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Exhibit 4.3
AMENDMENT NO. 2 TO
PAIRING AGREEMENT
Amendment dated as of January 2, 1998 (this "Amendment") to the
Pairing Agreement dated as of June 25, 1980, as amended by Amendment No. 1
thereto dated as of February 1, 1995 (such Pairing Agreement, as so amended,
being referred to as the "Pairing Agreement") between Starwood Hotels & Resorts
Trust (formerly Starwood Lodging Trust), a Maryland real estate investment trust
(the "Trust"), and Starwood Hotels & Resorts Worldwide, Inc. (formerly Starwood
Lodging Corporation), a Maryland corporation (the "Company").
WHEREAS, on the date hereof, the Trust is issuing shares of two new
classes of beneficial interest, par value $.01 per share, to be designated as
"Class A Exchangeable Preferred Shares" ("Class A EPS") and "Class B
Exchangeable Preferred Shares" ("Class B EPS"), respectively, pursuant to the
Transaction Agreement dated as of September 8, 1997 (the "Transaction
Agreement"), among WHWE L.L.C., Woodstar Investor Partnership, Nomura Asset
Capital Corporation, Xxxxxxx Xxxxxxx, W&S Hotel L.L.C., Westin Hotels & Resorts
Worldwide, Inc., W&S Lauderdale Corp., W&S Seattle Corp., Westin St. Xxxx Hotel
Company, Inc., W&S Denver Corp., W&S Atlanta Corp., the Trust, SLT Realty
Limited Partnership, the Company and SLC Operating Limited Partnership;
WHEREAS, the Pairing Agreement currently provides that, among other
things, the Trust may not issue or transfer shares of beneficial interest of the
Trust unless provision is made for the issuance or transfer of the same number
of shares of, stock of the Company;
WHEREAS, pursuant to the Transaction Agreement, the Class A EPS and
the Class B EPS will be issued only by the Trust and not by the Company;
WHEREAS, in order to permit the issuance of the Class A EPS and the
Class B EPS pursuant to the Transaction Agreement, the Board of Trustees of the
Trust and the Board of Directors of the Company have adopted this Amendment and
directed that this Amendment be submitted to the shareholders of the Trust at
the 1997 Annual Meeting of Shareholders of the Trust (the "Trust Meeting") and
the stockholders of the Company at the 1997 Annual Meeting of Stockholders of
the Company (the "Company Meeting"); and
WHEREAS, this Amendment was duly approved by the shareholders of the
Trust at the Trust Meeting and the
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stockholders of the Company at the Company Meeting;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and set forth herein and in the Pairing Agreement, the parties hereto
agree as follows:
SECTION 1. AMENDMENT OF PAIRING AGREEMENT. The Pairing Agreement is
hereby amended by adding thereto a new Section 13, which new Section 13 shall
read in its entirety as follows:
13. Notwithstanding anything to the contrary contained in this
Agreement, no provision of this Agreement shall prohibit (a) the issuance
by the Trust of Class A Exchangeable Preferred Shares or Class B
Exchangeable Preferred Shares pursuant to the Transaction Agreement
(collectively, the "Trust Preferred Shares") or (b) any transfer of shares
of Trust Preferred Shares, including without limitation any such transfer
in which the transferee does not acquire shares of common stock of the
Company and in which effective provision is not made for the issuance or
transfer of shares of common stock of the Company, or (c) the issuance of
certificates representing shares of Trust Preferred Shares, including
without limitation any such issuance without the issuance of a certificate
or certificates of common stock of the Company. As used herein,
"Transaction Agreement" means the Transaction Agreement dated as of
September 8, 1997 among WHWE L.L.C., Woodstar Investor Partnership, Nomura
Asset Capital Corporation, Xxxxxxx Xxxxxxx, W&S Hotel L.L.C., Westin
Hotels & Resorts Worldwide, Inc., W&S Lauderdale Corp., W&S Seattle Corp.,
Westin St. Xxxx Hotel Company, Inc., W&S Denver Corp., W&S Atlanta Corp.,
the Trust, the Company, SLT Realty Limited Partnership and SLC Operating
Limited Partnership, as such Agreement may be amended from time to time.
SECTION 2. EFFECT OF AMENDMENT. Except as expressly set forth
herein, this Amendment shall not by implication alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Pairing Agreement, all of which shall continue in full force
and effect.
SECTION 3. PARTIAL INVALIDITY. In case any one or more of the
provisions contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Amendment, but
this Amendment shall be construed as if such invalid, illegal or unenforceable
provision or provisions had never been contained herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the day and year first above written.
STARWOOD HOTELS & RESORTS TRUST
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
and Chief Financial
Officer
STARWOOD HOTELS & RESORTS
WORLDWIDE, INC.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President and
Corporate Controller
