EXHIBIT 99.1
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EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 14, 2005 (this "Agreement"), by and
among the stockholders listed on Schedule A attached hereto (each, a "Principal
Stockholder" and collectively, the "Principal Stockholders"), WYNDHAM
INTERNATIONAL, INC., a Delaware corporation (the "Company"), WIND HOTELS
HOLDINGS INC., a Delaware corporation ("Parent"), and WIND HOTELS ACQUISITION
INC., a Delaware corporation and wholly-owned subsidiary of Parent ("Merger
Subsidiary").
WHEREAS, the Company and certain of its stockholders are parties to the
Recapitalization and Merger Agreement, dated as of April 14, 2005 (the
"Recapitalization and Merger Agreement"), providing for, among other things, the
merger of a wholly owned subsidiary of the Company with and into the Company
(the "Recapitalization Merger"), and by virtue of the Recapitalization Merger,
the conversion of (i) each share of Class A Common Stock, par value $0.01 per
share, of the Company ("Class A Common Stock"), and Class B Common Stock, par
value $0.01 per share, of the Company ("Class B Common Stock") that is issued
and outstanding immediately prior to the effective time of the Recapitalization
Merger (the "Recapitalization Merger Effective Time") into one share of common
stock, par value $0.01 per share, of the Company ("Common Stock") and (ii) each
share of Series A Preferred Stock, par value $0.01 per share, of the Company
("Series A Preferred Stock"), and Series B Preferred Stock, par value $0.01 per
share, of the Company ("Series B Preferred Stock"), that is issued and
outstanding immediately prior to the Recapitalization Merger Effective Time into
that number of shares of Common Stock specified in the Recapitalization and
Merger Agreement;
WHEREAS, the Company, Parent and Merger Subsidiary are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as amended or
supplemented from time to time in accordance with the terms thereof, the "Merger
Agreement"), providing for the merger of Merger Subsidiary with and into the
Company (the "Merger"), upon the terms and subject to the conditions set forth
in the Merger Agreement;
WHEREAS, so long as the Merger Agreement has not been terminated in
accordance with its terms, the Recapitalization Merger shall not be consummated;
WHEREAS, as the date hereof, each Principal Stockholder beneficially
owns the class and number of shares of capital stock of the Company set forth
opposite such Principal Stockholder's name on Schedule A attached hereto; and
WHEREAS, as a condition to the willingness of Parent and Merger
Subsidiary to enter into the Merger Agreement, each of Parent and Merger
Subsidiary has required that the Principal Stockholders agree, and in order to
induce Parent and Merger Subsidiary to enter into the Merger Agreement, the
Principal Stockholders have agreed, to enter into this Agreement with respect to
(a) all the shares of Class A Common Stock, Class B Common Stock, Series A
Preferred Stock or Series B Preferred Stock, as the case
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may be, now beneficially owned and all the shares of Class A Common Stock, Class
B Common Stock, Series A Preferred Stock, Series B Preferred Stock or Common
Stock, as the case may be, which may hereafter be acquired by, or on behalf of,
the Principal Stockholders whether pursuant to the Recapitalization Merger or
otherwise (the "Shares") and (b) certain other matters as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
Section 1.1 VOTING AGREEMENT. Subject, in the case of BCP Voting,
Inc., as trustee for the Beacon Capital Partners Voting Trust ("Beacon"), to (i)
the requisite approval (the "Beacon Approval") of holders of interests in Beacon
pursuant to the terms of the Beacon Voting Trust Agreement, dated as of June 8,
1999 (the "Beacon Trust Agreement") and and (ii) the expiration and non-renewal
of the Beacon Trust Agreement (collectively, clauses (i) and (ii), the "Beacon
Exception"), each Principal Stockholder, severally and not jointly, hereby
agrees that during the time this Agreement is in effect, at any meeting of the
stockholders of the Company, however called, or at any adjournment thereof or in
any other circumstances upon which a vote, consent or other approval (including
by written consent) is sought, the Principal Stockholders shall (1) when a
meeting is held, appear at such meeting or otherwise cause the Shares to be
counted as present thereat for the purpose of establishing a quorum and (2) vote
(or cause to be voted) the Shares: (x) in favor of the Merger, the Merger
Agreement and the transactions contemplated by the Merger Agreement if a vote,
consent or other approval (including by written consent) with respect to any of
the foregoing is sought and (y) against any (i) merger agreement or merger
(other than the Merger Agreement and the Merger), consolidation, combination,
sale of substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company or any other Takeover Proposal or
(ii) amendment of the Company's certificate of incorporation or by-laws or other
proposal or transaction involving the Company or any of its subsidiaries, which
amendment or other proposal or transaction would in any manner reasonably be
expected to impede, delay, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement
or result in a breach in any material respect of any representation, warranty,
covenant or agreement of the Company under the Merger Agreement or change in any
manner the voting rights of any class of the Common Stock, or Class A Common
Stock, Class B Common Stock, Series A Preferred Stock and Series B Preferred
Stock, as the case may be; PROVIDED, HOWEVER, that nothing contained in this
Section 1.1(a) shall be deemed to apply to the Recapitalization and Merger
Agreement, the Recapitalization Merger or the other transactions contemplated
thereby (including the amendments to the Company's restated certificate of
incorporation and amended and restated bylaws contemplated thereby). Beacon will
use its reasonable efforts to solicit the Beacon Approval as promptly as
practicable after the date hereof.
Section 1.2 PROXY.
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(a) EACH OF THE PRINCIPAL STOCKHOLDERS HEREBY GRANTS TO, AND
APPOINTS, PARENT, THE PRESIDENT OF PARENT AND THE SECRETARY OF PARENT, IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF PARENT, AND ANY OTHER DESIGNEE OF PARENT,
EACH OF THEM INDIVIDUALLY, SUCH PRINCIPAL STOCKHOLDER'S IRREVOCABLE (UNTIL THE
TERMINATION DATE (AS DEFINED BELOW)) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER
OF SUBSTITUTION) TO VOTE THE SHARES AS INDICATED IN SECTION 1.1. EACH OF THE
PRINCIPAL STOCKHOLDERS INTENDS THIS PROXY TO BE IRREVOCABLE (UNTIL THE
TERMINATION DATE) AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION
OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT
OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY SUCH PRINCIPAL
STOCKHOLDER WITH RESPECT TO THE COVERED SHARES.
(b) Notwithstanding clause (a), Beacon shall not grant any proxy
unless and until permitted under the terms of the Beacon Trust Agreement.
Section 1.3 WAIVER OF CERTAIN AGREEMENTS. The Principal
Stockholders and the Company hereby agree to waive (on behalf of themselves and
their respective controlled affiliates) all applicable provisions of the
Securities Purchase Agreement, dated as of February 18, 1999 (as amended or
supplemented from time to time, the "Securities Purchase Agreement"), by and
among the Patriot American Hospitality, Inc., the Company, Patriot American
Hospitality Partnership, L.P., Wyndham International Operating Partnership,
L.P., the Principal Stockholders and certain other stockholders of the Company
named therein, and the Recapitalization and Merger Agreement, in each case, to
the extent necessary to enter into this Agreement and to consummate the
transactions contemplated hereby; PROVIDED, HOWEVER, that any such waivers shall
be effective only during the term of this Agreement and shall terminate upon the
termination of this Agreement in accordance with its terms.
Section 1.4 ACKNOWLEDGMENT. Each Principal Stockholder hereby
acknowledges receipt and review of a copy of the Merger Agreement and that the
Company's obligations under the Recapitalization and Merger Agreement are
subject to its obligations under the Merger Agreement.
Section 1.5 BOARD DUTIES. Notwithstanding the foregoing, nothing
in this Agreement shall limit, restrict or otherwise affect any actions taken in
compliance with the Merger Agreement by any person affiliated with any Principal
Stockholder in his or her capacity as a member of the Board of Directors of the
Company or any committee thereof.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE PRINCIPAL STOCKHOLDERS
Each Principal Stockholder, severally and not jointly, hereby
represents and warrants to Parent as follows:
Section 2.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Subject, in the
case of Beacon, to the Beacon Exception, (i) each Principal Stockholder has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions to be consummated
by it as contemplated hereby, (ii) the execution and delivery of this Agreement
by each Principal Stockholder and the consummation by each Principal Stockholder
of the transactions to be consummated by it as contemplated hereby have been
duly and validly authorized by such Principal Stockholder, and no other
proceedings on the part of such Principal Stockholder are necessary to authorize
this Agreement, to perform such obligations or to consummate such transactions,
and (iii) this Agreement has been duly and validly executed and delivered by
each Principal Stockholder and, assuming the due authorization, execution and
delivery by Parent and Merger Subsidiary, constitutes a legal, valid and binding
obligation of each Principal Stockholder, enforceable against such Principal
Stockholder in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors rights generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
Section 2.2 NO CONFLICT.
(a) Subject, in the case of Beacon, to the Beacon Exception, the
execution and delivery of this Agreement by each Principal Stockholder do not,
and the performance of its obligations under this Agreement by such Principal
Stockholder and the consummation of the transactions to be consummated by it as
contemplated hereby shall not, (i) conflict with or violate the certificate of
incorporation, by-laws or other organizational documents of such Principal
Stockholder, (ii) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to such Principal Stockholder or by which the
Shares are bound or affected or (iii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Principal Stockholder is a party or by
which such Principal Stockholder or the Shares are bound or affected, except, in
the case of clauses (ii) and (iii), for any such conflicts, violations,
breaches, defaults or other occurrences which would not prevent or delay in any
material respect the performance by such Principal Stockholder of its
obligations under this Agreement.
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(b) The execution and delivery of this Agreement by each Principal
Stockholder do not, and the performance of its obligations under this Agreement
by such Principal Stockholder shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any court or
arbitrator or any Governmental Entity, agency or official except for applicable
requirements, if any, of the Exchange Act and except where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay the performance by such Principal
Stockholder of its obligations under this Agreement.
Section 2.3 OWNERSHIP OF SHARES. As of the date hereof, each
Principal Stockholder is the record and beneficial owner of the Shares free and
clear of Liens set forth opposite such Principal Stockholder's name on SCHEDULE
A attached hereto, and, subject, in the case of Beacon, to the Beacon Exception,
has the sole authority to direct the voting of such Shares in accordance with
the provisions of this Agreement and the sole power of disposition with respect
to such Shares, with no restrictions, subject to applicable federal securities
laws on its rights of disposition pertaining thereto (other than Liens or
restrictions created by this Agreement, the Beacon Trust Agreement, the
Securities Purchase Agreement and the Recapitalization and Merger Agreement). As
of the date hereof, no Principal Stockholder owns beneficially or of record any
equity securities of the Company other than the Shares set forth in Schedule A.
No Principal Stockholder has appointed or granted any proxy which is still in
effect with respect to any Shares.
Section 2.4 NO FINDER'S FEE. No broker, investment banker,
financial advisor or other person is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Principal Stockholders.
Section 2.5 RELIANCE BY THE BUYERS. Each Principal Stockholder
understands and acknowledges that Parent and Merger Subsidiary are entering into
the Merger Agreement in reliance upon the Principal Stockholders' execution and
delivery of this Agreement. Each of the Principal Stockholders is an "accredited
investor" (as defined under the Securities Act) and a sophisticated investor, is
capable of evaluating the merits and risks of its investments and has the
capacity to protect its own interests.
ARTICLE III
COVENANTS OF THE PRINCIPAL STOCKHOLDERS
Section 3.1 NO INCONSISTENT AGREEMENT. Each Principal
Stockholder, severally and not jointly, hereby covenants and agrees that no
Principal Stockholder (1) has entered into or shall enter into any agreement
that would restrict, limit or interfere in any material respect with the
performance of the Principal Stockholders' obligations hereunder or under the
Merger Agreement (it being understood that the foregoing shall not limit,
restrict or otherwise affect any Principal Stockholder's ability to grant any
proxies with respect to, or enter into any voting trust or other agreement or
arrangement with respect to the voting of, any Shares, if such actions are not
inconsistent with the
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voting obligations of such Principal Stockholder contained in this Agreement)
and other than as a result of the termination of the Beacon Trust Agreement, (2)
shall knowingly take action that would reasonably be expected to make any of its
representations or warranties contained herein untrue or incorrect or have the
effect of preventing or disabling it from performing its obligations under this
Agreement or (3) shall convert any Shares into shares of Class A Common Stock or
Series A Preferred Stock.
Section 3.2 NO TRANSFER. Other than pursuant to the terms of the
Merger Agreement or the Recapitalization and Merger Agreement, without the prior
written consent of Parent or as otherwise provided in this Agreement, during the
term of this Agreement, each Principal Stockholder, severally and not jointly,
hereby agrees to not directly or indirectly (a) grant any proxies or enter into
any voting trust or other agreement or arrangement with respect to the voting of
any Shares, other than any proxies, voting trusts or voting agreements or
arrangements that are not inconsistent with the voting obligations of such
Principal Stockholder contained in this Agreement, or (b) sell, assign,
transfer, encumber or otherwise dispose of (including by merger, consolidation
or otherwise by operation of law), or enter into any contract, option or other
arrangement or understanding with respect to the direct or indirect assignment,
transfer, encumbrance or other disposition of (including by merger,
consolidation or otherwise by operation of law), any Shares, other than
transfers of the Shares by Beacon to its beneficiaries as a result of a
termination of the Beacon Voting Trust Agreement, in which case such
beneficiaries shall be automatically bound by and entitled to the benefits under
this Agreement without any further action. Each of the Principal Stockholders
agrees, while this Agreement is in effect, to promptly notify Parent of the
number of any Shares acquired by such Principal Stockholder, if any, after the
date hereof (other than shares of Preferred Stock issued as dividends pursuant
to the terms of the applicable Preferred Stock).
Section 3.3 NO SOLICITATION. Each Principal Stockholder,
severally and not jointly, hereby acknowledges that it is aware of the covenants
of the Company contained in Section 5.4 of the Merger Agreement and hereby
agrees that it shall not, directly or indirectly, solicit, initiate, facilitate
or knowingly encourage any inquiries, offers or proposals relating to a Takeover
Proposal or engage in discussions or negotiations with, or furnish or disclose
any non-public information relating to the Company or any of its Subsidiaries
to, any Person regarding a Takeover Proposal. Each Principal Stockholder shall
notify Parent promptly (and in any event within 48 hours) upon receipt by it of
any Takeover Proposal or indication by any Person considering making a Takeover
Proposal or any request for information relating to the Company or any of its
Subsidiaries (other than requests for information in the ordinary course of
business and unrelated to a Takeover Proposal) or any inquiry or request for
discussions or negotiations regarding any Takeover Proposal, including informing
Parent of the identity of such Person and the terms and conditions thereof
(including any modifications thereto) and providing copies of any related
written documents. Each Principal Stockholder shall immediately cease any
existing solicitations, discussions or negotiations with any Person regarding
any of the foregoing.
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Section 3.4 WAIVER OF APPRAISAL RIGHTS. Subject, in the case of
Beacon, to the Beacon Exception, each Principal Stockholder, severally and not
jointly, hereby irrevocably and unconditionally waives, and agrees to prevent
the exercise of, any rights of appraisal, any dissenters' rights and any similar
rights relating to the Merger or any related transaction that such Principal
Stockholder may directly or indirectly have by virtue of the ownership of any
Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Principal
Stockholder and Parent that the Company has all necessary power and authority to
execute and deliver this Agreement and this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors rights generally and by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law). The board of directors of the Company has taken
all necessary action to ensure that the restrictions on business combinations
contained in Section 203 of the General Corporation Law of the State of Delaware
will not apply to this Agreement or the transactions contemplated by this
Agreement. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time or both) under any provision of, the
articles of incorporation or by-laws of the Company, any trust agreement, loan
or credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order, notice,
decree, statute, law, ordinance, rule or regulation applicable to the Company or
to the Company's property or assets.
ARTICLE V
MISCELLANEOUS
Section 5.1 TERMINATION. This Agreement and all of its provisions
shall terminate upon the earlier of (i) the Effective Time, (ii) the termination
of the Merger Agreement in accordance with its terms and (iii) written notice of
termination of this Agreement by Parent to the Principal Stockholders (such date
of termination, the "Termination Date"). Nothing in this Section 5.1 shall be
deemed to release any party from any liability for any breach by such party of
the terms and provisions of this Agreement.
Section 5.2 AMENDMENT OF MERGER AGREEMENT. The obligations of a
Principal Stockholder under this Agreement shall terminate if the Merger
Agreement is amended or otherwise modified after the date hereof without the
prior written consent of such Principal Stockholder in a manner that reduces or
changes the form of Merger
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Consideration or otherwise amends the Merger Agreement in a manner adverse to
such Principal Stockholder in a material respect.
Section 5.3 FEES AND EXPENSES. Except as otherwise provided
herein, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs
and expenses.
Section 5.4 NOTICES. Any notice, request, instruction or other
communication under this Agreement shall be in writing and delivered by hand or
overnight courier service or by facsimile:
(a) If to the Principal Stockholders, to:
APOLLO INVESTMENT FUND IV, L.P.
APOLLO REAL ESTATE INVESTMENT FUND IV, L.P.
AIF/THL PAH LLC
c/o Apollo Capital Management, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Press
Facsimile No.: (000) 000-0000
BCP VOTING, INC.
x/x Xxxxxx Xxxxxxx Xxxxxxxx, X.X.
0 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
XXXXXX X. XXX EQUITY FUND IV, L.P.
XXXXXX X. XXX FOREIGN FUND IV, L.P.
XXXXXX X. XXX FOREIGN FUND IV-B., L.P.
c/o Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xx., 00xx Xx.
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
with a copy, to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
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(b) if to the Company, to:
Wyndham International, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxx X. Xxxxxxxxx, Esq.
(c) if to Parent or Merger Subsidiary, to:
c/o Blackstone Real Estate Partners IV L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
or to such other Persons, addresses or facsimile numbers as may be designated in
writing by the Person entitled to receive such communication as provided above.
Each such communication shall be effective (a) if delivered by hand, when such
delivery is made at the address specified in this Section 5.4, (b) if delivered
by overnight courier service, the next Business Day after such communication is
sent to the address specified in this Section 5.4, or (c) if delivered by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section 5.4 and appropriate confirmation is received.
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Section 5.5 ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned, delegated or
transferred, in whole or in part, by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties hereto (and which transfer shall not relieve the transferor of its
obligations hereunder in the event of a breach by the transferee); PROVIDED that
Parent or Merger Subsidiary may assign its rights, interests or rights under
this Agreement to any wholly-owned Subsidiary of Parent without the prior
written consent of the other parties hereto.
Section 5.6 NO THIRD-PARTY BENEFICIARIES. This Agreement is not
intended to confer any rights or remedies upon any Person other than the parties
to this Agreement.
Section 5.7 WAIVER. Any waiver by a party shall be valid only if
set forth in writing signed by such party. Mere inaction or failure to exercise
any right, remedy or option under this Agreement, or delay in exercising the
same, will not operate as, nor shall be construed as, a waiver, and each such
right shall be deemed an ongoing right and may be asserted at any time and from
time to time.
Section 5.8 SPECIFIC PERFORMANCE. The parties to this Agreement
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties to this Agreement shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
Section 5.9 ENTIRE AGREEMENT. This Agreement (including the
Schedules to this Agreement) constitutes the entire agreement among Parent,
Merger Subsidiary, the Company and the Principal Stockholders with respect to
the subject matter hereof (other than the Merger Agreement) and supersedes all
prior agreements, understandings, representations and warranties, both written
and oral, among Parent, Merger Subsidiary, the Company and the Principal
Stockholders with respect to the subject matter hereof. No representation,
warranty, inducement, promise, understanding or condition not set forth in this
Agreement has been made or relied upon by any of the parties to this Agreement.
Section 5.10 AMENDMENT. This Agreement may not be modified,
amended, altered or supplemented except by an instrument in writing signed by
each of the parties hereto.
Section 5.11 SEVERABILITY. The provisions of this Agreement shall
be deemed severable and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of the other provisions of this
Agreement. If any provision of this Agreement, or the application of that
provision to any Person or any circumstance, is invalid or unenforceable, (a) a
suitable and equitable provision shall be substituted for
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that provision in order to carry out, so far as may be valid and enforceable,
the intent and purpose of the invalid or unenforceable provision and (b) the
remainder of this Agreement and the application of that provision to other
Persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of that provision, or the application of that
provision, in any other jurisdiction.
Section 5.12 GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware, without
regard to the laws that might otherwise govern under applicable principles of
conflicts of law.
Section 5.13 SUBMISSION TO JURISDICTION. The parties to this
Agreement (a) irrevocably submit to the personal jurisdiction of the federal
courts of the United States of America located in the State of Delaware and the
Court of Chancery of the State of Delaware and (b) waive any claim of improper
venue or any claim that those courts are an inconvenient forum. The parties to
this Agreement agree that mailing of process or other papers in connection with
any such action or proceeding in the manner provided in Section 5.4 or in such
other manner as may be permitted by applicable Laws, shall be valid and
sufficient service thereof.
Section 5.14 WAIVER OF JURY TRIAL. Each party acknowledges and
agrees that any controversy which may arise under this Agreement is likely to
involve complicated and difficult issues and, therefore, each such party
irrevocably and unconditionally waives any right it may have to a trial by jury
in respect of any Legal Action arising out of or relating to this Agreement or
the transactions contemplated by this Agreement. Each party to this Agreement
certifies and acknowledges that (a) no Representative of any other party has
represented, expressly or otherwise, that such other party would not seek to
enforce the foregoing waiver in the event of a Legal Action, (b) such party has
considered the implications of this waiver, (c) such party makes this waiver
voluntarily, and (d) such party has been induced to enter into this Agreement
by, among other things, the mutual waivers and certifications in this Section
5.14.
Section 5.15 DEFINED TERMS. Capitalized terms used herein but not
defined herein shall have the meanings ascribed to them in the Merger Agreement.
Section 5.16 COUNTERPARTS; EFFECTIVENESS. This Agreement may be
executed in any number of counterparts, all of which shall be one and the same
agreement. This Agreement shall become effective when each party to this
Agreement shall have received counterparts signed by all of the other parties.
Section 5.17 FURTHER ASSURANCES. From time to time, at the request
of another party and without further consideration, each party hereto shall take
such reasonable further action as may reasonably be necessary or desirable to
consummate and make effective the transactions contemplated by this Agreement;
PROVIDED, HOWEVER, that, except as expressly provided herein, nothing herein
shall be deemed to require any Principal Stockholder to take any action in
respect of the Company's obligations under the Merger Agreement.
IN WITNESS WHEREOF, the Principal Stockholders, the Company,
Parent and Merger Subsidiary have caused this Agreement to be duly executed on
the date hereof.
[Signature Pages to Follow]
WIND HOTELS HOLDINGS INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director and
Vice President
WIND HOTELS ACQUISITION INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director and
Vice President
WYNDHAM INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
and General Counsel
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P.,
its General Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: Vice President
APOLLO REAL ESTATE INVESTMENT FUND IV, L.P.
By: Apollo Real Estate Advisors, IV, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors IV, Inc., its General
Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
AIF/THL PAH LLC
By: Apollo Management IV, L.P.,
its manager
By: AIF IV Management, Inc.,
its general partner
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P.,
its General Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Vice President
BCP VOTING, INC., as Trustee for the Beacon
Capital Partners Voting Trust
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Managing Director
and General Counsel
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Advisors IV, LLC
By: /s/ Xxxxxx X. Xxx
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Managing Director
XXXXXX X. XXX FOREIGN FUND IV, L.P.
By: THL Advisors IV, LLC
By: /s/ Xxxxxx X. Xxx
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Managing Director
XXXXXX X. XXX FOREIGN FUND IV-B, L.P.
By: THL Advisors IV, LLC
By: /s/ Xxxxxx X. Xxx
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Managing Director
SCHEDULE A
INVESTOR ENTITIES: SERIES B PREFERRED OWNERSHIP
------------------ ----------------------------
THL Equity Fund IV, L.P. 4,106,281.68
THL Foreign Fund IV, L.P. 141,946.65
THL Foreign Fund IV-B, L.P. 398,814.53
TOTAL 4,647,042.86
Apollo Investment Fund IV, L.P. 3,898,231.39
Apollo Overseas Partners IV, L.P. 209,052.71
Apollo Real Estate Investment Fund IV, L.P. 2,053,641.27
-------------
TOTAL 6,160,925.36
AIF/THL PAH LLC 1,288,559.90
BCP VOTING, INC. 2,416,048.62
TOTAL FOR INVESTORS 14,512,576.74
