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EXHIBIT 1.1(b)
670,000 Shares
WYNDHAM HOTEL CORPORATION
Common Stock
INTERNATIONAL UNDERWRITING AGREEMENT
__________, 1996
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MONTGOMERY SECURITIES
BANKERS TRUST INTERNATIONAL PLC
As Lead Managers for the Several Managers
c/o SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Wyndham Hotel Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell an aggregate of 670,000 shares (the
"Shares") of its common stock, $.01 par value per share (the "Common Stock") to
the several Managers named in Schedule I hereto (the "Managers") for whom Smith
Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation, Montgomery
Securities and Bankers Trust International PLC are acting as lead Managers (the
"Lead Managers").
It is understood that the Company is concurrently entering into a
U.S. Underwriting Agreement, dated the date hereof (the "U.S. Underwriting
Agreement"), providing for the sale of 2,680,000 shares of Common Stock (the
"Firm U.S. Shares"), plus an option granted by the Company to purchase up to an
additional 502,500 shares of Common Stock (the "Additional U.S. Shares") solely
for the purpose of covering over-allotments, through arrangements with certain
underwriters in the United States and Canada (the "U.S. Underwriters"), for
whom Smith Barney Inc., Donaldson, Lufkin & Jenrette Securities Corporation,
Montgomery Securities and BT Securities Corporation are acting as
representatives (the "Representatives"). All shares of Common Stock proposed
to be offered to the U.S. Underwriters pursuant to the U.S. Underwriting
Agreement, including the
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Firm U.S. Shares and the Additional U.S. Shares, are herein called the "U.S.
Shares"; the U.S. Shares and the Shares, collectively, are herein called the
"Underwritten Shares".
It is further understood that, prior to the Closing Date (as
defined below), the Company and certain other parties will enter into a
transaction referred to in the Prospectuses (as defined below) as the
"Formation" and that, simultaneously with the closing hereunder, the Company
and certain other parties will enter into a series of transactions referred to
in the Prospectuses as the "Financing Plan". The Formation Agreement, the
Hampstead Exchange Agreement and the Rose Hall Transfer Agreement to be entered
into among the Company and certain partnerships, corporations and other parties
referred to therein are hereinafter collectively referred to as the
"Transaction Documents" and each singly as a "Transaction Document". Under the
terms of the Transaction Documents, the Company will succeed to the hotel
ownership, hotel management and other business operations of the entities
identified on Schedule II hereto (the "Roll-Up Entities"). TCF Hotels LP,
Caribbean Hotel Management Company and Wyndham Finance Limited Partnership
(collectively, the "Founders") and certain other parties will each receive cash
from the proceeds of the Financing Plan.
It is further understood that as described in the International
Prospectus (as defined below) under the caption "The Formation and the
Financing Plan", the Company intends to publicly offer in a concurrent public
offering (the "Concurrent Debt Offering") ___% Senior Subordinated Notes due
2006.
The Company also understands that the Lead Managers and the
Representatives have entered into an agreement (the "Agreement Between U.S.
Underwriters and Managers") contemplating the coordination of certain
transactions between the Managers and the U.S. Underwriters and that, pursuant
thereto and subject to the conditions set forth therein, the Managers may
purchase from the U.S. Underwriters a portion of the U.S. Shares or sell to the
U.S. Underwriters a portion of the Shares. The Company understands that any
such purchases and sales between the Managers and the U.S. Underwriters shall
be governed by the Agreement Between U.S. Underwriters and Managers and shall
not be governed by the terms of this Agreement or the U.S. Underwriting
Agreement.
The Company wishes to confirm as follows its agreements with you
and the other several Managers on whose behalf you are acting, in connection
with the several purchases of the Shares by the Managers.
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1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 under the Act (the "registration
statement"), including prospectuses subject to completion relating to the
Underwritten Shares. The term "Registration Statement" as used in this
Agreement means the registration statement, as amended at the time it becomes
effective or, if the registration statement became effective prior to the
execution of this Agreement, as supplemented or amended prior to the execution
of this Agreement. If it is contemplated, at the time this Agreement is
executed, that a post-effective amendment to the registration statement will be
filed and must be declared effective before the offering of the Underwritten
Shares may commence, the term "Registration Statement" as used in this
Agreement means the registration statement as amended by said post-effective
amendment. The term "Registration Statement" shall also include any
registration statement relating to the Shares that is filed and declared
effective pursuant to Rule 462(b) under the Act.
The term "Prospectuses" as used in this Agreement means the
prospectuses relating to the Underwritten Shares in the forms included in the
Registration Statement or, if the prospectuses included in the Registration
Statement omit information in reliance on Rule 430A under the Act and such
information is included in prospectuses filed with the Commission pursuant to
Rule 424(b) under the Act, the term "Prospectuses" as used in this Agreement
means the prospectuses relating to the Underwritten Shares in the forms
included in the Registration Statement as supplemented by the addition of the
Rule 430A information contained in the prospectuses relating to the
Underwritten Shares filed with the Commission pursuant to Rule 424(b), provided
that if prospectuses that meet the requirements of Section 10(a) of the Act are
delivered pursuant to Rule 434(b) under the Act, then (i) the term
"Prospectuses" as used in this Agreement means the prospectuses subject to
completion (as defined in Rule 434(g) under the Act) relating to the
Underwritten Shares as supplemented by the information contained in the term
sheets described in Rule 434(b)(3) under the Act, and (ii) the date of such
Prospectuses shall be deemed to be the date of such term sheets. The term
"Prepricing Prospectuses" as used in this Agreement means the prospectuses
subject to completion relating to the Underwritten Shares in the forms included
in the registration statement at the time of the initial filing of the
registration statement with the Commission, and as such
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prospectuses shall have been amended from time to time prior to the date of the
Prospectuses.
It is understood that two forms of Prepricing Prospectus and two
forms of Prospectus are to be used in connection with the offering and sale of
the Underwritten Shares: a Prepricing Prospectus and a Prospectus relating to
the U.S. Shares that are to be offered and sold in the United States (as
defined herein) or Canada (as defined herein) to U.S. or Canadian Persons (the
"U.S. Prepricing Prospectus" and the "U.S. Prospectus", respectively), and a
Prepricing Prospectus and a Prospectus relating to the Shares that are to be
offered and sold outside the United States or Canada to persons other than U.S.
or Canadian Persons (the "International Prepricing Prospectus" and the
"International Prospectus", respectively). The U.S. Prospectus and the
International Prospectus are herein collectively called the "Prospectuses", and
the U.S. Prepricing Prospectus and the International Prepricing Prospectus are
herein called the "Prepricing Prospectuses". For purposes of this Agreement:
"U.S. or Canadian Person" means any resident or national of the United States
or Canada, any corporation, partnership or other entity created or organized in
or under the laws of the United States or Canada or any estate or trust the
income of which is subject to United States or Canadian income taxation
regardless of the source of its income (other than the foreign branch of any
U.S. or Canadian Person), and includes any United States or Canadian branch of
a person other than a U.S. or Canadian Person; "United States" means the United
States of America (including the states thereof and the District of Columbia)
and its territories, its possessions and other areas subject to its
jurisdiction; and "Canada" means Canada and its territories, its possessions
and other areas subject to its jurisdiction.
2. AGREEMENTS TO SELL AND PURCHASE. Upon the basis of the
representations, warranties and agreements contained herein and subject to all
the terms and conditions set forth herein and to such other adjustments as you
may determine to avoid fractional shares, the Company hereby agrees to issue
and sell to each Manager, and each Manager agrees, severally and not jointly,
to purchase from the Company, at a purchase price of $______ per share (the
"purchase price per share"), the number of Shares set forth opposite the name
of such Manager in Schedule I hereto (or such number of Shares increased as set
forth in Section 11 hereof).
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you
that the Managers propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and
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initially to offer the Shares upon the terms set forth in the International
Prospectus.
4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the
Managers of and payment for the Shares shall be made at the office of Locke
Purnell Rain Harrell (A Professional Corporation), 2200 Ross Avenue, Suite
2200, Dallas, Texas 75201 at 9:00 A.M., Dallas time, on _______, 1996 (the
"Closing Date"). The place of closing for the Shares and the Closing Date may
be varied by agreement between you and the Company.
Certificates for the Shares to be purchased hereunder shall be
registered in such names and in such denominations as you shall request prior
to 9:30 A.M., New York City time, on the second business day preceding the
Closing Date. Such certificates shall be made available to you in New York
City for inspection and packaging not later than 9:30 A.M., New York City time,
on the business day next preceding the Closing Date. The certificates
evidencing the Shares to be purchased hereunder shall be delivered to you on
the Closing Date, against payment of the purchase price therefor by wire
transfer to the Company of immediately-available funds.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Managers as follows:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, the Company will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon
as possible and will advise you promptly and, if requested by you, will
confirm such advice in writing, when the Registration Statement or such
post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the
Commission for amendment of or a supplement to the Registration
Statement, any Prepricing Prospectuses or Prospectuses, or for
additional information; (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
of the suspension of qualification of the Shares for offering or sale in
any jurisdiction or the initiation of any proceeding for such purpose;
and (iii) within the period of time referred to in paragraph (f) below,
of any change in the condition (financial or other), business,
prospects, properties, net worth or results
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of operations of the Company and its subsidiaries, taken as a whole, or
of the happening of any event, including the filing of any information,
documents, or reports pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), that in each case makes any statement
of a material fact made in the Registration Statement or either
Prospectus (as then amended or supplemented) untrue or that requires the
making of any additions to or changes in the Registration Statement or
either Prospectus (as then amended or supplemented) in order to state a
material fact required by the Act to be stated therein or necessary in
order to make the statements therein (with respect to either Prospectus,
in the light of the circumstances under which they were made) not
misleading, or of the necessity to amend or supplement either Prospectus
(as then amended or supplemented) to comply with the Act or any other
law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the withdrawal of such order
at the earliest possible time.
(c) The Company will furnish to you, without charge, five signed
copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements
and all exhibits thereto, and will also furnish to you, without charge,
such number of conformed copies of the registration statement as
originally filed and of each amendment thereto, but without exhibits, as
you may reasonably request.
(d) The Company will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to either
Prospectus of which you shall not previously have been advised or to
which you shall reasonably object after being so advised or (ii) so long
as, in the opinion of counsel for the Managers, a prospectus is required
to be delivered in connection with sales by any Manager or dealer, file
any information, documents or reports pursuant to the Exchange Act,
without delivering a copy of such information, documents or reports to
you, as Lead Managers for the Managers, prior to or concurrently with
such filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you
have reasonably requested, copies of each form of the International
Prepricing Prospectus. The Company consents to the use, in accordance
with the provisions of the Act,
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prior to the date of the International Prospectus, of each International
Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the
opinion of counsel for the Managers a prospectus is required by the Act
to be delivered in connection with sales by any Manager or dealer, the
Company will expeditiously deliver to each Manager and each dealer,
without charge, as many copies of the International Prospectus (and of
any amendment or supplement thereto) as you may request. The Company
consents to the use of the International Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of
the Act, both in connection with the offering and sale of the Shares and
for such period of time thereafter as a prospectus is required by the
Act to be delivered in connection with sales by any Manager or dealer.
If during such period of time any event shall occur that in the judgment
of the Company or in the opinion of counsel for the Managers is required
to be set forth in the International Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary to supplement or amend
the International Prospectus to comply with the Act or any other law,
the Company will forthwith prepare and, subject to the provisions of
paragraph (d) above, file with the Commission an appropriate supplement
or amendment thereto, and will expeditiously furnish to the Managers and
dealers a reasonable number of copies thereof.
(g) The Company will cooperate with you and with counsel for the
Managers in connection with the registration or qualification of the
Shares for offering and sale by the several Managers and by dealers
under the securities or Blue Sky laws or real estate syndication laws of
such jurisdictions as you may designate and will file such consents to
service of process or other documents necessary or appropriate in order
to effect such registration or qualification; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction
where it is not now so subject.
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(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of
the Registration Statement and ending not later than 15 months
thereafter, as soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of Section
11(a) of the Act.
(i) During the period of three years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission or the New
York Stock Exchange, and (ii) from time to time such other information
concerning the Company as you may request.
(j) The Company will apply the net proceeds from the sale of the
Underwritten Shares substantially in accordance with the description set
forth in the Prospectuses.
(k) If Rule 430A of the Act is employed, the Company will timely
file the Prospectuses pursuant to Rule 424(b) under the Act and will
advise you of the time and manner of such filing.
(l) For a period of 180 days after the date hereof (the "Lock-up
Period"), the Company will not, without the prior written consent of
Smith Barney Inc., (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock or (ii) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the
Common Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, except for (w) sales to the Managers
pursuant to this Agreement and the U.S. Underwriters pursuant to the
U.S. Underwriting Agreement, (x) the issuance of shares of Common Stock
in connection with the Formation, (y) the grant of options or other
rights under the Company's 1996 Long Term Incentive Plan or Non-Employee
Directors' Retainer Stock Plan or (z) the issuance of shares of Common
Stock upon exercise of the GE Option (as defined in the Prospectuses).
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(m) The Company has furnished or will furnish to you "lock-up"
letters, in form and substance satisfactory to you, signed by each of
its current officers, directors, stockholders and General Electric
Pension Trust.
(n) Except as stated in this Agreement and in the U.S.
Underwriting Agreement and in the Prepricing Prospectuses and
Prospectuses, the Company has not taken, nor will it take, directly or
indirectly, any action designed to or that might reasonably be expected
to cause or result in stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of the Underwritten
Shares.
(o) The Company will use its best efforts to have the Common
Stock listed, subject to notice of issuance, on the New York Stock
Exchange concurrently with the effectiveness of the registration
statement.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Manager that (in each of paragraphs (a) through
(cc), after giving effect to Formation):
(a) Each International Prepricing Prospectus included as part of
the registration statement as originally filed or as part of any
amendment or supplement thereto, or filed pursuant to Rule 424 under the
Act, complied when so filed in all material respects with the provisions
of the Act. The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus.
(b) The registration statement in the form in which it became or
becomes effective and also in such form as it may be when any
post-effective amendment thereto shall become effective and the
Prospectuses and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) or Rule 462 under the Act, complied or will
comply in all material respects with the provisions of the Act and did
not or will not at any such times contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein (with respect to
either Prospectus, in the light of the circumstances under which they
were made) not misleading, except that this representation and warranty
does not apply to statements in or omissions from the registration
statement or the Prospectuses made in reliance upon and in conformity
with information relating to any Manager or U.S. Underwriter furnished
to the Company in writing by a
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Manager through the Lead Managers or by a U.S. Underwriter through the
Representatives expressly for use therein.
(c) All the outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and are
free of any preemptive or similar rights; the Shares have been duly
authorized and, when issued and delivered to the Managers against
payment therefor in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and free of any preemptive or
similar rights, and as of the Closing Date, the capital stock of the
Company will conform to the description thereof in the Registration
Statement and the Prospectuses.
(d) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectuses, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction where
the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure so to
register or qualify or be in good standing does not have a material
adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
(e) All the Company's subsidiaries that are required to be
listed in an exhibit to the Registration Statement (the "Subsidiaries")
are so listed. Each Subsidiary is a corporation duly organized and
validly existing in good standing in the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectuses (and any amendment or
supplement thereto), and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction where the nature
of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register
or qualify does not have a Material Adverse Effect. All the outstanding
shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable, and, as
of the Closing Date, will be owned by the Company directly or indirectly
through one of the other Subsidiaries,
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free and clear of any lien, adverse claim, security interest, equity or
other encumbrance (other than encumbrances imposed pursuant to the
Credit Agreement and the GHALP Lease, each as defined in the
Prospectuses).
(f) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, against the Company or any
of its Subsidiaries or to which any of their respective properties is
subject that are material to the Company and its subsidiaries, taken as
a whole, that are required to be described in the Registration Statement
or either Prospectus but are not described as required, and there are no
agreements, contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or either
Prospectus or to be filed as an exhibit to the Registration Statement
that are not described or filed as required by the Act or the Exchange
Act. The descriptions of the terms of any such contracts or documents
contained in the Registration Statement or either Prospectus are correct
in all material respects.
(g) Neither the Company nor any of its Subsidiaries is in (i)
violation of its certificate or articles of incorporation or by-laws, or
other organizational documents, (ii) in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the
Company or any of its Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the Company or any
of its Subsidiaries (except where any such violation or violations in
the aggregate would not have a Material Adverse Effect), or (iii) in
default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other
instrument to which the Company or any of its Subsidiaries is a party or
by which any of them or any of their respective properties may be bound,
and no condition or state of facts exists that, with the passage of time
or the giving of notice or both, would constitute such a default (except
where any such default or defaults, singly or in the aggregate, in the
aggregate would not have a Material Adverse Effect).
(h) None of the issuance or sale of the Underwritten Shares, the
execution, delivery, or performance of this Agreement or the U.S.
Underwriting Agreement by the Company or the execution or delivery of,
or the performance by the Company or the Roll-Up
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Entities of their respective obligations under, the Transaction
Documents or the consummation by the Company or the Roll-Up Entities of
the transactions contemplated hereby and thereby (i) requires any
consent, approval, authorization or order of or registration or filing
with any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be required
for the registration of the Underwritten Shares under the Act and the
Exchange Act and compliance with the securities or Blue Sky laws or real
estate syndication laws of various jurisdictions, all of which have been
or will be effected in accordance with this Agreement, or as may be
required subsequent to the date hereof to give effect to the
transactions comprising the Formation, all of which will be effected in
a timely manner in connection with the Formation), or conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default under, the certificate or articles of incorporation or by-laws
or other organizational documents of the Company, any of its
Subsidiaries or any of the Roll-Up Entities (ii) conflicts or will
conflict with or constitutes or will constitute a breach of or a default
under any agreement, indenture, lease or other instrument to which the
Company, any of its Subsidiaries or any of the Roll-Up Entities is a
party or by which any of them or any of their respective properties may
be bound (except for such conflicts, breaches or defaults for which
waivers or consents have been obtained), or violates or will violate any
statute, law, regulation or filing or judgment, injunction, order or
decree applicable to the Company, any of its Subsidiaries, any of their
respective properties or any of the Roll-Up Entities, or will result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries pursuant to
the terms of any agreement or instrument to which any of them or any of
the Roll-Up Entities is a party or by which any of them or any of the
Roll-Up Entities may be bound or to which any of the property or assets
of any of them is subject, in each case except for such conflicts,
breaches, defaults, violations, or encumbrances that would not singly or
in the aggregate have a Material Adverse Effect or materially adversely
affect the ability of the Company or any of the Roll-Up Entities to
fulfill its obligations hereunder or thereunder.
(i) The accountants, Coopers & Lybrand L.L.P., who have
certified or shall certify the financial statements included in the
Registration Statement or either Prospectus (or any amendment or
supplement
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thereto) are independent public accountants as required by the Act.
(j) The historical and pro forma financial statements, together
with related schedules and notes, included in the Registration Statement
and the Prospectuses (and any amendment or supplement thereto) comply as
to form in all material respects with the requirements of the Act; such
historical financial statements, together with related schedules and
notes, present fairly the consolidated financial position, results of
operations, cash flows and changes in stockholders' equity or partners'
equity, as the case may be, of the entities to which they relate on the
basis stated in the Registration Statement at the respective dates or
for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; such pro forma
financial statements, together with related notes, have been prepared on
a basis consistent with such historical statements, except for pro forma
adjustments specified therein, and give effect to assumptions made on a
reasonable basis and present fairly the historical and proposed
transactions contemplated by the Prospectuses; and the other financial
and statistical information and data included in the Registration
Statement and the Prospectuses (and any amendment or supplement
thereto), historical and pro forma, are accurately presented and
prepared on a basis consistent with such financial statements and the
books and records of the entity to which they relate.
(k) The execution and delivery of, and the performance by the
Company of its obligations under, each of this Agreement and the U.S.
Underwriting Agreement have been duly and validly authorized by the
Company, and each of this Agreement and the U.S. Underwriting Agreement
has been duly executed and delivered by the Company and constitutes the
valid and legally binding agreement of the Company, enforceable against
the Company in accordance with its terms, except (i) the enforceability
hereof or thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, (ii) the remedy of
specific performance and other forms of equitable relief may be subject
to certain equitable defenses and to the discretion of the court before
which the proceedings may be brought and (iii) rights to indemnity and
contribution hereunder or thereunder
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may be limited by federal or state securities laws or the public policy
underlying such laws.
(l) The execution and delivery of, and the performance by the
Company and the Roll-Up Entities of their respective obligations under,
each Transaction Document will be duly and validly authorized by the
Company and the Roll-Up Entities, and each Transaction Document will be
duly executed and delivered by the Company and, as applicable, the
Roll-Up Entities on or prior to the Closing Date and each Transaction
Document will constitute the legally valid and binding agreement of the
Company and the Roll-Up Entities enforceable against the Company and the
Roll-Up Entities in accordance with its terms, except (i) the
enforceability hereof or thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) the
remedy of specific performance and other forms of equitable relief may
be subject to certain equitable defenses and to the discretion of the
court before which the proceedings may be brought.
(m) Except as disclosed in the Registration Statement and the
Prospectuses (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the
Registration Statement and the Prospectuses (or any amendment or
supplement thereto), neither the Company nor any of its Subsidiaries has
incurred any liability or obligation, direct or contingent, or entered
into any transaction, not in the ordinary course of business, that is
material to the Company and its subsidiaries, taken as a whole, and
there has not been any change in the capital stock, or material increase
in the short-term debt or long-term debt, of the Company or any of its
Subsidiaries, or any material adverse change or any development
involving a prospective material adverse change, in the condition
(financial or other), business, properties, net worth or results of
operations of the Company and its subsidiaries, taken as a whole.
(n) Each of the Company and its Subsidiaries has (i) good and
marketable title in fee simple to all real property described in either
Prospectus as owned by it and (ii) good and marketable title to all
personal property described in either Prospectus as owned by it, which
personal property is material to the business of the Company and its
subsidiaries, taken as a whole, free and clear of all liens, claims,
security interests or other encumbrances, except such as are described
in
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the Registration Statement and the Prospectuses or in a document filed
as an exhibit to the Registration Statement. All the property described
in either Prospectus as being held under lease by each of the Company
and its Subsidiaries is held by it under valid, subsisting and
enforceable leases (although no representation is made as to the
lessors' title to such property). Each agreement to which the Company
(or any subsidiary of the Company) is a party that provides for the
management or operation of a hotel property described in either
Prospectus as managed or operated by the Company is in full force and
effect and constitutes the valid and legally binding agreement of the
parties thereto, enforceable in accordance with its terms, except (i)
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, (ii) the remedy of
specific performance and other forms of equitable relief may be subject
to certain equitable defenses and to the discretion of the court before
which the proceedings may be brought and (iii) rights to indemnity and
contribution thereunder may be limited by applicable law.
(o) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of
the Underwritten Shares, will not distribute any offering material in
connection with the offering and sale of the Underwritten Shares other
than the Registration Statement, the Prepricing Prospectuses, the
Prospectuses or other materials, if any, permitted by the Act.
(p) The Company and each of its Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("Permits") as are necessary to own its respective
properties and to conduct its business in the manner described in the
Prospectuses, subject to such qualifications as may be set forth in the
Prospectuses and except where the failure to have any Permit would not
have a Material Adverse Effect; the Company and each of its Subsidiaries
has fulfilled and performed all its obligations with respect to such
Permits and no event has occurred that allows, or after notice or lapse
of time would allow, revocation or termination thereof or results in any
other impairment of the rights of the holder of any such Permit, subject
in each case to such qualification as may be set forth in the
Prospectuses, and except where the failure to so fulfill or perform its
obligation or such revocation or termination would
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not have a Material Adverse Effect; and, except as described in the
Prospectuses, none of such Permits contains any restriction that is
materially burdensome to the Company or any of its Subsidiaries.
(q) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(r) To the Company's knowledge, neither the Company nor any of
its Subsidiaries nor any employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or any
Subsidiary or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectuses.
(s) With respect to any Existing Entity (as defined in the
Formation Agreement) that is a partnership, for the period of its
existence, such entity has been properly classified as a partnership for
federal income tax purposes. With respect to any such Existing Entity
that has elected to be treated as a S corporation for federal income tax
purposes, such corporation has made a valid S corporation election under
Section 1362 of the Code and has at all times during the period of its
existence (through the Effective Time) satisfied the eligibility
criteria under the Code for such treatment. Each of the Existing
Entities has paid all income taxes to which it is subject, except where
the failure to so pay would not, singly or in the aggregate, have a
Material Adverse Effect.
(t) The representations and warranties of the Company in the
Transaction Documents are, and on the Closing Date will be, true and
correct.
(u) Except as described in the Prospectuses, no holder of any
security of the Company has any right to require registration of shares
of Common Stock or any
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other security of the Company because of the filing of the registration
statement or consummation of the transactions contemplated by this
Agreement, the U.S. Underwriting Agreement or the Transaction Documents,
or otherwise. Except as described in or contemplated by the
Prospectuses, there are no outstanding options, warrants or other rights
calling for the issuance of, and there are no commitments, plans or
arrangements to issue, any shares of Common Stock of the Company or any
security convertible into or exchangeable or exercisable for Common
Stock of the Company.
(v) The Company has not taken, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares, except for the lock-up
arrangements referred to in the Prospectuses.
(w) As of the Closing Date, the Company and its Subsidiaries
will own or possess all patents, trademarks, trademark registrations,
service marks, service mark registrations, trade names, copyrights,
licenses, inventions, trade secrets and rights described in either
Prospectus as being owned by them or any of them or necessary for the
conduct of their respective businesses, except where the lack of such
ownership or possession would not have a Material Adverse Effect, and,
except as disclosed in the Prospectuses, the Company is not aware of any
claim to the contrary or any challenge by any other person to the rights
of the Company and its Subsidiaries with respect to the foregoing.
(x) The Company is not now and, after sale of the Underwritten
Shares and application of the net proceeds from such sale as described
in the Prospectuses under the caption "Use of Proceeds", will not be an
"investment company" required to be registered under Section 8 of the
Investment Company Act of 1940, as amended (the "Investment Company
Act"), or an entity "controlled by an investment company" required to be
registered under Section 8 of the Investment Company Act.
(y) The Company has complied with all provisions of Florida
Statutes, Section 517.075, relating to issuers doing business with Cuba.
(z) Except as disclosed in the Prospectuses, the Company and its
Subsidiaries (i) are in compliance with any and all applicable foreign,
federal, state and
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local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a Material Adverse Effect.
(aa) The Company has reasonably concluded that costs and
liabilities associated with the effect of Environmental Laws on the
business, operations and properties of the Company and its subsidiaries
would not, singly or in the aggregate, have a Material Adverse Effect.
(bb) The management and operation of the hotel properties owned,
leased or managed by the Company are not in violation of any applicable
building code, zoning ordinance or other law or regulation, except where
such violation of any applicable building code, zoning ordinance or
other law or regulation would not, singly or in the aggregate, have a
Material Adverse Effect.
(cc) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the businesses in which the Company is engaged and proposes
to engage and the Company has no reason to believe that it will not be
able to renew such insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a Material
Adverse Effect.
(dd) As of the Closing Date, the Formation shall have been
consummated as set forth in the Prospectuses.
7. REPRESENTATIONS AND WARRANTIES OF CF SECURITIES. CF Securities,
L.P., a Texas limited partnership ("CF Securities"), represents and warrants to
each Manager that:
(a) Each of this Agreement, the U.S. Underwriting Agreement and
the Transaction Documents has been duly authorized, executed and
delivered by or on behalf of CF Securities and each Founder that is a
party thereto
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and is the valid and binding agreement of CF Securities and each such
Founder enforceable against CF Securities and each such Founder in
accordance with its terms, except that (i) the enforceability hereof or
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, (ii) the remedy of specific performance and
other forms of equitable relief may be subject to certain equitable
defenses and to the discretion of the court before which the proceedings
may be brought and (iii) rights to indemnity and contribution hereunder
or thereunder may be limited by federal or state securities laws or the
public policy underlying such laws.
(b) None of the execution, delivery or performance of this
Agreement, the U.S. Underwriting Agreement or any Transaction Document
by or on behalf of CF Securities or any Founder that is a party thereto
nor the consummation by or on behalf of CF Securities or any such
Founder of the transactions contemplated hereby and thereby (i) requires
any consent, approval, authorization or other order of, or registration
or filing with, any court, regulatory body, administrative agency or
other governmental body, agency or official (except such as may be
required for the registration of the Underwritten Shares under the Act
and the Exchange Act and compliance with the securities or Blue Sky laws
or real estate syndication laws of various jurisdictions, all of which
have been or will be effected in accordance with this Agreement, or as
may be required subsequent to the date hereof to give effect to the
transactions comprising the Formation, all of which will be effected in
a timely manner in connection with the Formation), or conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default under, the certificate or articles of incorporation or by-laws
or other organizational documents of CF Securities or any such Founder
or (ii) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, any agreement, indenture,
lease or other instrument to which CF Securities or any such Founder is
a party or by which CF Securities or any such Founder is or may be
bound, or violates or will violate any statute, law, regulation or
filing or judgment, injunction, order or decree applicable to CF
Securities or any such Founder, or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of CF Securities or any such Founder pursuant to the terms of any
agreement or instrument to which CF Securities or any such Founder is a
party or
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by which CF Securities or any such Founder may be bound or to which any
of the property or assets of CF Securities or any such Founder is
subject, in each case except for such conflicts, breaches, defaults,
violations, or encumbrances that would not singly or in the aggregate
have a Material Adverse Effect or materially adversely affect the
ability CF Securities or any of such Founder to fulfill its obligations
hereunder or thereunder.
(c) None of CF Securities or any Founder has taken, directly or
indirectly, any action designed to or that might reasonably be expected
to cause or result in stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of the Shares, except for
the lock-up arrangements referred to in the Prospectuses.
(d) The representations and warranties of CF Securities and each
Founder in the Transaction Documents are, and on the Closing Date will
be, true and correct.
(e) None of Harlan R. Crow, Susan T. Groenteman or Kathy Smalley
has any knowledge that the Registration Statement or the Prospectuses
(or any amendment or supplement thereto) 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 (with respect
to either Prospectus, in light of the circumstances under which they
were made) not misleading, except that this representation and warranty
does not apply to statements in or omissions from the registration
statement or the Prospectuses made in reliance upon and in conformity
with information relating to any Manager or U.S. Underwriter furnished
to CF Securities in writing by a Manager through the Lead Managers or by
a U.S. Underwriter through the Representatives expressly for use
therein.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each of you and each other Manager and each person,
if any, who controls any Manager within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in any International Prepricing Prospectus or in
the Registration Statement or the International Prospectus or in any amendment
or supplement thereto, or arising out of or based upon any omission or
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alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
that has been made therein or omitted therefrom in reliance upon and in
conformity with the information relating to such Manager or U.S. Underwriter
furnished in writing to the Company by or on behalf of any Manager through you
or by or on behalf of any U.S. Underwriter through a Representative expressly
for use in connection therewith; provided, however, that the indemnification
contained in this paragraph (a) with respect to any International Prepricing
Prospectus shall not inure to the benefit of any Manager (or to the benefit of
any person controlling such Manager) on account of any such loss, claim,
damage, liability or expense arising from the sale of the Shares by such
Manager to any person if a copy of the International Prospectus shall not have
been delivered or sent to such person within the time required by the Act, and
the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such International Prepricing
Prospectus was corrected in the International Prospectus, provided that the
Company has delivered the International Prospectus to the several Managers, no
later than 2:00 P.M., New York City time, on the business day following the
date hereof, in such quantity as the Managers shall have reasonably requested.
(b) CF Securities agrees that, in the event any Manager or any person
controlling any Manager shall obtain a judicial judgment, order or decree
against the Company for amounts payable by the Company to such Manager or
controlling person pursuant to this Section 8 (whether for indemnification or
contribution), which judgment has been and remains unstayed, unsatisfied and
undischarged for a period of 60 days or more, then CF Securities shall
promptly, upon the request of such Manager or controlling person, pay to such
Manager or controlling person an amount equal to the amount payable by the
Company to such Manager or controlling person pursuant to such judgment.
Notwithstanding the foregoing, the aggregate liability of CF Securities
pursuant to this Agreement and the U.S. Underwriting Agreement shall be limited
to an amount equal to the aggregate amount of cash received by the Founders
pursuant to the Transaction Documents.
(c) If any action, suit or proceeding shall be brought against any
Manager or any person controlling any Manager in respect of which indemnity may
be sought against the Company, such Manager or such controlling person shall
promptly notify the Company and CF Securities, and the Company shall assume the
defense thereof, including the
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employment of counsel and payment of all fees and expenses, provided that in
the event the Company fails to so assume such defense, CF Securities may so
assume such defense. Such Manager or any such controlling person shall have
the right to employ separate counsel in any such action, suit or proceeding and
to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Manager or such controlling person
unless (i) the Company or CF Securities, as the case may be, has agreed in
writing to pay such fees and expenses, (ii) the Company and CF Securities
failed to assume the defense and employ counsel, or (iii) the named parties to
any such action, suit or proceeding (including any impleaded parties) include
both such Manager or such controlling person and the Company and such Manager
or such controlling person shall have been advised by its counsel that
representation of such indemnified party and the Company by the same counsel
would be inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been proposed) due
to actual or potential differing interests between them (in which case neither
the Company nor CF Securities shall have the right to assume the defense of
such action, suit or proceeding on behalf of such Manager or such controlling
person). It is understood, however, that the Company or CF Securities, as the
case may be, shall, in connection with any one such action, suit or proceeding
or separate but substantially similar or related actions, suits or proceedings
in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Managers and controlling persons and the U.S. Underwriters and
controlling persons referred to in Section 8(c) of the U.S. Underwriting
Agreement not having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by Smith Barney Inc., and
that all such fees and expenses shall be reimbursed as they are incurred.
Neither the Company nor CF Securities shall be liable for any settlement of any
such action, suit or proceeding effected without their written consent, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the Company agrees to
indemnify and hold harmless any Manager, to the extent provided in paragraph
(a) above, and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
(d) Each Manager agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement, and any person who controls the Company within the
meaning of Section 15 of
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the Act or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Manager, but only with respect to
information relating to such Manager furnished in writing by or on behalf of
such Manager through you expressly for use in the Registration Statement, the
International Prospectus or any International Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, any of its directors, any such officer any such
controlling person based on the Registration Statement, the International
Prospectus or any International Prepricing Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Manager pursuant to this paragraph (d), such Manager shall have the rights and
duties given to the Company by paragraph (c) above (except that if the Company
shall have assumed the defense thereof such Manager shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such Manager's
expense), and the Company, its directors, any such officer, any such
controlling person shall have the rights and duties given to the Managers by
paragraph (c) above.
(e) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under paragraphs (a) or (d) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party (which for purposes of this paragraph (e)
shall not include CF Securities, the obligations of which with respect to
contribution are set forth in paragraph (b) hereof), in lieu of indemnifying or
paying such indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Managers on
the other hand from the offering of the Shares (including the application of
the proceeds therefrom as described in the Prospectuses), or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Managers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Managers on the other hand shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by
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the Managers, each as set forth in the table on the cover page of the
International Prospectus. The relative fault of the Company on the one hand
and the Managers on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or by the Managers on the
other hand and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(f) The Company, CF Securities and the Managers agree that it would not
be just and equitable if contribution pursuant to this Section 8 were
determined by a pro rata allocation (even if the Managers were treated as one
entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (e)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (e)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 8, no Manager shall
be required to contribute any amount in excess of the amount by which the total
price of the Shares underwritten by it and distributed to the public exceeds
the amount of any damages that such Manager 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Managers'
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective numbers of Shares set forth opposite their names in Schedule
I hereto (or such numbers of Shares increased as set forth in Section 11
hereof) and not joint.
(g) No indemnifying party shall, without the prior written consent of
each indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
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(h) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company and CF Securities set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Manager or any person
controlling any Manager, the Company, its directors or officers or any person
controlling the Company, CF Securities or any Founder, (ii) acceptance of any
Shares and payment therefor hereunder, and (iii) any termination of this
Agreement, provided that the representations and warranties of CF Securities
set forth in this Agreement shall terminate on the date one year following the
Closing Date. A successor to any Manager or any person controlling any
Manager, or to the Company, its directors or officers, or any person
controlling the Company shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
9. CONDITIONS OF MANAGERS' OBLIGATIONS. The several obligations of
the Managers to purchase the Shares hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the registration statement or a post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, the registration statement or such post-effective
amendment shall have become effective not later than 10:00 P.M., New
York City time, on the date hereof, or at such later date and time as
shall be consented to in writing by you, and all filings, if any,
required by Rules 424 and 430A under the Act shall have been timely
made; no stop order suspending the effectiveness of the registration
statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the Company or any
Manager, threatened by the Commission, and any request of the Commission
for additional information (to be included in the Registration Statement
or either Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development that is
reasonably likely to result in a prospective change, in or affecting the
condition (financial or other), business, properties,
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net worth or results of operations of the Company and its subsidiaries,
taken as a whole, not contemplated by the Prospectuses that, in your
opinion, as Lead Managers for the several Managers, would materially
adversely affect the market for the Shares, or (ii) any event or
development relating to or involving the Company or any officer or
director of the Company that makes any statement made in either
Prospectus untrue in any material respect or that, in the opinion of the
Company and its counsel or the Managers and their counsel, requires the
making of any addition to or change in either Prospectus in order to
state a material fact required by the Act or any other law to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
if amending or supplementing such Prospectus to reflect such event or
development would, in your opinion, as Lead Managers for the several
Managers, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of
Locke Purnell Rain Harrell, counsel for the Company, dated the Closing
Date and addressed to you, as Lead Managers for the several Managers, to
the effect that:
(i) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware, with full corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectuses and
is duly qualified and in good standing in all other jurisdictions
in which the nature of the business transacted or property owned
or leased by it makes such qualification necessary, except where
the failure so to qualify or be in good standing would not have a
Material Adverse Effect;
(ii) The authorized capital stock of the Company is as
set forth under the caption "Capitalization" in the Prospectuses
and the authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof
contained in the Prospectuses under the caption "Description of
Capital Stock";
(iii) All the shares of capital stock of the Company
outstanding prior to the issuance of the Underwritten Shares have
been duly authorized and
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validly issued and are fully paid and nonassessable;
(iv) The Underwritten Shares (A) have been duly
authorized and, (B) when issued and delivered to the Managers and
the U.S. Underwriters against payment therefor in accordance with
the terms of this Agreement and the U.S. Underwriting Agreement,
(1) will be validly issued, fully paid and nonassessable and (2)
will be free of any preemptive rights or, to the best knowledge
of such counsel, similar rights that entitle or will entitle any
person to acquire any Shares upon the issuance thereof by the
Company;
(v) The form of certificates for the Shares conforms to
the requirements of the Delaware General Corporation Law;
(vi) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to
the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings therefor are pending before or contemplated by the
Commission; and any required filing of either Prospectus pursuant
to Rule 424(b) or Rule 434 has been made in accordance with Rule
424(b) and Rule 430A under the Act;
(vii) The Company has the corporate power and authority
to enter into each of this Agreement and the U.S. Underwriting
Agreement and to issue, sell and deliver the Underwritten Shares
to the Managers and the Managers as provided herein and therein,
and each of this Agreement and the U.S. Underwriting Agreement
has been duly authorized, executed and delivered by the Company
and is a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms
(provided that, for purposes of such opinion, such counsel may
assume that the applicable law governing this Agreement and the
U.S. Underwriting Agreement is the same as applicable Texas law),
except that (A) enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally,
(B) the remedy of specific performance and other forms of
equitable relief may be subject to certain equitable defenses and
to the discretion of the court before
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which the proceedings may be brought and (C) rights to indemnity
and contribution thereunder may be limited by federal or state
securities laws or the public policy underlying such laws;
(viii) The Company and each of the Roll-Up Entities has
the necessary power and authority to enter into each of the
Transaction Documents, and each of the Transaction Documents have
been duly authorized, executed and delivered by the Company and,
as applicable, the Roll-Up Entities, and each of the Transaction
Documents is a legally valid and binding agreement of the Company
and, as applicable, the Roll-Up Entities, enforceable against the
Company and, as applicable, the Roll-Up Entities, in accordance
with its terms (provided that, for purposes of such opinion, such
counsel may assume that the applicable law governing each of the
several Transaction Documents is the same as applicable Texas
law), except that (A) enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (B) the remedy of specific performance and
other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before
which the proceedings may be brought;
(ix) To the best knowledge of such counsel, neither the
issuance, sale or delivery of the Underwritten Shares, nor the
execution, delivery or performance of this Agreement, the U.S.
Underwriting Agreement or the Transaction Documents, or
compliance by the Company or any of the Roll-Up Entities with all
provisions of this Agreement, the U.S. Underwriting Agreement or
the Transaction Documents, nor consummation by the Company or any
of the Roll-Up Entities of the transactions contemplated hereby
or thereby conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate of
incorporation or by-laws or other organizational documents of the
Company or any of the Roll-Up Entities or any agreement,
indenture, lease or other instrument identified on a certificate,
substantially in the form of Annex A hereto, executed by an
executive officer of the Company, or will result in the creation
or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries
under any such agreement, indenture, lease or other instrument,
nor will any
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such action result in any violation of any existing law,
regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or
decree known to such counsel, and applicable to the Company, any
of its Subsidiaries or any of the Roll-Up Entities or any of
their respective properties, in each case except for such
conflicts, breaches, defaults, violation, or encumbrances that
would not singly or in the aggregate have a Material Adverse
Effect or materially adversely affect the ability of the Company
or any of the Roll-Up Entities to fulfill its obligations
hereunder or thereunder;
(x) No consent, approval, authorization or order of, or
registration or filing with, any court, regulatory body,
administrative agency or other governmental agency, body or
official is required to be obtained or made by the Company or the
Roll-Up Entities for the valid issuance and sale of the Shares
pursuant to this Agreement or, except where the failure to obtain
any such consent, approval, authorization, order or registration
or to make such filing would not, singly or in the aggregate,
have a Material Adverse Effect, the consummation of the
Formation, except in any case such as have been obtained under
the Act and the Exchange Act or such as may be required under
state securities or Blue Sky laws or real estate syndication laws
governing the purchase and distribution of the Shares;
(xi) The Registration Statement and the International
Prospectus (except for the financial statements, schedules and
notes thereto and other financial and statistical data included
therein, as to which such counsel need not express an opinion)
comply as to form in all material respects with the requirements
of the Act;
(xii) To the best knowledge of such counsel (A) other
than as described or contemplated in either Prospectus, there are
no legal or governmental proceedings pending or threatened
against the Company that are material to the Company and its
subsidiaries, taken as a whole, or to which the Company, or any
of its properties, is subject that are material to the Company
and its subsidiaries, taken as a whole, that are required to be
described in the Registration Statement or either Prospectus and
(B) there are no agreements, contracts, indentures, leases or
other instruments
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relating to the Company, of a character that are required to be
described in the Registration Statement or the Prospectuses or to
be filed as an exhibit to the Registration Statement that are not
described or filed as required, as the case may be;
(xiii) The statements under the headings "The Formation
and the Financing Plan", "Description of Indebtedness",
"Description of Capital Stock", "Shares Eligible for Future Sale"
and "Certain U.S. Tax Consequences to Non-U.S. Stockholders" in
the Prospectuses and in the Registration Statement in Items 14
and 15, insofar as such statements constitute a summary of legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the
matters referred to therein;
(xiv) The Company is not now and, after sale of the
Underwritten Shares and application of the net proceeds from such
sale as described in the Prospectuses under the caption "Use of
Proceeds", will not be an "investment company" required to be
registered under Section 8 of the Investment Company Act of 1940,
as amended (the "Investment Company Act");
(xv) Each of the Subsidiaries of the Company (other than
Wyndham Hotels & Resorts (Aruba) N.V., an Aruban company, with
respect to which such counsel need not express an opinion) has
been duly incorporated and is validly existing in good standing
in the jurisdiction of its incorporation, with full corporate
power and authority to own, lease, and operate its properties and
to conduct its business as described in the Registration
Statement and the Prospectuses (and any amendment or supplement
thereto); and all the outstanding shares of capital stock of each
of the Subsidiaries of the Company (other than Wyndham Hotels &
Resorts (Aruba) N.V., an Aruban company, with respect to which
such counsel need not express an opinion) have been duly
authorized and validly issued, are fully paid and nonassessable,
and, except as otherwise disclosed in the Prospectuses, all of
the outstanding shares of capital stock of each of the
Subsidiaries of the Company are owned by the Company directly, or
indirectly through one of the other Subsidiaries,
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31
free and clear of any lien, adverse claim, security interest,
equity or other encumbrance;
(xvi) To the best knowledge of such counsel, neither the
Company nor any of its Subsidiaries (other than Wyndham Hotels &
Resorts (Aruba) N.V., an Aruban company, with respect to which
such counsel need not express an opinion) is (A) in violation of
its certificate of incorporation or by-laws, or other
organizational documents or (B) in default in the performance of
any material obligation, agreement or condition contained in any
bond, debenture, note or other evidence of indebtedness
identified on a certificate, substantially in the form of Annex A
hereto, executed by an executive officer of the Company, except
as may be disclosed in the Prospectuses or where any such default
or defaults in the aggregate would not have a Material Adverse
Effect;
(xvii) To the best knowledge of such counsel, (A) neither
the Company nor any of its Subsidiaries is in material violation
of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any of its Subsidiaries
or of any decree of any court or governmental agency or body
having jurisdiction over the Company or any of its Subsidiaries,
except for such violation or violations which in the aggregate
would not have a Material Adverse Effect, and (B) the Company and
each of its Subsidiaries has such Permits as are necessary to own
its respective properties and to conduct its business in the
manner described in the Prospectuses, except where the failure to
have any such Permit would not have a Material Adverse Effect;
(xviii) To the best knowledge of such counsel, there is
no current, pending or threatened action, suit or proceeding
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its respective
properties of a character required to be described in the
Registration Statement or either Prospectus (or any amendment or
supplement thereto) that is not adequately so described;
(xix) To the best knowledge of such counsel, except as
described in the Registration Statement and the Prospectuses,
there are no outstanding subscriptions, rights, warrants,
options, calls,
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32
convertible securities, commitments of sale or liens related to
or entitling any person to purchase or otherwise to acquire any
shares of capital stock of the Company or any security
convertible into or exchangeable or exercisable for capital stock
of the Company; to the best knowledge of such counsel, the
Shares, when issued pursuant to the terms of this Agreement, will
not be subject to any contractual preemptive right; and
(xx) To the best knowledge of such counsel, except as
described in the Registration Statement and the Prospectuses,
there is no holder of any security of the Company or any other
person who has the right, contractual or otherwise, to cause the
Company to sell or otherwise issue to them, or to permit them to
underwrite the sale of, the Shares or the right to have any
Common Stock or other securities of the Company included in the
registration statement or the right, as a result of the filing of
the registration statement, to require registration under the Act
of any shares of Common Stock or other securities of the Company.
In addition, such counsel shall state that although such counsel
has not undertaken, except as otherwise indicated in their opinion, to
determine independently, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements in the Registration
Statement and the Prospectuses, such counsel has participated in the
preparation of the Registration Statement and Prospectuses including
general review and discussion of the contents thereof but has made no
independent check or verification thereof (relying as to materiality to
a large extent upon the statements of officers and other representatives
of the Company), and such counsel has no reason to believe that the
Registration Statement and the prospectus included therein, at the time
such Registration Statement or any post-effective amendment became
effective, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectuses as
of their respective dates or as of the Closing Date, contained or
contain any untrue statement of a material fact or omitted or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; it being understood that
such
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33
counsel need express no statement with respect to the financial
statements, schedules and other financial and statistical data included
in the Registration Statement or the Prospectuses.
In rendering its opinion as aforesaid, such counsel may, as to
factual matters, rely upon written certificates or statements of
officers of the Company and its subsidiaries, each dated the Closing
Date, and may state that such counsel expresses no opinion as to the law
of any jurisdiction other than the United States, the State of Texas, or
the corporation law of the State of Delaware. Notwithstanding the
foregoing, with respect to matters of Jamaican law, the Company shall
deliver to you, as Lead Managers for the several Managers, an opinion of
Jamaican counsel retained by the Company, provided that (1) such local
counsel is acceptable to the Lead Managers, (2) such opinion is in form
and substance satisfactory to them and their counsel and (3) Locke
Purnell Rain Harrell shall state in their opinion that they believe that
the Managers are justified in relying on such opinion of Jamaican
counsel.
(d) You shall have received on the Closing Date an opinion of
Davis Polk & Wardwell, counsel for the Managers, dated the Closing Date,
with respect to the matters referred to in clauses (iv)(A), (iv)(B)(1),
(vi), (xii), (xiii) (but only with respect to the statements in the
Prospectuses under the headings "Description of Indebtedness - Notes",
"Description of Capital Stock" and "Underwriting") and the paragraph
immediately following clause (xvi) of subsection (c) above and such
other related matters as you may request.
(e) You shall have received letters addressed to you, as Lead
Managers for the several Managers, and dated the date hereof and the
Closing Date from Coopers & Lybrand, independent certified public
accountants, substantially in the forms heretofore approved by you.
(f)(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been taken or, to the knowledge of the Company,
shall be contemplated by the Commission at or prior to the Closing Date;
(ii) there shall not have been any material change in the capital stock
of the Company nor any material increase in the short-term or long-term
debt of the Company (other than in the ordinary course of business) from
that set forth or contemplated in the Registration Statement or the
Prospectuses; (iii) there
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34
shall not have been, since the respective dates as of which information
is given in the Registration Statement and the Prospectuses, except as
may otherwise be stated in the Registration Statement and Prospectuses
(or any amendment or supplement thereto), any material adverse change,
or any development reasonably likely to result in a prospective material
adverse change, in the condition (financial or other), business,
properties, net worth or results of operations of the Company and its
subsidiaries, taken as a whole; and (iv) all the representations and
warranties of the Company contained in this Agreement and the U.S.
Underwriting Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the
Closing Date and signed by the chief executive officer and the chief
financial officer of the Company (or such other officers as are
acceptable to you), to the effect set forth in this Section 9(f) and in
Sections 9(g) and 9(i) hereof.
(g) The Company shall not have failed at or prior to the Closing
Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder
at or prior to the Closing Date.
(h) The Common Stock shall have been listed or approved for
listing, subject to notice of issuance, on the New York Stock Exchange.
(i) The consummation of the Formation and receipt by the Company
of the proceeds of the Financing Plan (including, without limitation,
the Concurrent Debt Offering) shall have occurred prior to or shall
occur simultaneously with the closing hereunder.
(j) The closing under the U.S. Underwriting Agreement shall have
occurred concurrently with the closing hereunder.
(k) The Company shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have
requested.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company
and delivered to you, as Lead Managers for
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35
the Managers, or to counsel for the Managers, shall be deemed a representation
and warranty by the Company to each Manager as to the statements made therein.
10. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the registration statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectuses,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the registration statement, each
Prepricing Prospectus, the Prospectuses, and all amendments or supplements to
any of them as may be reasonably requested for use in connection with the
offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
any stamp taxes in connection with the original issuance and sale of the
Shares; (iv) the reproduction and delivery of this Agreement, the preliminary
and supplemental Blue Sky Memoranda and all other agreements or documents
reproduced and delivered in connection with the offering of the Shares; (v) the
registration of the Common Stock under the Exchange Act and the listing of the
Common Stock on the New York Stock Exchange; (vi) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws or real estate syndication laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Managers relating to the preparation, reproduction and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification); (vii) the filing fees and the fees and
expenses of counsel for the Managers in connection with any filings required to
be made with the National Association of Securities Dealers, Inc.; (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Shares; and (ix) the fees and expenses of the Company's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company.
11. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the
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36
registration statement or such post-effective amendment has been released by
the Commission. Until such time as this Agreement shall have become effective,
it may be terminated by the Company, by notifying you, or by you, as Lead
Managers for the several Managers, by notifying the Company.
If any one or more of the Managers shall fail or refuse to
purchase Shares that it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares that such defaulting Manager
or Managers are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of Shares that the Managers are obligated to
purchase on the Closing Date, each non-defaulting Manager shall be obligated,
severally, in the proportion that the number of Shares set forth opposite its
name in Schedule I hereto bears to the aggregate number of Shares set forth
opposite the names of all non-defaulting Managers or in such other proportion
as you may specify in accordance with Section 20 of the Master Agreement Among
Underwriters of Smith Barney Inc., to purchase the Shares that such defaulting
Manager or Managers are obligated, but fail or refuse, to purchase. If any one
or more of the Managers shall fail or refuse to purchase Shares that it or they
are obligated to purchase on the Closing Date and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares that the Managers are obligated to purchase on the
Closing Date and arrangements satisfactory to you and the Company for the
purchase of such Shares by one or more non-defaulting Managers or other party
or parties approved by you and the Company are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of
any non-defaulting Manager or the Company. In any such case that does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and the Prospectuses or any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting Manager
from liability in respect of any such default of any such Manager under this
Agreement. The term "Manager" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Company, purchases Shares that a
defaulting Manager is obligated, but fails or refuses, to purchase.
Any notice under this Section 11 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
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37
12. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Manager to the Company, by notice to the Company if, prior to the Closing Date,
(i) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in the State of New York or the State of Texas shall have been
declared by either federal or state authorities, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which is such as to make it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectuses or to enforce contracts for the resale of the shares by the
U.S. Underwriters. Notice of such termination may be given to the Company by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
13. INFORMATION FURNISHED BY THE MANAGERS. The statements set forth
in the last paragraph on the cover page, the stabilization legend on the inside
front cover page, and the statements in the fourth, eighth, ninth, tenth,
eleventh, twelfth (insofar as such statements relate to the Managers) and
fourteenth paragraphs under the caption "Underwriting" in any International
Prepricing Prospectus and in the International Prospectus constitute the only
information furnished by or on behalf of the Managers through you as such
information is referred to in Sections 6(b) and 8 hereof.
14. MISCELLANEOUS. Except as otherwise provided in Sections 5, 11
and 12 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of
the Company at 2001 Bryan Street, Suite 2300, Dallas, Texas 75201, Attention:
James D. Carreker, Chief Executive Officer; (ii) if to CF Securities at the
office of CF Securities at 2001 Ross Avenue, Suite 3200, Dallas, Texas 75201,
Attention: Susan T. Groenteman or (iii) if to you, as Lead Managers for the
several Managers, care of Smith Barney Inc., 388 Greenwich Street, New York,
New York 10013, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
several Managers, the Company, its directors and officers, and the other
controlling persons referred to in Section 8 hereof and their respective
successors and assigns, to the extent provided herein, and no other person
shall acquire or have any right under or by virtue of this Agreement. Neither
the term "successor" nor the term
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"successors and assigns" as used in this Agreement shall include a purchaser
from any Manager of any of the Shares in his status as such purchaser.
15. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed solely within the State of New
York.
This Agreement may be signed in various counterparts that
together constitute one and the same instrument. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party hereto.
16. AGREEMENT OF WYNDHAM HOTEL COMPANY LTD. If this Agreement shall
terminate or shall be terminated after execution pursuant to any provisions
hereof (otherwise than pursuant to the second paragraph of Section 11 hereof or
by notice given by you terminating this Agreement pursuant to Section 11 or
Section 12 hereof) or if this Agreement shall be terminated by the Managers
because of any failure or refusal on the part of the Company to comply with the
terms or fulfill any of the conditions of this Agreement, Wyndham Hotel Company
Ltd. agrees to reimburse the Lead Managers for all reasonable out-of-pocket
expenses (including reasonable fees and expenses of counsel for the Managers)
incurred by you in connection with effecting the transactions contemplated in
this Agreement.
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Please confirm that the foregoing correctly sets forth the
agreement among the Company, CF Securities, Wyndham Hotel Company Ltd. and the
several Managers.
Very truly yours,
WYNDHAM HOTEL CORPORATION
By _____________________
Chief Executive
Officer
CF SECURITIES, L.P.
By: [ ],
its general partner
By ______________________
Name:
Title:
WYNDHAM HOTEL COMPANY LTD.
By: [ ],
its general partner
By ______________________
Name:
Title:
40
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Managers named in Schedule I
hereto.
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MONTGOMERY SECURITIES
BANKERS TRUST INTERNATIONAL PLC
As Lead Managers for the Several Managers
By SMITH BARNEY INC.
By ______________________
Managing Director
41
SCHEDULE I
WYNDHAM HOTEL CORPORATION
Number of
Manager Shares
------- ------
Smith Barney Inc. . . . . .
Donaldson, Lufkin & Jenrette
Securities Corporation . .
Montgomery Securities . . . . . . . . . . . . . . . . . . . . .
Bankers Trust International PLC . . . . . . . . . . . . . . . . .
-------
Total 670,000
=======
42
SCHEDULE II
Roll-Up Entities
Brookfield Lakes Partners Ltd., a Texas limited partnership
Commerce Hotel Partners Ltd., a Texas limited partnership
Garden Hotel Associates LP, a Texas limited partnership
Garden Hotel Associates Two L.P., a Texas limited partnership
Garden Hotel Partners LP, a Texas limited partnership
Garden Hotel Partners Two L.P., a Texas limited partnership
Garden Hotel Corporation No. 1, a Texas corporation
Garden Hotel Corporation No. 2, a Texas corporation
Garden Hotel Corporation No. 3, Inc., a Texas corporation
Indianapolis Partners Ltd, a Texas limited partnership
Rose Hall Associates Limited Partnership, a Texas limited
partnership
Schaumburg Hotel Associates, Ltd, a Texas limited partnership
Schaumburg Hotel Partners Limited Partnership, a Texas limited
partnership
WH Interest, Inc., a Texas corporation
WHI Limited Partnership, a Texas limited partnership
Wyndham Charlotte Garden Hotel Limited Partnership,
a Texas limited partnership
Wyndham Hotel Company Ltd., a Texas limited partnership
WHC Caribbean Limited, a Jamaican company
Wyndham Hotel Management Corporation, a Texas corporation
43
Annex A
CERTIFICATE AS TO THE MATERIAL CONTRACTS
I, [name], [title] of Wyndham Hotel Corporation (the "Company")
hereby certify on behalf of the Company to Locke Purnell Rain Harrell (A
Professional Corporation), each of the U.S. Underwriters named in the U.S.
Underwriting Agreement dated as of __________, 1996 among the Company, CF
Securities L.P., Wyndham Hotel Company Ltd. and such U.S. Underwriters (the
"U.S. Underwriting Agreement"), each of the Managers named in the International
Underwriting Agreement dated as of _____________, 1996 among the Company, CF
Securities L.P., Wyndham Hotel Company Ltd. and such Managers (the
"International Underwriting Agreement"), and each of the Underwriters named in
the Debt Underwriting Agreement dated as of ___________, 1996 among the
Company, CF Securities L.P., Wyndham Hotel Company Ltd. and such Underwriters
(the "Debt Underwriting Agreement"), that the following constitute the
agreements, indentures, leases or other instruments to which the Company, any
of its Subsidiaries (as defined in the U.S. Underwriting Agreement, the
International Underwriting Agreement or the Debt Underwriting Agreement) or any
of the Roll-Up Entities (as defined in the U.S. Underwriting Agreement, the
International Underwriting Agreement, or the Debt Underwriting Agreement) is a
party or by which the Company, any of its Subsidiaries or any of the Roll-Up
Entities or any of their respective properties is bound that are material to
the business or operations of the Company and its subsidiaries, taken as a
whole:
[material contracts]