1
EXHIBIT 10.2
FIFTH AMENDMENT TO CREDIT AGREEMENT
FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
August 26, 1998, among STARWOOD HOTELS & RESORTS, a Maryland real estate
investment trust ("Starwood REIT"), SLT REALTY LIMITED PARTNERSHIP, a Delaware
limited partnership ("SLT RLP"), STARWOOD HOTELS & RESORTS WORLDWIDE, INC., a
Maryland corporation (the "Corporation"), ITT CORPORATION, a Nevada corporation
("ITT" and, together with Starwood REIT, SLT RLP and the Corporation, the
"Borrowers"), the lenders from time to time party to the Credit Agreement
referred to below (the "Lenders"), BANKERS TRUST COMPANY and THE CHASE MANHATTAN
BANK, as Administrative Agents (in such capacity, the "Administrative Agents")
and XXXXXX COMMERCIAL PAPER INC. and BANK OF MONTREAL, as Syndication Agents (in
such capacity, the "Syndication Agents"). Unless otherwise defined herein, all
capitalized terms used herein shall have the respective meanings provided such
terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrowers, the Lenders, the Administrative Agents and
the Syndication Agents are parties to a certain Credit Agreement, dated as of
February 23, 1998 (as amended, modified or supplemented to the date hereof, the
"Credit Agreement");
WHEREAS, the Parent Companies are contemplating the following
proposed reorganization transaction (the "Reorganization"): (i) a newly created
direct Wholly-Owned Subsidiary of the Corporation ("Newco") shall be merged
(with such merger being herein called the "Reorganization Merger") with and into
Starwood REIT, with Starwood REIT surviving the Reorganization Merger as a
direct Subsidiary of the Corporation; (ii) the common stock of Newco shall
become the common shares of beneficial interest in Starwood REIT (the "Class A
Shares") and the common shares of beneficial interest in Starwood REIT shall be
converted into a new class of shares of beneficial interest of Starwood REIT
(the "Class B Shares"); (iii) the Class B Shares shall be paired with the common
stock of the Corporation; (iv) the existing Class A Exchangeable Preferred
Shares and Class B Exchangeable Preferred Shares of Starwood REIT shall remain
outstanding as such shares of Starwood REIT; and (v) the organizational
documents of Starwood REIT and the Corporation shall be amended and restated to
effectuate the foregoing;
WHEREAS, three of SLT RLP's Wholly-Owned Subsidiaries, W&S Seattle
Corp., W&S Lauderdale Corp. and W&S Denver Corp. each intend to issue up to 500
shares of preferred shares to at least 100 new shareholders to enable such
corporations to be treated as real estate investment trusts under the Code (with
such stock issuances being collectively referred to herein as the "Westin Stock
Issue");
WHEREAS, the Borrowers wish to request certain one time waivers from
certain restrictions set forth in certain sections of the Credit Agreement in
order to permit the Reorganization and the Westin Stock Issue, as herein
provided; and
2
WHEREAS, the parties hereto wish to further amend the Credit
Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. Waivers, Amendments and Agreements with Respect to the Credit
Agreement.
1. Consent to Reorganization. Notwithstanding anything to the
contrary contained in the Credit Agreement, but subject to the terms of this
Amendment, the Lenders hereby consent to the Reorganization and to the Parent
Companies and their Subsidiaries taking the steps necessary to consummate the
Reorganization, in accordance with the steps described in Exhibit A attached
hereto, so long as the following conditions are satisfied:
(i) after giving effect to the Reorganization Merger, the
Corporation shall own all of the issued and outstanding Class A Shares of
Starwood REIT, which shares shall represent 100% of the equity interests
in Starwood REIT other than the equity interests represented by the Class
B Shares and the Class A Exchangeable Preferred Shares and Class B
Exchangeable Preferred Shares;
(ii) (x) in no event shall any additional Class A Exchangeable
Preferred Shares or Class B Exchangeable Preferred Shares be issued in
connection with the Reorganization Merger, except as specifically
contemplated by clause (ii) of Section 9.14(c) of the Credit Agreement (as
added pursuant to this Amendment), (y) in no event shall the issued and
outstanding Class B Shares, at the time of the consummation of the
Reorganization and immediately after giving effect thereto, represent more
than 49% of the aggregate economic interests (as determined by the
Corporation in good faith on a reasonable basis) represented by all
outstanding equity interests in Starwood REIT (exclusive of the
outstanding Class A Exchangeable Preferred Shares and Class B Exchangeable
Preferred Shares) and (z) in any event the terms of all Class B Shares
shall provide that same shall be, at the option of the Corporation at any
time when one or more material Events of Default (pursuant to the Credit
Agreement or certain other material Indebtedness) have continued in
existence beyond certain cure periods to be determined, mandatorily
exchanged for shares of common stock of the Corporation;
(iii) in no event shall the Class A Shares constitute Margin Stock,
and all said Class A Shares shall be immediately pledged (and delivered
for pledge) by the Corporation pursuant to the Pledge and Security
Agreement;
(iv) all material consents and approvals of, and filings and
registrations with, and all of the actions in respect of, all governmental
agencies, authorities or instrumentalities, as well as all shareholders,
holders of equity interests, creditors and parties to contracts with the
Parent Companies and their Subsidiaries, required in order to make or
consummate the Reorganization shall have been obtained, given, filed or
taken and are or will, at the time of the consummation of the
Reorganization Merger, be in full force and effect (without limiting the
foregoing, all required shareholder consents of the
-2-
3
Parent Companies shall have been obtained, as well as any consents
required of any holders of material outstanding Indebtedness of the Parent
Companies and their Subsidiaries);
(v) at the time of the consummation of the Reorganization (and after
giving effect thereto) no Specified Default, and no Event of Default,
shall be in existence and all representations, warranties and agreements
contained in the Credit Documents shall be true and correct in all
material respects (it being understood and agreed that any representation
or warranty which by its terms is made as of a specified date shall be
required to be true and correct in all material respects only as of such
specified date); provided that for purposes of this clause (v), the
following modifications shall be deemed made to Section 7 of the Credit
Agreement;
(a) all references in said Section 7 to "Documents" shall be
deemed to include any documents executed and delivered in connection
with the Reorganization; and
(b) all references in said Section 7 to the "Transaction" shall
be deemed to include the Reorganization and each of the components
thereof;
(vi) all proxy materials and similar materials distributed to
shareholders of Starwood REIT or the Corporation, generally, shall be
distributed to the Lenders substantially concurrently with their
distribution to said shareholders;
(vii) all terms of the Reorganization, the Class B Shares and any
other documentation entered into in connection with the Reorganization or
the Class B Shares shall, in each case, be required to be reasonably
satisfactory to the Lead Agents and, if there are any material differences
(in the good faith determination of the Lead Agents) in any of the terms
of the Reorganization, the Class B Shares and the other documentation
entered into in connection therewith from that described in this Fifth
Amendment, same shall be required to be satisfactory to the Required
Lenders. Such satisfaction may be evidenced by (i) the written approval of
the Required Lenders obtained after the documentation relating thereto has
been distributed to them or (ii) if said terms and documentation are
satisfactory to the Lead Agents and the Lenders are notified thereof, the
Required Lenders shall be deemed satisfied therewith unless, within 10
days after the Lenders' receipt of such notice and the relevant
documentation, the Required Lenders have objected in writing to any of the
terms or documentation entered into in connection with the Reorganization
or the Class B Shares;
(viii) the Reorganization Merger shall be consummated not later than
March 31, 1999; and
(ix) the Lead Agents shall have received such opinions of counsel
(with the counsel and form and substance of said opinions to be reasonably
satisfactory to the Lead Agents) to the extent requested by them in
connection with the foregoing.
-3-
4
As used herein, the term "Reorganization Merger Date" shall mean the date upon
which the merger of Newco with and into Starwood REIT is consummated as
described in step 2 set forth in Exhibit A.
2. Consent to Westin Stock Issue. Notwithstanding anything to the
contrary contained in the Credit Agreement, but subject to the terms of this
Amendment, the Lenders hereby consent to the Westin Stock Issue, so long as the
conditions described below are satisfied:
(i) none of W&S Seattle Corp., W&S Lauderdale Corp. or W&S Denver
Corp. shall issue more than 500 preferred shares pursuant to the Westin
Stock Issue;
(ii) unless the Required Lenders otherwise agree, the preferred
stock issued pursuant to the Westin Stock Issue shall (x) have a
liquidation preference not to exceed $500 per share, (y) have dividends
which accrue thereon at a rate per annum not to exceed 8.25% and (z)
otherwise constitute Perpetual Preferred Stock (as defined in the Credit
Agreement), except for the fact that the issuer thereof shall be the
respective entity identified in preceding clause (i); and
(iii) at the time of each issuance of preferred stock pursuant to
the Westin Stock Issue, no Specified Default, and no Event of Default,
shall be in existence.
3. Definition of Parent Companies. (a) Effective as of the
Reorganization Merger Date, and except as otherwise expressly provided in
following clause (b), all references in the Credit Agreement to the term "Parent
Companies" or "Parent Company" shall be deemed to refer only to the Corporation
and any references in the Credit Agreement before or after the term "Parent
Companies" to items such as "their Subsidiaries", etc., shall be changed
appropriately, mutatis mutandis. Without limiting the foregoing, (i) references
in the Credit Agreement to "either or both Parent Companies", "such Parent
Company", "either Parent Company", "Each Parent Company", "each Parent Company",
"each Parent Company (or both Parent Companies)" and "the respective Parent
Company" shall in each case be deemed to refer to the Corporation, (ii)
references in the Credit Agreement to "Parent Company's" or "Parent Companies'"
shall be deemed to refer to the Corporation's, (iii) any reference in the Credit
Agreement such as "neither Parent Company has been" shall be appropriately
changed to "the Corporation has not been" and (iv) references after the term
"Parent Company" to "their Subsidiaries", "their Subsidiaries and Affiliates"
and other similar references shall be deemed to refer to "its Subsidiaries",
"its Subsidiaries and Affiliates" or other appropriate reference, as the case
may be.
(b) Notwithstanding anything to the contrary contained in preceding
clause (a), the following references to the term "Parent Companies" or "Parent
Company" shall not be changed as otherwise required by preceding clause (a):
(i) references to the "Parent Companies" or "Parent Company" in
Section 5 of the Credit Agreement shall not be modified;
-4-
5
(ii) references to the Parent Companies in Section 7.03(a) shall
not be modified;
(iii) the reference to the "Parent Companies" in Section 7.14 shall
not be modified;
(iv) the reference to "Parent Companies" in Section 9.03(a)(v)
shall not be modified;
(v) references to "Parent Companies" in Section 9.07, in each
case to the extent relating to periods prior to the Reorganization Merger
Date, shall be deemed not to be changed for such prior periods;
(vi) the reference to "Parent Companies" in the definitions of
"Dividend" and "GAAP" appearing in Section 11 of the Credit Agreement
shall not be changed;
(vii) no modification shall be made to the definition of "Parent
Companies" appearing in Section 11 of the Credit Agreement;
(viii) lower case references to a "parent company" or "parent
companies" shall not be modified (including, without limitation, those
references thereto contained in Sections 13.04(b)(x)(i)(a) and 13.17); and
(ix) the term "Parent Company" and "Parent Companies" as used in
Section 13.12 shall not be modified hereby.
4. Section 4.02(d); Debt Proceeds. Section 4.02(d) of the Credit
Agreement is hereby amended as follows:
(a) by adding at the end of the first parenthetical contained in
Section 4.02(d), the following:
", Indebtedness permitted to be incurred pursuant to Section 9.04(viii),
and Indebtedness in connection with any CMBS Transaction permitted to be
incurred pursuant to Section 9.04(xiv), except that (x) Indebtedness
evidenced by Permanent Senior Notes issued pursuant to Section
9.04(viii)(B) (unless and to the extent such Permanent Senior Notes are
issued as a result of an increase in availability as specifically
contemplated by the last sentence of Section 9.04) and Indebtedness
incurred pursuant to any CMBS Transaction shall not be excepted pursuant
to this parenthetical unless and until all Tranche I Term Loans have been
repaid in full (with the aggregate amount of Net Proceeds from issuances
of Permanent Senior Notes and CMBS Transactions incurred on or before
February 23, 1999 which are actually used to repay principal of Tranche I
Term Loans then outstanding in accordance with the provisions of this
clause (d) being herein called the "Maximum Indebtedness Scheduled Asset
Sale Credit Amount") and (y) thereafter, Indebtedness incurred pursuant to
CMBS Transactions shall not be excepted pursuant to this parenthetical if,
and to the extent, the Indebtedness incurred in connection with the
respective CMBS Transaction is permitted pursuant to Section 9.04(viii) as
a result of an
-5-
6
increase to the $1.0 billion amount contained therein pursuant to the
provisions of the last sentence of Section 9.04";
and (b) by adding at the end of the second parenthetical contained
in Section 4.02(d) the following:
"and other than Qualified Preferred Stock permitted to be issued pursuant
to Section 9.14(c) (unless and to the extent such Qualified Preferred
Stock is issued as a result of an increase in availability as specifically
contemplated by the last sentence of Section 9.04) shall not be excepted
pursuant to this parenthetical unless and until all Tranche I Term Loans
have been repaid in full."
5. Section 4.02(e); Proceeds from Asset Sales. Section 4.02(e) of
the Credit Agreement is hereby amended by (x) inserting immediately after the
phrase "Scheduled Asset Disposition" the first place it appears therein the
phrase "(except that, if one or more Scheduled Asset Dispositions occurs on or
before February 23, 1999 and after proceeds of Indebtedness issued pursuant to
Section 9.04(viii)(B) and/or 9.04(xiv) and/or proceeds of Qualified Preferred
Stock issued pursuant to Section 9.04(c) have actually been used to repay
principal of outstanding Tranche I Term Loans pursuant to the requirements of
preceding Section 4.02(d) and/or the requirements of this clause (e), an
aggregate amount of Net Proceeds from such Scheduled Asset Dispositions may be
excluded from the requirements that same be applied pursuant to this Section
4.02(e) so long as the aggregate amount so excluded does not exceed the sum of
the Maximum Indebtedness Scheduled Asset Sale Credit Amount and the Maximum QPS
Scheduled Asset Sale Credit Amount)", (y) inserting immediately after the phrase
"receives cash proceeds from any sale or issuance of its equity" the phrase
"(excluding equity issued in accordance with the requirements of Section
9.14(c), except that Qualified Preferred Stock issued pursuant to Section
9.14(c) (unless and to the extent such Qualified Preferred Stock is issued as a
result of an increase in availability as specifically contemplated by the last
sentence of Section 9.04) shall not be excepted pursuant to this parenthetical
unless and until all Tranche I Term Loans have been repaid in full (with the
aggregate amount of Net Proceeds from issuances of Qualified Preferred Stock on
or before February 23, 1999 which are actually used to repay principal of
Tranche I Term Loans then outstanding accordance with the provisions of this
clause (e) or preceding Section 4.02(d) being herein called the "Maximum QPS
Scheduled Asset Sale Credit Amount"))" and (z) deleting the text thereof from
and after the first proviso thereto and inserting in lieu thereof the following
new text:
"provided that, Net Proceeds received in respect of Asset Sales made
pursuant to, and in accordance with the requirements of, clause (viii) of
Section 9.02 and which otherwise would be required to be applied as
mandatory repayments or commitment reductions hereunder shall not be
required to be so applied and may be reinvested in assets used or to be
used in Hotel and Gaming Businesses if the following conditions are
satisfied:
(1) no Specified Default, and no Event of Default, then exists;
(2) the Parent Companies deliver a certificate to the Paying Agent on or
prior to such date stating that such Net Proceeds shall be used (or
contractually committed to be
-6-
7
used) to purchase assets used or to be used in Hotel and Gaming
Businesses within 360 days (or earlier to the extent required to be
so applied pursuant to the terms of any outstanding Indebtedness)
following the date of such Asset Sale (which certificate shall set
forth the estimates of the proceeds to be so expended);
(3) the amount of Net Sale Proceeds which may be reinvested (including
the amounts of any "deemed reinvestments" pursuant to following
clause (4)) shall not exceed (a) $600,000,000 (or $750,000,000 if,
at the time of the respective Asset Sale and after giving effect
thereto, either (1) the Combined Leverage Ratio is less than 4.5:1.0
or (2) the Unsecured Debt Rating of each Parent Company (or both
Parent Companies) shall be at least BBB- by S&P and Baa3 by Xxxxx'x)
for Net Sale Proceeds received during the period commencing on the
Initial Borrowing Date and ending on December 31, 1998 and (b)
$250,000,000 (or $500,000,000 if all Tranche I Term Loans have been
repaid in full) for Net Sale Proceeds received during any Fiscal
Year thereafter; and, if, at the time of the respective Asset Sale
and after giving effect thereto, either (1) the Combined Leverage
Ratio is less than 4.5:1.0 or (2) the Unsecured Debt Rating of each
Parent Company (or both Parent Companies) shall be at least BBB- by
S&P and Baa3 by Xxxxx'x), then there shall be no further limitation
on the amount of such permitted reinvestments; and
(4) any Asset Sale structured in the form of a "like-kind exchange" in
accordance with Section 1031 of the Code shall be treated as the
sale of an Asset with the Net Sale Proceeds (deemed to be an amount
equal to the fair market value of the Assets so exchanged) therefrom
reinvested pursuant to clause (3) of this proviso;
provided further, that if (x) all or any portion of such Net Sale Proceeds
not so applied pursuant to the immediately preceding proviso as a
mandatory repayment are not so used (or contractually committed to be
used) within the 360 day period after the date of the respective Asset
Sale (or earlier to the extent required to be so applied pursuant to the
terms of any outstanding Indebtedness), such remaining portion shall be
applied on the last day of such period as provided above in this Section
4.02(e) (without regard to the immediately preceding proviso) and (y) all
or any portion of such Net Sale Proceeds are contractually committed to be
used and subsequent to such date such contract is terminated or expires
without such portion being so used, then such remaining portion shall be
applied on the date of such termination or expiration as provided in this
Section 4.02(e) (without regard to the immediately preceding proviso)."
6. Section 7.13; Mortgage Loans. The second sentence of Section
7.13(b) of the Credit Agreement is hereby amended by inserting, immediately
after the last word thereof, the following:
", except for such waivers, modifications, alterations, satisfactions,
cancellations or subordinations which could not reasonably be expected to
result in a material adverse effect on the value of the affected Mortgage
Loan."
-7-
8
7. Section 7.15; Preferred Stock Subsidiaries. The first sentence
of Section 7.15 of the Credit Agreement is hereby amended by inserting the
phrase ", as of the Initial Borrowing Date," immediately after the phrase
"complete and accurate list" appearing in the first sentence thereof.
8. Section 7.28; Status as a REIT. Section 7.28 of the Credit
Agreement is hereby amended by deleting the first sentence thereof and by
inserting the following sentence in its place:
"Starwood REIT is organized in conformity with the requirements for
qualification as a real estate investment trust under the Code and, until
the consummation of the Reorganization, is grandfathered from the
application of Section 269B(a)(3) of the Code pursuant to Section
136(c)(3) of the Deficit Reduction Act of 1984."
9. Section 7.31; Stock. Effective as of the Reorganization Merger
Date, Section 7.31 of the Credit Agreement shall be deemed amended and restated
in its entirety to read as follows:
"The Corporation lists its outstanding shares of common stock (other than
the UBS Shares, and except for similar issuances after the Initial
Borrowing Date) on the New York Stock Exchange and such shares trade as
"paired shares" with the Class B Shares of Starwood REIT subject to an
amended pairing agreement between Starwood REIT and the Corporation."
10. Section 8.01; Information Covenants. (a) Notwithstanding
anything to the contrary contained in Section 8.01(a) or (b), as the case may
be, of the Credit Agreement, to the extent financial statements are required to
be delivered pursuant to said Sections 8.01(a) and/or (b) for any fiscal quarter
or fiscal year which ends after the Reorganization Merger Date, each reference
in said Sections 8.01(a) and (b) to (x) the separate consolidated and
consolidating financial statements of each of (i) Starwood REIT and its
Subsidiaries and (ii) the Corporation and its Subsidiaries and (y) the combined
consolidated and consolidating financial statements of the Parent Companies,
shall be deemed to refer to the consolidated and consolidating balance sheets of
the Corporation and its Subsidiaries only.
(b) Notwithstanding anything to the contrary contained in Section
8.01(d) of the Credit Agreement, any budgeted statements prepared in accordance
with the requirements of Section 8.01(d), if prepared after the Reorganization
Merger Date, shall be prepared by the Corporation on a consolidated basis,
rather than on a combined basis.
11. Section 8.11; REIT Requirements. Section 8.11 of the Credit
Agreement is hereby amended by deleting the first sentence thereof and by
inserting the following sentence in its place:
"Starwood REIT shall operate its business at all times so as to satisfy
all requirements necessary to qualify as a real estate investment trust
under Sections 856 through 860 of the Code and, until the consummation of
the Reorganization, shall at all times maintain
-8-
9
its status as grandfathered from the application of Section 269B(a)(3) of
the Code pursuant to Section 136(c)(3) of the Deficit Reduction Act of
1984."
12. Section 8.16; Margin Regulations. Section 8.16 of the Credit
Agreement is hereby amended by adding the following new sentence immediately
after the first sentence thereof:
"Furthermore, the Borrowers shall take all actions so that at all times
all Capital Stock of Starwood REIT owned by the Corporation or any of its
Subsidiaries (including, without limitation, the Class A Shares to be
issued pursuant to the Reorganization) do not constitute Margin Stock."
13. Section 8.19; REIT and Corporation Stock. Effective as of the
Reorganization Merger Date, Section 8.19 of the Credit Agreement shall be deemed
amended and restated in its entirety to read as follows:
"The Corporation shall maintain in good standing its listing of, or
listing authorization for, all of its outstanding shares of Capital Stock
on the New York Stock Exchange (other than the UBS Shares, and except for
similar issuances after the Initial Borrowing Date) and such shares shall
trade as "paired shares" with the Class B Shares of Starwood REIT subject
to an amended pairing agreement between Starwood REIT and the
Corporation."
14. Section 9.01; Liens. (a) Section 9.01(iii) of the Credit
Agreement is amended by deleting the words "without giving effect to any
renewals, replacements and extensions of such Liens" appearing therein and by
inserting in lieu thereof the phrase "and giving effect to any renewals,
replacements and extensions of such Liens, in each case so long as the
obligations secured thereby are not increased as a result thereof and so long as
such renewals, replacements and extensions do not result in Liens applying to
any Assets which are not already subject to the Liens securing the respective
obligations being renewed, replaced or extended."
(b) Section 9.01 of the Credit Agreement is hereby further amended
by (i) deleting the word "and" appearing at the end of clause (xiv) thereof,
(ii) deleting the period at the end of clause (xv) thereof and inserting in lieu
thereof a semi-colon and (iii) adding new clauses (xvi) and (xvii) at the end of
Section 9.01 as follows:
"(xvi) Liens on Assets of any Borrower or any Subsidiary of any Borrower
(other than Assets constituting Collateral) securing CMBS Transactions
permitted under Section 9.04(xiv); and
(xvii) Liens on cash or Cash Equivalents (with the amount of cash and
Cash Equivalents at any time subject to Liens pursuant to this clause
(xvii) not to exceed the lesser of (x) $135,000,000 and (y) remainder of
$1,135,000,000 less the amount of all payments theretofore made pursuant
to Section 9.03(a)(iv) in connection with the Existing Forward Equity
Transaction entered into with the holder of and in connection with the
UBS Shares)."
-9-
10
15. Section 9.02; Consolidation, Merger, Etc. (a) Notwithstanding
anything to the contrary contained in the Credit Agreement, the Lenders hereby
waive the restrictions contained in Section 9.02 with respect to the
Reorganization, so long as same is consummated in accordance with the
requirements of Section 1 of Part I of the Fifth Amendment.
(b) Section 9.02(viii) of the Credit Agreement is amended by (1)
deleting the words "as provided in" appearing in clause (z) immediately before
the words "Section 4.02(e)" and replacing the same with "if and to the extent
required by the provisions of", (2) placing a period after the first appearance
of the reference to "Section 4.02(e)" and (3) deleting the entire subsection
from and after such period and replacing the same with the following sentence:
"Notwithstanding anything to the contrary contained in clause (y) of the
immediately preceding sentence, any Asset Sale permitted pursuant to this
clause (viii) may be structured in the form of a "like-kind exchange" in
accordance with Section 1031 of the Code, in each case so long as the fair
market value of the Assets so exchanged would not, when added to the
amount of Net Sale Proceeds in respect of Asset Sales received during the
respective Fiscal Year which are to be reinvested pursuant to clause (3)
of the first proviso to Section 4.02(e), exceed the respective amounts for
such Fiscal Year specified in said clause (3) of the first proviso to
Section 4.02(e) hereof."
16. Section 9.03; Restricted Payments. (a) Section 9.03(a)(ii) of
the Credit Agreement is hereby amended by (x) inserting, immediately after the
phrase "qualifies as a "real estate investment trust" under the Code," appearing
therein the phrase "(A) until the occurrence of the Reorganization Merger Date,"
and (y) inserting the following new text immediately at the end thereof:
"and (B) at all times from and after the Reorganization Merger Date, (a)
Starwood REIT may pay regularly accruing dividends on any Qualified
Preferred Stock issued by it in accordance with the provisions of Section
9.14(c) so long as such Qualified Preferred Stock bears dividends
consistent with then prevailing market conditions (as determined in good
faith by Starwood REIT) at the time of the issuance of the respective
Qualified Preferred Stock), (b) Starwood REIT may pay Dividends to the
Corporation or any Wholly-Owned Subsidiary thereof and (c) during any
period of twelve consecutive calendar months ending after the
Reorganization Merger Date (but excluding that portion of any such twelve
month period which occurs prior to the Reorganization Merger Date),
Starwood REIT may pay cash dividends to its shareholders (excluding (x)
the Corporation and any Wholly-Owned Subsidiary thereof and (y) dividends
paid by Starwood REIT on any Qualified Preferred Stock) for such period in
an aggregate amount not to exceed the lesser of (A) $150,000,000 (with the
dollar amount otherwise provided in this clause (A) to be increased, but
only for periods ended after the date of the respective increase, on each
anniversary of the Reorganization Merger Date by an amount equal to 20% of
the dollar amount as permitted pursuant to this clause (A) as same was in
effect immediately before such increase and (B) 15% of Adjusted Funds From
Operations for such period."
-10-
11
(b) Subsection 9.03(a)(iv) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"(iv) so long as (x) no Specified Default, and no Event of Default, then
exists or would result therefrom and (y) Starwood REIT qualifies as a
"real estate investment trust" under the Code, Starwood REIT and/or the
Corporation shall be permitted to repurchase shares of their own common
stock and may make payments (excluding the delivery of cash or Cash
Equivalents pursuant to Section 9.01(xvii) unless and until such cash or
Cash Equivalents are actually used to satisfy obligations pursuant to the
respective Existing Forward Equity Transaction) in respect of one or more
Forward Equity Transactions, in an aggregate amount for all purchases and
payments pursuant to this clause (iv) not to exceed $1,135,000,000
(reduced by the amount of cash and Cash Equivalents from time to time
subject to Liens securing any Forward Equity Transaction)."
(c) Effective as of the Reorganization Merger Date, clause (vi) of
Section 9.03(a) shall be deleted, with any amounts theretofore used to
repurchase UBS Shares as provided in said Section 9.03(a)(vi) prior to the
Reorganization Merger Date to thereafter be deemed to have been expended
pursuant to clause (iv) of Section 9.03(a).
17. Section 9.04; Indebtedness. (a) Section 9.04(viii) is hereby
amended and restated in its entirety to read as follows:
"(viii) (A) the Corporation shall be permitted to issue Senior Secured
Bridge Notes on the Initial Borrowing Date as required by Section 5.06(a)
(with the Senior Secured Bridge Note Documents to be in the form provided
pursuant to Section 5.06(b) on or prior to the Initial Borrowing Date) and
shall be permitted from time to time to issue (but not to any Borrower or
Affiliate thereof) Permanent Senior Notes for cash; provided that (w) all
of the terms and conditions of the Permanent Senior Notes (including,
without limitation, amortization, maturities, interest rates, covenants,
defaults, remedies, guaranties, sinking fund provisions and other terms)
shall be reasonably satisfactory to the Lead Agents, (x) at the option of
the Corporation, Permanent Senior Notes may be issued as Permanent Senior
Secured Notes and, in such event, may be secured to the extent provided in
the Pledge and Security Agreement, (y) all Net Proceeds (determined
without giving effect to the proviso to the definition of Net Proceeds
contained herein) from any issuance of Permanent Senior Notes under this
clause (viii)(A) or clause (viii)(B) below shall be applied first to repay
the outstanding Senior Secured Bridge Notes until all such Senior Secured
Bridge Notes are repaid in full (except to the extent such Net Proceeds
are otherwise required to be applied to the Tranche I Term Loans pursuant
to Section 4.02 (d)), and any remaining Net Proceeds shall be used for
general corporate purposes of the Corporation otherwise permitted under
the terms of this Agreement, and (z) in no event shall the aggregate
principal amount of Indebtedness at any time outstanding pursuant to this
clause (viii)(A) exceed $2.5 billion; and
(B) in addition to the Indebtedness permitted to be incurred under clause
(viii)(A) above, the Corporation shall be permitted to issue (but not to
any Borrower or Affiliate thereof) additional Senior Secured Bridge Notes
from time to time and at any time (with
-11-
12
amendments to the Senior Secured Bridge Note Documents to effect any such
increase to be in form and substance reasonably satisfactory to the Lead
Agents) and shall be permitted from time to time to issue (but not to any
Borrower or Affiliate thereof) Permanent Senior Notes (in addition to
those issued pursuant to clause (viii)(A) above) for cash; provided that
(w) no Specified Default, and no Event of Default, shall exist at the time
of any issuance of Indebtedness pursuant to this clause (viii)(B) or
immediately after giving effect thereto, (x) all of the terms and
conditions of the additional Permanent Senior Notes (including, without
limitation, amortization, maturities, interest rates, covenants, defaults,
remedies, guaranties, sinking fund provisions and other terms) shall be
reasonably satisfactory to the Lead Agents, (y) at the option of the
Corporation, such additional Permanent Senior Notes may be issued as
Permanent Senior Secured Notes and, in such event, may be secured to the
extent provided in the Pledge and Security Agreement, and (z) in no event
shall the aggregate principal amount of Indebtedness at any time
outstanding pursuant to this clause (viii)(B), together with the aggregate
principal amount of all Indebtedness outstanding pursuant to Section
9.04(xiv) and the aggregate liquidation preference of all Qualified
Preferred Stock then outstanding pursuant to Section 9.14(c), exceed $1.0
billion."
(b) Section 9.04 is hereby further amended by (x) deleting the word
"and" appearing at the end of clause (xii) thereof, (y) changing the period at
the end of clause (xii) thereof to "; and" and (z) inserting, immediately after
clause (xiii) of Section 9.04, the following new clause (xiv):
"(xiv) in addition to all other permitted Indebtedness described in
clauses (i) through (xiii) of this Section 9.04, either Starwood REIT, the
Corporation or any of their respective Subsidiaries or Affiliates shall be
permitted to enter into one or more collateralized mortgage backed
securities transactions (each a "CMBS Transaction"); provided that (x) no
Specified Default, and no Event of Default, shall exist at the time of the
consummation of any CMBS Transaction or immediately after giving effect
thereto, (y) all of the terms and conditions of each CMBS Transaction
(including, without limitation, amortization, maturities, interest rates,
covenants, defaults, remedies, guaranties, sinking fund provisions,
security and other terms) shall be reasonably satisfactory to the Lead
Agents and (z) in no event shall the aggregate principal amount of
Indebtedness at any time outstanding pursuant to this clause (xiv),
together with the aggregate principal amount of all Indebtedness then
outstanding pursuant to Section 9.04(viii)(B) and the aggregate
liquidation preference of all Qualified Preferred Stock then outstanding
pursuant to Section 9.14(c), exceed $1.0 billion."
(c) Section 9.04 is hereby further modified and amended by adding
the following new sentence at the end thereof:
"Notwithstanding the provisions of Section 9.04(viii)(B) and Section
9.04(xiv) above, if and to the extent that the aggregate amount of New
Commitments actually obtained pursuant to the Fourth Amendment after the
effective date thereof are less than $500,000,000 and either the
Corporation or Starwood REIT have no further right under the Fourth
Amendment to obtain New Commitments or the Corporation and Starwood
-12-
13
REIT shall have irrevocably waived in writing (delivered to the Lead
Agents, and in form and substance reasonably satisfactory to the Lead
Agents) such right to obtain New Commitments, the amount "$1.0 billion"
appearing in Section 9.04(viii)(B), Section 9.04(xiv) and 9.14(c) shall,
in each instance in which the same appears, be increased by an amount
equal to the difference between $500,000,000 and the aggregate amount of
New Commitments actually obtained pursuant to the Fourth Amendment after
the effective date thereof, if any (it being understood and agreed that,
at the time of any incurrence of Indebtedness or issuance of Qualified
Preferred Stock pursuant to any of Sections 9.04(viii)(B), Section
9.04(xiv) and/or 9.14(c), if there is basket availability under the
relevant such Section in the absence of the provisions of this sentence,
and if there is also availability pursuant to this sentence, the Borrower
shall, at its option, determine whether or not the respective incurrence
of Indebtedness or issuance of Qualified Preferred Stock has been made as
a result of an increase to the respective such basket pursuant to this
sentence, including for purposes of Sections 4.02(d) and 4.02(e))."
18. Section 9.06; Transactions with Affiliates. Section 9.06 of the
Credit Agreement is hereby amended by (x) deleting the word "and" appearing at
the end of clause (v) thereof, (y) deleting the period appearing at the end of
clause (vi) thereof and inserting "; and" in lieu thereof and (z) inserting the
following new clause (vii) immediately after clause (vi) thereof:
"(vii) in connection with the Reorganization, and in accordance with the
requirements of Section 1 of Part I of the Fifth Amendment, the lessees'
interests under the Operating Leases (in each case so long as the lessee
is a Subsidiary of the Corporation) may be transferred from the current
lessees to the Corporation."
19. Section 9.07; Capital Expenditures. Section 9.07(c) of the
Credit Agreement is hereby amended by (i) deleting the remainder of the Section
beginning with clause (y) thereof and replacing such portion of said Section
with the following:
"(y) for Fiscal Year 1999, $900,000,000 and for any Fiscal Year
thereafter, $400,000,000; provided that, to the extent that the amount of
Capital Expenditures made by the Parent Companies and their Subsidiaries
pursuant to preceding clause (x) during the period specified therein is
greater than $700,000,000, then the amount of such excess, but not to
exceed $200,000,000, shall be permitted, but the amount of such excess
shall reduce the amount available for Capital Expenditures for Fiscal Year
1999 as set forth above."
and (ii) inserting the following new clause (f) immediately at the end
thereof:
"(f) Notwithstanding anything to the contrary contained above in this
Section 9.07, the maximum amount of Capital Expenditures (which in any
event must justified pursuant to the preceding provisions of this Section
9.07) in any Fiscal Year in respect of new construction (for this purpose,
including as new construction any Hotels which are, or have been, entirely
closed for renovation) shall not exceed $350,000,000."
-13-
14
20. Section 9.09; Maximum Combined Leverage Ratio. The periods and
ratios set forth in Section 9.09 of the Credit Agreement are amended and
restated in their entirety to read as follows:
-14-
15
Period Ratio
------ -----
From and including the Initial Borrowing 6.50:1.00
Date to and including September 30, 1998
From and including October 1, 1998 to and 5.75:1.00
including March 31, 1999
April 1, 1999 to and including September 30, 1999 5.50:1.00
October 1, 1999 to and including March 31, 2000 5.00:1.00
April 1, 2000 to and including September 30, 2000 4.75:1.00
October 1, 2000 to and including March 31, 2001 4.50:1.00
April 1, 2001 to and including September 30, 2001 4.25:1.00
October 1, 2001 and thereafter 4.00:1.00
21. Section 9.12; Limitations on Voluntary Payments and
Modifications of Indebtedness; Modification of Certificate of Incorporation and
Certain Other Agreements. Section 9.12 of the Credit Agreement is hereby amended
by deleting, in the parenthetical appearing in clause (iii) thereof which
immediately precedes the proviso thereto, the phrase "proceeds of Permanent
Senior Notes" and inserting in lieu thereof the following:
"proceeds (x) of Permanent Senior Notes issued pursuant to Section
9.04(viii)(A) and, in each case except to the extent the Net Proceeds thereof
are required to be used to repay outstanding Tranche I Term Loans in accordance
with the relevant requirements of Sections 4.02(d) and (e), with the proceeds of
Permanent Senior Notes issued pursuant to Section 9.04(viii)(B), CMBS
Transactions entered into in accordance with the requirements of Section
9.04(xiv) and Qualified Preferred Stock issued pursuant to Section 9.14(c) and
(y) Scheduled Asset Dispositions which are effected on or before February 23,
1999 and are not required to be applied pursuant to Section 4.02(d), but only to
the extent the amount so applied to repay Senior Secured Bridge Notes does not
exceed the sum of the Maximum Indebtedness Scheduled Asset Sale Credit Amount
and the Maximum QPS Scheduled Asset Sale Credit Amount."
Furthermore, and notwithstanding anything to the contrary contained
in the Credit Agreement, the Lenders hereby waive the restrictions contained in
Section 9.12 to the extent same would prohibit (a) Starwood REIT and the
Corporation from amending their "pairing agreement" and Starwood REIT, the
Corporation, SLT RLP, SLC OLP and their respective Subsidiaries from amending
their respective organizational documents in order to consummate the
Reorganization, and (b) the Westin Stock Issue from occurring. Furthermore, the
Lenders hereby acknowledge and agree that, notwithstanding the restrictions
contained in Section 9.12, (x) the Senior Secured Bridge Notes Documents may be
amended or modified to loosen certain covenants contained therein, in each case
to adopt changes consistent with those contained
-15-
16
through and including the Fifth Amendment to the Credit Agreement and (y)
modifications to the Senior Secured Bridge Note Documents may be made to effect
an increase in the outstanding principal amount thereof, in each case as
specifically contemplated by Section 9.04(viii)(B).
22. Section 9.13; Limitations on Certain Restrictions on
Subsidiaries. Section 9.13 of the Credit Agreement is hereby amended by deleting
the word "and" immediately preceding clause (xi) thereof and by adding the
following new text immediately at the end thereof:
", (xii) the Class A Exchangeable Preferred Shares and the Class B
Exchangeable Preferred Shares of Starwood REIT outstanding prior to the
Initial Borrowing Date may remain outstanding, and any additional shares
of preferred stock issued as contemplated by Section 9.14(c) may be issued
and remain outstanding, and any classes of preferred stock so issued or
outstanding may contain provisions requiring that accrued dividends
thereon be paid before distributions are made in respect of common shares
and (xiii) the Class B Shares of Starwood REIT may be issued in connection
with the Reorganization and may contain provisions requiring that
dividends thereon be paid on a pari passu basis with dividends to be paid
on the Class A Shares of Starwood REIT."
23. Section 9.14; Limitations on Issuance of Capital Stock. Section
9.14 of the Credit Agreement is hereby amended by adding the following new
clause (c) immediately after clause (b) thereof:
"(c) Notwithstanding anything to the contrary contained in preceding
clauses (a) and (b), (i) Starwood REIT may issue Class B Shares (x) as
merger consideration in connection with the Reorganization, in each case
in accordance with the requirements of Section 1 of Part I of the Fifth
Amendment, (y) after the Reorganization Merger Date, as "paired shares"
with common shares of the Corporation issued after the Reorganization
Merger Date and (z) to the extent permitted by the terms of theretofore
outstanding Class B Shares, as payment-in-kind dividends on theretofore
outstanding Class B Shares, in each case so long as any issuance of Class
B Shares otherwise permitted by this Section 9.14(c) does not result in a
Change of Control pursuant to the definition thereof contained herein,
(ii) in connection with the Reorganization, Starwood REIT may issue up to
100 additional Class A Exchangeable Preferred Shares, (iii) the Westin
Stock Issue may be consummated in accordance with the provisions of
Section 2 of Part I of the Fifth Amendment, (iv) Starwood REIT and/or the
Corporation shall be permitted to issue Qualified Preferred Stock pursuant
to this Section 9.14(c) so long as (x) no Specified Default, and no Event
of Default, exists at the time of, or immediately after giving effect to,
any issuance of Qualified Preferred Stock pursuant to this Section 9.14(c)
and (y) the aggregate liquidation preference thereof at no time
outstanding exceeds, when added to the aggregate principal amount of
Indebtedness then outstanding pursuant to Sections 9.04(viii)(B) and
9.04(xiv), $1.0 billion (subject to increase as provided in the last
sentence of Section 9.04) and (v) to the extent that the Corporation
issues any common shares after the Reorganization Merger Date, such common
shares shall be issued as "paired shares" with Class B Shares of Starwood
REIT after the Reorganization Merger Date."
-16-
17
24. Section 9.23; Unencumbered EBITDA Ratio. Section 9 of the Credit
Agreement is hereby further amended by adding the following new Section 9.23
immediately at the end thereof:
"9.23 Unencumbered EBITDA Ratio. The Borrowers will not permit the ratio
of Combined EBITDA to Encumbered EBITDA for any test period ending after
the Fifth Amendment Effective Date to be less then 4.00:1.00."
25. Section 10.11; REIT Status. Effective as of the Reorganization
Merger Date, Section 10.11 of the Credit Agreement is amended by deleting all
language after the words "of the Code" appearing in the second line thereof.
26. Section 11; Definitions. The following definitions in Section 11
of the Credit Agreement are amended as set forth below:
(a) Applicable Asset Sale Percentage. The definition of "Applicable
Asset Sale Percentage" shall be amended by amending and restating the
second proviso to read as follows:
"provided further, that if at any time after all Tranche I Term
Loans have been repaid in full and (A) either (1) the Combined
Leverage Ratio is less than 4.5:1.0 or (2) the Unsecured Debt Rating
of each Parent Company (or both Parent Companies) shall be at least
BBB- by S&P and Baa3 by Xxxxx'x, and (B) no Specified Default, and
no Event of Default, then exists, then the Applicable Asset Sale
Percentage shall be reduced to zero for so long as the conditions
specified in preceding clauses (A) and (B) continue to be
satisfied."
(b) Applicable Debt Percentage. The definition of "Applicable Debt
Percentage" shall be modified and amended by deleting the ratio "4.0:1.0"
appearing therein and replacing the same with "4.5:1.0."
(c) Asset Sale. The definition of "Asset Sale" is amended by
deleting the amount "$500,000" in the last line thereof and by inserting
the amount "$5,000,000" in lieu thereof.
(d) Change of Control. The definition of "Change of Control" is
hereby amended by (x) deleting the word "or" appearing immediately before
clause (iv) thereof and by inserting a comma in lieu thereof and (y)
inserting the following new text immediately after the last word thereof:
"or (v) after the Reorganization Merger Date, at any time either (x)
Starwood REIT shall not for any reason be a Subsidiary of the
Corporation or (y) the Corporation shall at any time cease to
directly own 100% of the Capital Stock of Starwood REIT (other than
the Class A Exchangeable Preferred Shares and Class B Exchangeable
Preferred Shares outstanding on the Initial Borrowing Date and any
other shares of Starwood REIT issued thereafter pursuant to the
express provisions of Section 9.14(c), in each case so long as the
issued and outstanding
-17-
18
Class B Shares of Starwood REIT held by persons other than the
Corporation or Wholly-Owned Subsidiaries thereof at no time
represent more than 49% of the aggregate economic interests (as
determined by the Corporation in good faith on a reasonable basis)
represented by all outstanding equity interests in Starwood REIT
(exclusive of the outstanding Class A Exchangeable Preferred Shares
and Class B Exchangeable Preferred Shares)).
(e) Combined Adjusted Charges. The definition of "Combined Adjusted
Charges" is hereby amended by (i) inserting, immediately before clause (x)
thereof, the following new clause (w):
"(w) the aggregate amount of cash taxes paid by the Parent Companies
and their Subsidiaries (on a combined consolidated basis) during
such period,"
(ii) in clause (y) thereof, inserting the phrase "(other than to the
Corporation or any Wholly-Owned Subsidiary thereof)" immediately after the
phrase "paid by Starwood REIT" appearing therein and (iii) for all periods
from and after the Reorganization Merger Date, changing the phrase
"combined total revenues" appearing therein to "consolidated total
revenues."
(f) Combined Adjusted Charges; Combined Current Assets; Combined
Current Liabilities; Combined Indebtedness; Combined Interest Expense;
Combined Net Income; Combined Shareholders' Equity; Excess Cash Flow. Each
of the definitions of "Combined Adjusted Charges", "Combined Current
Assets", "Combined Current Liabilities", "Combined Indebtedness",
"Combined Interest Expense", "Combined Net Income", "Combined
Shareholders' Equity" and "Excess Cash Flow" appearing in Section 11 of
the Credit Agreement are hereby amended, but only for all periods
occurring after the Reorganization Merger Date, by changing the term
"combined consolidated" in each place it appears therein to
"consolidated."
(g) Combined EBITDA. Effective from and after the first Test Date
occurring after the Fifth Amendment Effective Date, the definition of
"Combined EBITDA" is hereby amended by deleting the amount "$1.651
billion" appearing therein and by inserting in lieu thereof the amount
"$1.608 billion."
(h) Combined Indebtedness. The definition of "Combined Indebtedness"
is hereby amended by adding the following new sentence immediately at the
end thereof:
"Notwithstanding anything to the contrary contained above, to the
extent not already reflected therein, the maximum amount of
Indebtedness at any time outstanding as described in the last
sentence of the definition of Indebtedness contained herein shall be
added to, and form part of, Combined Indebtedness (regardless of any
contrary treatment under GAAP)."
(i) Combined Net Income. The definition of "Combined Net Income" is
hereby amended by adding the following new sentence at the end thereof:
-18-
19
"Notwithstanding anything to the contrary in clause (ii) of the
immediately preceding sentence, for periods from and after the
Reorganization Merger Date, and so long as no Change of Control
pursuant to clause (v) of the definition thereof contained herein
has occurred, Starwood REIT shall be treated as a Wholly-Owned
Subsidiary of the Corporation for purposes of clause (ii) of the
immediate preceding sentence.
(j) Combined Shareholders' Equity. The definition of "Combined
Shareholders' Equity" is hereby amended by adding the following new sentence
immediately at the end thereof:
"Notwithstanding anything to the contrary contained above, if
Combined Shareholders' Equity is being determined at any time after the
Initial Borrowing Date, then to the extent said Combined Shareholders'
Equity (as determined in accordance with GAAP and before giving effect to
this sentence) has been reduced by (x) cash amounts used by Starwood REIT
and/or the Corporation after the Fifth Amendment Effective Date to
repurchase shares of their own common stock pursuant to Section
9.03(a)(iv) of the Credit Agreement, the aggregate amount of such
reductions (but in no event to exceed $1.0 billion) shall be added back to
Combined Shareholders' Equity for purposes of this Agreement and/or (y)
any "restructuring charges" in respect of deferred tax liabilities
actually incurred by the Parent Companies after the Initial Borrowing Date
in connection with the Restructuring, such amounts (not to exceed
$800,000,000 in the aggregate) shall be added back to Combined
Shareholders' Equity for purposes of this Agreement.
(k) Credit Party Subsidiary. For all periods occurring after the
Reorganization Merger Date, the definition of "Credit Party Subsidiary"
contained in Section 11 of the Credit Agreement is hereby amended by
deleting the phrase ", or which would be a Subsidiary of the Parent
Companies if same were a single entity" appearing therein.
(l) Dividend. The definition of "Dividend" is hereby amended by (x)
inserting "(i)" immediately after the words "shall also include" appearing
in the last sentence thereof, (y) inserting the phrase "or in common stock
of the Corporation" immediately after the phrase "the Parent Companies"
appearing in the last sentence thereof and (z) inserting the following
phrase at the end of the last sentence thereof:
"and (ii) all payments (other than payments made in "paired shares"
of the Parent Companies or common stock of the Corporation) made at
any time in respect of any Forward Equity Transactions."
(m) Excess Cash Flow. The definition of "Excess Cash Flow" is hereby
amended and restated in its entirety as follows:
"Excess Cash Flow" shall mean, for any period, the remainder of (i)
Combined EBITDA for such period less (ii) the sum of (a) the amount
of Capital Expenditures (but excluding Capital Expenditures (x)
financed with proceeds of Indebtedness or equity or reinvestments of
Asset Sale proceeds or (y) made
-19-
20
pursuant to Section 9.07(d) or (e)) made by the Parent Companies and
their Subsidiaries on a combined consolidated basis during such
period in accordance with Section 9.07, (b) the amount of cash
Dividends paid by Starwood REIT pursuant to Section 9.03(a)(ii) (but
not to the Corporation or any of its Subsidiaries) during such
period, (c) cash payments of taxes actually made by the Parent
Companies and their Subsidiaries on a combined consolidated basis
during such period and (d) that portion of Combined Interest Expense
for such period which is actually paid in cash."
(n) GAAP. The definition of "GAAP" is hereby amended by adding the
following phrase immediately at the end thereof: ", it being understood
that, from and after the Reorganization Merger Date, principles consistent
with the foregoing shall be used in preparing consolidated financial
statements (rather than combined consolidated financial statements) of the
Corporation and its Subsidiaries."
(o) Indebtedness. The definition of "Indebtedness" is hereby amended
by adding the following new sentence immediately at the end thereof:
"Notwithstanding anything to the contrary contained above, all
Forward Equity Transactions shall be deemed to constitute
Indebtedness for purposes of this Agreement, with the amount of such
Indebtedness at any time outstanding to be equal to the maximum
amount of cash and/or fair market value of property which would be
required to be delivered by the Parent Companies and their
Subsidiaries at such time to satisfy in full their obligations under
the respective Forward Equity Transactions; provided that the
Existing Forward Equity Transactions shall not constitute
Indebtedness as a result of the provisions of this sentence unless
(x) the obligations of the Parent Companies and their Subsidiaries
are increased after the Fifth Amendment Effective Date or (y) such
agreements are extended beyond, or in effect after, June 30, 1999."
(p) Net Sale Proceeds. The definition of "Net Sale Proceeds" is
hereby amended by inserting the phrase "(other than the Corporation and
its Subsidiaries)" immediately after the phrase "Dividends to its
shareholders" appearing in clause (c) thereof.
(q) Non-Recourse Indebtedness. The last sentence of the definition
of "Non-Recourse Indebtedness" is amended and restated in its entirety to
read as follows:
"For purposes of Section 9.04(iv), the Corporation and its
Subsidiaries may not incur in excess of $150,000,000, in the
aggregate, of Non-Recourse Indebtedness with Final Stated
Maturities occurring on or prior to the Final Maturity Date."
(r) Operating Lease. The definition of "Operating Lease" is modified
by inserting the following language in the second line after the term
"Starwood REIT":
"or an owner of a Hotel unrelated to the Parent Companies,."
-20-
21
(s) Permitted Refinancing Indebtedness. The definition of "Permitted
Refinancing Indebtedness" is modified by inserting the following language
after the word "Subsidiary" in the seventh line thereof:
"or Indebtedness constituting New Debt (as defined in the Fourth
Amendment) (or previous refinancings thereof constituting Permitted
Refinancing Indebtedness)."
(t) Qualified Preferred Stock. The definition of "Qualified
Preferred Stock" is amended by adding the following new sentence
immediately at the end thereof:
"Notwithstanding anything to the contrary contained above, up to
$500,000,000 aggregate liquidation preference of preferred stock (x)
issued by Starwood REIT and/or (y) which has a mandatory put,
redemption, repayment, sinking fund or other similar provision
occurring before February 23, 2005, but not before August 23, 2003,
may be issued so long as same meets all of the criteria set forth in
the immediately preceding sentence for Qualified Preferred Stock
except as otherwise expressly permitted pursuant to this sentence."
(u) Subsidiary. The definition of "Subsidiary" appearing in Section
11 of the Credit Agreement shall be modified, for all periods after the
Reorganization Merger Date, by deleting the second sentence thereof in its
entirety.
27. Additional Definitions. Section 11.01 of the Credit Agreement is
hereby amended by inserting the following new definitions in appropriate
alphabetical order therein:
"Class A Shares" shall mean the Class A Shares of Starwood REIT resulting
from the Reorganization.
"Class B Shares" shall mean the Class B Shares of Starwood REIT to be
issued in connection with the Reorganization in accordance with the
relevant requirements of the Fifth Amendment, which shares shall in any
event and in all cases provide that same shall, at the option of the
Corporation at any time when one or more material Events of Default
(pursuant to the Credit Agreement or certain other material Indebtedness)
have continued in existence beyond certain cure periods to be determined,
be mandatorily exchangeable for common stock of the Corporation.
"CMBS Transaction" shall have the meaning provided in Section 9.04(xiv).
"Encumbered EBITDA" for any period, shall mean all amounts included in
Combined EBITDA for such period to the extent such amounts were generated
from Assets (including without limitation Hotels, or any Hotel and Gaming
Business) which is subject to any Lien securing Indebtedness which is then
outstanding (exclusive of Indebtedness secured only pursuant to the Pledge
and Security Agreement).
"Existing Forward Equity Transactions" shall mean the Forward Equity
Transactions described in the last sentence of the definition thereof
contained herein.
-21-
22
"Fifth Amendment Effective Date" shall mean the date upon which the Fifth
Amendment becomes effective in accordance with its terms.
"Fifth Amendment" shall mean the Fifth Amendment to this Agreement dated
as of August 26, 1998.
"Forward Equity Transactions" shall mean any arrangement or agreement by
either Parent Company or any of their Subsidiaries involving any forward
equity sale, including, without limitation, any agreement pursuant to
which funds are advanced to either Parent Company or any Subsidiary
thereof and pursuant to which any Parent Company or any Subsidiary thereof
is contractually obligated (or permitted) to, at a future date or dates,
issue Capital Stock to satisfy its obligations under such agreement
(whether or not said obligation may be satisfied through the delivery of
cash in lieu of such Capital Stock). It is understood and agreed that the
agreements in place on the Fifth Amendment Effective Date with (x) Union
Bank of Switzerland, London Branch, in respect of the placement of the UBS
Shares on October 15, 1997 and such additional shares as may be required
from time to time, and (y) Xxxxxxx Xxxxx International, Xxxxxx Brothers
Inc. and NMS Services, Inc. (and affiliates thereof) for the issuance of
an aggregate of 4,641,000 Paired Shares on February 24, 1998 and such
additional shares as may be required from time to time, in each case
constitute Forward Equity Transactions.
"Maximum Indebtedness Scheduled Asset Sale Credit Amount" shall have the
meaning provided in Section 4.02(d).
"Maximum QPS Scheduled Asset Sale Credit Amount" shall have the meaning
provided in Section 4.02(e).
"Reorganization Merger Date" shall mean the date upon which the merger of
Newco into Starwood REIT occurs pursuant to the Reorganization.
"Reorganization" shall mean the proposed reorganization transaction
described in the recitals to the Fifth Amendment.
"Westin Stock Issue" shall have the meaning provided in the recitals to
the Fifth Amendment.
II. Confirmation and Agreement of Credit Parties.
Each Credit Party, by its signature below, hereby confirms and
agrees that (x) the identity of the Borrowers and their obligations pursuant to
the Credit Agreement and the Credit Documents shall remain in full force and
effect after giving effect to this Fifth Amendment (and such obligations shall
be unaffected thereby, except to the extent specific provisions of the Credit
Agreement are waived or amended in accordance with the terms of this Fifth
Amendment), (y) the Guaranty shall remain in full force and effect and the
Guaranty shall cover all obligations of each of the Borrowers under the Credit
Agreement, as modified and amended by this Fifth Amendment (including, without
limitation, after giving effect to the Reorganization) and (z) the Pledge and
Security Agreement shall remain in full force and effect as security for all
obligations
-22-
23
under the Credit Agreement, as modified and amended by this Fifth Amendment
(including, without limitation, after giving effect to the Reorganization) and
the Guaranty.
III. Miscellaneous Provisions.
A. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document. As specified herein, certain of the
modifications effected hereby shall only be effective upon the Reorganization
Merger Date.
B. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrowers and the Paying Agent.
C. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
D. This Amendment shall become effective on the date (the "Amendment
Effective Date") when each of the Borrowers, each Guarantor and the Required
Lenders shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Paying Agent at its Notice Office.
E. The Borrowers hereby covenant and agree that, so long as the
Amendment Effective Date occurs, they shall pay (and shall be jointly and
severally obligated to pay) each Lender which executes and delivers to the
Paying Agent a counterpart hereof by the later to occur of (x) the close of
business on the Amendment Effective Date or (y) 5:00 p.m. (New York time) on
August 26, 1998, a cash fee in an amount equal to 25 basis points (0.25%) of an
amount equal to the sum of the outstanding principal amount of Term Loans of
such Lender and the Revolving Loan Commitment of such Lender, in each case as
same is in effect on the Amendment Effective Date. All fees payable pursuant to
this clause E shall be paid by the Borrowers to the Paying Agent for
distribution to the Lenders not later than the first Business Day following the
later date specified in the immediately preceding sentence.
F. From and after the Amendment Effective Date, all references in
the Credit Agreement and each of the other Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement as modified
hereby.
G. No Default or Event of Default exists as of the Amendment
Effective Date, both before and after giving effect to this Amendment; and
H. All of the representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all
material respects as of the Amendment Effective Date, both before and
after giving effect to this Amendment,
-23-
24
with the same effect as though such representations and warranties had
been made on and as of the Amendment Effective Date (it being understood
that any representation or warranty made as of a specific date shall be
true and correct in all material respects as of such specific date).
[SIGNATURE PAGES FOLLOW]
-24-
25
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
STARWOOD HOTELS & RESORTS,
a Maryland real estate investment trust
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------------
Name: XXXXX X. XXXXXXXXXX
Title: CHAIRMAN AND CHIEF EXECUTIVE OFFICER
STARWOOD HOTELS & RESORTS WORLDWIDE, INC., a
Maryland corporation
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
SLT REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------------
Name: XXXXX X. XXXXXXXXXX
Title: CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ITT CORPORATION,
a Nevada corporation
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
-25-
26
BW HOTEL REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its general partner
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
CHARLESTON HOTEL ASSOCIATES L.L.C., a New Jersey
limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
CP HOTEL REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its general partner
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
-26-
27
CRYSTAL CITY HOTEL ASSOCIATES, L.L.C., a New
Jersey limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ XXXXX X. XXXXXXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
EDISON HOTEL ASSOCIATES LIMITED
PARTNERSHIP, a New Jersey limited liability
company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its general partner
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ XXXXX X. XXXXXXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
-27-
28
LONG BEACH HOTEL ASSOCIATES L.L.C.,
a New Jersey limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
NOVI HOTEL ASSOCIATES, L.P.,
a Delaware limited partnership
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
PARK RIDGE HOTEL ASSOCIATES L.P.,
a Delaware limited partnership
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its general partner
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
-28-
29
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
PRUDENTIAL-HEI JOINT VENTURE,
a Georgia general partnership
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its general partner
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SANTA XXXX HOTEL ASSOCIATES, L.L.C.,
a New Jersey limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
-29-
30
SLT ALLENTOWN LLC,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investments trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT ARLINGTON L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT ASPEN XXXX STREET, LLC, a Delaware limited
liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels and Resorts, a Maryland real
estate investment trust, its managing general
partner
-30-
31
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT BLOOMINGTON, LLC,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels and Resorts, a Maryland real
estate investment trust, its managing general
partner
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT CENTRAL PARK SOUTH, LLC,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its managing general
partner
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
-31-
32
SLT DANIA L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT DC MASSACHUSETTS AVENUE, L.L.C., a Delaware
limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its managing general
partner
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT FINANCING PARTNERSHIP,
a Delaware general partnership
By: SLT Realty Limited Partnership, a Delaware
partnership, its general partner
By: Starwood Hotels & Resorts, a Maryland real
estate investment partnership, its general
partner
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
-32-
33
SLT HOUSTON BRIAR OAKS, LP, a Delaware limited
partnership
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing general
partner
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its managing general
partner
By: /s/ XXXXX X. XXXXXXXXXX
----------------------
Name: XXXXX X.XXXXXXXXXX
Title: CHAIRMAN AND CHIEF EXECUTIVE OFFICER
SLT INDIANAPOLIS L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ XXXXX X. XXXXXXXXXX
----------------------
Name: XXXXX X. XXXXXXXXXX
Title: CHAIRMAN AND CHIEF EXECUTIVE OFFICER
SLT KANSAS CITY L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ XXXXX X. XXXXXXXXXX
----------------------
Name: XXXXX X. XXXXXXXXXX
Title: CHAIRMAN AND CHIEF EXECUTIVE OFFICER
-33-
34
SLT LOS ANGELES L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT MINNEAPOLIS L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT PALM DESERT L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
-34-
35
SLT PHILADELPHIA L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT REALTY COMPANY, L.L.C., a Delaware limited
liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT SAN DIEGO L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
-35-
36
SLT SOUTHFIELD L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT ST. LOUIS L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
SLT TUCSON L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
-36-
37
STARLEX L.L.C.,
a New York limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
STARWOOD ATLANTA II L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
STARWOOD ATLANTA L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
-37-
38
STARWOOD MISSION HILLS, L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive
STARWOOD XXXXXXX L.L.C.,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
STARWOOD WALTHAM LLC,
a Delaware limited liability company
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
-38-
39
VIRGINIA HOTEL ASSOCIATES, L.P., a Delaware
limited partnership
By: SLT Realty Limited Partnership, a Delaware
limited partnership, its general partner
By: Starwood Hotels & Resorts, a Maryland real
estate investment trust, its general partner
By:______________________________________
Name:
Title:
W&S DENVER CORP.
By:______________________________________
Name:
Title:
W&S SEATTLE CORP.,
a Delaware corporation
By:______________________________________
Name:
Title:
W&S REALTY CORPORATION OF DELAWARE,
a Delaware corporation
By:______________________________________
Name:
Title:
XXXXXXXX XXXXXXXX HOTEL, INC.,
a Washington corporation
By:______________________________________
Name:
Title:
-39-
40
WESTIN SEATTLE HOTEL COMPANY,
a Washington general partnership
By: W&S Realty Corporation of Delaware, a Delaware
corporation, its general partnership
By: /s/ Xxxxx X. Xxxxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
By: Xxxxxxxx Xxxxxxxx Hotel, Inc., a Washington
corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
W&S LAUDERDALE CORP.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
LAUDERDALE HOTEL COMPANY,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
WESTIN BAY HOTEL COMPANY,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
______________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
-40-
41
CINCINNATI PLAZA COMPANY,
a Delaware corporation
By: /s/ XXXXX X. XXXXXXXXXX
______________________________________
Name: XXXXX X. XXXXXXXXXX
Title: CHAIRMAN AND CHIEF EXECUTIVE OFFICER
SOUTH COAST WESTIN HOTEL COMPANY,
a Delaware corporation
By: /s/ XXXXX X. XXXXXXXXXX
______________________________________
Name: XXXXX X. XXXXXXXXXX
Title: CHAIRMAN AND CHIEF EXECUTIVE OFFICER
TOWNHOUSE MANAGEMENT, INC.,
a Delaware corporation
By: /s/ XXXXX X. XXXXXXXXXX
______________________________________
Name: XXXXX X. XXXXXXXXXX
Title: CHAIRMAN AND CHIEF EXECUTIVE OFFICER
HEI HOTELS, L.L.C.
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
MIDLAND BUILDING CORPORATION,
an Illinois corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
-41-
42
MIDLAND HOLDING CORPORATION, an Illinois
corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
MIDLAND HOTEL CORPORATION,
an Illinois corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
MILWAUKEE BROOKFIELD L.P.,
a Wisconsin limited partnership
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its general partner
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
MOORLAND HOTEL LIMITED PARTNERSHIP, a Wisconsin
limited partnership
By: Milwaukee Brookfield L.P., a Wisconsin limited
partnership, its general partner
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its general partner
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
-42-
43
OPERATING PHILADELPHIA LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
SLC ALLENTOWN LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
SLC ARLINGTON L.L.C.,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
-43-
44
SLC ASPEN XXXX STREET, LLC, a Delaware limited
liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ XXXXXX X. XXXXX
-------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
SLC ATLANTA II LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /S/ XXXXXX X. XXXXX
-------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
SLC ATLANTA LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /S/ XXXXXX X. XXXXX
-------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
-44-
45
SLC BLOOMINGTON LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /S/ XXXXXX X. XXXXX
------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
SLC-CALVERTON LIMITED PARTNERSHIP,
a Delaware limited partnership
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its general partner
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /S/ XXXXXX X. XXXXX
-------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
SLC CENTRAL PARK SOUTH, LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its managing general
partner
By: /S/ XXXXXX X. XXXXX
-------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
-45-
46
SLC DANIA LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
SLC DC MASSACHUSETTS AVENUE, LLC, a Delaware
limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its managing general
partner
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
SLC HOUSTON BRIAR OAKS, LP,
a Delaware limited partnership
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing general
partner
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its managing general
partner
By: /s/ XXXXXX X. XXXXX
--------------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
-46-
47
SLC INDIANAPOLIS LLC
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ XXXXXX X. XXXXX
------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
SLC KANSAS CITY L.L.C.,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ XXXXXX X. XXXXX
-----------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
SLC LOS ANGELES, LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ XXXXXX X. XXXXX
-----------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
-47-
48
SLC MINNEAPOLIS LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SLC XXXXXXX, LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SLC OPERATING LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
-48-
49
SLC PALM DESERT LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SLC SAN DIEGO LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SLC SOUTHFIELD LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
-49-
50
SLC ST. LOUIS L.L.C.,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SLC TUCSON LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SLC WALTHAM LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
-50-
51
STARWOOD MANAGEMENT COMPANY, LLC,
a Delaware limited liability company
By: SLC Operating Limited Partnership, a Delaware
limited partnership, its managing member
By: Starwood Hotels & Resorts Worldwide, Inc., a
Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
______________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
WESTIN PREMIER, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
______________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
WESTIN VACATION MANAGEMENT CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
______________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
WESTIN VACATION EXCHANGE COMPANY,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
______________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
WVC RANCHO MIRAGE, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
______________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
-51-
52
WESTIN ASSET MANAGEMENT CO.,
a Delaware company
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
WESTIN HOTEL COMPANY,
a Delaware company
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
W&S ATLANTA CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
ITT SHERATON CORPORATION,
a Delaware corporation,
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
DESTINATION SERVICES OF SCOTTSDALE, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
GENERAL FIDUCIARY CORPORATION,
a Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
-52-
53
GLOBAL CONNEXIONS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON INTER-AMERICAS, LTD.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
XXXXXX SHERATON LLC,
a New York limited liability company
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
ITT SHERATON RESERVATIONS CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
MANHATTAN SHERATON CORPORATION,
a New York corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SAN DIEGO SHERATON CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
-53-
54
SAN XXXXXXXX SHERATON CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON 45 PARK CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON ARIZONA CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON ASIA-PACIFIC CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON BLACKSTONE CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON BOSTON CORPORATION,
a Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
-54-
55
SHERATON CALIFORNIA CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON CAMELBACK CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON FLORIDA CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON HARBOR ISLAND CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON HARTFORD CORPORATION,
a Connecticut corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON HAWAII HOTELS CORPORATION,
a Hawaii corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
-55-
56
SHERATON INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON INTERNATIONAL DE MEXICO, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON MANAGEMENT CORPORATION,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON OVERSEAS MANAGEMENT CORPORATION,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON WARSAW CORPORATION,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON MARKETING CORPORATION,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
-56-
57
SHERATON MIAMI CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON MIDDLE EAST MANAGEMENT CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON NEW YORK CORPORATION,
a New York corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON OVERSEAS TECHNICAL SERVICES CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON PEACHTREE CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHERATON PHOENICIAN CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
-57-
58
SHERATON SAVANNAH CORPORATION,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
SHERATON SERVICES CORPORATION,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
SOUTH CAROLINA SHERATON CORPORATION,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
ST. REGIS SHERATON CORPORATION,
a New York corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
WORLDWIDE FRANCHISE SYSTEMS, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
SHERATON VERMONT CORPORATION,
a Vermont corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
-58-
59
ITT BROADCASTING CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
WESTIN LICENSE COMPANY,
a Delaware company
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
WESTIN INTERNATIONAL SERVICES COMPANY,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
WESTIN ASIA MANAGEMENT HOLDING CO.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
WESTIN ASIA MANAGEMENT CO.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
WESTIN CANADA MANAGEMENT CO.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
-59-
00
XXXXXX XXXXXX MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
WESTIN MEXICO MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
XXXXXX XXXXXXXXX MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
WESTIN RIVER NORTH MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
WESTIN HILTON HEAD MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
WESTIN KANSAS CITY MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
-60-
61
WESTIN MAUI MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN BOSTON MANAGEMENT HOLDING CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN BOSTON MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN CENTURY CITY MANAGEMENT HOLDING CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN CENTURY CITY MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN NEW ORLEANS MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
-61-
62
WESTIN ORLANDO MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN SANTA XXXXX MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN TUCSON MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN INTERNATIONAL MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN INNISBROOK MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN FRANCE MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
-62-
63
WESTIN PITTSBURGH MANAGEMENT HOLDING CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
WESTIN PITTSBURGH MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
WESTIN PEACHTREE MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
WESTIN DALLAS MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
WESTIN RIVERWALK MANAGEMENT CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
WESTIN REPRESENTATION CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
______________________________________
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
-63-
64
WESTIN LICENSE COMPANY SOUTH,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN LICENSE COMPANY NORTH,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN LICENSE COMPANY EAST,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN LICENSE COMPANY WEST,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
WESTIN FRANCHISE CO.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
SHERATON X'XXXX CORPORATION,
a Delaware corporation
By: /s/ XXXXXX X. XXXXX
-----------------------------------
Name: XXXXXX X. XXXXX
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
-64-
65
BANKERS TRUST COMPANY,
Individually and as Administrative Agent and as
Paying Agent
/s/ XXXXX X. XXXXXXX
By:______________________________________
Name: Xxxxx X. Xxxxxxx
Title: Principal
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent
/s/ XXXXXXXXX X. XXXXXX
By:______________________________________
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER, INC.,
Individually and as Syndication Agent
/s/ XXXXXXX X. XXXXXXX
By:______________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
BANK OF MONTREAL, CHICAGO BRANCH,
Individually and as Syndication Agent
/s/ XXXX X. XXXX, XX.
By:______________________________________
Name: Xxxx X. Xxxx, Xx.
Title: Director
ARAB BANKING CORPORATION (B.S.C.)
/s/ XXXXXX XXXXXX
By:______________________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
-00-
00
XXXXX XXXXXXXX XX XXXXXX
Xx: /s/ Xxxxxxx X. Xxxxxx
______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President, Chief Credit Officer
By: /s/ Xxxxxxxxx Xxxxxxxx
______________________________________
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Xxxxxxxx X. Xxxxx
______________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
BANK LEUMI USA
By: /s/ Xxxxx Xxx Hong
______________________________________
Name: Xxxxx Xxx Hong
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LIMITED,
NEW YORK BRANCH
By: /s/ X. Xxxxxx
______________________________________
Name: X. Xxxxxx
Title: Vice President
BANK POLSKA KASA OPIEKI S.A. PEKAO S.A. GROUP,
NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxx
______________________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President, Senior Lending Officer
-66-
67
PARIBAS
By: /s/ Xxxx X. Xxxxxx
______________________________________
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
BANQUE WORMS CAPITAL CORP.
By: /s/ Xxxxxxxxx Xxxxx
______________________________________
Name: Xxxxxxxxx Xxxxx
Title: Senior Vice President
BEAR XXXXXXX INVESTMENT PRODUCTS INC.
By: /s/ Xxxxxx Xxxxxxxxx
______________________________________
Name: Xxxxxx Xxxxxxxxx
Title: Senior Managing Director
BARCLAYS BANK PLC
By: /s/ Xxxx Xxxxxxxx
______________________________________
Name: Xxxx Xxxxxxxx
Title: Director
XXXXX XXX COMMERCIAL BANK, LTD.,
NEW YORK BRANCH
By: /s/ Wan-Tu Yeh
______________________________________
Name: Wan-Tu Yeh
Title: VP and General Manager
XXXXX XXXX BANK CO., LTD. NEW YORK AGENCY
By: /s/ Xxxxxx S.T. Liu
______________________________________
Name: Xxxxxx S.T. Xxx
Title: VP and DGM
-67-
68
DULY AUTHORIZED AND EXECUTED:
CIBC INC.
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
CREDIT LYONNAIS NEW YORK BRANCH
CREDIT SUISSE FIRST BOSTON
CREDITO ITALIANO
-68-
69
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
DOMINION BANK
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
FIRST COMMERCIAL BANK
-69-
70
FIRST SECURITY BANK, N.A.
FLEET BANK, N.A.
GENERAL ELECTRIC CAPITAL CORPORATION
XXXXXXX SACHS CREDIT PARTNERS L.P.
GULF INTERNATIONAL BANK B.S.C.
XXX XXX COMMERCIAL BANK, LTD. NEW YORK
AGENCY
-70-
71
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
ISTITUTO BANCARIO SAN PAOLO DI TORINO SpA
KZH CNC LLC
LAND BANK OF TAWAIN, LOS ANGELES BRANCH
THE LONG TERM CREDIT BANK
OF JAPAN, LTD.
MITSUBISHI TRUST & BANKING CORPORATION
-71-
72
ML CLO XIX STERLING (Cayman) Ltd.,
NATIONSBANK, N.A.
THE ROYAL BANK OF SCOTLAND, PLC
SOCIETE GENERALE, SOUTHWEST AGENCY
SOUTHERN PACIFIC BANK
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
-72-
73
WACHOVIA BANK, N.A.
WESTDEUTSCHE LANDESBANK GIROZENTRALE
XXX XXXXXX AMERICAN CAPITAL PRIME RATE
INCOME TRUST
XXX XXXXXX CLO I, LIMITED
By:XXX XXXXXX AMERICAN CAPITAL MANAGEMENT INC.,
as collateral manager
-73-
74
XXX XXXXXX AMERICAN CAPITAL SENIOR
INCOME TRUST
THE TORONTO DOMINION BANK
MELLON BANK, N.A., solely in its capacity as Trustee
for the GENERAL MOTORS CASH MANAGEMENT
MASTER TRUST, (as directed by Xxxxxxxx Capital
Management, Inc.), and not in its individual capacity
INDOSUEZ CAPITAL FUNDING II A Ltd.
By: Indosuez Capital as Portfolio Advisor
-74-
75
EXHIBIT A
1. Effective as of December 31, 1998, all of the existing Operating
Leases from Starwood REIT, SLT RLP or their Subsidiaries to SLC OLP or its
Subsidiaries are transferred such that the Corporation is the lessee under such
Operating Leases.
2. Between January 4, 1999 and February 28, 1999, a newly created
subsidiary of the Corporation ("Newco") is merged with and into Starwood REIT
(with Starwood REIT being the surviving entity, so that after the merger,
Starwood REIT shall become a direct subsidiary of the Corporation. In the
merger, the common stock of Newco becomes the common shares of beneficial
interest in Starwood REIT and the common shares of beneficial interest in
Starwood REIT are converted into the Class B Shares of Starwood REIT. The Class
B Shares are "paired" with the common stock of the Corporation pursuant to an
amended pairing agreement. The Class A Exchangeable Preferred Shares and Class B
Exchangeable Preferred Shares of Starwood REIT (the "EPS") remain outstanding as
shares of Starwood REIT. In addition, the partnership interests of SLT RLP and
SLC OLP remain outstanding. The organizational documents of Starwood REIT, the
Corporation, SLT RLP and SLC OLP are amended and restated to reflect the
foregoing.
3. After the completion of the merger but before the date on which
Starwood REIT pays its first quarter dividend in 1999, Starwood REIT declares
and pays to the Corporation sufficient dividends to maintain REIT status for
1998 and to avoid federal income tax. Starwood REIT will make an election under
Section 858 of the Code.
4. The Capital Stock of the Preferred Stock Subsidiaries held by
Starwood REIT will be exchanged for non-voting common stock in such entities.
5. The distribution provisions of the partnership agreements of SLT
RLP and SLC OLP may be modified to match the dividends on the Class B Shares and
the Corporation common shares (the "Base Distribution") plus a tax distribution
equal to a percentage of the taxable income allocated to the partners in excess
of the Base Distribution.
