AMENDMENT NO. 1 TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amendment No. 1 (this "AMENDMENT"), dated as of as of October 27, 2003, to
the Amended And Restated Stockholders Agreement, dated as of July 10, 1998, by
and among Candlewood Hotel Company, Inc., a Delaware corporation (the
"COMPANY"), Doubletree Corporation, a Delaware corporation, the Xxxxxx X. Fix
Family Partnership, L.P., Xxxx X. XxXxxx and the other entities set forth on the
signature pages thereto (the "STOCKHOLDERS AGREEMENT"). In consideration of the
mutual promises contained herein, and for other good and valuable consideration,
the receipt of which is hereby confirmed by the parties hereto, the parties to
this Amendment hereby agree to amend the Stockholders Agreement, in accordance
with Section 4.4 of the Stockholders Agreement, as follows:
1. Board Nominations. Section 2.1 of the Stockholders Agreement
is hereby deleted and replaced in its entirety with the following:
"2.1 Board Nominations. The Board of the Company shall be
composed of five (5) members. With respect to such five (5) members,
the Company and the Holders have agreed (i) that the Series A Purchaser
Group shall be entitled, through a nominating committee or other
procedure adopted by the Board, to designate for nomination by the
Board two (2) nominees for election to the Board, (ii) that the Series
B Purchaser Group shall be entitled, through a nominating committee or
other procedure adopted by the Board, to designate for nomination by
the Board one (1) nominee for election to the Board, and (iii) that the
Doubletree Holders together with the XxXxxx/Fix Holders shall be
entitled, through a nominating committee or other procedure adopted by
the Board, to designate for nomination by the Board two (2) nominees
for election to the Board (one (1) of whom shall be an independent
director). Immediately upon the closing of the Transactions (as defined
in Section 2 below), the Board of the Company shall be reduced to five
(5) members and to the extent that any Holders wish to appoint or
replace any of their designees to the Board, as permitted under this
Section 2.1, at such time, the Board shall immediately designate any
such designees and replacements."
2. Effectiveness. This Amendment shall not take effect unless and
until (i) the transactions contemplated by the Asset Purchase and Sale
Agreement, dated as of October 27, 2003, by and among the Company, Candlewood
Hotel Company LLC, a Delaware limited liability company and Six Continents
Hotels, Inc., a Delaware corporation and (ii) the transactions contemplated by
the Purchase and Sale Agreement, dated as of October 27, 2003, by and among the
Company and certain of its affiliates, JPD Corporation, a Kansas corporation and
Hospitality Properties Trust, a Maryland real estate investment trust,
(collectively, the "TRANSACTIONS") have closed, and shall thereupon become
effective immediately upon closing without any further action required by any
party. If the Transactions do not close, this Amendment shall be of no force or
effect.
3. Further Assurances. The Company and each of the parties hereto
agree to take all action and to execute, deliver and file, or cause to be
executed, delivered and filed, any and all documents, instruments and filings
necessary to give effect to this Amendment, including
causing the Company to adopt all necessary or desirable amendments to the
By-laws of the Company.
4. Other Terms Not Modified or Amended. This Amendment shall not
constitute an amendment or waiver of any other provision of the Stockholders
Agreement not expressly referred to herein. Except as expressly set forth
herein, the terms and conditions of the Stockholders Agreement remain in full
force and effect without modification or amendment.
5. Governing Law. THIS AMENDMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS MADE AND TO BE ENTIRELY PERFORMED WITHIN SUCH STATE.
6. Counterparts. This Amendment may be executed simultaneously in
two or more separate counterparts, all of which shall be deemed but one and the
same instrument and each of which shall be deemed an original, and it shall not
be necessary in making proof of this Amendment to produce or account for more
than one such counterpart.
SIGNATURES FOLLOW ON NEXT PAGE.
IN WITNESS WHEREOF, the parties set forth below have signed this
Amendment as of the date first hereinabove written.
CANDLEWOOD HOTEL COMPANY, INC.
By: /s/ Xxxx X. XxXxxx
--------------------------------------
Name: Xxxx X. XxXxxx
Title: Chief Executive Officer
XXXXXX X. FIX FAMILY
PARTNERSHIP, L.P.
By: /s/ Xxxxxx X. Fix
--------------------------------------
Name: Xxxxxx X. Fix
Title: General Partner
/s/ Xxxxxx X. Fix
------------------------------------------
Name: Xxxxxx X. Fix
XXXX X. XxXXXX, for himself and on behalf
of the XXXXXXXXX XxXXXX TRUST
DATED MARCH 14, 1994 and the
XXXXXXXXXXX XXXXX XxXXXX TRUST
DATED MARCH 14, 1995
/s/ Xxxx X. XxXxxx
------------------------------------------
Name: Xxxx X. XxXxxx
OLYMPUS GROWTH FUND II, L.P.
By: OGP II, L.P., its General Partner
By: RSM, L.L.C., its General Partner
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: General Partner
OLYMPUS EXECUTIVE FUND, L.P.
By: OEF, L.P., its General Partner
By: RSM, L.L.C., its General Partner
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: General Partner
JPMORGAN CHASE BANK, FORMERLY
KNOWN AS XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, AS TRUSTEE OF
THE COMMINGLED PENSION TRUST FUND
(MULTI-MARKET SPECIAL INVESTMENT
FUND II) OF JPMORGAN CHASE BANK
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, FORMERLY
KNOWN AS XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, AS TRUSTEE OF
THE MULTI-MARKET SPECIAL INVESTMENT
TRUST FUND OF JPMORGAN CHASE BANK
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, FORMERLY
KNOWN AS XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, AS INVESTMENT
MANAGER AND AGENT FOR THE XXXXXX X.
XXXXX FOUNDATION (MULTI-MARKET
ACCOUNT)
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
X.X. XXXXXX PARTNERS (SBIC), LLC,
FORMERLY KNOWN AS CHASE VENTURE
CAPITAL ASSOCIATES, L.P.
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
PRIVATE EQUITY INVESTORS III, L.P.
By: Xxxxx X. Xxxxx Associates III, LLC
General Partner
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Attorney in Fact
EQUITY-LINKED INVESTORS-II
By: Xxxxx Xxxxx Associates-II
General Partner
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Attorney in Fact
DELAWARE STATE EMPLOYEES'
RETIREMENT FUNDS
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
DECLARATION OF TRUST FOR THE
DEFINED BENEFIT PLAN OF ZENECA
HOLDINGS INC.
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
DECLARATION OF TRUST FOR THE
DEFINED BENEFIT PLAN OF ICI
AMERICAN HOLDINGS INC.
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
X.X. XxXXXXXXX FAMILY TRUST
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
MONY LIFE INSURANCE COMPANY
By: J. Romeo & Co. as nominee
for MONY Life Insurance Company
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: A Partner