UNITS EXCHANGE RIGHTS AGREEMENT
This Units Exchange Rights Agreement (this "Agreement") is made as
of February 14, 1997 among Starwood Lodging Trust, a real estate investment
trust organized under the laws of the State of Maryland (the "Trust"), Starwood
Lodging Corporation, a Maryland corporation (the "Corporation"), SLT Realty
Limited Partnership, a Delaware limited partnership (the "Realty Partnership"),
SLC Operating Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), and each of the limited partners of the Realty
Partnership and the Operating Partnership listed on the signature pages hereto
(the "Starwood Partners"). Unless otherwise indicated, capitalized terms used
herein are used herein as defined in Section 11.
WHEREAS, pursuant to a Contribution Agreement dated as of January
15, 1997 (the "Contribution Agreement") among the Trust, the Corporation,
Starwood Partners and other parties (i) on the date hereof the Starwood Partners
are making capital contributions to the Realty Partnership in return for the
issuance by the Realty Partnership to the Starwood Partners of Units (as defined
in the Limited Partnership Agreement of the Realty Partnership (the "Realty
Partnership Agreement")) of the Realty Partnership (such Units issued by the
Realty Partnership to the Starwood Partners on the date hereof, together with
any Units of the Realty Partnership issued to the Starwood Partners after the
date hereof, being hereinafter called the "Realty Units") and (ii) on the date
hereof the Starwood Partners are making capital contributions to the Operating
Partnership in return for the issuance by the Operating Partnership to the
Starwood Partners of Units (as defined in the Limited Partnership Agreement of
the Operating Partnership (the "Operating Partnership Agreement")) of the
Operating Partnership (such Units issued by the Operating Partnership to the
Starwood Partners on the date hereof, together with any Units of the Operating
Partnership issued to the Starwood Partners, being hereinafter called the
"Operating Units"); and
WHEREAS, pursuant to the Contribution Agreement the parties hereto
are entering into this Agreement to provide for the rights of the Starwood
Partners to tender Realty Units and Operating Units in exchange for either
Paired Shares (as defined herein), cash or a combination of Paired Shares and
cash, on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, the parties hereto agree as follows:
Section 1. Right to Tender Starwood Units. (a) Upon the terms and
subject to the conditions of this Agreement, each
holder of Starwood Units (as defined below) shall have the right to tender to
the Trust outstanding Realty Units and the right to tender to the Corporation
outstanding Operating Units. Notwithstanding anything to the contrary contained
in this Agreement (i) no Realty Unit may be tendered to the Trust unless
simultaneously therewith the tendering holder also tenders to the Corporation an
Operating Unit and no Operating Unit may be tendered to the Corporation unless
simultaneously therewith the tendering holder also tenders to the Trust a Realty
Unit (a Realty Unit tendered for exchange and the Operating Unit simultaneously
tendered for exchange being hereinafter collectively referred to as a "Starwood
Unit") and (ii) any attempted tender of a Realty Unit or an Operating Unit which
is not accompanied by a simultaneous tender of an Operating Unit or Realty Unit,
respectively, shall be void and of no effect; it being understood that a
simultaneous tender of unequal numbers of Realty Units and Operating Units shall
be valid under this sentence to the extent of the lesser of the number of Realty
Units or Operating Units, as the case may be, included in such tender.
(b) Notwithstanding any other provision of this Agreement, no Paired
Shares or cash shall be issued or paid in respect of any tender of Starwood
Units (i) if, notwithstanding the provisions of Section 6 of this Agreement, the
right to tender Starwood Units and receive Paired Shares or cash would result in
the Trust not satisfying the REIT Requirements in any respect or would result in
any person or entity Beneficially Owning Trust Shares exceeding the Ownership
Limit, (ii) if, with respect to all Starwood Partners other than Prudential
Property Investment Separate Account II, the tender pursuant to Section 1(a) is
prior to the first anniversary of the date of this Agreement, (iii) prior to the
expiration or termination of the waiting period applicable to such exchange and
issuance, if any, under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as it may be amended from time to time, or (iv) prior to the receipt of
all governmental and regulatory approvals which are required to be obtained
prior to such tender and issuance or payment, including, without limitation, any
required approvals of the gaming authorities of the State of Nevada and of Xxxxx
County, Nevada (the "Gaming Approvals"). Prior to the receipt of Gaming
Approvals, such holder shall, as a condition to any tender of Starwood Units
which would (if the Paired Share Option (as defined below) were to be elected in
respect of such tender) cause such holder to beneficially own, in the aggregate,
Paired Shares representing more than 4.9% of the then issued and outstanding
Paired Shares, give not less than 90 days' written notice to the Trust and the
Corporation (at the offices provided pursuant to Section 10) of its intent to
tender Starwood Units; provided, however, that the ownership by Prudential
Property Investment Separate Account II of Paired Shares as contemplated by the
penultimate sentence of Section 8.02(j) of the Contribution Agreement shall not
require any such written notice to the Trust and Corporation. In the event that
the ability to
receive Paired Shares or cash would result in the Trust not satisfying the REIT
Requirements in any respect or would result in any person or entity Beneficially
Owning Trust Shares exceeding the Ownership Limit, and as a result thereof no
Paired Shares or cash may be issued or paid in respect of any tender of Starwood
Units pursuant to Section 1(b)(i) above, the parties hereto shall use their
respective best efforts to restructure the terms and provisions of this
Agreement (and, if necessary, the Partnership Agreements and the Registration
Rights Agreement (as defined in Section 6)), or to agree to terms and provisions
in addition to such terms and provisions, so as to provide to each such party
the same substantive rights (or substantive rights as close thereto as is
reasonably practicable) as those provided by this Agreement, the Partnership
Agreements and the Registration Rights Agreement.
(c) The rights to exchange Starwood Units pursuant to this Agreement
constitute a continuous offer and may not be withdrawn, amended or modified by
the Trust or the Corporation without the prior written consent of each holder of
outstanding Starwood Units adversely affected by such withdrawal, amendment or
modification; provided that any withdrawal, amendment or modification that does
not adversely affect any holder of outstanding Starwood Units may be effected
without the consent of such holder.
Section 2. Acceptance of Tender; Election of Method of Payment for
Tendered Starwood Units. (a) Upon the terms and subject to the conditions of
this Agreement, the Trust and the Corporation shall accept Starwood Units
validly tendered in proper form and meeting all of the requirements of this
Agreement. In order for Starwood Units to be validly tendered pursuant to this
Agreement, the registered holder thereof shall deliver to the Trust and the
Corporation, at the address provided pursuant to Section 10, (i) a completed and
duly executed Letter of Transmittal in the form attached hereto as Exhibit A
(the "Letter of Transmittal") and any other documents required by the Letter of
Transmittal and (ii) a calculation, to the best knowledge of such registered
holder after due inquiry (together with such supporting documentation as the
Trust may reasonably request), of the maximum number of Paired Shares that may
be issued to such registered holder without causing either (x) the Trust to not
satisfy the REIT Requirements in any respect or (y) any person or entity to
Beneficially Own Trust Shares exceeding the Ownership Limit. The Trust and the
Corporation shall make all determinations as to the validity and form of any
tender of Starwood Units in accordance with the provisions of this Agreement and
upon rejection of a tender shall give the tendering holder written notice of
such rejection, which shall include the reasons therefor.
(b) Unless otherwise determined by agreement of the Trust and the
Corporation, tenders of Starwood Units pursuant to this Agreement shall be
irrevocable and shall not be subject to
withdrawal or modification; provided that if the Trust and the Corporation make
the Paired Share Election with respect to a tender, then within 5 days after
such Election the tendering holder may elect to revoke such tender so long as
(i) no public disclosure of such tender has been made prior to such revocation
and (ii) such tendering holder reimburses the Trust and the Corporation for all
reasonable costs and expenses incurred in connection with such tender.
(c) Within 15 days after the valid tender pursuant to this Agreement
of Starwood Units, the Trust and the Corporation shall make an election to pay
for such Starwood Units by delivering either (i) Paired Shares (the "Paired
Share Election"), (ii) cash (the "Cash Election") or (iii) a combination of
Paired Shares and cash (the "Combined Election"). Such election shall be made
pursuant to an agreement as to such election between the Trust and the
Corporation. If the Trust and the Corporation do not so agree within such 15-day
period, they shall be deemed to have made the Cash Election.
Section 3. Paired Share Election. (a) If with respect to any tender
of Starwood Units pursuant to this Agreement, the Trust and the Corporation make
the Paired Share Election, then, except as provided in Section 2(b), within
fifteen days after the expiration of the 5-day period referred to in Section
2(b), the Trust and the Corporation shall deliver to the tendering holder one
Paired Share for each Starwood Unit validly tendered pursuant to the provisions
of this Agreement.
(b) No fractional Paired Shares or scrip representing fractional
Paired Shares shall be issued upon exchange of Starwood Units pursuant to this
Agreement. If more than one Letter of Transmittal shall be delivered at one time
by the same holder, the number of full Paired Shares which shall be issuable
upon exchange of the Starwood Units tendered thereby shall be computed on the
basis of the aggregate number of Starwood Units so tendered. Instead of any
fractional Paired Shares which would otherwise be issuable upon exchange of any
Starwood Units, the Trust and the Corporation shall pay a cash adjustment in
respect of such fraction in an amount equal to the same fraction of the Paired
Share Closing Price on the last Business Day preceding the date of exchange.
(c) If a holder exchanges Starwood Units pursuant to this Agreement,
the Trust and the Corporation shall pay any documentary, stamp or similar issue
or transfer tax due on any issue of Paired Shares upon such exchange. Such
holder, however, shall (i) pay to the Trust and the Corporation the amount of
any additional documentary, stamp or similar issue or transfer tax which is due
(or shall establish to the satisfaction of the Trust and the Corporation the
payment thereof) as a result of Paired Shares being issued in a name other than
the name of such holder and (ii) be responsible for all income or other taxes as
a result of such exchange.
Section 4. Cash Election. (a) If with respect to any tender of
Starwood Units pursuant to this Agreement, the Trust and the Corporation make or
are deemed to have made the Cash Election, then within 20 days after such tender
the Trust and the Corporation shall pay to the tendering holder an aggregate
amount of cash (the "Aggregate Cash Payment") equal to the product of (i) the
number of Paired Shares which would have been delivered to such holder if the
Trust and the Corporation had made the Paired Share Election with respect to
such tender and (ii) the average Paired Share Closing Price for the ten trading
day period ending one day prior to the date of such tender.
(b) In connection with any Aggregate Cash Payment pursuant to
Section 4(a) or any cash payment pursuant to Section 5(a)(ii), the Trust shall
pay 95% of such Aggregate Cash Payment or such cash payment and the Corporation
shall pay 5% of such Aggregate Cash Payment or such cash payment (such
percentages being herein called the "Issuance Percentages"); provided that the
Trust and the Corporation may from time to time change the Issuance Percentages
based on their determination of the relative fair values of the Trust Shares and
the Corporation Shares.
Section 5. Combined Election. (a) If with respect to any tender of
Units pursuant to this Agreement, the Trust and the Corporation shall make the
Combined Election, then, except as provided in Section 2(b), within 15 days
after the expiration of the 5-day period referred to in Section 2(b), the Trust
and the Corporation shall (i) notify the tendering holder of the number of such
tendered Units which will be exchanged for cash (the "Cash Units") and the
number of such tendered Units which will be exchanged for Paired Shares (the
"Paired Share Units"), (ii) pay to the tendering holder, in respect of each Cash
Unit validly tendered pursuant to the provisions of this Agreement, an amount of
cash (with each of the Trust and the Corporation paying its then respective
Issuance Percentage of such amount of cash) equal to the average Paired Share
Closing Price for the ten trading day period ending one day prior to the date of
such tender and (iii) deliver to the tendering holder one Paired Share for each
Paired Share Unit validly tendered pursuant to the provisions of this Agreement.
(b) The provisions of Sections 3(b) and 3(c) of this Agreement shall
apply to the issuance of Paired Shares pursuant to Section 5(a).
Section 6. Registration Rights. If at any time after six (6) months
from the date of this Agreement, (a) a Starwood Partner validly tenders Starwood
Units pursuant to the provisions of this Agreement, (b) the Trust and the
Corporation make the Paired Share Election or the Combined Election with respect
to such tender, (c) as a result of the Ownership Limit such Starwood Partner
cannot receive the full number of Paired Shares otherwise issuable to such
Starwood Partner pursuant to such tender and such Election (without giving
effect to the Ownership Limit) (the
event described in clauses (a), (b) and (c) being referred to as a "Paired Share
Tender Reduction"; the number of such Paired Shares which such Starwood Partner
cannot receive pursuant to such tender as a result of the Ownership Limit being
referred to as the "Unissued Paired Shares"; and the Starwood Units tendered in
respect of such Unissued Paired Shares being referred to as the "Delayed Payment
Units"), then subject to the other terms and conditions of this Agreement, such
Starwood Partner shall be entitled to receive the number of Paired Shares which
it can receive pursuant to such tender, such Election and the Ownership Limit
and then, pursuant to the terms of the Registration Rights Agreement, the Trust
and the Corporation shall cause there to be filed with the Securities and
Exchange Commission a registration statement and the Trust and the Corporation
shall register and sell pursuant thereto a number of Paired Shares equal to the
number of such Unissued Paired Shares requested by Starwood to be registered
pursuant to Section 2.3 of the Registration Rights Agreement. Within two
Business Days after the receipt by the Trust and the Corporation of the proceeds
of any sale (after underwriting discounts and commissions) of such Paired Shares
pursuant to such registration, the Trust and the Corporation shall pay such
proceeds to the tendering holder of the Delayed Payment Units, in full payment
for the tender of such Delayed Payment Units.
Section 7. Representations of Tendering Holder. Each tender of
Starwood Units shall constitute a representation and warranty by the tendering
holder of each of the representations and warranties set forth in the form of
Letter of Transmittal. Without limiting the generality of the foregoing, unless,
at the time of a tender for exchange of Starwood Units pursuant to this
Agreement, a registration statement relating to any Paired Shares to be
delivered upon such tender is effective under the Securities Act of 1933, as
amended (the "Securities Act"), such tender shall constitute a representation
and warranty by the tendering holder to the Trust and the Corporation that such
tendering holder (i) is an "accredited investor" within the meaning of Rule 501
under the Securities Act, (ii) has sufficient knowledge and experience in
financial and business matters and in investing in entities similar to the
Partnerships, the Trust and the Corporation so as to be able to evaluate the
risks and merits of its investment in the Partnerships, the Trust and the
Corporation and it is able financially to bear the risks thereof, (iii) has had
an opportunity to discuss the business, management and financial affairs of the
Trust, the Corporation and the Partnerships with the management of the Trust,
the Corporation and the Partnerships, and (iv) understands that the Paired
Shares have not been registered under the Securities Act by reason of their
issuance in a transaction exempt from the registration requirements of the
Securities Act pursuant to Section 4(2) thereof or Rule 505 or 506 promulgated
under the Securities Act and such Paired Shares must be held indefinitely unless
a subsequent disposition thereof is registered under the Securities
Act and applicable state securities laws or is exempt from such registration.
Section 8. Status of Tendering Holder. Until the holder of Starwood
Units tendered pursuant to this Agreement becomes a holder of record of the
Paired Shares issued in exchange therefor (in the case of a Paired Share
Election or a Combined Election) or until such holder has received cash in
exchange therefor (in the case of a Cash Election or a Combined Election), such
holder shall continue to hold and own such Starwood Units for all purposes of
the Realty Partnership Agreement and the Operating Partnership Agreement. In the
case of a Paired Share Election or a Combined Election, no such holder shall
have any rights as a shareholder of the Trust or a stockholder of the
Corporation in respect of such Paired Shares until such holder becomes a holder
of record of such Paired Shares.
Section 9. Reservation of Shares; Closing of Transfer Books. (a) The
Trust shall reserve and shall at all times have reserved out of its authorized
but unissued Trust Shares, solely for the purpose of effecting the exchange of
Realty Units pursuant to this Agreement and the Class A Units pursuant to the
Class A Exchange Rights Agreement, enough Trust Shares to permit the exchange of
the then outstanding Realty Units and, in the case of the Class A Exchange
Rights Agreement, Class A Units. The Corporation shall reserve and shall at all
times have reserved out of its authorized but unissued Corporation Shares,
solely for the purpose of effecting the exchange of Operating Units pursuant to
this Agreement, enough Corporation Shares to permit the exchange of the then
outstanding Operating Units. All Paired Shares which may be issued upon exchange
of Starwood Units shall be validly issued, fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issuance thereof other
than income taxes resulting from such exchange.
(b) The Trust shall not close its transfer books so as to prevent
the timely issuance of Trust Shares pursuant to this Agreement and the Class A
Exchange Rights Agreement. The Corporation shall not close its transfer books so
as to prevent the timely issuance of Corporation Shares pursuant to this
Agreement.
Section 10. Notices. All notices, documents and other communications
under this Agreement shall be in writing and shall be deemed given when
delivered personally or by overnight mail or when sent by facsimile
transmission, or four days after being mailed (by registered mail, return
receipt requested) to a party at the following address (or to such other address
as such party may have specified by notice given to the other parties pursuant
to this provision):
(a) If to the Trust or the Realty Partnership, to:
Starwood Lodging Trust
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Sidley & Austin
000 Xxxx 0xx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) If to the Corporation or the Operating Partnership, to:
Starwood Lodging Corporation
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Sidley & Austin
000 Xxxx 0xx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
(c) If to Prudential:
Prudential Real Estate Investors
0 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000 or 1690
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
(d) If to any other Holder, to the address specified on
Schedule A hereto.
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
Section 11. Definitions. For purposes of this Agreement:
"Beneficially Owning" means owning Trust Shares directly, indirectly
or constructively by a person or entity through the application of Section
318(a) of the Code, as modified by Section 856(d)(5) of the Code, or
Section 544 of the Code, as modified by Section 856(h) of the Code. The
term "Beneficially Own" shall have a correlative meaning.
"Business Day" means any day other than Saturday, Sunday and any day
on which banks are not open to do business in New York, New York.
"Class A Exchange Rights Agreement" means the Exchange Rights
Agreement dated the date hereof among the Corporation, the Operating Partnership
and certain other parties.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations promulgated thereunder, as amended from time to time.
"Corporation Shares" means the shares of common stock, par value
$.01 per share, of the Corporation.
"Declaration of Trust" means the Declaration of Trust of the Trust
dated August 25, 1969, as amended and restated as of June 6, 1988, and as
further amended on February 1, 1995 and as amended from time to time after
the date of this Agreement.
"Disinterested Members" when used with respect to the Trust has the
meaning set forth in the Code of Regulations
of the Trust and, when used with respect to the Corporation, has the
meaning set forth in the By-Laws of the Corporation, in each case as
amended from time to time.
"Ownership Limit" when used with respect to Trust Shares, has the
meaning set forth in the Declaration of Trust and, when used with respect
to the Corporation Shares, has the meaning set forth in the Restated
Articles, in each case as amended from time to time.
"Paired Share" means a Corporation Share and a Trust Share which are
paired pursuant to the Pairing Agreement.
"Paired Share Closing Price" shall mean, with respect to a
particular date, the last reported sales price regular way on such date
or, in case no such reported sale takes place on such date, the average of
the reported closing bid and asked prices regular way on such date, in
either case on the New York Stock Exchange, or if the Paired Shares are
not then listed or admitted to trading on such Exchange, on the principal
national securities exchange on which the Paired Shares are then listed or
admitted to trading or, if not then listed or admitted to trading on any
national securities exchange, the closing sale price on such date of the
Paired Shares or, in case no reported sale takes place on such date then,
the average of the closing bid and asked prices on such date, on NASDAQ or
any comparable system. If the Paired Shares are not then quoted on NASDAQ
or any comparable system, the Board of Trustees of the Trust and the Board
of Directors of the Corporation shall in good faith determine the Paired
Share Closing Price.
"Pairing Agreement" means the Pairing Agreement dated June 25, 1980
between the Trust and the Corporation, as it may be amended from time to
time.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the date first written above between the Trust, the
Corporation and certain other parties.
"REIT Requirements" shall mean the requirements for the Trust to (i)
qualify as a REIT under the Code and the rules and regulations promulgated
thereunder, (ii) avoid any federal income or excise tax liability, (iii)
retain its status as grandfathered pursuant to Section 132(c)(3) of the
Deficit Reduction Act of 1984 and (iv) retain the benefits of that certain
private letter ruling issued by the Internal Revenue Service to the Trust
dated as of January 4, 1980.
"Restated Articles" means the Restated Articles of Incorporation of
the Corporation, as amended from time to time after the date of this
Agreement.
"Trust Shares" means the shares of beneficial interest,
$.01 par value, of the Trust.
Section 12. Determinations and Interpretation. All agreements
between the Trust and the Corporation provided for in this Agreement shall be
made on behalf of the Trust and the Corporation by their respective
Disinterested Members, including, without limitation, any agreement between the
Trust and the Corporation as to the election of the Paired Share Election, the
Cash Election or the Combined Election with respect to a tender of Starwood
Units pursuant to Section 2(c), any agreement to permit the revocation,
withdrawal or modification of a tender of Starwood Units pursuant to Section
1(c) and any adjustment of the Issuance Percentages pursuant to Section 4(b).
All interpretations of the terms of this Agreement shall be resolved on behalf
of the Trust and the Corporation by their respective Disinterested Members.
Section 13. Partial Invalidity. In case any one or more of the
provisions contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions had never been contained herein unless the deletion of
such provision or provisions would result in such a material change as to cause
completion of the transactions contemplated hereby to be unreasonable.
Section 14. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
permitted successors or assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Corporation, the Trust, the
Realty Partnership and the Operating Partnership, shall also be for the benefit
of and enforceable by any subsequent holder of any Units.
Section 15. Execution in Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be considered an
original counterpart, and shall become a binding agreement when the Trust, the
Corporation, the Realty Partnership, the Operating Partnership, and each of the
Starwood Partners shall have each executed a counterpart of this Agreement.
Section 16. Titles and Headings. Titles and headings to Articles and
Sections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
Section 17. Exhibits. The Exhibits referred to in this Agreement
shall be construed with, and as an integral part
of, this Agreement to the same extent as if the same had been set forth verbatim
herein.
Section 18. Entire Agreement; Amendments and Waivers. This
Agreement, including the Exhibits, contains the entire understanding of the
parties hereto with regard to the subject matter contained herein. In addition
to amendments and modifications permitted by Section 1(c), the parties hereto,
by mutual agreement in writing, may amend, modify and supplement this Agreement;
provided that any such amendment, modification or supplement shall be approved
by a majority of the Disinterested Members of each of the Trust and the
Corporation. The failure of any party hereto to enforce at any time any
provision of this Agreement shall not be construed to be a waiver of such
provision, nor in any way to affect the validity of this Agreement or any part
hereof or the right of such party thereafter to enforce each and every such
provision. No waiver of any breach of this Agreement shall be held to constitute
a waiver of any other or subsequent breach.
Section 19. Governing Law. Except to the extent that Maryland law is
mandatorily applicable to the rights and obligations of the shareholders of the
Trust and the stockholders of the Corporation, this Agreement, and the
application or interpretation thereof, shall be governed exclusively by its
terms and by the internal laws of the State of New York, without regard to
principles of conflicts of laws as applied in the State of New York or any other
jurisdiction which, if applied, would result in the application of any laws
other than the internal laws of the State of New York.
Section 20. Starwood Lodging Trust. The parties hereto understand
and agree that the name "Starwood Lodging Trust" is a designation of the Trust
and its Trustees (as Trustees but not personally) under the Declaration of
Trust, and all persons dealing with the Trust shall look solely to the Trust's
assets for the enforcement of any claims against the Trust, and that the
Trustees, officers, agents and security holders of the Trust assume no personal
liability for obligations entered into on behalf of the Trust, and their
respective individual assets shall not be subject to the claims of any person
relating to such obligations.
Section 21. Submission to Jurisdiction. Each of the parties hereto
irrevocably submits and consents to the jurisdiction of the United States
District Court for the Southern District of New York in connection with any
action or proceeding arising out of or relating to this Agreement, and
irrevocably waives any immunity from jurisdiction thereof and any claim of
improper venue, forum non conveniens or any similar basis to which it might
otherwise be entitled in any such action or proceeding.
Section 22. Specific Performance. Each of the parties acknowledges
and agrees that in the event of any breach of this Agreement, the non-breaching
party or parties would be irreparably harmed and could not be made whole by
monetary damages. The parties hereby agree that in addition to any other remedy
to which they may be entitled at law or in equity, they shall be entitled to
compel specific performance of this Agreement in any action instituted in any
court of the United States or any state thereof having subject matter
jurisdiction for such action.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties hereto or by their duly authorized officers, all as of
the date first above written.
STARWOOD LODGING TRUST,
a Maryland real estate investment
trust
By: /S/ XXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
STARWOOD LODGING CORPORATION,
a Maryland corporation
By: /S/ XXX XXXXXXXX
--------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
SLT REALTY LIMITED PARTNERSHIP,
By: STARWOOD LODGING TRUST,
general partner
By: /S/ XXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SLC OPERATING LIMITED PARTNERSHIP
By: STARWOOD LODGING CORPORATION,
general partner
By: /S/ XXX XXXXXXXX
---------------------------------
Name: Xxx Xxxxxxxx
Title: Vice President
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, on behalf of PRUDENTIAL
PROPERTY INVESTMENT SEPARATE
ACCOUNT II
By: /S/ XXXX X. XXXXXXXX
------------------------------------
Xxxx X. Xxxxxxxx
Vice President
THE XXXX XXXXXXX FAMILY TRUST
By: /S/ XXXXXXX XXXXXXX
------------------------------------
Xxxxxxx Xxxxxxx
Trustee
/S/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
/S/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
/S/ XXXXX-XX XXXXXXX
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Xxxxx-Xx Xxxxxxx
/S/ XXXXX X. XXXXXXXX, XX.
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Xxxxx X. Xxxxxxxx, Xx.
/S/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
/S/ XXXXXX X. DO, II
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Xxxxxx X. Xxx, XX
/S/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
/S/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
/S/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx
/S/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
/S/ XXXX XXXXX
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Xxxx Xxxxx
/S/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
/S/ XXXXXX XXXXX
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Xxxxxx Xxxxx
/S/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx
/S/ XXX CLEARWATER
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Xxx Clearwater
ZAPCO HOLDINGS, INC.
By: /S/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Vice President
ZAPCO HOLDINGS, INC. DEFERRED
COMPENSATION PLAN TRUST
By: /S/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
Trustee
SCHEDULE A TO
UNITS EXCHANGE RIGHTS AGREEMENT
NOTICE ADDRESS FOR HOLDERS
[To be provided at Closing]
EXHIBIT A TO
UNITS EXCHANGE RIGHTS AGREEMENT
LETTER OF TRANSMITTAL
To Tender Units
Pursuant to the Units Exchange Rights Agreement
Dated as of February ___, 1997
TO: Starwood Lodging Trust
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Starwood Lodging Corporation
0000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Description of Units
--------------------------------------------------------------------------------
Names(s) and Address(es) Units Tendered (Attach
of Registered Owners additional list if
necessary)
Realty
Units:
Operating
Units:
_______________________________________
Total
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Starwood Lodging Trust (the
"Trust") the above-described Realty Units (as defined in the Units Exchange
Rights Agreement dated as of February ___, 1997 (the "Units Exchange Rights
Agreement")) and hereby tenders to Starwood Lodging Corporation (the
"Corporation") the above-described Operating Units (as defined in the Units
Exchange Rights Agreement) in accordance with the terms and conditions of the
Units Exchange Rights Agreement and this Letter of Transmittal (which together
constitute the "Offer"), receipt of which is hereby acknowledged. All terms used
herein but not defined herein are used as defined in the Units Exchange Rights
Agreement.
Subject to, and effective upon the issuance of Paired Shares and/or
the payment of cash, as the case may be, for the Starwood Units tendered hereby,
the undersigned hereby assigns and transfers (i) to the Trust all right, title
and interest in and to all the Realty Units that are being tendered hereby and
irrevocably constitutes and appoints the Trust (the "Realty Unit Agent"), with
full power of substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest), to (a) transfer such Realty Units
on the books of the Realty Partnership and (b) receive all rights, privileges
and benefits, and any and all obligations and liabilities appertaining thereto
and otherwise exercise all rights of beneficial ownership of such Realty Units,
all in accordance with the terms of the Offer and (ii) to the Corporation all
right, title and interest in and to all the Operating Units that are being
tendered hereby and irrevocably constitutes and appoints the Corporation (the
"Operating Unit Agent" and, together with the Realty Unit Agent, the "Agents"),
with full power of substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest), to (a) transfer such Operating
Units on the books of the Operating Partnership and (b) receive all rights,
privileges and benefits, and any and all obligations and liabilities
appertaining thereto and otherwise exercise all rights of beneficial ownership
of such Operating Units, all in accordance with the terms of the Offer.
The undersigned hereby represents and warrants (i) to the Trust that
the undersigned has full power and authority to tender, sell, assign and
transfer the tendered Realty Units and that upon payment therefor, the Trust
will acquire unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances and the same will not be subject to any
adverse claim, (ii) to the Corporation that the undersigned has full power and
authority to tender, sell, assign and transfer the tendered Operating Units and
that upon payment therefor, the
Corporation will acquire unencumbered title thereto, free and clear of all
liens, restrictions, charges and encumbrances and the same will not be subject
to any adverse claim, (iii) to the Trust and the Corporation that the tender
complies with each and every provision of Section 1 of the Units Exchange Rights
Agreement, and (iv) attached hereto is a calculation, to the best knowledge of
the undersigned after due inquiry (together with such supporting documentation
as the Trust may reasonably request) of the maximum number of Paired Shares that
may be issued to the undersigned without causing either (x) the Trust to not
satisfy the REIT Requirements in any respect or (y) any person or entity to
Beneficially Own Trust Shares exceeding the Ownership Limit. The undersigned
will, upon request, execute any additional documents deemed by the Trust or the
Corporation to be reasonably necessary or desirable to complete the sale,
assignment and transfer of the tendered Starwood Units.
Unless a registration statement relating to any Paired Shares to be
delivered to the undersigned is effective under the Securities Act of 1933, as
amended (the "Securities Act"), the undersigned hereby represents and warrants
to the Trust and the Corporation that the undersigned (A) is an "accredited
investor" within the meaning of Rule 501 under the Securities Act, or (B) has
sufficient knowledge and experience in financial and business matters and in
investing in entities similar to the Partnerships, the Trust and the Corporation
so as to be able to evaluate the risks and merits of its investment in the
Partnerships, the Trust and the Corporation and it is able financially to bear
the risks thereof, and in either case, (i) has had an opportunity to discuss the
business, management and financial affairs of the Trust, the Corporation and the
Partnerships with the management of the Trust, the Corporation and the
Partnerships, and (ii) understands that any such Paired Shares have not been
registered under the Securities Act by reason of their issuance in a transaction
exempt from the registration requirements of the Securities Act pursuant to
Section 4(2) thereof or Rule 505 or 506 promulgated under the Securities Act and
any such Paired Shares must be held indefinitely unless a subsequent disposition
thereof is registered under the Securities Act and applicable state securities
laws or is exempt from such registration. If not sold pursuant to an effective
registration statement, any such Paired Shares will bear an appropriate legend
indicating that such Paired Shares have not been registered under the Securities
Act and resale of such Paired Shares is restricted under applicable securities
laws.
All authority conferred or agreed to be conferred in this Letter of
Transmittal shall not be affected by, and shall survive, the death or incapacity
of the undersigned, and any obligation of the undersigned hereunder shall be
binding upon the successors, assigns, heirs, executors, administrators and legal
representatives of the undersigned.
The undersigned understands that, except as provided in Section 2(b)
of the Units Exchange Rights Agreement, a tender of Starwood Units pursuant to
the Units Exchange Rights Agreement is irrevocable and constitutes a binding
agreement between the undersigned and the Trust and the Corporation upon the
terms and subject to the conditions of the Units Exchange Rights Agreement.
Unless otherwise indicated under "Special Delivery Instructions",
please mail any Paired Shares issuable upon exchange of the Starwood Units
tendered hereby (or, if the Cash Election or the Combined Election is made, the
cash payment payable pursuant thereto) to the address(es) of the registered
holder(s) appearing under "Description of Units." In the event that the Special
Delivery Instructions are completed, please issue the Paired Shares (or, if the
Cash Election or the Combined Election is made, the cash payment payable
pursuant thereto) in the name of the registered holder(s) and transmit the same
to the person or persons so indicated.
The Trust, the Corporation and the undersigned agree that they will
cooperate with each other and will make, execute, acknowledge, deliver, record
and file, or cause to be made, executed, acknowledged, delivered, recorded and
filed, at such times and places as the other may reasonably deem necessary, all
other and further documents and instruments, and will take all other and further
actions, as the other may reasonably request from time to time in order to
effectuate the purposes and provisions of the tender made pursuant to this
Letter of Transmittal.
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4 and 5)
To be completed ONLY if Paired Shares or the cash payment are to be
sent to someone other than the undersigned or to the undersigned at an address
other than that above.
Mail certificate(s) for Paired Shares or cash payment to:
Name____________________________________________________________________________
(please print)
Address_________________________________________________________________________
________________________________________________________________________________
(include Zip Code)
________________________________________________________________________________
________________________________________________________________________________
(Tax Identification or Social Security Number)
SIGN HERE
Complete Substitute Form W-9 included
________________________________________________________________________________
________________________________________________________________________________
(Signature(s) of holder of Units)
(Must be signed by registered holder(s) as name(s) appear(s) on books and
records of the Partnership. If signature is by trustees, executors,
administrators, guardians, attorneys-in--fact, officers of corporations or
others acting in a fiduciary or representative capacity, please set forth full
title and see instruction 4.
Dated___________________________________________________________________________
Name(s)_________________________________________________________________________
(please print)
Capacity
(Full Title)____________________________________________________________________
Address_________________________________________________________________________
(include Zip Code)
Area Code and Tel. No.__________________________________________________________
Tax Identification or
Social Security No._____________________________________________________________
(Complete Substitute Form W-9)
Guarantee of Signature(s)
(See Instruction 1)
Authorized
Signature_______________________________________________________________________
Name of
Firm____________________________________________________________________________
Dated___________________________________________________________________________
INSTRUCTIONS
Forming Part of the Terms and Conditions of the
Units Exchange Rights Agreement
1. Guarantee of Signature. No signature guarantee on this Letter of
Transmittal is required unless the registered holder of the Starwood Units has
completed the box entitled "Special Delivery Instructions". In such case all
signatures on this Letter of Transmittal must be guaranteed by a member firm of
any registered national securities exchange in the United States or of the
National Association of Securities Dealers, Inc. or by a commercial bank or
trust company (not a savings bank or a savings and loan association) having an
office, branch or agency in the United States.
2. Delivery of Letter of Transmittal. This Letter of Transmittal is
to be completed by the holder of Starwood Units. A properly completed and duly
executed Letter of Transmittal and any other documents required by this Letter
of Transmittal must be received by the Agents.
No alternative, conditional or contingent tenders will be accepted,
except as permitted pursuant to the Units Exchange Rights Agreement.
3. Inadequate Space. If the space provided herein is inadequate, the
Units tendered and/or other information required should be listed on a separate
schedule attached hereto.
4. Signatures on Letter of Transmittal. The signature must
correspond with the name as shown on the books and records of the Partnerships
without any change whatsoever.
If any of the Starwood Units tendered hereby are owned of record by
two or more joint owners, all such owners must sign the Letter of Transmittal.
If any tendered Starwood Units are registered in different names, it
will be necessary to complete, sign and submit as many separate Letters of
Transmittal as there are different registrations.
If this Letter of Transmittal is signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, each person should so indicate
when signing, and proper evidence satisfactory to the Agents of their authority
so to act must be submitted.
5. Special Delivery Instructions. If a certificate for Paired Shares
or the cash payment is to be sent to someone other than the signer of this
Letter of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed.
6. Waiver of Conditions. Each of the Trust and the Corporation
reserves the right to waive in its sole discretion any of the specified
conditions of the Offer in the case of the Starwood Units tendered; provided
that any such waiver shall not adversely affect any holder of outstanding
Starwood Units without the consent of such holder.
7. Back-up Withholding. Under the Federal income tax law, a person
surrendering Starwood Units must provide the Agents with his correct taxpayer
identification number ("TIN") on Substitute Form W-9 below unless an exemption
applies. If the correct TIN is not provided, a $50 penalty may be imposed by the
Internal Revenue Service and payments made in exchange for the surrendered
Starwood Units may be subject to back-up withholding of that rate provided by
the Federal income tax law (such rate being at the date of the Units Exchange
Rights Agreement, 31%).
The TIN that must be provided is that of the registered holder of
the Starwood Units. The TIN for an individual is his social security number.
8. Requests for Assistance or Additional Copies. Questions and
requests for assistance or additional copies of the Units Exchange Rights
Agreement and the Letter of Transmittal may be directed to the Agents at the
address set forth above.
IMPORTANT TAX INFORMATION
Under Federal income tax laws, a holder whose tendered Starwood
Units are accepted for payment is required by law to provide the Agents (as
payers) with his correct taxpayer
identification number on Substitute Form W-9 below. If such holder is an
individual, the taxpayer identification number is his social security number. If
the Agents are not provided with the correct taxpayer identification number, the
holder may be subject to a $50 penalty imposed by the Internal Revenue Service.
In addition, payments that are made to such holder with respect to Starwood
Units purchased pursuant to the Offer may be subject to back-up withholding.
If back-up withholding applies, the Agents are required to withhold,
at that rate provided by the Federal income tax law (such rate being at the date
of the Units Exchange Rights Agreement 31%), of any such payments made to the
holder of Starwood Units. Paired Shares otherwise deliverable hereunder may, at
the expense (and with all risk of loss for the account) of the undersigned, be
sold to pay such amounts. Back-up withholding is not an additional tax. Rather,
the tax liability of persons subject to back-up withholding will be reduced by
the amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained.
Purpose of Substitute Form W-9
To prevent back-up withholding on payments that are made to a holder
of Starwood Units purchased pursuant to the Offer, the holder is required to
notify the Agents of his correct taxpayer identification number by completing
the form below certifying that the taxpayer identification number provided on
Substitute Form W-9 is correct.
What Number to Give the Agent
The holder is required to give the Agents the social security number
or employer identification number of the record owner of the Starwood Units.
PAYER'S NAME: Starwood Lodging Trust
Starwood Lodging Corporation
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Substitute Part 1 - Please provide your TIN in the box at Social Security
Form W-9 right and certify by signing and dating below Number/Employer
Identification
Number
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Department of the Certification - Under the penalties of perjury,
Treasury/Internal (i) I certify that the information provided on this
Revenue Service form is true, correct and complete and (ii) I am
not subject to backup withholding because: (a) I
am exempt from backup Service withholding, or (b) I
have not been notified by the Internal Revenue
Service (IRS) that I am subject to backup
withholding as a result of a failure to report all
interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup
withholding.
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Signature ________________________________________ Date ______________
================================================================================================
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACK-UP WITHHOLDING
AT THAT RATE PROVIDED BY THE FEDERAL INCOME TAX LAW (SUCH RATE BEING AT
THE DATE OF THE UNITS EXCHANGE RIGHTS AGREEMENT 31%) OF ANY PAYMENTS MADE
TO YOU PURSUANT TO THE OFFER.
