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EXHIBIT 1.1
$100,000,000
WYNDHAM HOTEL CORPORATION
__% Senior Subordinated Notes due 2006
UNDERWRITING AGREEMENT
__________, 1996
SMITH BARNEY INC.
BT SECURITIES CORPORATION
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MONTGOMERY SECURITIES
As Representatives of the Several Underwriters
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 to the several Underwriters named in
Schedule I hereto (the "Underwriters") for whom Smith Barney Inc., BT
Securities Corporation, Donaldson, Lufkin & Jenrette Securities Corporation and
Montgomery Securities are acting as representatives (the "Representatives")
$100,000,000 principal amount of its __% Senior Subordinated Notes due 2006
(the "Notes") to be issued pursuant to the provisions of an Indenture dated as
of ___________, 1996 (the "Indenture") among the Company, certain subsidiaries
of the Company, as Guarantors (the "Guarantors") and the Bank One, Columbus,
N.A., as trustee (the "Trustee"). Payment of the principal, interest and
premium, if any, on the Notes shall be guaranteed by each of the Guarantors
(the "Subsidiary Guarantees").
It is 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 Prospectus (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 Prospectus
as the "Financing Plan". The Formation Agreement, the Hampstead Exchange
Agreement and the Rose Hall Transfer Agreement to be entered
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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 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 Equity Offering") 3,350,000 shares of the common stock, par value
$.01 per share (the "Common Stock"), of the Company, and up to an additional
502,500 shares of such Common Stock pursuant to an over-allotment option
(collectively, the "Shares").
The Company wishes to confirm as follows its agreements with
you and the other several Underwriters on whose behalf you are acting, in
connection with the several purchases of the Notes by the Underwriters.
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 a prospectus subject to completion
relating to the Notes. 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 Notes 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 Notes that is filed and declared effective pursuant to Rule 462(b) under
the Act.
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The term "Prospectus" as used in this Agreement means the
prospectus relating to the Notes in the form included in the Registration
Statement or, if the prospectus included in the Registration Statement omits
information in reliance on Rule 430A under the Act and such information is
included in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, the term "Prospectus" as used in this Agreement means the
prospectus relating to the Notes in the form included in the Registration
Statement as supplemented by the addition of the Rule 430A information
contained in the prospectus relating to the Notes filed with the Commission
pursuant to Rule 424(b), provided that if a prospectus that meets the
requirements of Section 10(a) of the Act is delivered pursuant to Rule 434(b)
under the Act, then (i) the term "Prospectus" as used in this Agreement means
the prospectus subject to completion (as defined in Rule 434(g) under the Act)
relating to the Notes 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
Prospectus shall be deemed to be the date of such term sheet. The term
"Prepricing Prospectus" as used in this Agreement means the prospectus subject
to completion relating to the Notes in the form included in the registration
statement at the time of the initial filing of the registration statement with
the Commission, and as such prospectus shall have been amended from time to
time prior to the date of the Prospectus.
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, the Company hereby agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the respective principal amount of Notes set forth
opposite the name of such Underwriter in Schedule I hereto (or such principal
amount of Notes increased as set forth in Section 11 hereof) at ______% of such
principal amount plus accrued interest, if any, from _____________, 1996, to
the date of payment and delivery.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Notes as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Notes upon the terms set forth in the Prospectus.
4. DELIVERY OF THE NOTES AND PAYMENT THEREFOR. Delivery to the
Underwriters of and payment for the Notes shall be made at the office of Locke
Purnell Rain Harrell (A Professional Corporation), 2200 Ross Avenue, Suite
2200,
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Dallas, Texas 75201 at 9:00 A.M., Dallas time, on _______, 1996 (the "Closing
Date"). The place of closing for the Notes and the Closing Date may be varied
by agreement between you and the Company.
Payment for the Notes shall be made in immediately available
funds against delivery to you for the respective accounts of the several
Underwriters of one or more Global Notes (as defined in the Indenture)
representing the Notes registered in the name of Cede & Co., as custodian for
The Depository Trust Company ("DTC"), with any transfer tax payable in
connection with the transfer of the Notes to the Underwriters duly paid.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters 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
Notes 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 Prospectus or Prospectus, 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 Notes 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 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 the Prospectus (as then
amended or supplemented) untrue or that requires the making of any
additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a
material
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fact required by the Act to be stated therein or necessary in order to
make the statements therein (with respect to the Prospectus, in the
light of the circumstances under which they were made) not misleading,
or of the necessity to amend or supplement the 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 the
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 Underwriters, a prospectus
is required to be delivered in connection with sales by any
Underwriter 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 Representatives of the
Underwriters, 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
Prepricing Prospectus. The Company consents to the use, in accordance
with the provisions of the Act and with the securities or Blue Sky
laws or real estate syndication laws of the jurisdictions in which the
Notes are offered by the several Underwriters and by dealers, prior to
the date of the Prospectus, of each 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 Underwriters a prospectus is
required by the Act to be delivered in connection with sales by any
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Underwriter or dealer, the Company will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
request. The Company consents to the use of the Prospectus (and of
any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws or real estate
syndication laws of the jurisdictions in which the Notes are offered
by the several Underwriters and by all dealers to whom Notes may be
sold, both in connection with the offering and sale of the Notes and
for such period of time thereafter as a prospectus is required by the
Act to be delivered in connection with sales by any Underwriter 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
Underwriters is required to be set forth in the 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 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
Underwriters and dealers a reasonable number of copies thereof.
(g) The Company will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification
of the Notes for offering and sale by the several Underwriters 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 Notes, in
any jurisdiction where it is not now so subject.
(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
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of such period, which consolidated earnings statement shall satisfy
the provisions of Section 11(a) of the Act.
(i) For so long as any Notes are outstanding, 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 Notes substantially in accordance with the description set forth
in the Prospectus.
(k) If Rule 430A of the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and
will advise you of the time and manner of such filing.
(l) During the period beginning on the date hereof and
continuing to and including the Closing Date, the Company will not,
without the prior written consent of Smith Barney Inc., offer, pledge,
sell, contract to sell or otherwise dispose of, any debt securities of
the Company or warrants to purchase debt securities of the Company
substantially similar to the Notes (other than (i) the Notes, (ii)
notes incurred to the lenders under the Credit Agreement (as defined
in the Prospectus) or (iii) the Vinings Indebtedness (as defined in
the Prospectus)).
(m) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, 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 Notes to facilitate the sale or
resale of the Notes.
(n) The Company shall not voluntarily claim, and shall
actively resist any attempt to claim, the benefit of any usury laws
against the holders of the Notes.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that (in each of paragraphs (a)
through (ff), after giving effect to the Formation):
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment
or supplement thereto, or filed
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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
Prospectus 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 the Prospectus, in the light of the circumstances under
which they were made) not misleading, except that this representation
and warranty does not apply (i) to statements in or omissions from the
registration statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by a Underwriter through the Representatives
expressly for use therein or (ii) to that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustee (the "Form T-1").
(c) 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 Prospectus, 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
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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 Prospectus (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,
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
Prospectus).
(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 the 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 the 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 the 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
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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 Notes, the execution,
delivery, or performance of this Agreement, the Indenture or the Notes
by the Company or the execution or delivery of, or the performance by
the Company or the Roll-Up 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 Notes
under the Act and the Trust Indenture 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
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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 the Prospectus (or any amendment or
supplement 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 Prospectus (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 Prospectus; and the other financial
and statistical information and data included in the Registration
Statement and the Prospectus (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, this Agreement have been duly and
validly authorized by the Company, and this Agreement has been duly
executed
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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 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 may
be limited by federal or state securities laws or the public policy
underlying such laws.
(l) The Indenture has been duly qualified under the Trust
Indenture Act. The execution and delivery of, and the performance by
the Company of its obligations under, the Indenture have been duly and
validly authorized by the Company, and the Indenture 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
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) The Notes have been duly authorized and validly
issued by the Company, and when the Notes are executed and
authenticated in accordance with the provisions of the Indenture and
delivered to you against payment therefor in accordance with the terms
of this Agreement, the Notes will be entitled to the benefits of the
Indenture and will constitute valid and legally binding agreements of
the Company, enforceable against the Company in accordance with their
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 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.
(n) The Subsidiary Guarantees have been duly authorized
and validly issued by each of the
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Guarantors, and when the Notes are executed and authenticated in
accordance with the Indenture and delivered to you against payment
therefor in accordance with the terms of this Agreement, the Notes
will be entitled to the benefit of the Subsidiary Guarantees, and the
Subsidiary Guarantees will constitute valid and legally binding
agreements of each of the Guarantors, enforceable against each of the
Guarantors in accordance with their terms set forth in the Indenture,
except (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, 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.
(o) 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.
(p) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the
Registration Statement and the Prospectus (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
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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.
(q) Each of the Company and its Subsidiaries has (i) good
and marketable title in fee simple to all real property described in
the Prospectus as owned by it and (ii) good and marketable title to
all personal property described in the 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 the Registration Statement and the Prospectus or in a
document filed as an exhibit to the Registration Statement. All the
property described in the 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.
(r) 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 Notes, will not distribute any offering material
in connection with the offering and sale of the Notes other than the
Registration Statement, the Prepricing Prospectus, the Prospectus or
other materials, if any, permitted by the Act.
(s) 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
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to conduct its business in the manner described in the Prospectus,
subject to such qualifications as may be set forth in the Prospectus
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 Prospectus, and except where the failure to so fulfill or
perform its obligation or such revocation or termination would not
have a Material Adverse Effect; and, except as described in the
Prospectus, none of such Permits contains any restriction that is
materially burdensome to the Company or any of its Subsidiaries.
(t) 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.
(u) 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 Prospectus.
(v) 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
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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.
(w) The representations and warranties of the Company in
the Transaction Documents are, and on the Closing Date will be, true
and correct.
(x) Except as described in the Prospectus, no holder of any
security of the Company has any right to require registration of any
security of the Company because of the filing of the registration
statement or consummation of the transactions contemplated by this
Agreement or the Transaction Documents, or otherwise.
(y) 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 Notes, except as
provided in Section 5(l) hereof.
(z) 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 the
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 Prospectus, 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.
(aa) The Company is not now and, after sale of the Notes and
application of the net proceeds from such sale as described in the
Prospectus 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.
(bb) The Company has complied with all provisions of Florida
Statutes, Section 517.075, relating to issuers doing business with
Cuba.
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(cc) Except as disclosed in the Prospectus, the Company and
its Subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and 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.
(dd) 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.
(ee) 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.
(ff) 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.
(gg) As of the Closing Date, the Formation shall have been
consummated as set forth in the Prospectus.
7. REPRESENTATIONS AND WARRANTIES OF CF SECURITIES. CF
Securities, L.P., a Texas limited partnership ("CF Securities"), represents and
warrants to each Underwriter that:
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(a) Each of this 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 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 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 Notes under the Act and the Trust
Indenture 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
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pursuant to the terms of any agreement or instrument to which CF
Securities or any such Founder is a party or 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 Notes.
(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
Prospectus (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 the 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 Prospectus made in
reliance upon and in conformity with information relating to any
Underwriter furnished to CF Securities in writing by a 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 Underwriter and each
person, if any, who controls any Underwriter 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 Prepricing Prospectus or
in the Registration Statement or the Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a
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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 Underwriter furnished in writing to the Company by or on
behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Prepricing Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Notes by such Underwriter to any person if a copy
of the 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
Prepricing Prospectus was corrected in the Prospectus, provided that the
Company has delivered the Prospectus to the several Underwriters, no later than
2:00 P.M., New York city time, on the business day following the date hereof,
in such quantity as the Underwriters shall have reasonably requested.
(b) CF Securities agrees that, in the event any Underwriter or any
person controlling any Underwriter shall obtain a judicial judgment, order or
decree against the Company for amounts payable by the Company to such
Underwriter 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 Underwriter or controlling
person, pay to such Underwriter or controlling person an amount equal to the
amount payable by the Company to such Underwriter or controlling person
pursuant to such judgment. Notwithstanding the foregoing, the aggregate
liability of CF Securities pursuant to this 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
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company and CF Securities, and the
Company shall assume the defense thereof, including the employment of counsel
and payment of all fees and expenses, provided that in the event the Company
fails to so
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assume such defense, CF Securities may so assume such defense. Such
Underwriter 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 Underwriter 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 Underwriter or
such controlling person and the Company and such Underwriter 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 Underwriter 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 Underwriters and controlling persons 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 Underwriter, 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 Underwriter 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 the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but
only with respect to information relating to such Underwriter furnished in
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writing by or on behalf of such Underwriter through you expressly for use in
the Registration Statement, the Prospectus or any 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 Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto, and in respect
of which indemnity may be sought against any Underwriter pursuant to this
paragraph (d), such Underwriter 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 Underwriter 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 Underwriter's expense), and
the Company, its directors, any such officer, any such controlling person shall
have the rights and duties given to the Underwriters 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 Underwriters
on the other hand from the offering of the Notes (including the application of
the proceeds therefrom as described in the Prospectus), 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 Underwriters 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 Underwriters 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 the Underwriters, each as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by reference
to, among other
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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 Underwriters 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 Underwriters 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 Underwriters 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 Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price of the Notes underwritten by it and distributed to the public
exceeds the amount of any damages that such Underwriter 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 Underwriters' obligations to contribute pursuant to
this Section 8 are several in proportion to the respective principal amounts of
Notes set forth opposite their names in Schedule I hereto (or such principal
amounts of Notes 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.
(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
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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 Underwriter or any person
controlling any Underwriter, the Company, its directors or officers or any
person controlling the Company, CF Securities or any Founder, (ii) acceptance
of any Notes 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 Underwriter or any person controlling any
Underwriter, 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 UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Notes 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
Notes 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
Underwriter, threatened by the Commission, and any request of the
Commission for additional information (to be included in the
Registration Statement or the 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 downgrading or any notice of any
intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change in
the rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Act, (ii) any change, or any
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development that is reasonably likely to result in a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, not contemplated by the Prospectus
that, in your opinion, as Representatives of the several Underwriters,
would materially adversely affect the market for the Notes, or (iii)
any event or development relating to or involving the Company or any
officer or director of the Company that makes any statement made in
the Prospectus untrue in any material respect or that, in the opinion
of the Company and its counsel or the Underwriters and their counsel,
requires the making of any addition to or change in the 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
Representatives of the several Underwriters, materially adversely
affect the market for the Notes.
(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 Representatives of the
several Underwriters, 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
Prospectus 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 Notes (A) have been duly authorized and (B)
when issued and executed and authenticated in accordance with
the provisions of the Indenture and delivered to you in
accordance with the terms of this Agreement, will be entitled
to the benefits of the Indenture, and will constitute valid
and legally binding agreements of the Company in accordance
with their terms (provided that, for purposes of such opinion,
such counsel
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may assume that the applicable law chosen by the parties to
govern the Notes is the same as applicable Texas law), except
(i) the enforceability hereof 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;
(iii) The Subsidiary Guarantees have been duly
authorized and validly issued by each of the Guarantors, and
when the Notes are executed and authenticated in accordance
with the Indenture and delivered to you in accordance with the
terms of this Agreement, the Notes will be entitled to the
benefits of the Subsidiary Guarantees, and the Subsidiary
Guarantees will constitute valid and legally binding
agreements of each of the Guarantors in accordance with their
terms set forth in the Indenture (provided that, for purposes
of such opinion, such counsel may assume that the applicable
law chosen by the parties to govern the Subsidiary Guarantees
is the same as applicable Texas law), except (i) the
enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, 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
(iv) 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 the Prospectus pursuant to Rule 424(b) or
Rule 434 has been made in accordance with Rule 424(b) and Rule
430A under the Act;
(v) The Company has the corporate power and
authority to enter into this Agreement and to issue, sell and
deliver the Notes to the Underwriters as provided herein, and
this
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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 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 which the
proceedings may be brought and (C) rights to indemnity and
contribution hereunder may be limited by federal or state
securities laws or the public policy underlying such laws;
(vi) The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended, and the Company has
the corporate power and authority to enter into the Indenture,
and the Indenture 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
chosen by the parties to govern the Indenture is the same as
applicable Texas law), except that (A) enforceability thereof
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;
(vii) The Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus under the heading
"Description of the Notes";
(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
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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 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 Notes, nor the
execution, delivery or performance of this Agreement, the
Indenture or the Transaction Documents, or compliance by the
Company or any of the Roll-Up Entities with all provisions of
this Agreement, the Indenture 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 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
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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
Notes pursuant to this Agreement or the Indenture 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 Trust
Indenture 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 Notes;
(xi) The Registration Statement and the 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 the 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 the Prospectus and (B) there are no agreements,
contracts, indentures, leases or other instruments relating to
the Company, of a character that are required to be described
in the Registration Statement or the Prospectus 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 the
Revolving Credit Agreement", "Description of the Notes" and
"Description of Capital Stock" in the Prospectus and in the
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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
Notes and application of the net proceeds from such sale as
described in the Prospectus 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 Prospectus (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 Prospectus, 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, 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,
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executed by an executive officer of the Company, except as may
be disclosed in the Prospectus 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 Prospectus, 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 the Prospectus (or any
amendment or supplement thereto) that is not adequately so
described; and
(xix) To the best knowledge of such counsel, except
as described in the Registration Statement and the Prospectus,
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 Notes or the right to have
any 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 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
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Prospectus, such counsel has participated in the preparation of the
Registration Statement and Prospectus 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
Prospectus 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 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
Prospectus.
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 Representatives of the
several U.S. Underwriters, an opinion of Jamaican counsel retained by
the Company, provided that (1) such local counsel is acceptable to the
Representatives, (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
Underwriters 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 Underwriters, dated the Closing
Date, with respect to the matters referred to in clauses (ii)(A),
(iv), (xiii), (xiv) (but only with respect to the statements in the
Prospectus under the headings "Description of the Notes", "Description
of Capital Stock" and "Underwriting") and the paragraph immediately
following
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clause (xiv) of subsection (c) above and such other related matters
as you may request.
(e) You shall have received letters addressed to you, as
Representatives of the several Underwriters, 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 Prospectus; (iii) there shall not
have been, since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as may
otherwise be stated in the Registration Statement and Prospectus (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 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 consummation of the Formation and receipt by the
Company of the proceeds of the Financing Plan (including, without
limitation, the Concurrent Equity Offering) shall have occurred prior
to or shall occur simultaneously with the closing hereunder.
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(i) 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 Representatives of the Underwriters, or to
counsel for the Underwriters, shall be deemed a representation and warranty by
the Company to each Underwriter 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 Prospectus,
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 Prospectus, 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 Notes; (iii) the preparation, printing, authentication,
issuance and delivery of the Notes, including any stamp taxes in connection
with the original issuance and sale of the Notes; (iv) the reproduction and
delivery of this Agreement, the Indenture, the preliminary and supplemental
Blue Sky Memoranda and all other agreements or documents reproduced and
delivered in connection with the offering of the Notes; (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
Notes 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
Underwriters 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 Underwriters 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 Notes; and (ix)
the fees and expenses of the Company's accountants
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35
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 Notes may commence, when
notification of the effectiveness of the 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 Representatives of the several
Underwriters, by notifying the Company.
If any one or more of the Underwriters shall fail or refuse to
purchase Notes that it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate principal amount of Notes that such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate principal amount of Notes that the
Underwriters are obligated to purchase on the Closing Date, each non-defaulting
Underwriter shall be obligated, severally, in the proportion that the principal
amount of Notes set forth opposite its name in Schedule I hereto bears to the
aggregate principal amount of Notes set forth opposite the names of all
non-defaulting Underwriters 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 Notes that such defaulting Underwriter or
Underwriters are obligated, but fail or refuse, to purchase. If any one or
more of the Underwriters shall fail or refuse to purchase Notes that it or they
are obligated to purchase on the Closing Date and the aggregate principal
amount of Notes with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Notes that the Underwriters are
obligated to purchase on the Closing Date and arrangements satisfactory to you
and the Company for the purchase of such Notes by one or more non-defaulting
Underwriters 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 Underwriter 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 Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting
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Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" 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 Notes that a defaulting Underwriter 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.
12. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter 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 Notes on the terms and in the manner contemplated
in the Prospectus 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 UNDERWRITERS. 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 and fourteenth paragraphs under the caption
"Underwriting" in any Prepricing Prospectus and in the Prospectus constitute
the only information furnished by or on behalf of the Underwriters 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 Representatives of the
several Underwriters, care of Smith
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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 Underwriters, 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 "successors and assigns" as used in this
Agreement shall include a purchaser from any Underwriter of any of the Notes 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 Underwriters
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 Representatives for all reasonable out-of-pocket
expenses (including reasonable fees and expenses of counsel for the
Underwriters) 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 Underwriters.
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:
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Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
SMITH BARNEY INC.
BT SECURITIES CORPORATION
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MONTGOMERY SECURITIES
As Representatives of the Several Underwriters
By SMITH BARNEY INC.
By ______________________
Managing Director
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SCHEDULE I
WYNDHAM HOTEL CORPORATION
Principal Amount
Underwriter of Notes
----------- --------
Smith Barney Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BT Securities Corporation . . . . . . . . . . . . . . . . . . . . . . . . .
Donaldson, Lufkin & Jenrette
Securities Corporation . . . . . . . . . . . . . . . . . . . . . . . . .
Montgomery Securities . . . . . . . . . . . . . . . . . . . . . . . . . . __________
Total
==========
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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