AMENDED AND RESTATED FUNDING AND COOPERATION AGREEMENT
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED FUNDING AND COOPERATION AGREEMENT (this “Agreement”)
is
dated as of February 8, 2007 by and among Kingdom Hotels International, a Cayman
Islands company (“Kingdom”),
Cascade Investment, L.L.C., a Washington limited liability company
(“Cascade”
and,
together with Kingdom, the “Lead
Investors”),
Triples Holdings Limited, an Ontario corporation (“Triples”
and,
together with the Lead Investors, the “Investors”),
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ (“▇▇▇▇▇”
and,
together with Triples, the “Sharp
Parties”;
the
Sharp Parties and the Lead Investors are referred to herein as the “Parties”)
and
amends and restates that certain Funding and Cooperation Agreement, dated as
of
November 3, 2006, by and among the Parties, as amended by that certain Amendment
No. 1 to Funding and Cooperation Agreement, dated as of December 27, 2006,
by
that certain Amendment No. 2 to Funding and Cooperation Agreement, dated as
of
January 19, 2007, and by that certain Amendment No. 3 to Funding and Cooperation
Agreement, dated as of February 2, 2007 (as heretofore amended, the
“Existing
Funding and Cooperation Agreement”).
R
E C I T
A L S:
WHEREAS,
the Lead Investors (or their affiliates) and Triples currently are shareholders
of Four Seasons Hotels Inc. (the “Company”)
and
Sharp is Chairman and CEO of the Company;
WHEREAS,
the Parties made a joint proposal (the “Proposal”)
on
November 3, 2006, to acquire all of the outstanding capital stock of the
Company, other than shares held by the Parties, certain of their respective
affiliates and the ▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇ Foundation Trust (the “Acquisition”);
WHEREAS,
the Parties entered into the Existing Funding and Cooperation Agreement to
agree
to certain terms and conditions relating to the funding of the Acquisition
and
their relationship in connection with their joint pursuit of the
Acquisition;
WHEREAS,
the Parties wish to amend and restate the Existing Funding and Cooperation
Agreement in order to amend certain provisions thereof regarding the terms
of
the Transaction Agreements (as defined below) and other provisions related
to
the implementation of the Proposal and the Acquisition;
NOW,
THEREFORE, in consideration of the premises and the mutual promises set forth
herein, the Parties agree that the Existing Funding and Cooperation Agreement
is
hereby amended and restated in its entirety as follows:
1. The
Acquisition. The
Parties hereby agree, on the terms and subject to the conditions contained
herein, to jointly pursue the Acquisition of the Company. In connection with
the
Acquisition, the Investors shall cause a British Columbia company, FS
Acquisition Corp. (the “Acquirer”),
to be
organized solely for the purpose of entering into the Acquisition Agreement
(as
defined below) with the Company, consummating the plan of arrangement (the
“Plan
of Arrangement”)
contemplated thereby and immediately and thereafter amalgamating with the
Company. The terms of the various classes of capital stock of the Acquirer
both
before and after the consummation of the Acquisition shall be substantially
as
set forth in the description of terms of capital stock agreed among the Parties
prior to the issuance of the initial shares of the Acquirer and prior to
the
execution of the Acquisition Agreement.
2. Cooperation
in Completing Acquisition. The
Parties agree that the acquisition agreement to implement the Proposal, if
approved by the Board of Directors of the Company, will be substantially
in the
form of the draft dated the date hereof circulated among the Parties (the
“Acquisition
Agreement”)
with
such changes as may be approved pursuant to Paragraph 6 below. In addition,
if
the Acquirer and the Company enter into the Acquisition Agreement, the Lead
Investors and the Acquirer shall cooperate to negotiate and finalize the
Acquisition Credit Facility (as defined below), and the Parties and the Acquirer
shall cooperate to negotiate and finalize all of the other agreements and
arrangements among the Parties and the Acquirer required to be finalized
prior
to the closing (the “Closing”)
under
the Acquisition Agreement (collectively with the Acquisition Agreement, the
“Transaction
Agreements”).
Subject to Paragraph 6 below and provided that no Party shall be required
to
provide any funds for the Acquisition other than as contemplated by Paragraph
4
below, (i) each Party shall take, or cause to be taken, all actions, and
to do,
or cause to be done, and to assist and cooperate with the other Parties in
doing, all things reasonably necessary, proper or advisable to cause Acquirer
to
perform and comply with all agreements and covenants required to be performed
by
Acquirer under the Transaction Agreements and to cause Acquirer to consummate
the Acquisition and other transactions contemplated by the Transaction
Agreements and (ii) none of the Parties shall take any action that results
in a
breach or violation by Acquirer of the Transaction Agreements.
3. Source
of Funds.
The
Parties contemplate that the cash required to complete the Acquisition and
other
transactions contemplated by the Transaction Agreements and to pay related
expenses will be funded by the proceeds of the US$750 million of borrowings
to
be made under one or more credit facilities that the Acquirer and/or the
Company
(or an affiliate of the Company) will enter into at Closing (the “Acquisition
Credit Facility”),
by
cash of the Company on hand as of the Closing, and by cash equity contributions
by the Lead Investors, as provided in Paragraph 4 below.
4. Equity
Contributions.
(a) The
Acquisition Agreement will provide for the transfers of shares of capital
stock
of the Company owned by the Lead Investors (or affiliates of the Lead Investors
) and Triples, free and clear of all liens and encumbrances, as
follows:
2
(i) the
transfer by Kingdom (or affiliates of Kingdom) to Acquirer of 7,389,182 Limited
Voting Shares of the Company, valued at the price paid to public shareholders
pursuant to the Acquisition Agreement (the “Acquisition
Price”),
in
exchange for 7,389,182 Class A Non-Voting Shares of Acquirer;
(ii) the
transfer by Cascade (or an affiliate of Cascade) to Acquirer of 715,850 Limited
Voting Shares of the Company, valued at the Acquisition Price, in exchange
for
715,850 Class B Non-Voting Shares of Acquirer; and
(iii) the
transfer by Triples to the Acquirer of 3,725,698 Variable Multiple Voting Shares
of the Company, valued at the Acquisition Price, in exchange for (x) a
number of Class C Non-Voting Shares of Acquirer equal to the difference between
(1) 1/19 multiplied by the sum of 900 plus the total number of Class A
Non-Voting Shares and Class B Non-Voting Shares of the Acquirer issued at the
Closing, and (2) 100, and (y) a number of Class D Non-Voting Shares of
Acquirer equal to 3,725,698 less the number of Class C Non-Voting Shares of
Acquirer issued at the Closing.
(b) Each
of
the Lead Investors hereby agrees to contribute (or cause to be contributed)
cash
to Acquirer, immediately before the Closing, in accordance with, and subject
to
satisfaction or waiver of the conditions to the Closing set forth in, the
Acquisition Agreement, in the following amounts:
(i) by
Kingdom (or an affiliate of Kingdom), cash equal to 50% of the Required Common
Equity (as defined below), less the sum of (A) US$450 plus
(B) the
value of the contributed Limited Voting Shares (valued at the Acquisition Price)
described in Paragraph 4(a)(i) (the “Kingdom
Cash Contribution”),
in
exchange for a number of Class A Non-Voting Shares of Acquirer equal to the
Kingdom Cash Contribution divided by the Acquisition Price; and
(ii) by
Cascade (or an affiliate of Cascade), cash equal to 50% of the Required Common
Equity (as defined below), less the sum of (A) US$450 plus
(B) the
value of the contributed Limited Voting Shares (valued at the Acquisition Price)
described in Paragraph 4(a)(ii) (the “Cascade
Cash Contribution”),
in
exchange for a number of Class B Non-Voting Shares of Acquirer equal to the
Cascade Cash Contribution divided by the Acquisition Price.
The
shares of capital stock of Acquirer to be issued according to this Paragraph
4,
and the corresponding shares of capital stock of the entity resulting from
the
amalgamation of Acquirer and the Company shall have the conversion,
dividend, redemption, voting and other rights described in the designations
of share capital
substantially in the form of the draft dated the date hereof circulated among
the Parties.
3
As
used
herein, the term “Required
Common Equity”
shall
mean the US dollar amount equal to
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(i)
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the
sum of (A) the number of outstanding Limited Voting Shares of the
Company multiplied by the Acquisition Price, (B) the amount required
to redeem, purchase, repurchase or otherwise retire the convertible
debt
of the Company in connection with the Acquisition, (C) the amount due
to Sharp under the Sale of Control Agreement between the Company
and Sharp
in connection with the Acquisition, (D) the excess, if any of (x)
the
product of the number of Limited Voting Shares of the Company underlying
the options to purchase such shares granted under the Four Seasons
Stock
Option Plan (the “Four
Seasons Options”)
and the Acquisition Price over (y) the sum of the exercise prices
to
acquire each such Limited Voting Share pursuant to the Four Seasons
Options (such exercise prices to be converted into US dollars at
the
Exchange Rate), and (E) the amount of all expenses to be paid by the
Company and the Acquirer in connection with the Acquisition, minus
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(ii)
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the
Company’s available cash at the time of Closing, minus
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(iii)
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US$750
million of proceeds to be made available at Closing under the Acquisition
Credit Facility.
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In
no
event shall the aggregate of the Kingdom Cash Contribution and the Cascade
Cash
Contribution be less than the amount of cash equity required to be funded by
the
Acquirer as specified in the debt commitment letter to be delivered to the
Company concurrently with the execution of the Acquisition Agreement.
If
(1) at
least US$750 million in proceeds are not available at the Closing under the
Acquisition Credit Facility other than by reason of a breach by such Party
of
its obligations under the other provisions of this Agreement (in which case
no
Party shall be liable to any other Party) or (2) the Required Common Equity
exceeds US$2,541,800,000, this Paragraph 4 (other than this sentence) shall
be
null and void and of no further force or effect and, notwithstanding anything
to
the contrary contained herein, no Party shall have any obligation to complete
the Acquisition or to contribute cash or securities to the Acquirer.
As
used
herein, “Exchange
Rate”
means
the Bank of Canada’s published rate of exchange of Canadian dollars for United
States dollars at noon on the day prior to the date shown on the certificate
of
arrangement giving effect to the Plan of Arrangement, issued pursuant to
Subsection 183(2) of the Business
Corporations Act (Ontario)
and the regulations made thereunder, as now in effect and as they may be
promulgated or amended from time to time.
5. Limited
Guaranty; Voting Agreement.
(a) Immediately
prior to or concurrently with the execution and delivery of the Acquisition
Agreement, each Lead Investor shall execute and deliver to the Company the
limited several guaranty (the “Limited
Guaranty”)
of
Acquirer’s obligations under the Acquisition Agreement substantially in the form
of the draft dated the date hereof circulated among the Parties, with such
modifications as shall be acceptable to such Lead Investor.
(b) The
Parties shall cooperate in defending any claim that the Lead Investors are,
or
any one of them is, liable to make payments under the Limited Guaranty. Each
Lead Investor (and Triples, to the limited extent provided below) agrees
to
contribute to the amount paid or payable by the Lead Investors in respect
of the
Limited Guaranty so that each Party shall have paid an amount equal to the
product of the aggregate amount paid under the Limited Guaranty multiplied
by
the following percentages: Kingdom, 50% and Cascade, 50%; provided
that in
the event liability under the Limited Guaranty arises by reason of a breach
by
any Sharp Party of its obligations hereunder or under any Transaction Agreement,
Triples shall contribute to the amount payable under the Limited Guaranty
to the
extent such liability resulted from the breach by such Sharp Party, and Kingdom
and Cascade shall contribute equally to the balance of the amount payable;
provided
further
that no
Lead Investor shall be entitled to receive any contribution payments if such
Lead Investor’s liability under its Limited Guaranty arose by reason of a breach
by such Lead Investor of its obligations hereunder or under any Transaction
Agreement.
4
(c) Immediately
prior to or concurrently with the execution and delivery of the Acquisition
Agreement, each Lead Investor, Triples and Acquirer shall execute and deliver
to
the Company, and the Company shall execute, a voting agreement (the
“Voting
Agreement”)
substantially in the form of the draft dated the date hereof circulated among
the Parties, with such modifications as shall be acceptable to the
Parties.
6. Decisions
Relating to Proposal and Acquisition Agreement. All
decisions with respect to the Acquisition Agreement and the Acquisition Credit
Facility shall be made jointly by the Lead Investors, including any decision
(i)
to enter into the Acquisition Agreement or the Acquisition Credit Facility,
(ii)
to amend, modify or waive any term or condition of the Acquisition Agreement
or
the Acquisition Credit Facility, (iii) to terminate the Acquisition Agreement
or
the Acquisition Credit Facility in accordance with its terms (except as provided
in the following sentence) and (iv) as to whether the conditions in the
Acquisition Agreement or the Acquisition Credit Facility have been satisfied.
If
either Lead Investor determines that there is a right to terminate the
Acquisition Agreement pursuant to the terms thereof (including because of
a
failure of a condition), and if such Lead Investor desires to terminate the
Acquisition Agreement as a result thereof, such Lead Investor may notify
the
other of such desire and the Lead Investors shall take all necessary action
to
terminate the Acquisition Agreement; provided,
however,
that if
the other Lead Investor (the “continuing
Lead Investor”)
desires to consummate the Acquisition Agreement without any involvement by
the
Lead Investor desiring to terminate the Acquisition Agreement (the “withdrawing
Lead Investor”),
and
the Sharp Parties agree to proceed with the Acquisition on such basis, then
the
continuing Lead Investor and the withdrawing Lead Investor shall cooperate
in
such reasonable arrangements requested by the other to permit the continuing
Lead Investor to proceed with the Acquisition and to terminate any liability
or
obligation of the withdrawing Lead Investor. Without limiting the generality
of
the foregoing, the continuing Lead Investor shall be required to assume the
withdrawing Lead Investor’s obligations under its Limited Guaranty referred to
in Paragraph 5 above.
5
7. Post-Closing
Governance Arrangements. Immediately
following the Closing, (i) each of the Lead Investors (or affiliates of
the Lead
Investors), Triples, Sharp and the Company shall enter into a shareholders
agreement containing provisions for the post-closing governance of the
Company
and other arrangements regarding their ownership of shares of the Company
after
completion of the Acquisition substantially in the form agreed to by the
Parties
prior
to
execution of the Acquisition Agreement (the
“Shareholders
Agreement”)
and
(ii) Sharp shall enter into, and the Lead Investors shall cause the Company
to
enter into, an employment agreement between Sharp and the Company substantially
in the form agreed to by the Parties prior to execution of the Acquisition
Agreement (the “Sharp
Employment Agreement”).
8. Exclusivity.
During
the term of this Agreement and for twelve months thereafter if this Agreement
terminates other than pursuant to clause (ii) of Paragraph 11, no Party
shall,
directly or indirectly, through any officer, director, employee, affiliate,
attorney, financial advisor or other person, agent or representative, seek
to
acquire or acquire, or encourage or participate in any other acquisition
of or
proposal to acquire, capital stock of the Company that would result in
such
person or Party (together with any other person or Party participating
in such
offer or acquisition) holding more than 40% of the capital stock of the
Company
or all or any substantial portion of the assets of the Company, except
as
contemplated hereby (including Paragraph 6) or with the consent of both
Lead
Investors, such consent not to be unreasonably withheld; provided that
the
foregoing shall not restrict any person who is a director of the Company
from
complying with the fiduciary duties owed by such person to the
Company.
9. Regulatory
Matters.
Each
Party shall use commercially reasonable efforts to supply and provide
information that is accurate in all material respects to any governmental
authority requesting such information in connection with filings or
notifications under, or relating to, Antitrust and Investment Laws (as
defined
below). If any governmental authority asserts any objections under any
applicable antitrust, competition, foreign investment or fair trade laws
(collectively, the “Antitrust
and Investment Laws”)
with
respect to the Acquisition and such objections relate to the activities
or
investments of a Party or such Party’s affiliates, such Party shall attempt to
resolve such objections; provided
no Party
or any affiliate of a Party shall be required to dispose of any assets
or enter
into any agreements that materially restrict the activities of such Party
or its
affiliates as a condition of resolving any such objections under the Antitrust
and Investment Laws; provided,
further
if any
Party is unable to resolve the objections of any governmental authority
related
to the activities or investments of a Party or such Party’s affiliates under the
Antitrust and Investment Laws, then such Party shall be responsible for
all
Pursuit Costs (as defined below).
10. Sharing
of Expenses; Other Matters.
(a) Except
as
provided in Paragraph 9, if the Acquisition is not consummated for any
reason,
all reasonable out-of-pocket expenses (including legal fees and expenses)
incurred after the date of this Agreement by any Party (other than a Party
that
has committed a material breach of its obligations hereunder) or any such
non-breaching Party’s affiliates (including any Acquirer) in connection with the
Proposal, the Acquisition and the related transactions (“Pursuit
Costs”)
shall
be shared among the Parties as follows: Kingdom, 47.5%; Cascade, 47.5%;
and the
Sharp Parties, 5%. Each Party shall make such payments to the others as
shall be
necessary to implement such sharing of expenses. Any “break up fees” or other
amounts received from the Company and any amounts received from the Company
as a
result of a breach of the Acquisition Agreement by the Company shall be
shared
among the Lead Investors according to the following percentages: Kingdom,
50%;
and Cascade, 50%.
6
(b) If
the
Closing occurs, then the Acquirer shall reimburse the Parties and their
respective affiliates for all Pursuit Costs incurred by each of them.
(c) The
Lead
Investors and Triples hereby agree that Triples and Acquirer will file,
in
prescribed form and within the prescribed time limits, a joint election
pursuant
to subsection 85(1) of the Income
Tax Act
(Canada)
in respect of the transfer by Triples to Acquirer referred to in paragraph
4(a)(iii) hereof and, in this regard, Triples shall determine the amount
(the
“Elected
Amount”)
for
purposes of such election and the Lead Investors agree that Acquirer shall
be
bound by such Elected Amount.
(d)
Sharp
hereby waives the right to receive and shall not take any action to collect
any
payment that may become due under the Sale of Control Agreement in connection
with the consummation of the Acquisition in excess of the amount payable
thereunder based upon a total of 41,019,015 outstanding shares of capital
stock of the Company
11. Termination.
This
Agreement shall become effective on the date hereof and shall terminate
(except
with respect to Paragraphs 8, 10(a) (but only with respect to Pursuit Costs
incurred prior to termination) and 12 through 23 and this Paragraph 11,
each of
which shall survive any such termination) upon the earliest of (i) 5:00
p.m. Eastern time on February 12, 2007, unless the Acquisition Agreement
shall
have been executed and delivered at or before such time, (ii) the Closing,
(iii) the termination of the Acquisition Agreement and (iv) notice
delivered by either Lead Investor to the other Parties prior to execution
and
delivery of an Acquisition Agreement. Termination of this Agreement shall
not
relieve any Party of any liability for breach of this Agreement prior to
such
termination.
12. Entire
Agreement. This
Agreement constitutes the entire agreement, and supersedes all prior agreements,
understandings, negotiations and statements, both written and oral, among
the
Parties or any of their affiliates with respect to the subject matter contained
herein.
7
13. Confidentiality.
Each
Party agrees to, and shall cause its affiliates (other than the Company),
directors, officers, employees, agents, advisors and representatives
(“Representatives”)
to,
keep any information supplied by or on behalf of any of the other Parties
to
this Agreement in connection with the transactions contemplated hereby
confidential (“Confidential
Information”)
and to
use, and cause its Representatives to use, the Confidential Information
only in
connection with the Proposal, the Acquisition, and the other transactions
contemplated hereby; provided
that
the
term “Confidential Information” does not include information that (a) is
already in such Party’s possession, provided
that
such information is not subject to another confidentiality agreement with
or
other obligation of secrecy to any person, (b) is or becomes generally
available to the public other than as a result of a disclosure, directly
or
indirectly, by such Party or such Party’s Representatives in breach of this
Agreement, or (c) is or becomes available to such Party on a
non-confidential basis from a source other than any of the Parties hereto
or any
of their respective Representatives, provided
that
such source is not known by such Party to be bound by a confidentiality
agreement with or other obligation of secrecy to any person; provided
further
that
that nothing herein shall prevent any Party from disclosing Confidential
Information (i) upon the order of any court or administrative agency, (ii)
upon the request or demand of any regulatory agency or authority having
jurisdiction over such Party, (iii) to the extent required by law or
regulation, (iv) to the extent necessary in connection with the exercise of
any remedy, hereunder, and (v) to such Party’s Representatives that need to
know such information (it being understood and agreed that, in the case
of
clause (i), (ii) or (iii), such Party shall notify the other Parties hereto
of the proposed disclosure as far in advance of such disclosure as practicable
and use reasonable efforts to ensure that any information so disclosed
is
accorded confidential treatment, when and if available). Notwithstanding
anything to the contrary, nothing in this Agreement shall impose on any
Party or
any other Person a limitation on the disclosure of the tax treatment or
tax
structure of any transaction set forth herein.
14. Public
Announcements.
Each
Party shall coordinate in good faith any and all press releases and other
public
announcements with respect to the Proposal, the Acquisition, and the other
transactions contemplated hereby; provided that, without the consent of
all of
the Parties, no such press releases or public announcements shall contain
information materially different from information contained in press releases
or
other public announcements previously made by the Company. This provision
shall
not apply, however, to any public announcement or written statement required
to
be made by law or the regulations of any governmental authority or any
stock
exchange, except that the Party required to make such announcement shall,
whenever practicable, consult with the other Parties concerning the content
and
timing of such announcement before such announcement is made.
15. Third
Party Beneficiaries.
No
person (including, without limitation, the Company and any creditor or
any other
person claiming through the Company or the Acquirer) other than the Parties
and
their respective successors and permitted assigns shall have any rights
hereunder.
16. Remedies.
The
Parties hereto agree that, except as provided herein, this Agreement shall
be
enforceable by the Parties and their respective successors and permitted
assigns
by all available remedies at law or in equity (including specific performance).
8
17. Exercise
of Rights and Remedies.
No delay
of or omission in the exercise of any right, power or remedy accruing to
any
Party as a result of any breach or default by any other Party under this
Agreement shall impair any such right, power or remedy, nor shall it be
construed as a waiver of or acquiescence in any such breach or default,
or of
any similar breach or default occurring later; nor shall any such delay,
omission or waiver of any single breach or default be deemed a waiver of
any
other breach or default occurring before or after that waiver.
18. No
Recourse.
Notwithstanding anything that may be expressed or implied in this Agreement,
and
notwithstanding the fact that certain of the Investors may be partnerships
or
limited liability companies, each Party covenants, agrees and acknowledges
that
no recourse under this Agreement or any documents or instruments delivered
in
connection with this Agreement shall be had against any former, current
or
future directors, officers, agents, affiliates, general or limited partners,
members, managers or stockholders of any Investor or any former, current
or
future directors, officers, agents, affiliates, employees, general or limited
partners, members, managers or stockholders of any of the foregoing, as
such,
whether by the enforcement of any assessment or by any legal or equitable
proceeding, or by virtue of any statute, regulation or other applicable
law, it
being expressly agreed and acknowledged that no personal liability whatsoever
shall attach to, be imposed on or otherwise be incurred by any current
or future
director, officer, employee, general or limited partner or member or manager
of
any Investor or of any partner, member, manager or affiliate thereof, as
such,
for any obligation of any Investor under this Agreement or any documents
or
instruments delivered in connection with this Agreement for any claim based
on,
in respect of or by reason of such obligations or their creation.
19. Governing
Law; Jurisdiction. This
Agreement shall be enforced, construed and interpreted in accordance with
the
laws of the State of New York. Each of the Parties (i) consents to submit
itself
to the personal jurisdiction of any state or federal court located in the
Borough of Manhattan, State of New York with respect to any action arising
from
this Agreement, (ii) agrees that it will not attempt to deny or defeat
such
personal jurisdiction by motion or other request for leave from any such
court
and (iii) agrees not to commence any such action in any forum other than
such
court. The Parties irrevocably and unconditionally waive any objection
to the
laying of venue of any such action in any such state or federal court,
and
hereby further irrevocably and unconditionally waive and agree not to plead
or
claim in any such court that any such action brought in any such court
has been
brought in an inconvenient forum. Each of the Parties, to the fullest extent
permitted by applicable law, waives any right to a jury trial in any such
action.
20. No
Assignment.
This
Agreement may not be assigned by any Party, nor shall any Party syndicate
its
contribution obligation, without the consent of the other Parties, other
than to
an affiliate of such Party, it being agreed that any such assignment shall
not
relieve the assigning Party from its obligations hereunder.
9
21. Amendments.
This
Agreement may not be amended or modified orally, but only by a written
instrument signed by all of the Parties.
22. No
Representations or Duty.
(a) Each
Party specifically understands and agrees that no other Party has made
and will
not make any representation or warranty with respect to the terms, value
or any
other aspect of the transactions contemplated hereby and each Party explicitly
disclaims any warranty, express or implied, with respect to such matters.
In
addition, each Party specifically acknowledges, represents and warrants
that it
is not relying on any other Party (i) for its due diligence concerning,
or
evaluation of, the Company or its assets or businesses, (ii) for its decision
with respect to making any investment contemplated hereby or (iii) with
respect
to tax and other economic considerations involved in such
investment.
(b)
In
making any determination contemplated by this Agreement, each Party may
make
such determination in its sole and absolute discretion, taking into account
only
such Party’s own views, self-interest, objectives and concerns. No Party shall
have any fiduciary or other duty to any other Party except as expressly
set
forth in this Agreement.
23. Counterparts;
Facsimile Signatures. This
Agreement may be executed in multiple counterparts, each of which shall
be
deemed an original and all of which together shall constitute one instrument.
For purposes hereof, facsimile signatures shall be binding on the Parties
to
this Agreement.
10
IN
WITNESS WHEREOF,
the
Parties have executed this Amended and Restated Funding and Cooperation
Agreement by their duly authorized officers as of the date first written
above.
| KINGDOM HOTELS INTERNATIONAL | ||
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Authorized Signatory
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| CASCADE INVESTMENT, L.L.C. | ||
| |
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Business Manager
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| TRIPLES HOLDINGS LIMITED | ||
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Name:
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Title:
President
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |
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