA
Patriot American Hospitality Partnership, L.P. VA
Patriot American Hospitality, Inc. DE
Patriot American UK Limited England & Wales
Patriot Bougainvillea Development Company, LLC DE
Patriot Bougainvillea, LLC DE
Patriot Grand Heritage, LLC DE
Patriot Holding LLC DE
Patriot Land Holding LLC DE
Patriot Miami Note Holder, L.P. DE
Patriot Racetrack Land LLC DE
Perfornamce Hospitality Management Corporation DE
Pittsburgh C.I., Inc. KS
Posadas de Puerto Rico Associates, Incorporated DE
Posadas de Regency, Inc. DE
Posadas de San Juan Associates (New York joint venture) NY
Posadas Finance Corporation DE
PSMB, Inc. CA
PW Land Associates Limited Partnership PA
PWMB of Maryland, Inc. MD
PWMB, Inc. DE
Resort Services, Inc. AZ
Resorts Limited Partnership DE
Resorts Limited Partnership II DE
Richardson C.I. Associates, L.P. TX
Rose Hall Associates Limited Partnership TX
Royal Palace Associates FL
Santa Maria Joint Venture DE
Savannah C.I. Associates, L.P. GA
SFMB, Inc. DE
Shula's Steak House DE
Sierra Suites Marketing Association KS
<PAGE>
St. Louis C.I. Associates, L.P. MO
Summefireld KPA Lessee, LLC DE
Summerfield Hotel Corporation DE
Summerfield Hotel Leasing Company, L.P. KS
Summerfield Hotel Leasing Corporation KS
Summerfield HPT Lease Company, L.L.C. DE
Summerfield HPT Lease Company, L.P. KS
Summerfield KPA Lessee, L.P. KS
Summerfield KPA Lessee, LLC DE
Summerfield Suites Marketing Association DE
Swatara Realty Associates, L.P. DE
Syracuse Associates Corporation DE
Syracuse Realty Associates, L.P. DE
TCC Maturin, C.A. Venezuela
TCC Venezuela, L.C. Venezuela
Telluride Resort and Spa L.P. DE
The Great Eastern Hotel Company Lt. England & Wales
The Key West Reach Limited Partnership DE
The Malmaison Company (Edinburgh) Ltd. England & Wales
The Malmaison Hotel (Glasgow) Ltd Scotland
The Malmaison Hotel (Leeds) Ltd. England & Wales
The Malmaison Hotel (Manchester) Ltd. England & Wales
The Malmaison Hotel (Newcastle) Ltd. England & Wales
The Peaks Real Estate Services, Inc. AZ
The Reserve Collection Boulders LLC DE
The Reserve Collection Peaks LLC DE
Tillian Limited England & Wales
Toledo Hotel Investors, L.P. DE
Topeka C. I. Associates, L.P. KS
Travis Real Estate Group Joint Venture TX
Travis Real Estate Group, Inc. TX
W& CP (Exeter) Limited England & Wales
W&C Estates Ltd. England & Wales
Water Street Hotel, Ltd. DE
Waterfront Management Corporation DE
Westshaw Associates DE
WG Member, LLC DE
W-Greenspoint Holding Corp. DE
W-Greenspoint Member Corp. DE
W-Greenspoint, L.P. DE
WH Garden Albuquerque Inc. TX
WH Interest, Inc. TX
WHC Atlanta GP, LLC DE
WHC Caribbean, Ltd. Jamaica
WHC Chicago, LLC DE
WHC Columbus Corporation DE
WHC Finance, L.P. DE
WHC Franchise Corporation DE
WHCMB Overland Park, Inc. KS
WHCMB Toronto, Inc. Canada
WHCMB Utah Private Club Corporation
(Utah non-profit corporation) UT
WHCMB, Inc. DE
WHG El Con Corp. DE
WHG Resorts & Casinos Inc. DE
Wichita C.I. Associates III, L.P. KS
WII-Baltimore Holding, Inc. DE
<PAGE>
WII-Denver Tech, LLC DE
Williams Hospitality Group Inc. DE
WKA Development S.E. Puerto Rico
WKA El Con Associates NY
WMC II, LLC DE
W-SSH, LLC DE
Wy (Brands Hatch) Limited U.K.
Wy (Brands Hatch) Management Limited U.K.
Wy (Chilston Park) Limited U.K.
Wy (Ettington Park) Limited U.K.
Wy (L'Horizon) Management Limited Jersey
Wy (Mollington) Limited U.K.
Wy (Nutfield Priory) Limited U.K.
Wy (Nutfield Priory) Management Limited U.K.
Wy (Priest House) Limited U.K.
Wy (PriestHouse) Management Limited U.K.
Wy (Rookery Hall) Limited U.K.
Wy (Rookery Hall) Management Limited U.K.
Wy (The Haycock) Limited U.K.
Wy (Wood Hall) Limited U.K.
Wy (Wood Hall) Management Limited U.K.
Wy (Woodland Park) Limited U.K.
Wy (Woodland Park) Management Limited U.K.
Wy Hotels Limited U.K.
Wyndham Canal Place, Inc. DE
Wyndham Hotels & Resorts (Aruba) N.V. Aruba
Wyndham Hotels & Resorts Management, Ltd. Bermuda
Wyndham HPT Lessee LLC DE
Wyndham HPT Lessee, L.P. DE
Wyndham International Operating Partnership, L.P. DE
Wyndham IP Corporation DE
Wyndham Management Corporation DE
Wyndham Management II, LLC DE
Wyndham Peachtree Holding Corp. DE
Wyndham Peachtree Lessee Holding Corp. DE
Wyndham Peachtree Lessee LLC DE
Wyndham Peachtree Lessee Member Corp. DE
Wyndham Peachtree Lessee Member, LLC DE
Wyndham Peachtree LLC DE
Wyndham Peachtree Member Corp. DE
Wyndham Peachtree Member, LLC DE
Wyndham SN Lessee Corp. DE
Wyndham SN Lessee, L.P. DE
Wyndham Summerfield Lessee, L.P. DE
Wyndham Summerfield Lessee, LLC DE
Xerxes Limited Jamaica
YO Hotel Investors, L.P. DE
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the (a) Registration Statement
on Form S-3 (File No. 333-86189) of Wyndham International, Inc., and (b)
Registration Statement on Form S-8 (File No. 333-82325) of Wyndham
International, Inc. of our report dated March 1, 1999, with respect to the
consolidated financial statements of Wyndham International, Inc. as of December
31, 1998 and for each of the two years in the period ended December 31, 1998
included in this Annual Report on Form 10-K for the year ended December 31,
1999.
/s/ Ernst & Young LLP
Dallas, Texas
March 27, 2000
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-3 (No. 333-86189) filed on August 30, 1999 and amended
September 17, 1999 and Form S-8 (No. 333-82325) filed on July 6, 1999 of Wyndham
International, Inc. of our reports dated February 15, 2000 except as to the
information in Note 21 for which the date is March 27, 2000 relating to the
financial statements and financial statement schedule, which appears in this
Form 10-K.
/s/ PricewaterhouseCoopers LLP
Dallas, Texas
March 29, 2000
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONSOLIDATED
BALANCE SHEETS AND STATEMENT OF OPERATIONS AS OF DECEMBER 31, 1999 AND 1998 OF
WYNDHAM INTERNATIONAL, INC. AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 12-MOS 12-MOS
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1998
<PERIOD-START> JAN-01-1999 JAN-31-1998
<PERIOD-END> DEC-31-1999 DEC-31-1998
<CASH> 144,333 123,085
<SECURITIES> 0 0
<RECEIVABLES> 186,321 194,583
<ALLOWANCES> 0 0
<INVENTORY> 23,304 23,583
<CURRENT-ASSETS> 447,635 412,466
<PP&E> 5,891,672 5,838,196
<DEPRECIATION> (478,494) (252,580)
<TOTAL-ASSETS> 7,003,490 7,415,670
<CURRENT-LIABILITIES> 491,824 1,614,967
<BONDS> 3,513,379 2,582,603
0 0
103 90
<COMMON> 1,672 4,270
<OTHER-SE> 2,135,887 2,598,677
<TOTAL-LIABILITY-AND-EQUITY> 7,003,490 7,415,670
<SALES> 0 0
<TOTAL-REVENUES> 2,495,335 2,056,341
<CGS> 0 0
<TOTAL-COSTS> 0 0
<OTHER-EXPENSES> 2,625,697 1,918,244
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 353,227 260,103
<INCOME-PRETAX> (491,335) (112,508)
<INCOME-TAX> (571,421) (17,122)
<INCOME-CONTINUING> (1,062,131) (126,406)
<DISCONTINUED> 0 0
<EXTRAORDINARY> (9,838) (31,817)
<CHANGES> 0 0
<NET-INCOME> (1,071,969) (158,223)
<EPS-BASIC> (7.08) (1.36)
<EPS-DILUTED> (7.20) (2.57)
</TABLE>
