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EXHIBIT 4.2
AMENDMENT NO. 1 TO
PAIRING AGREEMENT
Amendment dated as of February 1, 1995 (this "Amendment") to
the Pairing Agreement dated as of June 25, 1980 (the "Pairing Agreement")
between Starwood Lodging Trust (formerly Hotel Investors Trust), a Maryland
real estate investment trust (the "Trust"), and Starwood Lodging Corporation
(formerly Hotel Investors Corporation), a Maryland corporation (the "Company").
WHEREAS, on the date hereof (a) the Trust is, among other
things, amending the Declaration of Trust of the Trust to (i) change the name
of the Trust to "Starwood Lodging Trust", (ii) change the par value of the
shares of beneficial interest of the Trust to $.01 per share and (iii)
authorize a new class of Excess Trust Shares, par value $.01 per share, of the
Trust and a new class of Excess Preferred Shares, par value $.01 per share, of
the Trust and (b) the Company is, among other things, amending and restating
the Articles of Incorporation of the Company to (i) change the name of the
Company to "Starwood Lodging Corporation", change the par value of the shares
of common stock of the Company to $.01 per share and (iii) authorize a new
class of Excess Common Stock, par value $.01 per share, of the Company and a
new class of Excess Preferred Stock, par value $.01 per share, of the Company;
and
WHEREAS, pursuant to and in compliance with Section 11 of the
Pairing Agreement, the Trust and the Company desire to amend the Pairing
Agreement as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements 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 12, which new
Section 12 shall read in its entirety as follows:
12. (a) In the event that (x) the Trust issues Excess Trust
Shares, par value $.01 per share, of the Trust ("Excess Trust Shares")
or the Company issues shares of Excess Common Stock, par value $.01
per share, of the Company ("Excess Common Shares"), and (y) the Shares
and the shares of common stock of the Company which were converted
into such Excess Trust Shares and such Excess Common Shares,
respectively, were paired pursuant to this Agreement, then in addition
to, and not in any respect in limitation of, the
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provisions of the Declaration of Trust of the Trust and the Amended
and Restated Articles of Incorporation of the Company (as each may be
amended from time to time):
(i) such Excess Trust Shares and such Excess Common
Shares shall not be transferable, and shall not be transferred
on the respective books of either the Trust or the Company,
unless in connection with a transfer the transferor transfers
and the transferee acquires the same number of Excess Trust
Shares and Excess Common Shares;
(ii) neither the Trust nor the Company shall issue or
transfer or agree to issue or transfer any Excess Trust Shares
or Excess Common Shares unless effective provision is made for
the issuance or transfer to the same person of the same number
of Excess Trust Shares and Excess Common Shares; and
(iii) each certificate evidencing Excess Trust Shares
shall have printed on its reverse side a certificate
evidencing the same number of Excess Common Shares. A legend
shall be placed on the face or reverse side of each
certificate evidencing ownership of Excess Trust Shares and
Excess Common Shares referring to the restrictions on transfer
of the Excess Trust Shares and Excess Common Shares.
(b) In the event that (x) the Trust issues Excess Preferred
Shares, par value $.01 per share, of the Trust ("Excess Preferred
Shares") or the Company issues shares of Excess Preferred Stock, par
value $.01 per shares, of the Company ("Excess Preferred Stock"), and
(y) the shares of beneficial interest of the Trust and the shares of
preferred stock of the Company which were converted into such Excess
Preferred Shares and such Excess Preferred Stock, respectively, were
paired pursuant to this Agreement, then in addition to, and not in any
respect in limitation of, the provisions of the Declaration of Trust
of the Trust and the Amended and Restated Articles of Incorporation of
the Company (as each may be amended from time to time):
(i) such Excess Preferred Shares and such Excess
Preferred Stock shall not be transferable, and shall not be
transferred on the respective books of either the Trust or the
Company, unless in connection with a transfer the transferor
transfers and the transferee acquires the same number of
Excess Preferred Shares and Excess Preferred Stock;
(ii) neither the Trust nor the Company shall issue or
transfer or agree to issue or transfer any Excess Preferred
Shares or Excess Preferred Stock unless
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effective provision is made for the issuance or transfer to
the same person of the same number of Excess Preferred Shares
and Excess Preferred Stock; and
(iii) each certificate evidencing Excess Preferred Shares
shall have printed on its reverse side a certificate
evidencing the same number of Excess Preferred Stock. A
legend shall be placed on the face or reverse side of each
certificate evidencing ownership of Excess Preferred Shares
and Excess Preferred Stock referring to the restrictions on
transfer of the Excess Preferred Shares and Excess Preferred
Stock.
SECTION 3. REFERENCES TO SHARES. The definition of "Shares"
contained in the second recital of the Pairing Agreement is hereby amended to
refer to shares of beneficial interest of the Trust with a par value of $.01
per share.
SECTION 4. 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 5. PARTIAL INVALIDITY. In case any one or more of
the provisions contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions had never been contained herein.
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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 LODGING TRUST
By:________________________________
Name:
Title:
STARWOOD LODGING CORPORATION
By:________________________________
Name:
Title:
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