1
Exhibit 10.35
CLASS A EXCHANGE RIGHTS AGREEMENT
This Class A Exchange Rights Agreement (this "Agreement") is
made as of February 14, 1997 among Starwood Lodging Corporation, a Maryland
corporation (the "Corporation"), SLC Operating Limited Partnership, a Delaware
limited partnership (the "Operating Partnership"), and each of the limited
partners of the Operating Partnership listed on the signature pages hereto (the
"Starwood Partners"). Unless otherwise indicated, capitalized terms used herein
are used herein as defined in Section 11.
WHEREAS, pursuant to a Contribution Agreement dated as of
January 15, 1997 (the "Contribution Agreement") among the Corporation, Operating
Partnership, Starwood Partners and other parties on the date hereof the Starwood
Partners are making capital contributions to the Operating Partnership in return
for the issuance of Class A Units (as that term is defined in the Contribution
Agreement);
WHEREAS, pursuant to the Contribution Agreement the parties
hereto are entering into this Agreement to provide for the rights of the
Starwood Partners to tender Class A Units in exchange for either Paired Shares
(as defined herein), cash or a combination of Paired Shares and cash, on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants set forth herein, the parties hereto agree as follows:
SECTION 1. RIGHT TO TENDER CLASS A UNITS. (a) Upon the terms
and subject to the conditions of this Agreement, each holder of Class A Units
shall have the right to tender to the Corporation outstanding Class A Units.
(b) Notwithstanding any other provision of this Agreement, no
Paired Shares or cash shall be issued or paid in respect of any tender of Class
A Units (i) if, notwithstanding the provisions of Section 6 of this Agreement,
the right to tender Class A Units and receive Paired Shares or cash would result
in the Trust not satisfying the REIT Requirements in any respect or would result
in any person or entity Beneficially Owning Trust Shares exceeding the Ownership
Limit, (ii) if the tender pursuant to Section 1(a) is prior to the first
anniversary of the date of this Agreement, (iii) prior to the expiration or
termination of the waiting period applicable to such exchange and issuance, if
any, under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as it may
be amended from time to time, or (iv) prior to the receipt of all governmental
and regulatory approvals which are required to be obtained prior to such tender
and issuance or payment, including, without limitation, any required approvals
of the gaming authorities of the State of
2
Nevada and of ▇▇▇▇▇ County, Nevada (the "Gaming Approvals"). Prior to the
receipt of Gaming Approvals, such holder shall, as a condition to any tender of
Class A Units which would (if the Paired Share Option (as defined below) were to
be elected in respect of such tender) cause such holder to beneficially own, in
the aggregate, Paired Shares representing more than 4.9% of the then issued and
outstanding Paired Shares, give not less than 90 days' written notice to the
Corporation (at the offices provided pursuant to Section 10) of its intent to
tender Class A Units. In the event that the ability to receive Paired Shares or
cash would result in the Trust not satisfying the REIT Requirements in any
respect or would result in any person or entity Beneficially Owning Trust Shares
exceeding the Ownership Limit, and as a result thereof no Paired Shares or cash
may be issued or paid in respect of any tender of Class A Units pursuant to
Section 1(b)(i) above, the parties hereto shall use their respective best
efforts to restructure the terms and provisions of this Agreement (and, if
necessary, the Partnership Agreements and the Registration Rights Agreement (as
defined in Section 6)), or to agree to terms and provisions in addition to such
terms and provisions, so as to provide to each such party the same substantive
rights (or substantive rights as close thereto as is reasonably practicable) as
those provided by this Agreement, the Partnership Agreements and the
Registration Rights Agreement.
(c) The rights to exchange Class A Units pursuant to this
Agreement constitute a continuous offer and may not be withdrawn, amended or
modified by the Corporation without the prior written consent of each holder of
outstanding Class A Units adversely affected by such withdrawal, amendment or
modification; provided that any withdrawal, amendment or modification that does
not adversely affect any holder of outstanding Class A Units may be effected
without the consent of such holder.
SECTION 2. ACCEPTANCE OF TENDER; ELECTION OF METHOD OF PAYMENT
FOR TENDERED CLASS A UNITS. (a) Upon the terms and subject to the conditions of
this Agreement, the Corporation shall accept Class A Units validly tendered in
proper form and meeting all of the requirements of this Agreement. In order for
Class A Units to be validly tendered pursuant to this Agreement, the registered
holder thereof shall deliver to the Corporation, at the address provided
pursuant to Section 10, (i) a completed and duly executed Letter of Transmittal
in the form attached hereto as Exhibit A (the "Letter of Transmittal") and any
other documents required by the Letter of Transmittal and (ii) a calculation, to
the best knowledge of such registered holder after due inquiry (together with
such supporting documentation as the Corporation may reasonably request), of the
maximum number of Paired Shares that may be issued to such registered holder
without causing either (x) the Trust to not satisfy the REIT Requirements in any
respect or (y) any person or entity to
-2-
3
Beneficially Own Trust Shares exceeding the Ownership Limit. The Corporation
shall make all determinations as to the validity and form of any tender of Class
A Units in accordance with the provisions of this Agreement and upon rejection
of a tender shall give the tendering holder written notice of such rejection,
which shall include the reasons therefor.
(b) Unless otherwise determined by agreement of the
Corporation, tenders of Class A Units pursuant to this Agreement shall be
irrevocable and shall not be subject to withdrawal or modification; provided
that if the Corporation makes the Paired Share Election with respect to a
tender, then within 5 days after such Election the tendering holder may elect to
revoke such tender so long as (i) no public disclosure of such tender has been
made prior to such revocation and (ii) such tendering holder reimburses the
Corporation for all reasonable costs and expenses incurred in connection with
such tender.
(c) Within 15 days after the valid tender pursuant to this
Agreement of Class A Units, the Corporation shall make an election to pay for
such Class A Units by delivering either (i) Paired Shares (the "Paired Share
Election"), (ii) cash (the "Cash Election") or (iii) a combination of Paired
Shares and cash (the "Combined Election"). Such election shall be made pursuant
to a decision by the Corporation. If the Corporation does not so decide within
such 15-day period, it shall be deemed to have made the Cash Election.
SECTION 3. PAIRED SHARE ELECTION. (a) If with respect to any
tender of Class A Units pursuant to this Agreement, the Corporation makes the
Paired Share Election, then, except as provided in Section 2(b), within 15 days
after the expiration of the 5-day period referred to in Section 2(b), the
Corporation shall deliver to the tendering holder one Paired Share for each
Class A Unit validly tendered pursuant to the provisions of this Agreement.
(b) No fractional Paired Shares or scrip representing
fractional Paired Shares shall be issued upon exchange of Class A Units pursuant
to this Agreement. If more than one Letter of Transmittal shall be delivered at
one time by the same holder, the number of full Paired Shares which shall be
issuable upon exchange of the Class A Units tendered thereby shall be computed
on the basis of the aggregate number of Class A Units so tendered. Instead of
any fractional Paired Shares which would otherwise be issuable upon exchange of
any Class A Units, the Corporation shall pay a cash adjustment in respect of
such fraction in an amount equal to the same fraction of the Paired Share
Closing Price on the last Business Day preceding the date of exchange.
-3-
4
(c) If a holder exchanges Class A Units pursuant to this
Agreement, the Corporation shall pay any documentary, stamp or similar issue or
transfer tax due on any issue of Paired Shares upon such exchange. Such holder,
however, shall (i) pay to the Corporation the amount of any additional
documentary, stamp or similar issue or transfer tax which is due (or shall
establish to the satisfaction of the Corporation the payment thereof) as a
result of Paired Shares being issued in a name other than the name of such
holder and (ii) be responsible for all income or other taxes as a result of such
exchange.
SECTION 4. CASH ELECTION. (a) If with respect to any tender of
Class A Units pursuant to this Agreement, the Corporation makes or is deemed to
have made the Cash Election, then within 20 days after such tender the
Corporation shall pay to the tendering holder an aggregate amount of cash (the
"Aggregate Cash Payment") equal to the product of (i) the number of Paired
Shares which would have been delivered to such holder if the Corporation had
made the Paired Share Election with respect to such tender and (ii) the average
Paired Share Closing Price for the ten trading day period ending one day prior
to the date of such tender.
(b) In connection with any Aggregate Cash Payment pursuant to
Section 4(a) or any cash payment pursuant to Section 5(a)(ii), the Corporation
shall pay such Aggregate Cash Payment.
SECTION 5. COMBINED ELECTION. (a) If with respect to any
tender of Class A Units pursuant to this Agreement, the Corporation shall make
the Combined Election, then, except as provided in Section 2(b), within 15 days
after the expiration of the 5-day period referred to in Section 2(b), the
Corporation shall (i) notify the tendering holder of the number of such tendered
Class A Units which will be exchanged for cash (the "Cash Units") and the number
of such tendered Class A Units which will be exchanged for Paired Shares (the
"Paired Share Units"), (ii) pay to the tendering holder, in respect of each Cash
Unit validly tendered pursuant to the provisions of this Agreement, an amount of
cash equal to the average Paired Share Closing Price for the ten trading day
period ending one day prior to the date of such tender and (iii) deliver to the
tendering holder one Paired Share for each Paired Share Unit validly tendered
pursuant to the provisions of this Agreement.
(b) The provisions of Sections 3(b) and 3(c) of this Agreement
shall apply to the issuance of Paired Shares pursuant to Section 5(a).
SECTION 6. REGISTRATION RIGHTS. If at any time after six (6)
months from the date of this Agreement, (a) a Starwood Partner validly tenders
Class A Units pursuant to the provisions of this Agreement, (b) the Corporation
makes the Paired Share
-4-
5
Election or the Combined Election with respect to such tender, (c) as a result
of the Ownership Limit such Starwood Partner cannot receive the full number of
Paired Shares otherwise issuable to such Starwood Partner pursuant to such
tender and such Election (without giving effect to the Ownership Limit) (the
event described in clauses (a), (b) and (c) being referred to as a "Paired Share
Tender Reduction"; the number of such Paired Shares which such Starwood Partner
cannot receive pursuant to such tender as a result of the Ownership Limit being
referred to as the "Unissued Paired Shares"; and the Class A Units tendered in
respect of such Unissued Paired Shares being referred to as the "Delayed Payment
Units"), then subject to the other terms and conditions of this Agreement, such
Starwood Partner shall be entitled to receive the number of Paired Shares which
it can receive pursuant to such tender, such Election and the Ownership Limit
and then, pursuant to the terms of the Registration Rights Agreement, the
Corporation shall cause there to be filed with the Securities and Exchange
Commission a registration statement and the Corporation shall register and sell
pursuant thereto a number of Paired Shares equal to the number of such Unissued
Paired Shares requested to be registered pursuant to Section 2.3 of the
Registration Rights Agreement. Within two Business Days after the receipt by the
Corporation of the proceeds of any sale (after underwriting discounts and
commissions) of such Paired Shares pursuant to such registration, the
Corporation shall pay such proceeds to the tendering holder of the Delayed
Payment Units, in full payment for the tender of such Delayed Payment Units.
SECTION 7. REPRESENTATIONS OF TENDERING HOLDER. Each tender of
Class A Units shall constitute a representation and warranty by the tendering
holder of each of the representations and warranties set forth in the form of
Letter of Transmittal. Without limiting the generality of the foregoing, unless,
at the time of a tender for exchange of Class A Units pursuant to this
Agreement, a registration statement relating to any Paired Shares to be
delivered upon such tender is effective under the Securities Act of 1933, as
amended (the "Securities Act"), such tender shall constitute a representation
and warranty by the tendering holder to the Corporation that such tendering
holder (i) is an "accredited investor" within the meaning of Rule 501 under the
Securities Act, (ii) has sufficient knowledge and experience in financial and
business matters and in investing in entities similar to the Partnerships, the
Trust and Corporation so as to be able to evaluate the risks and merits of its
investment in the Partnerships, the Trust and the Corporation and it is able
financially to bear the risks thereof, (iii) has had an opportunity to discuss
the business, management and financial affairs of the Trust, the Corporation and
the Partnerships with the management of the Trust, the Corporation and the
Partnerships, and (iv) understands that the Paired Shares have not been
registered under the Securities Act by reason of
-5-
6
their issuance in a transaction exempt from the registration requirements of the
Securities Act pursuant to Section 4(2) thereof or Rule 505 or 506 promulgated
under the Securities Act and such Paired Shares must be held indefinitely unless
a subsequent disposition thereof is registered under the Securities Act and
applicable state securities laws or is exempt from such registration.
SECTION 8. STATUS OF TENDERING HOLDER. Until the holder of
Class A Units tendered pursuant to this Agreement becomes a holder of record of
the Paired Shares issued in exchange therefor (in the case of a Paired Share
Election or a Combined Election) or until such holder has received cash in
exchange therefor (in the case of a Cash Election or a Combined Election), such
holder shall continue to hold and own such Class A Units for all purposes of the
Operating Partnership Agreement. In the case of a Paired Share Election or a
Combined Election, no such holder shall have any rights as a shareholder of the
Trust or a stockholder of the Corporation in respect of such Paired Shares until
such holder becomes a holder of record of such Paired Shares.
SECTION 9. RESERVATION OF SHARES; CLOSING OF TRANSFER BOOKS.
(a) The Corporation shall reserve and shall at all times have reserved out of
its authorized but unissued Corporation Shares, solely for the purpose of
effecting the exchange pursuant to this Agreement, enough Corporation Shares to
permit the exchange of the then outstanding Class A Units and shall use its best
efforts to cause the Trust to reserve and shall at all times have, solely for
the purpose of effecting the exchange pursuant to this Agreement, enough Trust
Shares to permit the exchange of the then outstanding Class A Units. All Paired
Shares which may be issued upon exchange of Class A Units shall be validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issuance thereof other than income taxes resulting from such
exchange.
(b) The Corporation shall use its best efforts to cause the
Trust not to close its transfer books so as to prevent the timely issuance of
Trust Shares pursuant to this Agreement. The Corporation shall not close its
transfer books so as to prevent the timely issuance of Corporation Shares
pursuant to this Agreement.
SECTION 10. NOTICES. All notices, documents and other
communications under this Agreement shall be in writing and shall be deemed
given when delivered personally or by overnight mail or when sent by facsimile
transmission, or four days after being mailed (by registered mail, return
receipt requested) to a party at the following address (or to such other address
as such party may have specified by notice given to the other parties pursuant
-6-
7
to this provision):
(a) If to the Corporation or the Operating Partnership, to:
Starwood Lodging Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Sidley & Austin
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Prudential:
Prudential Real Estate Investors
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ or 1690
with a copy to:
O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to any other Starwood Partner, to the address
specified on Schedule A hereto.
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-▇-
▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 11. DEFINITIONS. For purposes of this Agreement:
"Beneficially Owning" means owning Trust Shares directly,
indirectly or constructively by a person or entity through the
application of Section 318(a) of the Code, as modified by Section
856(d)(5) of the Code, or Section 544 of the Code, as modified by
Section 856(h) of the Code. The term "Beneficially Own" shall have a
correlative meaning.
"Business Day" means any day other than Saturday, Sunday and
any day on which banks are not open to do business in New York, New
York.
"Code" means the Internal Revenue Code of 1986, and the rules
and regulations promulgated thereunder, as amended from time to time.
"Corporation Shares" means the shares of Common Stock, par
value $.01 per share, of the Corporation.
"Declaration of Trust" means the Declaration of Trust of the
Trust dated August 25, 1969, as amended and restated as of June 6,
1988, and as further amended on February 1, 1995 and as amended from
time to time after the date of this Agreement.
"Disinterested Members" when used with respect to the Trust
has the meaning set forth in the Code of Regulations of the Trust and,
when used with respect to the Corporation, has the meaning set forth in
the By-Laws of the Corporation, in each case as amended from time to
time.
"Ownership Limit" when used with respect to Trust Shares, has
the meaning set forth in the Declaration of Trust and, when used with
respect to the Corporation Shares, has the meaning set forth in the
Restated Articles, in each case as amended from time to time.
"Paired Share" means a Corporation Share and a Trust Share
which are paired pursuant to the Pairing Agreement.
"Paired Share Closing Price" shall mean, with respect to a
particular date, the last reported sales price regular way on such date
or, in case no such reported sale takes place on such date, the average
of the reported closing bid
-8-
9
and asked prices regular way on such date, in either case on the New
York Stock Exchange, or if the Paired Shares are not then listed or
admitted to trading on such Exchange, on the principal national
securities exchange on which the Paired Shares are then listed or
admitted to trading or, if not then listed or admitted to trading on
any national securities exchange, the closing sale price on such date
of the Paired Shares or, in case no reported sale takes place on such
date then, the average of the closing bid and asked prices on such
date, on NASDAQ or any comparable system. If the Paired Shares are not
then quoted on NASDAQ or any comparable system, the Board of Trustees
of the Trust and the Board of Directors of the Corporation shall in
good faith determine the Paired Share Closing Price.
"Pairing Agreement" means the Pairing Agreement dated June 25,
1980 between the Corporation, as it may be amended from time to time.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the date first written above between the Trust,
the Corporation and certain other parties.
"REIT Requirements" shall mean the requirements for the Trust
to (i) qualify as a REIT under the Code and the rules and regulations
promulgated thereunder, (ii) avoid any federal income or excise tax
liability, (iii) retain its status as grandfathered pursuant to Section
132(c)(3) of the Deficit Reduction Act of 1984 and (iv) retain the
benefits of that certain private letter ruling issued by the Internal
Revenue Service to the Trust dated as of January 4, 1980.
"Restated Articles" means the Restated Articles of
Incorporation of the Corporation, as amended from time to time after
the date of this Agreement.
"Trust Shares" means the shares of Beneficial Interest,
$.01 par value, of the Trust.
SECTION 12. DETERMINATIONS AND INTERPRETATION. All agreements
between the Trust and the Corporation provided for in (or required by or
pursuant to) this Agreement shall be made on behalf of the Corporation by their
respective Disinterested Members, including, without limitation, any agreement
between the Corporation as to the election of the Paired Share Election, the
Cash Election or the Combined Election with respect to a tender of Class A Units
pursuant to Section 2(c), any agreement to permit the revocation, withdrawal or
modification of a tender of Class A Units pursuant to Section 1(c). All
interpretations of the terms of this Agreement shall be resolved on behalf of
the
-9-
10
Corporation by their respective Disinterested Members.
SECTION 13. PARTIAL INVALIDITY. In case any one or more of the
provisions contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions had never been contained herein unless the deletion of
such provision or provisions would result in such a material change as to cause
completion of the transactions contemplated hereby to be unreasonable.
SECTION 14. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
permitted successors or assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Corporation, the Trust, the
Realty Partnership and the Operating Partnership, shall also be for the benefit
of and enforceable by any subsequent holder of any Class Units.
SECTION 15. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in one or more counterparts, each of which shall be considered an
original counterpart, and shall become a binding agreement when the Corporation,
the Operating Partnership and each of the Starwood Partners shall have each
executed a counterpart of this Agreement.
SECTION 16. TITLES AND HEADINGS. Titles and headings to
Articles and Sections herein are inserted for convenience of reference only and
are not intended to be a part of or to affect the meaning or interpretation of
this Agreement.
SECTION 17. EXHIBITS. The Exhibits referred to in this
Agreement shall be construed with, and as an integral part of, this Agreement to
the same extent as if the same had been set forth verbatim herein.
SECTION 18. ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS. This
Agreement, including the Exhibits, contains the entire understanding of the
parties hereto with regard to the subject matter contained herein. In addition
to amendments and modifications permitted by Section 1(c), the parties hereto,
by mutual agreement in writing, may amend, modify and supplement this Agreement;
provided that any such amendment, modification or supplement shall be approved
by a majority of the Disinterested Members of the Corporation. The failure of
any party hereto to enforce at any time any provision of this Agreement shall
not be construed to be a waiver of such provision, nor in any way to
-10-
11
affect the validity of this Agreement or any part hereof or the right of such
party thereafter to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to constitute a waiver of any other or
subsequent breach.
SECTION 19. GOVERNING LAW. Except to the extent that Maryland
law is mandatorily applicable to the rights and obligations of the shareholders
of the Trust and the stockholders of the Corporation, this Agreement, and the
application or interpretation thereof, shall be governed exclusively by its
terms and by the internal laws of the State of New York, without regard to
principles of conflicts of laws as applied in the State of New York or any other
jurisdiction which, if applied, would result in the application of any laws
other than the internal laws of the State of New York.
SECTION 20. SUBMISSION TO JURISDICTION. Each of the parties
hereto irrevocably submits and consents to the jurisdiction of the United States
District Court for the Southern District of New York in connection with any
action or proceeding arising out of or relating to this Agreement, and
irrevocably waives any immunity from jurisdiction thereof and any claim of
improper venue, forum non conveniens or any similar basis to which it might
otherwise be entitled in any such action or proceeding.
SECTION 21. SPECIFIC PERFORMANCE. Each of the parties
acknowledges and agrees that in the event of any breach of this Agreement, the
non-breaching party or parties would be irreparably harmed and could not be made
whole by monetary damages. The parties hereby agree that in addition to any
other remedy to which they may be entitled at law or in equity, they shall be
entitled to compel specific performance of this Agreement in any action
instituted in any court of the United States or any state thereof having subject
matter jurisdiction for such action.
-11-
12
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties hereto or by their duly authorized officers, all as of
the date first above written.
STARWOOD LODGING CORPORATION,
a Maryland corporation
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and General Counsel
SLC OPERATING LIMITED PARTNERSHIP
By: STARWOOD LODGING CORPORATION,
general partner
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary and General Counsel
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇
WESTPORT HOSPITALITY, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
-12-
13
SCHEDULE A TO
UNITS EXCHANGE RIGHTS AGREEMENT
NOTICE ADDRESS FOR HOLDERS
[To be provided at Closing]
14
EXHIBIT A TO
CLASS A EXCHANGE RIGHTS AGREEMENT
LETTER OF TRANSMITTAL
To Tender Units
Pursuant to the Class A Exchange Rights Agreement
Dated as of February ___, 1997
TO: Starwood Lodging Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DESCRIPTION OF UNITS
NAMES(S) AND ADDRESS(ES) UNITS TENDERED (ATTACH
OF REGISTERED OWNERS ADDITIONAL LIST IF
NECESSARY)
Class A Units:
-----------------------
Total
15
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Starwood Lodging Trust
Corporation (the "Corporation") the above-described Class A Units (as defined in
the Class A Exchange Rights Agreement dated as of February ___, 1997 (the "Class
A Exchange Rights Agreement")) in accordance with the terms and conditions of
the Class A Exchange Rights Agreement and this Letter of Transmittal (which
together constitute the "Offer"), receipt of which is hereby acknowledged. All
terms used herein but not defined herein are used as defined in the Class A
Exchange Rights Agreement.
Subject to, and effective upon the issuance of Paired Shares
and/or the payment of cash, as the case may be, for the Class A Units tendered
hereby, the undersigned hereby assigns and transfers to the Corporation all
right, title and interest in and to all the Class A Units that are being
tendered hereby and irrevocably constitutes and appoints the Corporation (the
"Class A Unit Agent"), with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest), to (a)
transfer such Class A Units on the books of the Operating Partnership and (b)
receive all rights, privileges and benefits, and any and all obligations and
liabilities appertaining thereto and otherwise exercise all rights of beneficial
ownership of such Class A Units, all in accordance with the terms of the Offer.
The undersigned hereby represents and warrants (i) to the
Corporation that the undersigned has full power and authority to tender, sell,
assign and transfer the tendered Class A Units and that upon payment therefor,
the Corporation will acquire unencumbered title thereto, free and clear of all
liens, restrictions, charges and encumbrances and the same will not be subject
to any adverse claim, (ii) to the Corporation that the tender complies with each
and every provision of Section 1 of the Class A Exchange Rights Agreement, and
(iii) attached hereto is a calculation, to the best knowledge of the undersigned
after due inquiry (together with such supporting documentation as the
Corporation may reasonably request) of the maximum number of Paired Shares that
may be issued to the undersigned without causing either (x) the Trust to not
satisfy the REIT Requirements in any respect or (y) any person or entity to
Beneficially Own Trust Shares exceeding the Ownership Limit. The undersigned
will, upon request, execute any additional documents deemed by the Trust or the
Corporation to be reasonably necessary or desirable to complete the sale,
assignment and transfer of the tendered Class A Units.
-16-
16
Unless a registration statement relating to any Paired Shares
to be delivered to the undersigned is effective under the Securities Act of
1933, as amended (the "Securities Act"), the undersigned hereby represents and
warrants to the Corporation that the undersigned (A) is an "accredited investor"
within the meaning of Rule 501 under the Securities Act, or (B) has sufficient
knowledge and experience in financial and business matters and in investing in
entities similar to the Partnerships, the Corporation so as to be able to
evaluate the risks and merits of its investment in the Partnerships, the
Corporation and it is able financially to bear the risks thereof, and in either
case (i) has had an opportunity to discuss the business, management and
financial affairs of the Trust, the Corporation and the Partnerships with the
management of the Trust, the Corporation and the Partnerships, and (ii)
understands that any such Paired Shares have not been registered under the
Securities Act by reason of their issuance in a transaction exempt from the
registration requirements of the Securities Act pursuant to Section 4(2) thereof
or Rule 505 or 506 promulgated under the Securities Act and any such Paired
Shares must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act and applicable state securities laws or is
exempt from such registration. If not sold pursuant to an effective registration
statement, any such Paired Shares will bear an appropriate legend indicating
that such Paired Shares have not been registered under the Securities Act and
resale of such Paired Shares is restricted under applicable securities laws.
All authority conferred or agreed to be conferred in this
Letter of Transmittal shall not be affected by, and shall survive, the death or
incapacity of the undersigned, and any obligation of the undersigned hereunder
shall be binding upon the successors, assigns, heirs, executors, administrators
and legal representatives of the undersigned.
The undersigned understands that, except as provided in
Section 2(b) of the Class A Exchange Rights Agreement, a tender of Class A Units
pursuant to the Class A Exchange Rights Agreement is irrevocable and constitutes
a binding agreement between the undersigned and the Corporation upon the terms
and subject to the conditions of the Class A Exchange Rights Agreement.
Unless otherwise indicated under "Special Delivery
Instructions", please mail any Paired Shares issuable upon exchange of the Class
A Units tendered hereby (or, if the Cash Election or the Combined Election is
made, the cash payment payable pursuant thereto) to the address(es) of the
registered holder(s) appearing under "Description of Units." In the event that
the Special Delivery Instructions are completed, please
-17-
17
issue the Paired Shares (or, if the Cash Election or the Combined Election is
made, the cash payment payable pursuant thereto) in the name of the registered
holder(s) and transmit the same to the person or persons so indicated.
The Corporation and the undersigned agree that they will
cooperate with each other and will make, execute, acknowledge, deliver, record
and file, or cause to be made, executed, acknowledged, delivered, recorded and
filed, at such times and places as the other may reasonably deem necessary, all
other and further documents and instruments, and will take all other and further
actions, as the other may reasonably request from time to time in order to
effectuate the purposes and provisions of the tender made pursuant to this
Letter of Transmittal.
-18-
18
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if Paired Shares or the cash payment are
to be sent to someone other than the undersigned or to the undersigned at an
address other than that above.
Mail certificate(s) for Paired Shares or cash payment to:
Name
----------------------------------------------------------------------------
(please print)
Address
-------------------------------------------------------------------------
--------------------------------------------------------------------------------
(include Zip Code)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Tax Identification or Social Security Number)
SIGN HERE
Complete Substitute Form W-9 included
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Signature(s) of holder of Units)
(Must be signed by registered holder(s) as name(s) appear(s) on books and
records of the Partnership. If signature is by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, please set forth full title
and see instruction 4.
Dated
---------------------------------------------------------------------------
Name(s)
-------------------------------------------------------------------------
(please print)
Capacity
(Full Title)
--------------------------------------------------------------------
Address
-------------------------------------------------------------------------
(include Zip Code)
-19-
19
Area Code and Tel. No.__________________________________________________________
Tax Identification or
Social Security No._____________________________________________________________
(Complete Substitute Form W-9)
Guarantee of Signature(s)
(See Instruction 1)
Authorized
Signature_______________________________________________________________________
Name of
Firm____________________________________________________________________________
Dated___________________________________________________________________________
INSTRUCTIONS
Forming Part of the Terms and Conditions of the
Class A Exchange Rights Agreement
1. GUARANTEE OF SIGNATURE. No signature guarantee on this
Letter of Transmittal is required unless the registered holder of the Class A
Units has completed the box entitled "Special Delivery Instructions". In such
case all signatures on this Letter of Transmittal must be guaranteed by a member
firm of any registered national securities exchange in the United States or of
the National Association of Securities Dealers, Inc. or by a commercial bank or
trust company (not a savings bank or a savings and loan association) having an
office, branch or agency in the United States.
2. DELIVERY OF LETTER OF TRANSMITTAL. This Letter of
Transmittal is to be completed by the holder of Class A Units. A properly
completed and duly executed Letter of Transmittal and any other documents
required by this Letter of Transmittal must be received by the Class A Unit
Agent.
No alternative, conditional or contingent tenders will be
accepted, except as permitted pursuant to the Class A Exchange Rights Agreement.
3. INADEQUATE SPACE. If the space provided herein is
inadequate, the Units tendered and/or other information required should be
listed on a separate schedule attached hereto.
4. SIGNATURES ON LETTER OF TRANSMITTAL. The signature must
correspond with the name as shown on the books and
-20-
20
records of the Partnerships without any change whatsoever.
If any of the Class A Units tendered hereby are owned of
record by two or more joint owners, all such owners must sign the Letter of
Transmittal.
If any tendered Class A Units are registered in different
names, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations.
If this Letter of Transmittal is signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, each
person should so indicate when signing, and proper evidence satisfactory to the
Class A Unit Agent of their authority so to act must be submitted.
5. SPECIAL DELIVERY INSTRUCTIONS. If a certificate for Paired
Shares or the cash payment is to be sent to someone other than the signer of
this Letter of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed.
6. WAIVER OF CONDITIONS. The Corporation reserves the right to
waive in its sole discretion any of the specified conditions of the Offer in the
case of the Class A Units tendered; provided that any such waiver shall not
adversely affect any holder of outstanding Class A Units without the consent of
such holder.
7. BACK-UP WITHHOLDING. Under the Federal income tax law, a
person surrendering Class A Units must provide the Class A Unit Agent with his
correct taxpayer identification number ("TIN") on Substitute Form W-9 below
unless an exemption applies. If the correct TIN is not provided, a $50 penalty
may be imposed by the Internal Revenue Service and payments made in exchange for
the surrendered Class A Units may be subject to back-up withholding of that rate
provided by the Federal income tax law (such rate being at the date of the Class
A Exchange Rights Agreement, 31%).
The TIN that must be provided is that of the registered holder
of the Class A Units. The TIN for an individual is his social security number.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and
requests for assistance or additional copies of the Class A Exchange Rights
Agreement and the Letter of Transmittal may be directed to the Class A Unit
Agent at the address set forth above.
-21-
21
IMPORTANT TAX INFORMATION
Under Federal income tax laws, a holder whose tendered Class A
Units are accepted for payment is required by law to provide the Class A Unit
Agent (as payer) with his correct taxpayer identification number on Substitute
Form W-9 below. If such holder is an individual, the taxpayer identification
number is his social security number. If the Class A Unit Agent is not provided
with the correct taxpayer identification number, the holder may be subject to a
$50 penalty imposed by the Internal Revenue Service. In addition, payments that
are made to such holder with respect to Class A Units purchased pursuant to the
Offer may be subject to back-up withholding.
If back-up withholding applies, the Class A Unit Agent is
required to withhold, at that rate provided by the Federal income tax law (such
rate being at the date of the Class A Exchange Rights Agreement 31%), of any
such payments made to the holder of Class A Units. Paired Shares otherwise
deliverable hereunder may, at the expense (and with all risk of loss for the
account) of the undersigned, be sold to pay such amounts. Back-up withholding is
not an additional tax. Rather, the tax liability of persons subject to back-up
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent back-up withholding on payments that are made to a
holder of Class A Units purchased pursuant to the Offer, the holder is required
to notify the Class A Unit Agent of his correct taxpayer identification number
by completing the form below certifying that the taxpayer identification number
provided on Substitute Form W-9 is correct.
WHAT NUMBER TO GIVE THE AGENT
The holder is required to give the Class A Unit Agent the
social security number or employer identification number of the record owner of
the Class A Units.
-22-
22
PAYER'S NAME:
Starwood Lodging Corporation
Substitute Part 1 - Please provide your TIN in the box at Social Security
Form W-9 right and certify by signing and dating below Number/Employer
Identification
Number
----------------- --------------------------------------------------- ---------------
Department of the Certification - Under the penalties of perjury,
Treasury/Internal (i) I certify that the information provided on this
Revenue Service form is true, correct and complete and (ii) I am
not subject to backup withholding because: (a) I
am exempt from backup Service withholding, or (b) I
have not been notified by the Internal Revenue
Service (IRS) that I am subject to backup
withholding as a result of a failure to report all
interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup
withholding.
Signature ________________________________________ Date __________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACK-UP
WITHHOLDING AT THAT RATE PROVIDED BY THE FEDERAL INCOME TAX LAW (SUCH
RATE BEING AT THE DATE OF THE CLASS A EXCHANGE RIGHTS AGREEMENT 31%) OF
ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER.
-23-