EXHIBIT 99.1
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is entered into as of
April 1, 1998 by and between Patriot American Hospitality, Inc., a Delaware
corporation (the "REIT"), Wyndham International, Inc., a Delaware corporation
(the "Operating Company" and, collectively with the REIT, the "Companies") and
Metro Hotels, Inc. ("Metro") and Metro Hotel Leasing Corporation ("MHLC") (Metro
and MHLC hereinafter collectively referred to as the "Holders").
WHEREAS, the Holders are to receive a number of paired shares of REIT's
common stock, $.01 par value, and the Operating Company's common stock, $.01 par
value (collectively, the "Paired Shares"), issued without registration (the
"Registrable Shares") under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a Termination Agreement dated as of February 20,
1998 by and among Xxxxxx X. Xxxxxx, PA Xxxx Valley Investors, L.P. and MHLC with
respect to the lease at the Embassy Suites in Xxxx Valley, Maryland, and a
Termination Agreement dated as of February 20, 1998 by and among Xxxxxx X.
Xxxxxx, CHC Lease Partners, and Metro, with respect to the management agreement
at the Xxxxxxx Xxx Xxxxx Xxxxxx, Xxxxxx, Xxxxx (collectively, the "Termination
Agreements").
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Registration.
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(a) Registration Statement Covering Issuance of Registrable Shares.
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The Companies shall use reasonable efforts to file as soon as is reasonably
practicable a resale shelf registration statement (the "Shelf Registration
Statement") under Rule 415 under the Securities Act relating to the issuance to
Holders of the Registrable Shares and to cause such Shelf Registration Statement
to be declared effective by the SEC on April 1, 1998 or as soon as is reasonably
practicable thereafter.
2. Registration Procedures.
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(a) The Companies shall notify the Holders of the effectiveness of the
Shelf Registration Statement and shall furnish to the Holders such number of
copies of the Shelf Registration Statement (including any amendments,
supplements and exhibits), the prospectus contained therein (including each
preliminary prospectus), any documents incorporated by reference in the Shelf
Registration Statement and such other documents as Holders may reasonably
request in order to facilitate its sale of the Registrable Shares in the manner
described in the Shelf Registration Statement.
(b) The Companies shall prepare and file with the SEC from time to
time such amendments and supplements to the Shelf Registration Statement and
prospectus used in connection therewith as may be necessary to keep the Shelf
Registration Statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all the
Registrable Shares until such time as all of the Registrable Shares have been
issued or disposed of in accordance with the intended methods of disposition by
the Holders as set forth in the Shelf Registration Statement. Upon ten (10)
business days' notice, the Companies shall file any supplement or post-effective
amendment to the Shelf Registration Statement with respect to the Holders'
interests in or plan of distribution of Registrable Shares that is reasonably
necessary to permit the sale of the Holders' Registrable Shares pursuant to the
Shelf Registration Statement and the Companies shall file any necessary listing
applications or amendments to the existing applications to cause the shares to
be then listed or quoted on this primary exchange or quotation system on which
the Paired Shares are then listed or quoted.
(c) The Companies shall promptly notify the Holders of, and confirm in
writing, any request by the SEC for amendments or supplements to the Shelf
Registration Statement or the prospectus related thereto or for additional
information. In addition, the Companies shall promptly notify the Holders of,
and confirm in writing, the filing of the Shelf Registration Statement, any
prospectus supplement related thereto or any post-effective amendment to the
Shelf Registration Statement and the effectiveness of any post-effective
amendment.
(d) The Companies shall promptly notify the Holders at any time when a
prospectus relating to the Shelf Registration Statement is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in the Shelf Registration Statement, as then in
effect, includes an 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, in light of the circumstances under which they were made, not
misleading. In such event and subject to paragraph 7 of this Agreement, the
Companies shall prepare and furnish to the Holders a reasonable number of copies
of a supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of the Registrable Shares, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading.
3. State Securities Laws. Subject to the conditions set forth in this
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Agreement, the Companies shall, promptly upon the filing of the Shelf
Registration Statement, file such documents as may be necessary to register or
qualify the Registrable Shares under the securities or "Blue Sky" laws of such
states as the Holders may reasonably request, and the Companies shall use
reasonable efforts to cause such filings to become qualified; provided, however,
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that neither of the Companies shall be obligated to qualify as a foreign
corporation to do business under the laws of any such state in which it is not
then qualified or to file any general consent to service of process in any such
state. Once qualified, the Companies shall use reasonable efforts to keep such
filings qualified until the earlier of (a) such time as all of the Registrable
Shares have been disposed of in accordance with the intended methods of
disposition by the Holders as set forth in the Shelf Registration Statement, (b)
in the case of a particular state, the Holders has notified the Companies that
it no longer requires qualified filing in such state in accordance with its
original request for filing or (c) the date on which the Shelf Registration
Statement ceases to be effective with the SEC. The Companies shall promptly
notify the Holders of, and confirm in writing, the receipt by the Companies of
any notification with respect to the suspension of the qualification of
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the Registrable Shares for sale under the securities or "Blue Sky" laws of any
jurisdiction or the initiation or threat of any proceeding for such purpose.
4. Expenses. The Companies shall bear all expenses incurred in connection
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with the registration of the Registrable Shares pursuant to Section 1(a) of this
Agreement. Such expenses shall include, without limitation, all printing, legal
and accounting expenses incurred by the Companies and all registration and
filing fees imposed by the SEC, and state securities commission or the New York
Stock Exchange or, if the Paired Shares are not then listed on the New York
Stock Exchange, the principal national securities exchange or national market
system on which the Paired Shares are then traded or quoted. The Holders shall
be responsible for any brokerage or underwriting commissions and taxes of any
kind (including, without limitation, transfer taxes) with respect to any
disposition, sale or transfer of Registrable Shares and for any legal,
accounting and other expenses incurred by them in connection with any
registration statement.
5. Indemnification by the Companies. Each of the Companies agrees to
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indemnify the Holders and their respective officers, directors, employees,
agents, representatives and affiliates, and each person or entity, if any, that
controls the Holders within the meaning of the Securities Act, and each other
person or entity, if any, subject to liability because of his, her or its
connection with the Holders, and any underwriter and any person who controls the
underwriter within the meaning of the Securities Act (an "Indemnitee") against
any and all losses, claims, damages, actions, liabilities, costs and expenses
(including without limitation reasonable attorneys' fees, expenses and
disbursements documented in writing), joint or several, arising out of or based
upon any untrue or alleged untrue statement of material fact contained in the
Shelf Registration Statement or any prospectus contained therein, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as and
to the extent that such statement or omission arose out of or was based upon
information regarding the Indemnitee or its plan of distribution which was
furnished to the Companies by the Indemnitee in writing for use therein,
provided, further that the Companies shall not be liable to any person who
participates as an underwriter in the offering or sale or Registrable Shares or
any other person, if any, who controls such underwriter within the meaning of
the Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon (i) an untrue statement or alleged untrue statement or
omission or alleged omission made in such Shelf Registration Statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with information furnished in
writing to the Companies for use in connection with the Shelf Registration
Statement or the prospectus contained therein by such Indemnitee or (ii) such
Indemnitee's failure to send or give a copy of the final prospectus furnished to
it by the Companies at or prior to the time such action is required by the
Securities Act to the person claiming an untrue statement or alleged untrue
statement or omission or alleged omission if such statement or omission was
corrected in such final prospectus. The obligations of the Companies under this
Section 5 shall survive the completion of any offering of Registrable Shares
pursuant to the Shelf Registration Statement under this Agreement or otherwise
and shall survive the termination of this Agreement.
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6. Covenants of Holders. The Holders hereby agree (a) to cooperate with
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the Companies and to furnish to the Companies all such information in connection
with the preparation of the Shelf Registration Statement and any filings with
any state securities commissions as the Companies may reasonably request, (b) to
the extent required by the Securities Act, to deliver or cause delivery of the
prospectus contained in the Shelf Registration Statement to any purchaser of the
shares covered by the Shelf Registration Statement from the Holders, (c) to
notify the Companies of any sale of the Registrable Shares by the Holders and
(d) to indemnify the Companies, their respective officers, directors, employees,
agents, representatives and affiliates, and each person, if any, who controls
either of the Companies within the meaning of the Securities Act, and each other
person, if any, subject to liability because of his connection with the
Companies, against any and all losses, claims, damages, actions, liabilities,
costs and expenses arising out of or based upon (i) any untrue statement or
alleged untrue statement of material fact contained in either the Shelf
Registration Statement or the prospectus contained therein, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, if and to the extent that such statement
or omission arose out of or was based upon information regarding the Holders or
its plan of distribution which was furnished to the Companies by the Holders in
writing for use therein, or (ii) the failure by the Holders to deliver or cause
to be delivered the prospectus contained in the Shelf Registration Statement (as
amended or supplemented, if applicable) furnished by the Companies to the
Holders to any purchaser of the shares covered by the Shelf Registration
Statement from the Holders. Notwithstanding the foregoing, (i) in no event will
the Holders have any obligation under this Section 6 for amounts the Companies
pay in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holders (which consent shall
not be unreasonably withheld) and (ii) the total amount for which the Holders
shall be liable under this Section 6 shall not in any event exceed the aggregate
proceeds received by him or it from the sale of the Holders' Registrable Shares
in such registration. The obligations of the Holders under this Section 6 shall
survive the completion of any offering of Registrable Shares pursuant to a Shelf
Registration Statement under this Agreement or otherwise and shall survive the
termination of this Agreement.
7. Suspension of Shelf Registration Requirement.
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(a) The Companies shall promptly notify the Holders of, and confirm in
writing, the issuance by the SEC of any stop order suspending the effectiveness
of the Shelf Registration Statement or the initiation of any proceedings for
that purpose. The Companies shall use reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Shelf Registration
Statement as soon as practicable.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Companies' obligation under this Agreement to use reasonable
efforts to cause the Shelf Registration Statement and any filings with any state
securities commission to be made or to become effective or to amend or
supplement the Shelf Registration Statement shall be suspended in the event and
during such period pending negotiations relating to, or consummation of, a
transaction or the occurrence of an event that would require additional
disclosure of material information by the Companies in the Shelf Registration
Statement or such filing (such
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circumstances being hereinafter referred to as a "Suspension Event") that would
make it impractical or unadvisable to cause the Shelf Registration Statement or
such filings to be made or to become effective or to amend or supplement the
Shelf Registration Statement, but such suspension shall continue only for so
long as such event or its effect is continuing but in no event will that
suspension exceed ninety (90) days. The Companies agree not to exercise the
rights set forth in this Section 7(b) more than twice in any twelve month
period.
(c) The Holders of Registrable Shares whose Registrable Shares are
covered by the Shelf Registration Statement filed pursuant to Section 1 hereof
agrees, if requested by the Companies in the case of a nonunderwritten offering
(a "Nonunderwritten Offering") or if requested by the managing underwriter or
underwriters in an underwritten offering (an "Underwritten Offering,"
collectively with Nonunderwritten Offering, the "Offering"), not to effect any
public sale or distribution of any of the securities of the Companies of any
class included in such Offering, including a sale pursuant to Rule 144 or Rule
144A under the Securities Act (except as part of such Offering), during the
15-day period prior to, and during the 90-day period (or such longer period as
may be required by the managing underwriter or underwriters) beginning on, the
date of pricing of each Offering, to the extent timely notified in writing by
the Companies or the managing underwriters. Furthermore, notwithstanding
anything to the contrary set forth in this Agreement, the Companies' obligations
under this Agreement to use reasonable efforts to cause the Shelf Registration
Statement and any filings with any state securities commission to be made or to
become effective or to amend or supplement the Shelf Registration Statement
shall be suspended in the event and during such period as the Companies are
proceeding with an Underwritten Offering if the Companies are advised by the
underwriters that the sale of the Registrable Shares under the Shelf
Registration Statement would have a material adverse effect on the Underwritten
Offering.
8. Black-Out Period. Following the effectiveness of the Shelf
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Registration Statement and the filings with any state securities commissions,
the Holders agree that they will not effect any sales of the Registrable Shares
pursuant to the Shelf Registration Statement or any such filings at any time
after they have received notice from the Companies to suspend sales (i) as a
result of the occurrence or existence of any Suspension Event, (ii) during any
Offering, or (iii) so that the Companies may correct or update the Shelf
Registration Statement or such filing pursuant to Section 2(c) or 2(d). The
Holders may recommence effecting sales of the Registrable Shares pursuant to the
Shelf Registration Statement or such filings following further notice to such
effect from the Companies, which notice shall be given by the Companies no later
than five (5) business days after the conclusion of any such Suspension Event of
Offering.
9. Additional Shares. The Companies, at their option, may register, under
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any registration statement and any filings with any state securities commissions
filed pursuant to this Agreement, any number of unissued Paired Shares or any
Paired Shares owned by any other shareholder or shareholders of the Companies.
10. Contribution. If the indemnification provided for in Sections 5 and 6
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is unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
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shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, actions, liabilities, costs or expenses
in such proportion as is appropriate to reflect the relative fault of the
Companies, on the one hand, and the Holders, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Companies, on the one hand, and of the
Holders, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the
Companies or by the Holders and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission;
provided, however, that in no event shall the obligation of any indemnifying
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party to contribute under this Section 10 exceed the amount that such
indemnifying party would have been obligated to pay by way of indemnification if
the indemnification provided for under Sections 5 or 6 hereof had been available
under the circumstances.
The Companies and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 10 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No indemnified party guilty of fraudulent misrepresentations (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party who was not guilty of such fraudulent
misrepresentations.
11. No Other Obligation to Register. Except as otherwise expressly
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provided in this Agreement, the Companies shall have no obligation to the
Holders to register the Registrable Shares under the Securities Act.
12. Amendments and Waivers. The provisions of this Agreement may not be
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amended, modified or supplemented without the prior written consent of each of
the Companies and the Holders.
13. Notices. Except as set forth below, all notices and other
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communications provided for or permitted hereinafter shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by telex
or telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the Companies at the
following addresses and to the Holders at the address set forth on his signature
page to this Agreement (or at such other address for any party as shall be
specified by like notice, provided that notices of a change of address shall be
effective only upon receipt thereof), and further provided that in case of
directions to amend the Shelf Registration Statement pursuant to Section 2(b) or
Section 6, the Holders must confirm such notice in writing by overnight express
delivery with confirmation of receipt:
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If to the REIT: Patriot American Hospitality, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the
Operating Company: Wyndham International, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Xxxxxxx, Procter & Xxxx L.L.P.
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, P.C.
Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
In addition to the manner of notice permitted above, notices given pursuant to
Sections 1, 7 and 8 hereof may be effected telephonically and confirmed in
writing thereafter in the manner described above.
14. Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the successors and assigns of the Companies. This
Agreement may not be assigned by the Holders and any attempted assignment hereof
by the Holders will be void and of no effect and shall terminate all
obligations of the Companies hereunder with respect to the Holders.
15. Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Copied or telecopied
signatures may be attached as a counterpart hereto and shall have the same legal
and binding effect as original signatures.
16. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware applicable to contracts made
and to be performed wholly within said State.
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17. Severability. In the event that any one or more of the provisions
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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 in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
18. Entire Agreement. This Agreement is intended by the parties as a final
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expression of their agreement and intended to be the complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
PATRIOT AMERICAN HOSPITALITY, INC.
/s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
WYNDHAM INTERNATIONAL, INC.
/s/ XXX XXXXXXX
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Name: Xxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
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REGISTRATION RIGHTS AGREEMENT
HOLDERS SIGNATURE PAGE
HOLDERS
METRO HOTELS, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: President
Address: 0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000, LB 82
Dallas, Texas 75206-1819
METRO HOTEL LEASING CORPORATION
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: President
Address: 0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 0000, XX 00
Xxxxxx, Xxxxx 00000-0000
96689 v4
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