Exhibit 5
------------------------------------------------------------------------------
------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
By and among
WYNDHAM INTERNATIONAL, INC.
and
The Persons Listed on
the Signature Pages Hereof
------------------
Dated as of February 18, 1999
------------------------------------------------------------------------------
------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
Section 1. Definitions...................................................2
Section 2. Registration Under the Securities Act.........................5
(a) Required Registration...................................6
(b) Incidental Registration.................................9
(c) Expenses...............................................11
(d) Effective Registration Statement Suspension............11
(e) Selection of Underwriters..............................12
Section 3. Restrictions on Public Sale by Wyndham.......................12
Section 4. Registration Procedures......................................12
Section 5. Indemnification; Contribution................................19
(a) Indemnification by Wyndham.............................19
(b) Indemnification by Holders.............................20
(c) Conduct of Indemnification Proceedings.................20
(d) Contribution...........................................21
Section 6. Miscellaneous................................................23
(a) Inconsistent Agreements................................23
(b) Amendments and Waivers.................................23
(c) Notices................................................23
(d) Successors and Assigns.................................24
(e) Recapitalizations, Exchanges, etc., Affecting
Registrable Securities.................................25
(f) Counterparts...........................................25
(g) Descriptive Headings, Etc..............................25
(h) Severability...........................................25
(i) Governing Law..........................................26
(j) Specific Performance...................................26
(k) Entire Agreement.......................................26
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
February 18, 1999, by and among Wyndham International, Inc., a Delaware
corporation ("Wyndham"), the other Persons (as hereinafter defined) listed
on the signature pages hereof (herein referred to collectively, along with
their respective affiliates and successors who from and after the date
hereof acquire or are otherwise the transferee of any Registrable
Securities (as hereinafter defined), as the "Initial Holders" and
individually, as an "Initial Holder") and any other Person that shall from
and after the date hereof acquire or otherwise be the transferee of any
Registrable Securities and who shall be a Permitted Transferee (as
hereinafter defined) of any Initial Holder (herein referred to collectively
as the "Holders" and individually as a "Holder").
WHEREAS, Wyndham and Patriot American Hospitality, Inc.
("Patriot" and, together with Wyndham, the "Companies"), Wyndham
International Operating Partnership, L.P. and Patriot American Hospitality
Partnership, L.P. have entered into a Securities Purchase Agreement, dated
as of February 18, 1999 (the "Securities Purchase Agreement"), with the
Initial Holders, which provides, upon the terms and subject to the
conditions thereof, for the purchase by the Initial Holders of shares of
Wyndham's Series B Convertible Preferred Stock, par value $0.01 per share
(the "Series B Preferred Stock");
WHEREAS, the Series B Preferred Stock will be convertible, upon
the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class B Common Stock, par
value $0.01 per share (the "Class B Common Stock"), of Wyndham; and
WHEREAS, in the event of any transfer of any shares of Series B
Preferred Stock to any Person other than an Initial Holder, such shares of
Series B Preferred Stock will automatically convert, upon the terms and
subject to the conditions set forth in the Certificate of Designation
relating thereto, into shares of Series A Convertible Preferred Stock, par
value $0.01 per share (the "Series A Preferred Stock"), of Wyndham;
WHEREAS, the Series A Preferred Stock will be convertible, upon
the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class A Common Stock, par
value $0.01 per share (the "Class A Common Stock"), of Wyndham;
WHEREAS, in the event of any transfer of any shares of Class B
Common Stock to any Person other than an Initial Holder, such shares of
Class B Common Stock will automatically convert, upon the terms and subject
to the conditions set forth in the Restated Certificate of Incorporation of
Wyndham; and
WHEREAS, in order to induce the Initial Holders to complete the
transactions contemplated by the Securities Purchase Agreement, Wyndham has
agreed to provide registration rights on the terms and subject to the
conditions provided herein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1. Definitions.
(m) As used in this Agreement, the following terms shall have
the following meanings:
"Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under the Exchange Act.
"Blackout Period" shall have the meaning set forth in Section
2(a)(i).
"Class A Common Stock" shall have the meaning set forth in the
preamble; provided, that if there shall be only one authorized class of
Wyndham's common stock at the time, Class A Common Stock shall be deemed to
refer to such common stock.
"Class B Common Stock" shall have the meaning set forth in the
preamble.
"Closing" shall mean the date upon which the purchase and sale
of the Preferred Stock pursuant to the Securities Purchase Agreement
occurs.
"Companies" shall have the meaning set forth in the preamble
and shall also include Patriot's and Wyndham's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Holder" shall have the meaning set forth in the preamble.
"Incidental Registration" shall mean a registration required to
be effected by Wyndham pursuant to Section 2(b).
"Incidental Registration Statement" shall mean a registration
statement of Wyndham, as provided in Section 2(b), which covers any of the
Registrable Securities on an appropriate form in accordance with the
Securities Act and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Initial Holder(s)" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean Holders of the Registrable
Securities as to which registration has been requested representing in the
aggregate a majority of such shares
beneficially owned by Holders.
"Market Value" shall mean, with respect to the Series A
Preferred Stock or the Class A Common Stock, the average, rounded to the
nearest cent ($0.01), of the closing price per share of the Series A
Preferred Stock or the Class A Common Stock, respectively, on the New York
Stock Exchange for twenty consecutive calendar days ending on the trading
day immediately preceding the date in question.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Permitted Transferee" shall mean any Person which would be a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities
Act.
"Person" shall mean any individual, limited or general
partnership, corporation, trust, joint venture, association, joint stock
company or unincorporated organization.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary Prospectus, and any such
Prospectus as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities and by all other amendments and supplements to such Prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Registrable Securities" shall mean (i) any shares of Class B
Common Stock issued or issuable upon conversion of any shares of Series B
Preferred Stock, (ii) any shares of Series A Preferred Stock issued or
issuable upon conversion of the shares of Series B Preferred Stock, (iii)
any shares of Class A Common Stock issued or issuable upon conversion of
any shares of Series A Preferred Stock described in clause (ii) above, and
(iv) any securities issued or issuable with respect to any Series A
Preferred Stock, Series B Preferred Stock, Class A Common Stock or Class B
Common Stock described in clauses (i), (ii) and (iii) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, reorganization or otherwise.
"Registration Expenses" shall mean (i) all registration,
listing, qualification and filing fees (including NASD filing fees), (ii)
fees and disbursements of counsel for Wyndham, (iii) accounting fees
incident to any such registration, (iv) blue sky fees and expenses
(including counsel fees in connection with the preparation of a Blue Sky
Memorandum and legal investment survey), (v) all expenses of any Persons in
preparing or assisting in preparing, printing, distributing, mailing and
delivering any Registration Statement, any Prospectus, any underwriting
agreements, transmittal letters, securities sales agreements, securities
certificates and other documents relating to the performance of and
compliance with this Agreement, (vi) the expenses incurred in connection
with making road show presentations and holding meetings with potential
investors to facilitate the distribution and sale of Registrable Securities
which are customarily borne by the issuer, and (v) all internal expenses of
Wyndham (including all salaries and expenses of officers and employees
performing legal or accounting duties), provided, however, that
Registration Expenses shall not include any Selling Expenses.
"Registration Statement" shall mean any registration statement
of Wyndham which covers any Registrable Securities and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Required Registration Statement" shall mean a Registration
Statement pursuant to Section 2(a)(i).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Securities Purchase Agreement" shall have the meaning set
forth in the preamble.
"Selling Expenses" shall mean underwriting discounts, selling
commissions and stock transfer taxes applicable to the shares registered by
the Holders, fees and disbursements of counsel for the Holders retained by
them (other than with respect to the fees and disbursements made in
connection with the preparation of a Blue Sky Memorandum and legal
investment survey).
"Series A Preferred Stock" shall have the meaning set forth in
the preamble.
"Series B Preferred Stock" shall have the meaning set forth in
the preamble.
"Shelf Registration" shall mean a registration required to be
effected pursuant to Section 2(a)(ii).
"Shelf Registration Statement" shall mean a Registration
Statement pursuant to Section 2(a)(ii).
"Underwriter" shall have the meaning set forth in Section 5(a).
"Underwritten Offering" shall mean a sale of securities of
Wyndham to an Underwriter or Underwriters for reoffering to the public.
(n) Capitalized terms used herein and not otherwise defined
shall have the meanings assigned such terms in the Securities Purchase
Agreement.
Section 2. Registration Under the Securities Act.
(a) Required Registration.
(i) Right to Require Registration. One or more Holders of
Registrable Securities shall have the right from time to time to request in
writing (a "Request") which Request shall specify the Registrable
Securities intended to be disposed of by such Holders and the intended
method of distribution thereof) that Wyndham register such Holders'
Registrable Securities by filing with the SEC a Required Registration
Statement. Upon the receipt of such a Request, Wyndham will, by the fifth
business day thereafter, give written notice of such requested registration
to all Initial Holders of Registrable Securities, and, not later than the
45th calendar day after the receipt of such a Request by Wyndham, Wyndham
will use all reasonable efforts to cause to be filed with the SEC a
Required Registration Statement covering the Registrable Securities which
Wyndham has been so requested to register by Holders thereof other than the
Initial Holder(s) initiating the Request by written request given to
Wyndham within 9 business days after the giving of such written notice by
Wyndham, providing for the registration under the Securities Act of the
Registrable Securities which Wyndham has been so requested to register by
all such Holders, to the extent necessary to permit the disposition of such
Registrable Securities so to be registered in accordance with the intended
methods of distribution thereof specified in such Request or further
requests, and shall use all reasonable efforts to have such Required
Registration Statement declared effective by the SEC as soon as practicable
thereafter and to keep such Required Registration Statement continuously
effective for a period of at least 60 calendar days (or, in the case of an
Underwritten Offering, such period as the Underwriters shall reasonably
require) following the date on which such Required Registration Statement
is declared effective (or such shorter period which will terminate when all
of the Registrable Securities covered by such Required Registration
Statement have been sold pursuant thereto), including, if necessary, by
filing with the SEC a post-effective amendment or a supplement to the
Required Registration Statement or the related Prospectus or any document
incorporated therein by reference or by filing any other required document
or otherwise supplementing or amending the Required Registration Statement,
if required by the rules, regulations or instructions applicable to the
registration form used by Wyndham for such Required Registration Statement
or by the Securities Act, the Exchange Act, any state securities or blue
sky laws, or any rules and regulations thereunder.
Wyndham shall not be required to effect, pursuant to this
Section 2(a)(i), (i) a Required Registration hereunder unless Holders
beneficially owning Registrable Securities with an aggregate Market Value
of $50 million have initiated or joined in such Request and (ii) more than
eight registrations in the aggregate requested by the Holders, provided
that so long as the Holders collectively beneficially own Registrable
Securities with a Market Value of at least $100 million, the Holders shall
have the right to require Wyndham to effect additional Required
Registrations provided that the Registrable Securities included therein
have an aggregate Market Value of at least $50 million and provided further
that any Investor proposing to distribute its Registrable Securities to its
partners or shareholders shall have the right to require Wyndham to effect
an additional Required Registrations to facilitate such distribution.
A Request may be withdrawn prior to the filing of the Required
Registration Statement by the Holder(s) which made such Request (a
"Withdrawn Request") and a Required Registration Statement may be withdrawn
prior to the effectiveness thereof by the Holders of a majority of the
Registrable Securities included therein (a "Withdrawn Required
Registration"), and, in either such event, such withdrawal shall be treated
as a Required Registration which shall have been effected pursuant to
clause (ii) of the immediately preceding paragraph, except that the Holders
may require Wyndham to disregard one Withdrawn Request for purposes of such
clause (ii).
The Holders shall not, without Wyndham's consent, be entitled
to deliver a Request for a Required Registration after the completion of
the Required Registration if less than 90 calendar days have elapsed since
(A) the effective date of a prior Required Registration Statement, (B) in
the case of a Required Registration which is effected other than by means
of an Underwritten Offering, the date of sale by the Holders of their
Registrable Securities pursuant thereto or (C) the date of withdrawal of a
Withdrawn Required Registration.
Notwithstanding the foregoing, from and after the Closing,
Wyndham may delay the filing of a Required Registration Statement if the
Board of Directors of Wyndham determines that such action is in the best
interests of Wyndham's stockholders, and only for an aggregate number of
days, taken together with any Blackout Period invoked pursuant to Section
2(a)(ii), not to exceed 60 days in any twelve month period (a "Blackout
Period").
The registration rights granted pursuant to the provisions of
this Section 2(a)(i) shall be in addition to the registration rights
granted pursuant to the other provisions of this Section 2.
(ii) Shelf Registration. Promptly upon the Request of the
Holders (but in no event later than the 75th calendar day after the receipt
of such a Request), the Company shall use its reasonable best efforts to
promptly process, file and cause to become effective a Registration
Statement on Form S-3 (the "Shelf") for an offering of Registrable
Securities to be made on a delayed or continuous basis pursuant to Rule 415
under the Securities Act (or any similar rule that may be adopted by the
SEC) and permitting sales in ordinary course brokerage or dealer
transactions not involving an Underwritten Offering. Each Holder which
owns, on the date of the initial filing of the Shelf (the "Initial Filing
Date"), Registrable Securities (each such Holder, an "Eligible Holder")
shall have the right to resell such Registrable Securities under the Shelf
until the date that such Eligible Holder sells all of such Registrable
Securities, whether or not under the Shelf (such Eligible Holder's
"Termination Date"). The Company agrees to use its reasonable best efforts
to keep the Shelf continuously effective and usable for resale of
Registrable Securities until all Eligible Holders lose their rights to
resell Registrable Securities under the Shelf .
Notwithstanding the foregoing, (A) from the Closing and until
the effectiveness of a Shelf Registration Statement, Wyndham may delay the
filing of a Shelf Registration Statement, or (B) from and after the
effectiveness of a Shelf Registration Statement, each Holder agrees that it
will not effect any sales of the Registrable Securities
pursuant to the Shelf Registration, in either case, if the Board of
Directors of Wyndham determines that such action is in the best interests
of Wyndham's stockholders, and only for a Blackout Period, taken together
with any Blackout Period invoked pursuant to Section 2(a)(i), not to exceed
60 days.
The registration rights granted pursuant to the provisions of
this Section 2(a)(ii) shall be in addition to the registration rights
granted pursuant to the other provisions
of this Section 2.
(iii) Priority in Required and Shelf Registrations. If a
Required or Shelf Registration pursuant to this Section 2(a) involves an
Underwritten Offering, and the sole Underwriter or the lead managing
Underwriter, as the case may be, of such Underwritten Offering shall advise
Wyndham in writing (with a copy to each Holder requesting registration) on
or before the date 5 days prior to the date then scheduled for such
offering that, in its opinion, the amount of Registrable Securities
requested to be included in such Required or Shelf Registration exceeds the
amount which can be sold in such offering without adversely affecting the
distribution of the Registrable Securities being offered, Wyndham will
include in such Required or Shelf Registration only the amount of
Registrable Securities that Wyndham is so advised can be sold in such
offering; provided, however, that Wyndham shall be required to include in
such Required or Shelf Registration: first, all Registrable Securities
requested to be included in the Required or Shelf Registration by the
Holders and, to the extent not all such Registrable Securities can be
included in such Required Registration, the number of Registrable
Securities to be included shall be allocated pro rata on the basis of the
number of shares of Preferred Stock or Common Stock (whichever is
applicable) beneficially owned at that time by all the Holders requesting
to participate in the Required or Shelf Registration or on such other basis
as shall be agreed among the Holders, by agreement of the Majority Holders;
and second, if all Registrable Securities requested to be included in the
Required or Shelf Registration by the Holders can be so included, all other
securities requesting, in accordance with any registration rights which are
granted in compliance with Section 6(a), to be included in such Required
Registration which are of the same class as the Registrable Securities and,
to the extent not all such securities can be included in such Required or
Shelf Registration, the number of securities to be included shall be
allocated pro rata among the holders thereof requesting inclusion in such
Required or Shelf Registration on the basis of the number of securities
requested to be included by all such holders.
(b) Incidental Registration.
(i) Right to Include Registrable Securities. If at any time
Wyndham proposes to register any of their Preferred Stock or Common Stock
under the Securities Act (other than (A) any registration of public sales
or distributions solely by and for the account of Wyndham of securities
issued (x) pursuant to any employee benefit or similar plan or any dividend
reinvestment plan or (y) in any acquisition by Wyndham, or (B) pursuant to
Section 2(a) hereof), either in connection with a primary offering for cash
for the account of Wyndham or a secondary offering, Wyndham will, each time
it intends to effect such a registration, give written notice to all
Initial Holders of Registrable Securities at least 10 business days prior
to the initial filing of a Registration Statement with the SEC pertaining
thereto, informing such Initial Holders of its intent to file such
Registration Statement and of the Holders' rights to request the
registration of the Registrable Securities held by the Holders under this
Section 2(b) (the "Company Notice"). Upon the written request of any
Initial Holder made within 7 business days after any such Company Notice is
given (which request shall specify the Registrable Securities intended to
be disposed of by such Initial Holder and such Initial Holder's Permitted
Transferees and, unless the applicable registration is intended to effect a
primary offering of Preferred Stock or Common Stock for cash for the
account of Wyndham, the intended method of distribution thereof), Wyndham
will use all reasonable efforts to effect the registration under the
Securities Act of all Registrable Securities which Wyndham has been so
requested to register by such Initial Holders to the extent required to
permit the disposition (in accordance with the intended methods of
distribution thereof or, in the case of a registration which is intended to
effect a primary offering for cash for the account of Wyndham, in
accordance with Wyndham's intended method of distribution) of the
Registrable Securities so requested to be registered, including, if
necessary, by filing with the SEC a post-effective amendment or a
supplement to the Incidental Registration Statement or the related
Prospectus or any document incorporated therein by reference or by filing
any other required document or otherwise supplementing or amending the
Incidental Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by Wyndham for such
Incidental Registration Statement or by the Securities Act, any state
securities or blue sky laws, or any rules and regulations thereunder;
provided, however, that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
Incidental Registration Statement filed in connection with such
registration, Wyndham shall determine for any reason not to register or to
delay registration of such securities, Wyndham may, at its election, give
written notice of such determination to each Initial Holder of Registrable
Securities and, thereupon, (A) in the case of a determination not to
register, Wyndham shall be relieved of their obligation to register any
Registrable Securities in connection with such registration (but not from
their obligation to pay the Registration Expenses incurred in connection
therewith), and (B) in the case of a determination to delay such
registration, Wyndham shall be permitted to delay registration of any
Registrable Securities requested to be included in such Incidental
Registration Statement for the same period as the delay in registering such
other securities.
The registration rights granted pursuant to the provisions of
this Section 2(b) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section.
(ii) Priority in Incidental Registrations. If a registration
pursuant to this Section 2(b) involves an Underwritten Offering of the
securities so being registered, whether or not for sale for the account of
Wyndham, and the sole Underwriter or the lead managing Underwriter, as the
case may be, of such Underwritten Offering shall advise Wyndham in writing
(with a copy to each Initial Holder of Registrable Securities requesting
registration) on or before the date 5 days prior to the date then scheduled
for such offering that, in its opinion, the amount of securities (including
Registrable Securities) requested to be included in such registration
exceeds the amount which can be sold in (or during the time of) such
offering without adversely affecting the distribution of the securities
being offered, then Wyndham will include in such registration: first, all
the securities entitled to be sold pursuant to such Registration Statement
without reference to the incidental registration rights of any holder
(including the Holders), and second, the amount of other securities
(including Registrable Securities) requested to be included in such
registration that Wyndham is so advised can be sold in (or during the time
of) such offering, allocated, if necessary, pro rata among the holders
(including the Holders) thereof requesting such registration on the basis
of the number of the securities (including Registrable Securities)
beneficially owned at the time by the holders (including the Holders)
requesting inclusion of their securities; provided, however, that in the
event Wyndham will not, by virtue of this paragraph, include in any such
registration all of the Registrable Securities of any Holder requested to
be included in such registration, such Holder may, upon written notice to
Wyndham given within 3 days of the time such Holder first is notified of
such matter, reduce the amount of Registrable Securities it desires to have
included in such registration, whereupon only the Registrable Securities,
if any, it desires to have included will be so included and the Holders not
so reducing shall be entitled to a corresponding increase in the amount of
Registrable Securities to be included in such registration.
(c) Expenses. Wyndham agrees to pay all Registration Expenses
in connection with (i) each of the registrations requested pursuant to
Section 2(a) and (ii) each registration as to which Holders request
inclusion of Registrable Securities pursuant to Section 2(b). All Selling
Expenses relating to securities registered on behalf of the Holders shall
be borne by the Holders of shares included in such registration, other
selling stockholders and Wyndham pro rata on the basis of the number of
shares of Preferred Stock or Common Stock so registered.
(d) Effective Registration Statement; Suspension. Subject to
the third paragraph of Section 2(a)(i), a Registration Statement pursuant
to Section 2(a) will not be deemed to have become effective (and the
related registration will not be deemed to have been effected) unless it
has been declared effective by the SEC prior to a request by the Holders of
a majority of the Registrable Securities included in such registration that
such Registration Statement be withdrawn; provided, however, that if, after
it has been declared effective, the offering of any Registrable Securities
pursuant to such Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court shall have been in effect for at least 30
days, such Registration Statement will be deemed not to have become
effective and the related registration will not be deemed to have been
effected.
(e) Selection of Underwriters. At any time or from time to
time, the Holders of a majority of the Registrable Securities covered by a
Required Registration Statement may elect to have such Registrable
Securities sold in an Underwritten Offering and may select the investment
banker or investment bankers and manager or managers that will serve as
lead and co-managing Underwriters with respect to the offering of such
Registrable Securities, subject to the consent of Wyndham which shall not
be unreasonably withheld. No Holder may participate in any Underwritten
Offering hereunder unless such Holder (a) agrees to sell such Holder's
securities on the basis provided in any underwriting arrangements approved
by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, custody
agreements, indemnities, underwriting agreements and other documents
required under the terms of such Underwritten Offering.
Section 3. Restrictions on Public Sale by Wyndham.
If requested by the sole Underwriter or lead managing
Underwriter(s) in such Underwritten Offering, Wyndham agrees not to effect
any public sale or distribution (other than public sales or distributions
solely by and for the account of Wyndham of securities issued pursuant to
any employee benefit or similar plan or any dividend reinvestment plan) of
any securities during the period commencing on the date Wyndham receives a
Request from any Initial Holder and continuing until (a) for a Registration
Statement relating to such Underwritten Offering other than a Shelf
Registration, 90 days after such Registration Statement is declared
effective by the SEC and (b) for a Shelf Registration Statement relating to
such Underwritten Offering, 90 days after the commencement of such
Underwritten Offering, (or for such shorter period as the sole or lead
managing Underwriter shall request) unless earlier terminated by the sole
Underwriter or lead managing Underwriter(s) in such Underwritten Offering.
Section 4. Registration Procedures.
In connection with the obligations of Wyndham pursuant to
Section 2, Wyndham shall use all reasonable efforts to effect or cause to
be effected the registration of the Registrable Securities under the
Securities Act to permit the sale of such Registrable Securities by the
Holders in accordance with their intended method or methods of
distribution, and Wyndham shall:
(a) (i) prepare and file a Registration Statement with the SEC
which (x) shall be on Form S-3 (or any successor to such form), if
available, (y) shall be available for the sale or exchange of the
Registrable Securities in accordance with the intended method or methods of
distribution by the selling Holders thereof and (z) shall comply as to form
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith and all other
information reasonably requested by the lead managing Underwriter or sole
Underwriter, if applicable, to be included therein, (ii) use all reasonable
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2, (iii) use all reasonable efforts to
not take any action that would cause a Registration Statement to contain a
material misstatement or omission or to be not effective and usable for
resale of Registrable Securities during the period that such Registration
Statement is required to be effective and usable and (iv) cause each
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of such Registration
Statement, amendment or supplement (x) to comply in all material respects
with any requirements of the Securities Act and the rules and regulations
of the SEC and (y) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(b) subject to paragraph (j) of this Section 4, prepare and
file with the SEC such amendments and post-effective amendments to each
such Registration Statement, as may be necessary to keep such Registration
Statement effective for the applicable period; cause each such Prospectus
to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by each Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof, as set forth in such
registration statement;
(o) furnish to each Holder of Registrable Securities and to
each Underwriter of an Underwritten Offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably request in
order to facilitate the public sale or other disposition of any Registrable
Securities; Wyndham hereby consents to the use of the Prospectus, including
each preliminary Prospectus, by each Holder of Registrable Securities and
each Underwriter of an Underwritten Offering of Registrable Securities, if
any, in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or the preliminary Prospectus (the Holders hereby
agreeing not to make a broad public dissemination of a form of preliminary
Prospectus which is designed to be a "quiet filing" without Wyndham's
consent, such consent to not be withheld unreasonably);
(d) (i) use all reasonable efforts to register or qualify the
Registrable Securities, no later than the time the applicable Registration
Statement is declared effective by the SEC, under all applicable state
securities or "blue sky" laws of such jurisdictions as each Underwriter, if
any, or any Holder of Registrable Securities covered by a Registration
Statement, shall reasonably request; (ii) use all reasonable efforts to
keep each such registration or qualification effective during the period
such Registration Statement is required to be kept effective; and (iii) do
any and all other acts and things which may be reasonably necessary or
advisable to enable each such Underwriter, if any, and Holder to consummate
the disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that Wyndham shall not be
obligated to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to consent to be
subject to general service of process (other than service of process in
connection with such registration or qualification or any sale of
Registrable Securities in connection therewith) in any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly, and,
if requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance
by the SEC or any state securities authority of any stop order, injunction
or other order or requirement suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iii) if, between the effective date of a Registration Statement
and the closing of any sale of securities covered thereby pursuant to any
agreement to which Wyndham is a party, the representations and warranties
of Wyndham contained in such agreement cease to be true and correct in all
material respects or if Wyndham receives any notification with respect to
the suspension of the qualification of the Registrable Securities for sale
in any jurisdiction or the initiation of any proceeding for such purpose
and (iv) of the happening of any event during the period a Registration
Statement is effective as a result of which such Registration Statement or
the related Prospectus contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading;
(f) furnish counsel for each such Underwriter, if any, and for
the Holders of Registrable Securities copies of any request by the SEC or
any state securities authority for amendments or supplements to a
Registration Statement and Prospectus or for additional information;
(g) use all reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible time;
(h) upon request, furnish to the sole Underwriter or lead
managing Underwriter of an Underwritten Offering of Registrable Securities,
if any, without charge, at least one signed copy of each Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference
and all exhibits; and furnish to each Holder of Registrable Securities,
without charge, at least one conformed copy of each Registration Statement
and any post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(i) cooperate with the selling Holders of Registrable
Securities and the sole Underwriter or lead managing Underwriter of an
Underwritten Offering of Registrable Securities, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable
such Registrable Securities to be in such denominations (consistent with
the provisions of the governing documents thereof) and registered in such
names as the selling Holders or the sole Underwriter or lead managing
Underwriter of an Underwritten Offering of Registrable Securities, if any,
may reasonably request at least three business days prior to any sale of
Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraph
(e)(iv) of this Section, use all reasonable efforts to prepare a supplement
or post-effective amendment to a Registration Statement or the related
Prospectus, or any document incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(k) enter into customary agreements (including, in the case of
an Underwritten Offering, underwriting agreements in customary form, and
including provisions with respect to indemnification and contribution in
customary form and consistent with the provisions relating to
indemnification and contribution contained herein) and take all other
customary and appropriate actions in order to expedite or facilitate the
disposition of such Registrable Securities and in connection therewith:
(1) make such representations and warranties to the Holders of
such Registrable Securities and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings;
(2) obtain opinions of counsel to Wyndham and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the lead managing Underwriter, if any, and
the Majority Holders of the Registrable Securities being sold)
addressed to each selling Holder and the Underwriters, if any,
covering the matters customarily covered in opinions requested in
sales of securities or underwritten offerings and such other matters
as may be reasonably requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from
Wyndham's independent certified public accountants addressed to the
selling Holders of Registrable Securities, if permissible, and the
Underwriters, if any, which letters shall be customary in form and
shall cover matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with primary underwritten
offerings;
(4) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the Holders
and such representative of the selling Holders as the Majority
Holders of the Registrable Securities covered by any Registration
Statement relating to the Registration and providing for, among other
things, the appointment of such representative as agent for the
selling Holders for the purpose of soliciting purchases of
Registrable Securities, which agreement shall be customary in form,
substance and scope and shall contain customary representations,
warranties and covenants; and
(5) deliver such customary documents and certificates as may be
reasonably requested by the Majority Holders of the Registrable
Securities being
sold or by the managing Underwriters, if any.
The above shall be done (i) at be effectiveness of such Registration
Statement (and each post-effective amendment thereto) in connection with
any registration, and (ii) at each closing under any underwriting or
similar agreement as and to the extent required thereunder;
(l) make available for inspection by representatives of the
Initial Holders of the Registrable Securities and any Underwriters
participating in any disposition pursuant to a Registration Statement and
any counsel or accountant retained by such Holders or Underwriters, all
relevant financial and other records, pertinent corporate documents and
properties of Wyndham and cause the respective officers, directors and
employees of Wyndham to supply all information reasonably requested by any
such representative, Underwriter, counsel or accountant in connection with
a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of
such document to the Initial Holders of Registrable Securities and to
counsel to such Initial Holders and to the Underwriter or Underwriters of
an Underwritten Offering of Registrable Securities, if any; fairly consider
such reasonable changes in any such document prior to or after the filing
thereof as the counsel to the Holders or the Underwriter or the
Underwriters may request and not file any such document in a form to which
the Majority Holders of Registrable Securities being registered or any
Underwriter shall reasonably object; and make such of the representatives
of Wyndham as shall be reasonably requested by the Holders of Registrable
Securities being registered or any Underwriter available for discussion of
such document;
(ii) within a reasonable time prior to the filing of any
document which is to be incorporated by reference into a Registration
Statement or a Prospectus, provide copies of such document to counsel for
the Holders; fairly consider such reasonable changes in such document prior
to or after the filing thereof as counsel for such Holders or such
Underwriter shall request; and make such of the representatives of Wyndham
as shall be reasonably requested by such counsel available for discussion
of such document;
(n) cause all Registrable Securities to be qualified for
inclusion in or listed on the New York Stock Exchange or any securities
exchange on which securities of the same class issued by Wyndham is then so
qualified or listed if so requested by the Majority Holders of Registrable
Securities covered by a Registration Statement, or if so requested by the
Underwriter or Underwriters of an Underwritten Offering of Registrable
Securities, if any;
(o) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the SEC, including making available to
its security holders an earnings statement covering at least 12 months
which shall satisfy the provisions of Section 11 (a) of the Securities Act
and Rule 158 thereunder;
(p) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any Underwriter in an Underwritten Offering; and
(q) use all reasonable efforts to facilitate the distribution
and sale of any Registrable Securities to be offered pursuant to this
Agreement, including without limitation by making road show presentations,
holding meetings with potential investors and taking such other actions as
shall be requested by the Majority Holders of Registrable Securities
covered by a Registration Statement or the lead managing Underwriter of an
Underwritten Offering, in each case subject to the reasonable availability
of Wyndham's executives given their other duties.
Each selling Holder of Registrable Securities as to which any
registration is being effected pursuant to this Agreement agrees, as a
condition to the registration obligations with respect to such Holder
provided herein, to furnish to Wyndham such information regarding such
Holder required to be included in the Registration Statement, the ownership
of Registrable Securities by such Holder and the proposed distribution by
such Holder of such Registrable Securities as Wyndham may from time to time
reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from
Wyndham of the happening of any event of the find described in paragraph
(e)(iv) of this Section, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to the affected Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus, contemplated by paragraph (j) of this Section, and, if so
directed by Wyndham, such Holder will deliver to Wyndham (at the expense of
Wyndham), all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such
Registrable Securities which was current at the time of receipt of such
notice.
Section 5. Indemnification; Contribution.
(a) Indemnification by Wyndham. Wyndham agrees, jointly and
severally, to indemnify and hold harmless each Person who participates as
an underwriter (any such Person being an "Underwriter"), each Holder and
their respective partners, directors, officers and employees and each
Person, if any, who controls any Holder or Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act as
follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement pursuant to which Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus, including all documents
incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any other claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of Wyndham; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel), incurred in
investigating, preparing or defending against any litigation,
investigation or proceeding by any governmental agency or body,
commenced or threatened, in each case whether or not such Person is a
party, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or
(ii) above;
provided, however, that this indemnity agreement does not apply to any
Holder or Underwriter with respect to any loss, liability, claim, damage,
judgment or expense to the extent arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus, or
the omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, in any such case made in reliance upon and
in conformity with written information furnished to Wyndham by such Holder
or Underwriter expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto).
(b) Indemnification by Holders. (i) Each selling Holder
severally agrees to indemnify and hold harmless Wyndham, each Underwriter
and the other selling Holders, and each of their respective partners,
directors, officers and employees (including each officer of Wyndham who
signed the Registration Statement), and each Person, if any, who controls
Wyndham, any Underwriter or any other selling Holder within the meaning of
Section 15 of the Securities Act, against any and all losses, liabilities,
claims, damages, judgments and expenses described in the indemnity
contained in paragraph (a) of this Section (provided that any settlement of
the type described therein is effected with the written consent of such
selling Holder), as incurred, but only with respect to untrue statements or
alleged untrue statements of a material fact contained in any Prospectus or
the omissions, or alleged omissions therefrom of a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, in any such case made in reliance
upon and in conformity with written information furnished to Wyndham by
such selling Holder expressly for use in such Registration Statement (or
any amendment thereto) or such Prospectus (or any amendment or supplement
thereto).
(c) Conduct of Indemnification Proceedings. Each indemnified
party or parties shall give reasonably prompt notice to each indemnifying
party or parties of any action or proceeding commenced against it in
respect of which indemnity may be sought hereunder, but failure so to
notify an indemnifying party or parties shall not relieve it or them from
any liability which it or they may have under this indemnity agreement,
except to the extent that the indemnifying party is materially prejudiced
by such failure to give notice. If the indemnifying party or parties so
elects within a reasonable time after receipt of such notice, the
indemnifying party or parties may assume the defense of such action or
proceeding at such indemnifying party's or parties' expense with counsel
chosen by the indemnifying party or parties and approved by the indemnified
party defendant in such action or proceeding, which approval shall not be
unreasonably withheld; provided, however, that, if such indemnified party
or parties determine in good faith that a conflict of interest exists and
that therefore it is advisable for such indemnified party or parties to be
represented by separate counsel or that, upon advice of counsel, there may
be legal defenses available to it or them which are different from or in
addition to those available to the indemnifying party, then the
indemnifying party or parties shall not be entitled to assume such defense
and the indemnified party or parties shall be entitled to separate counsel
(limited in each jurisdiction to one counsel for all Underwriters and
another counsel for all other indemnified parties under this Agreement) at
the indemnifying party's or parties' expense. If an indemnifying party or
parties is not so entitled to assume the defense of such action or does not
assume such defense, after having received the notice referred to in the
first sentence of this paragraph, the indemnifying party or parties will
pay the reasonable fees and expenses of counsel for the indemnified party
or parties (limited in each jurisdiction to one counsel for all
Underwriters and another counsel for all other indemnified parties under
this Agreement). No indemnifying party or parties will be liable for any
settlement effected without the written consent of such indemnifying party
or parties, which consent shall not be unreasonably withheld. If an
indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, such indemnifying
party or parties shall not, except as otherwise provided in this subsection
(c), be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action or proceeding.
(d) Contribution. (i) In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in this Section is for any reason held to be unenforceable by
the indemnified parties although applicable in accordance with its terms in
respect of any losses, liabilities, claims, damages, judgments and expenses
suffered by an indemnified party referred to therein, each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, liabilities, claims, damages, judgments and expenses
in such proportion as is appropriate to reflect the relative fault of
Wyndham on the one hand and of the liable selling Holders (including, in
each case, that of their respective officers, directors, employees and
agents) on the other in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages, judgments or
expenses, as well as any other relevant equitable considerations. The
relative fault of Wyndham on the one hand and of the liable selling Holders
(including, in each case, that of their respective officers, directors,
employees and agents) on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by Wyndham, on the one hand, or by or on
behalf of the selling Holders, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party
as a result of the losses, liabilities, claims, damages, judgments and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in paragraph (c) of this Section, any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
(ii) Wyndham and each Holder of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to in sub-paragraph (i) above. Notwithstanding the provisions of
this paragraph (d), in the case of distributions to the public, an
indemnifying Holder shall not be required to contribute any amount in
excess of the amount by which (A) the total price at which the Registrable
Securities sold by such indemnifying Holder and its affiliated indemnifying
Holders and distributed to the public were offered to the public exceeds
(B) the amount of any damages which such indemnifying Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
(iii) For purposes of this Section, each Person, if any, who
controls a Holder or an Underwriter within the meaning of Section 15 of the
Securities Act (and their respective partners, directors, officers and
employees) shall have the same rights to contribution as such Holder or
Underwriter; and each director of Wyndham, each officer of Wyndham who
signed the Registration Statement, and each Person, if any, who controls
Wyndham within the meaning of Section 15 of the Securities Act, shall have
the same rights to contribution as Wyndham.
Section 6. Miscellaneous.
(a) Inconsistent Agreements. Wyndham is not a party to, and
will not on or after the date of this Agreement enter into, any agreement
which conflicts with the provisions of this Agreement nor has Wyndham
entered into any such agreement, and Wyndham will not on or after the date
of this Agreement modify in any manner adverse to the Holders any such
agreement; provided, however, that nothing in this sentence shall prohibit
Wyndham from granting registration rights, which become exercisable from
and after the Closing, to any Person (a "Third Party") who becomes an owner
of shares of any of Wyndham's capital stock after the date hereof
(including granting incidental registration rights with respect to any
Registration Statement required to be filed or maintained hereunder) if and
only if (i) the Third-Party's registration rights (including, without
limitation, demand registration rights) provide to the Holders of
Registrable Securities who seek to participate in such registration
(whether or not such registration is initiated hereunder) rights no less
favorable to such Holders than those rights provided to the Holders
hereunder as if such registration were a Required Registration (including,
without limitation, the priority provisions contained in Section
2(a)(iii)), provided, further, however, that if such registration is not
initiated by the Initial Holders such registration shall not be deemed one
of the eight Required Registrations for purposes of the limitations
contained in the second paragraph of Section 2(a)(i), and (ii) the Third
Party is required to enter into the agreements provided for in Section 3
hereof (as if it were Wyndham) on the terms and for the period applicable
to Wyndham (including preventing sales pursuant to Rule 144 under the
Securities Act) if requested by the sole Underwriter or lead managing
Underwriter in an Underwritten Offering initiated by Holders of Registrable
Securities pursuant to Section 2(a). The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of Wyndham's other issued and outstanding
securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless Wyndham has obtained the written consent of
a majority of the Holders and, if any such amendment, modification,
supplement, waiver or consent would adversely affect the rights of any
Holder hereunder, the written consent of each Holder which is affected
shall be obtained; provided, however, that nothing herein shall prohibit
any amendment, modification, supplement, waiver or consent the effect of
which is limited only to those Holders who have agreed to such amendment,
modification, supplement, waiver or consent.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a
Holder, at the most current address given by such Holder to Wyndham by
means of a notice given in accordance with the provisions of this paragraph
(c), which address initially is, with respect to each Holder as of the date
hereof, the address set forth next to such Holder's name on the signature
pages hereof with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., telecopier number (212)
735-2000, and with respect to each Holder who becomes such after the date
hereof, the address of such Holder in the stock records of Wyndham, (ii) if
to Wyndham, at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
telecopier number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: General Counsel, with a copy
to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C., telecopier number (▇▇▇) ▇▇▇-▇▇▇▇, and thereafter
at such other address, notice of which is given in accordance with the
provisions of this paragraph. Notwithstanding the foregoing, Wyndham shall
not be obligated to provide any notice to any Holder which is not an
Initial Holder except with respect to a Required or Incidental Registration
Statement which has been filed and pursuant to which such Holder is
identified as a selling stockholder.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered;
when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to a courier
guaranteeing overnight delivery. Notwithstanding the foregoing, nothing in
this Section 6(c) is intended to enlarge the class of Persons which are
Holders, as defined in the preamble of this Agreement, and thus entitled to
the rights granted hereunder.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without the need for an express assignment,
subsequent Holders. If any successor, assignee or transferee of any Holder
shall acquire Registrable Securities in any manner, whether by operation of
law or otherwise, such Registrable Securities shall be held subject to all
of the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement
and to receive the benefits hereof. Notwithstanding the foregoing, nothing
in this Section 6(d) is intended to enlarge the class of Persons which are
Holders, as defined in the preamble of this Agreement, and thus entitled to
the rights granted hereunder. For purposes of this Agreement, "successor"
for any entity other than a natural person shall mean a successor to such
entity as a result of such entity's merger, consolidation, liquidation,
dissolution, sale of substantially all of its assets, or similar
transaction.
(e) Recapitalizations, Exchanges, Etc., Affecting Registrable
Securities. The provisions of this Agreement shall apply, to the full
extent set forth herein with respect to the Registrable Securities, to any
and all securities or capital stock of Wyndham or any successor or assign
of Wyndham (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in exchange for, or in substitution of
such Registrable Securities, by reason of any dividend, split, issuance,
reverse split, combination, recapitalization, reclassification, merger,
consolidation or otherwise. Upon the occurrence of any of such events,
Preferred Stock and Common Stock amounts hereunder shall be appropriately
adjusted if necessary.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be
deemed to be an original, but all of which counterparts, taken together,
shall constitute one and the same instrument.
(g) Descriptive Headings, Etc. The headings in this Agreement
are for convenience of reference only and shall not limit or otherwise
affect the meaning of terms contained herein. Unless the context of this
Agreement otherwise requires: (1) words of any gender shall be deemed to
include each other gender; (2) words using the singular or plural number
shall also include the plural or singular number, respectively; (3) the
words "hereof", "herein" and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and Article, Section, paragraph
and clause references are to the Articles, Sections, paragraphs and clauses
to this Agreement unless otherwise specified; (4) the word "including" and
words of similar import when used in this Agreement shall mean "including,
without limitation," unless otherwise specified; (5) "or" is not exclusive;
and (6) provisions apply to successive events and transactions.
(h) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision, paragraph, word, clause,
phrase or sentence in every other respect and of the other remaining
provisions, paragraphs, words, clauses, phrases or sentences hereof shall
not be in any way impaired, it being intended that all rights, powers and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE (WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF).
(j) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform in
any material respect any of its obligations hereunder, and accordingly
agree that each party, in addition to any other remedy to which it may be
entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement in
accordance with the terms and conditions of this Agreement in any court of
the United States or any State thereof having jurisdiction.
(k) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between Wyndham, on the
one hand, and the other parties to this Agreement, on the other, with
respect to such subject matter.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
WYNDHAM INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive
Officer
APOLLO REAL ESTATE
INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors III, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors III, Inc.,
its General Partner
Address:
1301 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Attention: ------------------------------
Telecopier Number: Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Title: Vice President
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its
General Partner
By: Apollo Capital Management IV,
Inc., its General Partner
Address:
1301 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇
Attention: ---------------------------------------
Telecopier Number: Name: ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Title: Vice President
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier Number: --------------------------------------
(▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier Number: --------------------------------------
(▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ ▇. ▇▇▇ CHARITABLE
INVESTMENT L.P.
Address: By: THL Equity Advisors IV, LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier Number: --------------------------------------
(▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
THL-CCI LIMITED PARTNERSHIP
Address: By: THL Equity Advisors IV, LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier Number: --------------------------------------
(▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
BEACON CAPITAL PARTNERS, L.P.
Address: By: Beacon Capital Partners, Inc.,
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ its General Partner
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier Number: --------------------------------------
(▇▇▇) ▇▇▇-▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
STRATEGIC REAL ESTATE
INVESTMENTS I, L.L.C.
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Attention: ----------------------------------------
Telecopier Number: Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Title: Manager