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Exhibit 10.3
$815,828,000
STARWOOD HOTELS & RESORTS WORLDWIDE, INC.
$244,159,000
SERIES A ZERO COUPON CONVERTIBLE SENIOR NOTES DUE 2021
$571,669,000
SERIES B ZERO COUPON CONVERTIBLE SENIOR NOTES DUE 2021
REGISTRATION RIGHTS AGREEMENT
May 25, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Starwood Hotels & Resorts Worldwide, Inc., a Maryland corporation (the
"COMPANY"), proposes to issue and sell to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (the
"INITIAL PURCHASER"), upon the terms set forth in a purchase agreement, dated
May 7, 2001 (the "PURCHASE AGREEMENT"), $244,159,000 in aggregate principal
amount at maturity of its Series A Zero Coupon Convertible Senior Notes due 2021
($292,991,000 in aggregate principal amount at maturity if the Initial Purchaser
exercises its option pursuant to the Purchase Agreement) (the "SERIES A NOTES")
and $571,669,000 in aggregate principal amount at maturity of its Series B Zero
Coupon Convertible Senior Notes due 2021 ($686,003,000 in aggregate principal
amount at maturity if the Initial Purchaser exercises its option pursuant to the
Purchase Agreement) (the "SERIES B NOTES" and, together with the Series A Notes,
the "NOTES"). The Notes will be convertible into Shares (the "SHARES"), each
consisting of one share of common stock of the Company and one Class B share of
Starwood Hotels & Resorts, a Maryland real estate investment trust (the
"TRUST"), at the conversion price set forth in the Offering Memorandum dated May
7, 2001 (the "Offering Memorandum"). The Notes will be issued pursuant to an
Indenture, dated as of May 25, 2001 (the "INDENTURE"), among the Company, each
guarantor listed on the signature pages thereto (the "GUARANTORS") and Firstar
Bank, N.A., as trustee (the "TRUSTEE"). As an inducement to the Initial
Purchaser to enter into the Purchase Agreement, the Company and the Guarantors
agree with the Initial Purchaser, (i) for the benefit of the Initial Purchaser
and (ii) for the benefit of the holders of the Notes and the Shares issuable
upon conversion or redemption of the Notes (collectively, the "SECURITIES") from
time to time until such time as such Securities have been sold pursuant to a
Shelf Registration Statement (as defined below) (each of the foregoing a
"HOLDER" and, together, the "HOLDERS"), as follows:
1. Shelf Registrations. The Company and the Guarantors, as applicable,
shall take the following actions:
(a) The Company and the Trust shall use their reasonable
efforts to file with the Securities and Exchange Commission (the
"COMMISSION") not later than the date 90 days after the earliest date
of original issuance of any of the Notes (the "ISSUE DATE") and
thereafter use their reasonable efforts to cause to be declared
effective as promptly as practicable but in no event later than the
date 150 days after the Issue Date a registration statement (the
"SHARES SHELF REGISTRATION STATEMENT") on such form under the
Securities Act of 1933, as amended (the
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"Securities Act") as the Company deems appropriate relating to the
offer and sale of the Shares issuable upon conversion of the Notes by
the Holders thereof from time to time in accordance with the methods of
distribution set forth in the Shares Shelf Registration Statement and
Rule 415 under the Securities Act (hereinafter, the "SHARES SHELF
REGISTRATION"); provided, however, that no Holder (other than the
Initial Purchaser) shall be entitled to have the Securities held by it
covered by such Shares Shelf Registration Statement unless such Holder
agrees in writing to be bound by all the provisions of this Agreement
applicable to such Holder.
(b) The Company and the Guarantors shall file with the
Commission not later than the date 365 days after the Issue Date (such
365th day being the "FILING DEADLINE") and thereafter use their
reasonable efforts to cause to be declared effective as promptly as
practicable but in no event later than the date 450 days after the
Issue Date (such 450th day being the "EFFECTIVENESS DEADLINE") a
registration statement (the "NOTES SHELF REGISTRATION STATEMENT" and,
together with the Shares Shelf Registration Statement, the "SHELF
REGISTRATION STATEMENTS") on such form under the Securities Act as the
Company may deem appropriate relating to the offer and sale of the
Transfer Restricted Securities (as defined herein) by the Holders
thereof from time to time in accordance with the methods of
distribution set forth in the Notes Shelf Registration Statement and
Rule 415 under the Securities Act (hereinafter, the "NOTES SHELF
REGISTRATION" and, together with the Shares Shelf Registration, the
"SHELF REGISTRATIONS"); provided, however, that no Holder (other than
the Initial Purchaser) shall be entitled to have the Securities held by
it covered by such Notes Shelf Registration Statement unless such
Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(c) Subject to Section 2(c) hereof, the Company and the
Guarantors shall use their reasonable efforts to keep the Shelf
Registration Statements continuously effective in order to permit the
prospectuses included therein to be lawfully delivered by the Holders
of the relevant Securities, until the earliest of the date two years
(or for such longer period if extended pursuant to Section 2(i) below)
from the last date of original issuance of any of the Notes (provided
that the Company or the Guarantors provide an opinion of counsel or an
no-action letter of the Commission that exemption under Rule 144(k)
under the Securities Act is then available for both the Notes and the
Shares issuable upon conversion for non-affiliates of the Company or
the Guarantors, as applicable, with respect to either Shelf
Registration Statement) and the date when all the Transfer Restricted
Securities covered by either Shelf Registration Statement have been
sold pursuant thereto (in any case, such period being called the "SHELF
REGISTRATION PERIOD"). In the event that the Company or the Guarantors
fail to provide such opinion of counsel or no-action letter, the
Company and the Guarantors shall use their reasonable efforts to keep
the Shelf Registration Statements continuously effective until such
time as either of them deliver such opinion of counsel or no-action
letter.
(d) Notwithstanding any other provision of this Agreement to
the contrary, the Company and the Guarantors shall cause the Shelf
Registration Statements and the related prospectuses and any amendment
or supplement thereto, as of the effective date of such Shelf
Registration Statement, amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities
Act and the rules and regulations of the Commission and (ii) not to
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(e) The Company shall mail a notice of registration statement
and selling securityholder notice and questionnaire, in substantially
the form attached as Annex A to the Offering Memorandum (a "NOTICE AND
QUESTIONNAIRE"), to each Holder to obtain certain information regarding
such Holder for use in connection with the prospectus included in any
Shelf Registration Statement. To be named as a selling securityholder
in any Shelf Registration Statement and the
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related prospectus at the time of such Shelf Registration Statement's
effectiveness, Holders must complete and deliver to the Company and the
Guarantors the completed Notice and Questionnaire at least three (3)
Business Days prior to the intended distribution of Transfer Restricted
Securities pursuant to such Shelf Registration Statement. Thereafter,
any Holder wishing to sell Transfer Restricted Securities pursuant to
either Shelf Registration Statement and related prospectus shall
deliver a Notice and Questionnaire to the Company. From and after the
date a Shelf Registration Statement is declared effective, the Company
shall, as promptly as practicable but in any event within five (5)
Business Days of receipt of a Notice and Questionnaire is delivered (i)
if required by applicable law, file with the Commission a
post-effective amendment to the applicable Shelf Registration Statement
or prepare and, if required by applicable law, file a supplement to the
related prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other document required
under the Securities Act so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in such applicable
Shelf Registration Statement and the related prospectus in such a
manner as to permit such Holder to deliver such prospectus to
purchasers of the Transfer Restricted Securities in accordance with
applicable law and, if the Company and the Guarantors shall file a
post-effective amendment to such applicable Shelf Registration
Statement, use reasonable efforts to cause such post-effective
amendment to be declared effective under the Securities Act as promptly
as is practicable, but in any event by the date (the "AMENDMENT
EFFECTIVENESS DEADLINE DATE") that is thirty (30) days after the date
such post-effective amendment is required by this clause to be filed
and (ii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 1(d)(i); provided, however, notwithstanding
the foregoing, if such Notice and Questionnaire is delivered during a
Deferral Period (as defined in Section 2(c)), the Company shall so
inform the Holder delivering such Notice and Questionnaire and shall
take the actions set forth in clauses (i) and (ii) above upon
expiration of the Deferral Period in accordance with Section 2(b). Each
Holder that delivers, at any time, a duly completed Notice of
Questionnaire together with such other information as may be reasonably
requested of such Holder pursuant to this Agreement, and that is named
as a selling securityholder in an effective Shelf Registration
Statement or post-effective amendment thereto, is hereafter referred to
as a "NOTICE HOLDER" with respect to such Shelf Registration Statement.
Notwithstanding anything contained herein to the contrary, (i) the
Company and the Guarantors shall be under no obligation to name any
Holder as a selling securityholder in any Shelf Registration Statement
or related prospectus unless and until such Holder shall have timely
delivered a completed Notice and Questionnaire, together with such
other information regarding such Holder and the intended distribution
as may be reasonably requested by the Company and (ii) the Amendment
Effectiveness Deadline Date shall be extended by up to ten (10) days
from the expiration of a Deferral Period (and the Company and the
Guarantors shall incur no obligation to pay Additional Interest during
such extension) if such Deferral Period is in effect on the Amendment
Effectiveness Deadline Date; and provided further, however, that the
Company and the Guarantors shall not be obligated to file more than one
(1) post-effective amendment or supplement in any thirty (30) day
period following the date the applicable Shelf Registration Statement
is declared effective for the purpose of naming Holders as selling
securityholders who were not named in such Shelf Registration Statement
at the time of effectiveness. Each Holder of Transfer Restricted
Securities agrees that if such Holder wishes to sell Transfer
Restricted Securities pursuant to either Shelf Registration Statement
and related prospectus, it will do so only in accordance with this
Section 1(d) and Section 2(c) hereof.
2. Registration Procedures. In connection with any Shelf Registration
required by Section 1 hereof, the following provisions shall apply:
(a) The Company and the Guarantors shall furnish to the
Initial Purchaser, prior to the filing thereof with the Commission, a
copy of the Shelf Registration Statements and each amendment thereof
and each supplement, if any, to the prospectuses included therein and
in the
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event that the Initial Purchaser (with respect to any portion of an
unsold allotment from the original offering) is participating in the
Shelf Registration Statements, the Company and the Guarantors shall use
their reasonable efforts to reflect in each such document, when so
filed with the Commission, such comments as the Initial Purchaser
reasonably may propose within a reasonable period of time.
(b) Subject to Section 2(c), upon the occurrence of any change
or event, as a result of which any Shelf Registration Statement or
prospectus contained therein shall (i) contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or (ii) otherwise not be effective or usable for resale of
Transfer Restricted Securities during the period required by this
Agreement (a "Material Event"), the Company and the Guarantors shall
file as promptly as practicable an appropriate amendment to such Shelf
Registration Statement or a supplement to the related prospectus or any
document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Shelf
Registration Statement and prospectus curing such defect and, in the
case of an amendment to the Shelf Registration Statement, use their
reasonable efforts to cause such amendment to be declared effective as
soon as practicable.
(c) Upon (A) the issuance by the Commission of a stop order
suspending the effectiveness of any Shelf Registration Statement or the
initiation of proceedings with respect to any Shelf Registration
Statement under Section 8(d) or 8(c) of the Securities Act or (B) the
occurrence of a Material Event or a prospective Material Event and the
general counsel of the Company reasonably determines that the
disclosure of material non-public information pursuant to Section 2(b)
would have a material adverse effect on the Company and its
subsidiaries taken as a whole, the Company (on behalf of itself and the
Guarantors) shall give notice to the Notice Holders that the
availability of such Shelf Registration Statement is suspended (a
"DEFERRAL NOTICE") and, upon receipt of any Deferral Notice, each
Notice Holder agrees not to sell any Transfer Restricted Securities
pursuant to such Shelf Registration Statement until such Notice Holder
is advised in writing by the Company and the Guarantors that the
prospectus may be used, and has received copies the amended or
supplemented prospectus or of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in such
prospectus. The Company and the Guarantors, as applicable, will use
reasonable efforts to ensure that the use of the prospectus may be
resumed (x) in the case of clause (A) above, as promptly as is
practicable or (y) in the case of clause (B) above, as soon as, in the
sole judgment of the general counsel of the Company, public disclosure
of such Material Event would not be prejudicial to or contrary to the
interests of the Company or, if necessary to avoid unreasonable burden
or expense, as soon as practicable thereafter. The Company shall be
entitled to exercise its right under this Section 2(c) to suspend the
availability of the Shelf Registration Statements or any prospectus,
without incurring or accruing any obligation to pay Additional Interest
pursuant to Section 6, for one or more periods not to exceed 45 days
(or 75 days if a previously undisclosed proposed or pending material
business transaction was required to be disclosed and such disclosure
would, in the good faith judgment of the General Counsel of the
Company, impede the Company's ability to consummate such transaction)
in any 90-day period and not to exceed, in the aggregate, 90 days in
any 360-day period (such period, during which the availability of the
Shelf Registration Statements and any prospectus is suspended being a
"DEFERRAL PERIOD").
(d) The Company and the Guarantors shall make every reasonable
effort to obtain the withdrawal at the earliest possible time of any
order suspending the effectiveness of any Shelf Registration Statement.
(e) The Company (on behalf of itself and the Guarantors) shall
furnish to each Notice Holder included within the coverage of any Shelf
Registration, upon request and without charge, at
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least one copy of the applicable Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules.
(f) The Company (on behalf of itself and the Guarantors)
shall, during the Shelf Registration Period, deliver to each Notice
Holder included within the coverage of any Shelf Registration, without
charge, as many copies of the prospectus (including each preliminary
prospectus) included in the applicable Shelf Registration Statement and
any amendment or supplement thereto as such person may reasonably
request. Subject to the provisions of this Agreement, the Company and
the Guarantors consent to the use of the prospectus or any amendment or
supplement thereto by each Notice Holder of the Transfer Restricted
Securities in connection with the offering and sale of the Transfer
Restricted Securities covered by the prospectus, or any amendment or
supplement thereto, included in the applicable Shelf Registration
Statement.
(g) Prior to any public offering of the Transfer Restricted
Securities pursuant to any Shelf Registration Statement, the Company
and the Guarantors shall register or qualify or cooperate with the
Notice Holders and their respective counsel in connection with the
registration or qualification of the Transfer Restricted Securities for
offer and sale under the securities or "blue sky" laws of such states
of the United States as any Notice Holder reasonably requests in
writing and do any and all other acts or things necessary or advisable
to enable the offer and sale in such jurisdictions of the Transfer
Restricted Securities covered by any Shelf Registration Statement;
provided, however, that the Company and the Guarantors shall not be
required to (i) qualify generally to do business in any jurisdiction
where they are not then so qualified or (ii) take any action which
would subject them to general service of process or to taxation in any
jurisdiction where it is not then so subject.
(h) In connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, the Company and the Guarantors shall cooperate
with the Notice Holders to facilitate the timely preparation and
delivery of certificates representing the Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement free
of any restrictive legends and in such denominations and registered in
such names as the Notice Holders may request in writing a reasonable
period of time prior to sales of the Transfer Restricted Securities
pursuant to such Shelf Registration Statement.
(i) If the Company (on behalf of itself and the Guarantors)
delivers a Deferral Notice, then the Initial Purchaser and the Notice
Holders shall suspend use of the applicable prospectus, and the period
of effectiveness of each Shelf Registration Statement provided for in
Section 1(c) above shall be extended by the number of days from and
including the date of the giving of such notice to and including the
date when the Initial Purchaser and the Holders shall have received an
amended or supplemented prospectus pursuant to Section 2(e).
(j) Not later than the effective date of any Shelf
Registration Statement, the Company and the Guarantors will provide a
CUSIP number for the Notes and the Shares registered under such Shelf
Registration Statement, and provide the trustee with printed
certificates for such Notes, in a form eligible for deposit with The
Depository Trust Company.
(k) The Company and the Guarantors will use their reasonable
best efforts to comply with all rules and regulations of the Commission
to the extent and so long as they are applicable to any Shelf
Registration and will make generally available to its security holders
with respect to any Shelf Registration Statement, as soon as
practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) covering a twelve-month period
beginning after the effective date of the Shelf Registration Statement;
provided, that if the information required by this Section 3(k) is
filed with the Commission and is publicly available, it shall be
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deemed to have satisfied its obligation to furnish such information to
its securityholders pursuant to this Section 3(k).
(l) The Company and the Guarantors shall cause the Indenture
to be qualified under the Trust Indenture Act of 1939, as amended, in a
timely manner and, in connection therewith, shall cooperate with the
Trustee and Holders to effect such changes, if any, as shall be
necessary for such qualification. In the event that such qualification
would require the appointment of a new trustee under the Indenture, the
Company and the Guarantors shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(m) The Company and the Guarantors may require each Holder
that proposes to sell Transfer Restricted Securities pursuant to any
Shelf Registration Statement to furnish to the Company and the
Guarantors a properly completed Notice and Questionnaire together with
such information regarding the Holder and the distribution of the
Transfer Restricted Securities as the Company and the Guarantors may
from time to time reasonably require for inclusion in such Shelf
Registration Statement, and the Company and the Guarantors may exclude
from such registration the Transfer Restricted Securities of any Holder
that fails to furnish such information within a reasonable time after
receiving such request.
(n) The Company and the Guarantors shall enter into such
customary agreements (including, if requested, an underwriting
agreement in customary form) and take all such other action, if any, as
any Holder shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration.
(o) The Company and the Guarantors shall (i) make reasonably
available for inspection by the Holders, any underwriter participating
in any disposition pursuant to any Shelf Registration Statement and any
attorney, accountant or other agent retained by such Holders or any
such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and the Guarantors
and (ii) cause the Company's and the Guarantors' officers, directors,
employees, accountants and auditors to supply all relevant information
reasonably requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that the
foregoing inspection and information gathering shall be coordinated on
behalf of the other parties, by one counsel designated by and on behalf
of such other parties as described in Section 3 hereof ; provided,
further, the Company and the Guarantors shall have no obligation to
provide any information to any person that has not entered into
agreement, in form reasonably satisfactory to the Company, providing
that such person shall keep such information confidential and use such
information only for the due diligence purposes in connection with the
applicable Shelf Registration.
(p) The Company and the Guarantors, if requested by any Notice
Holder covered by any Shelf Registration Statement, shall cause (i)
their counsel to deliver an opinion and updates thereof relating to the
Securities in customary form addressed to such Notice Holders and the
managing underwriters, if any, thereof and dated, in the case of the
initial opinion, the effective date of such Shelf Registration
Statement (it being agreed that the matters to be covered by such
opinion shall include, without limitation, the due incorporation and
good standing of the Company and its subsidiaries; the qualification of
the Company and its subsidiaries to transact business as foreign
corporations; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 2(n) hereof; the
due authorization, execution, authentication and issuance, and the
validity and enforceability, of the Securities; the absence, to such
counsel's knowledge, of material legal or governmental proceedings
involving the Company and its subsidiaries; the absence of governmental
approvals required to be obtained in connection with such Shelf
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Registration Statement, the offering and sale of the Securities, or any
agreement of the type referred to in Section 2(n) hereof; the
compliance as to form of such Shelf Registration Statement and any
documents incorporated by reference therein and of the Indenture with
the requirements of the Securities Act and the Trust Indenture Act,
respectively; and, at the time the foregoing opinion is delivered, such
counsel shall additionally state that in the course of the preparation
of such Shelf Registration Statement, it has participated in
conferences with officers and other representatives of the Company and
the Guarantors, including their other counsel and independent public
accountants, and your representatives, during the course of which the
contents of the Shelf Registration Statement and related matters were
discussed and, although it has not independently checked the accuracy
or completeness of, or otherwise verified, and is not passing upon, and
assumes no responsibility for, the accuracy, completeness or fairness
of the statements contained in the Shelf Registration Statement, except
to the extent specified in therein, and although it has relied as to
facts necessary to the determination of materiality, to a certain
extent, upon the judgment of officers and representatives of the
Company, as a result of such consideration and participation, nothing
has come to its attention which causes it to believe that, as of its
date and the Closing Date, the Shelf Registration Statement contained
any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to
the financial statements, financial and statistical data and supporting
schedules included or incorporated by reference in the Shelf
Registration Statement); (ii) their officers to execute and deliver all
customary documents and certificates and updates thereof reasonably
requested by any underwriters of the Securities and (iii) their
independent public accountants and the independent public accountants
with respect to any other entity for which financial information is
provided in such Shelf Registration Statement to provide to the Notice
Holders and any underwriter therefor a comfort letter in customary form
and covering matters of the type customarily covered in comfort letters
in connection with primary underwritten offerings, subject to receipt
of appropriate documentation as contemplated, and only if permitted, by
the applicable Statement of Auditing Standards.
(q) The Company will provide promptly to the Initial Purchaser
and each Holder, upon request, each document filed by the Company and
the Guarantors with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Securities and Exchange Act of 1934,
as amended (the "Exchange Act").
3. Registration Expenses. (a) All expenses incident to the Company's
and the Guarantors' performance of and compliance with this Agreement will be
borne by the Company, regardless of whether any Shelf Registration Statement is
ever filed or becomes effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing of
prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company and
the Guarantors;
(v) all application and filing fees in connection with listing
the Shares on a national securities exchange or automated quotation
system pursuant to the requirements hereof; and
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(vi) all fees and disbursements of independent certified
public accountants of the Company and the Guarantors (including the
expenses of any special audit and comfort letters required by or
incident to such performance).
The Company will bear its and the Guarantors' internal expenses (including,
without limitation, all salaries and expenses of their officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any person, including special experts, retained by the
Company and the Guarantors.
(b) In connection with any Shelf Registration Statement required by
this Agreement, the Company and the Guarantors will reimburse the Initial
Purchaser and the Notice Holders of Transfer Restricted Securities who are
selling or reselling Securities pursuant to the "Plan of Distribution" contained
in such Shelf Registration Statement for the reasonable fees and disbursements
(not exceeding $25,000 in the aggregate) of not more than one counsel, who shall
be ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ unless another firm shall be chosen by the Notice Holders of
a majority in principal amount at maturity of the Transfer Restricted Securities
for whose benefit such Shelf Registration Statement is being prepared.
4. Indemnification. (a) The Company and the Guarantors agree to
indemnify and hold harmless each Notice Holder and each person, if any, who
controls such Notice Holder within the meaning of the Securities Act or the
Exchange Act (each Notice Holder and such controlling persons are referred to
collectively as the "INDEMNIFIED PARTIES") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Shelf Registration Statement or prospectus
or in any amendment or supplement thereto or in any preliminary prospectus
relating to such Shelf Registration, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect thereof;
provided, however, that (i) the Company and the Guarantors shall not be liable
in any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in any Shelf Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to such Shelf Registration in reliance upon and in
conformity with written information pertaining to such Notice Holder and
furnished to the Company or the Guarantors by or on behalf of such Notice Holder
specifically for inclusion therein and (ii) with respect to any untrue statement
or omission or alleged untrue statement or omission made in any preliminary
prospectus relating to any Shelf Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any Notice
Holder from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that a prospectus
relating to such Securities was required to be delivered by such Notice Holder
under the Securities Act in connection with such purchase and any such loss,
claim, damage or liability of such Notice Holder results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the final
prospectus if the Company and the Guarantors had previously furnished copies
thereof to such Notice Holder; provided further, however, that this indemnity
agreement will be in addition to any liability which the Company and the
Guarantors may otherwise have to such Indemnified Party. The Company and the
Guarantors shall also indemnify underwriters, their officers and directors and
each person who controls such underwriters within the meaning of the Securities
Act or the Exchange Act to the same extent as provided above with respect to the
indemnification of the Notice Holders of the Securities if requested by such
Notice Holders.
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(b) Each Notice Holder, severally and not jointly, will indemnify and
hold harmless the Company and the Guarantors and each person, if any, who
controls the Company or the Guarantors within the meaning of the Securities Act
or the Exchange Act from and against any losses, claims, damages or liabilities
or any actions in respect thereof, to which the Company or the Guarantors or any
such controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Shelf Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to such Shelf Registration Statement, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or omission or alleged untrue statement
or omission was made in reliance upon and in conformity with written information
pertaining to such Notice Holder and furnished to the Company or the Guarantors
by or on behalf of such Notice Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this clause, shall
reimburse, as incurred, the Company and the Guarantors for any legal or other
expenses reasonably incurred by the Company or the Guarantors or any such
controlling person in connection with investigating or defending any loss,
claim, damage, liability or action in respect thereof. This indemnity agreement
will be in addition to any liability which such Notice Holder may otherwise have
to the Company or the Guarantors or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 4
of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party in writing of the commencement thereof; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 4 except to the extent
it has been materially prejudiced by such failure and, provided further, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 4. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened action in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action, and does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the exchange of the Securities,
pursuant to the Shelf Registrations, or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable
10
considerations. The relative fault of the parties shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or any Guarantor, as the case may be, on the
one hand or such Notice Holder or such other indemnified party, as the case may
be, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantors, and the Holders agree that it would not be just and
equitable if contributions pursuant to this Section 4(d) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 4(d), the Notice Holders shall not be required to contribute any amount
in excess of the amount by which the net proceeds received by such Notice
Holders from the sale of the Securities pursuant to any Shelf Registration
Statement exceeds the amount of damages which such Notice Holders have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls such indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such indemnified
party and each person, if any, who controls the Company or any Guarantor within
the meaning of the Securities Act or the Exchange Act shall have the same rights
to contribution as the Company or any Guarantor.
(e) The agreements contained in this Section 4 shall survive the sale
of the Securities pursuant to the Shelf Registration Statements and shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. Holders Obligations. Each Holder agrees, by acquisition of the
Transfer Restricted Securities, that no Holder of Transfer Restricted Securities
shall be entitled to sell any of such Transfer Restricted Securities pursuant to
any Shelf Registration Statement or to receive a prospectus relating thereto,
unless such Holder has furnished the Company and the Guarantors with a Notice
and Questionnaire as required pursuant to Section 1(d) hereof and the
information set forth in the next sentence. Each Notice Holder agrees promptly
to furnish to the Company and the Guarantors all information required to be
disclosed in order to make the information previously furnished to the Company
and the Guarantors by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such Transfer
Restricted Securities as the Company and the Guarantors may from time to time
reasonably request. Any sale of any Transfer Restricted Securities by any Holder
shall constitute a representation and warranty by such Holder that the
information relating to such Holder and its plan of distribution is as set forth
in the prospectus delivered by such Holder in connection with such disposition,
that such prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Holder or its plan
of distribution and that such prospectus does not as of the time of such sale
omit to state any material fact relating to or provided by such Holder or its
plan of distribution necessary to make the statements in such prospectus, in the
light of the circumstances under which they were made, not misleading. Each
Holder shall notify the Company no later than three (3) business days prior to
any proposed sale by such Holder pursuant to a Shelf Registration Statement of
such proposed sale which notice shall be effective for five (5) business days.
Each Holder agrees that within ten (10) business days of any sale, disposition
or other transfer of Securities, whether pursuant to a Shelf Registration
Statement or exemption from registration under the Securities Act, such Holder
shall provide written notice to the Company and the Guarantors specifying the
amount of Securities sold, disposed of or transferred and the name and address
of the transferee of such Securities. Each Holder acknowledges that such Holder,
when it sells Securities pursuant to a Shelf Registration Statement, will be
required to be named as a selling securityholder in the related prospectus, will
be required to deliver a prospectus to the purchaser, and will
11
be subject to certain of the civil liability provisions under the Securities Act
in connection with such Holder's sale.
6. Additional Interest as Liquidated Damages Under Certain
Circumstances. (a) Additional interest as liquidated damages (the "ADDITIONAL
INTEREST") shall accrue on the Notes as provided below if. and only if, any of
the following events shall occur (each such event in clauses (i) through (iii)
below being herein called a "REGISTRATION DEFAULT"):
(i) a Shelf Registration Statement with respect to the Notes and
the Shares required by this Agreement is not filed with the
Commission on or prior to the Filing Deadline;
(ii) a Shelf Registration Statement with respect to the Notes and
the Shares required by this Agreement is not declared
effective by the Commission on or prior to the Effectiveness
Deadline; or
(iii) a Shelf Registration Statement required by this Agreement has
been declared effective by the Commission but at any time
after the Effectiveness Deadline (A) such Shelf Registration
Statement ceases to be effective or (B) such Shelf
Registration Statement or the related prospectus fails to be
usable in connection with resales of Transfer Restricted
Securities (other than pursuant to Section 2(c) hereof) and
(1) the Company fails to cure the Registration Default within
five (5) business days by a post-effective amendment or a
report filed pursuant to the Exchange Act or (2) if
applicable, the Company does not terminate the Deferral Period
by the 45th or 75th day, as applicable.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue daily on the Notes over and above the
interest set forth in the title of the Notes from and including the day
following the date on which a Registration Default shall occur until, but
excluding, the earlier of the day on which all Registration Defaults have been
cured and the second anniversary of the last date of original issuance of the
Notes at a rate of 0.25% per annum of the Applicable Amount (as defined below)
to and including the 120th day following such Registration Default and at a rate
of 0.50% of the Applicable Amount (as defined below) from and after the 121st
day following such Registration Default (the "ADDITIONAL INTEREST RATE");
provided, however, that the Company and the Guarantors shall in no event be
required to pay Additional Interest in respect of more than one Registration
Default at any one time. In the event a Holder has converted some or all of its
Notes into Shares, the Holder shall be entitled to receive Additional Interest
as provided above calculated on the principal amount at maturity of the Notes so
converted, except to the extent such Shares have been registered. The
"Applicable Amount" shall equal the sum of the initial issue price of such Notes
plus accrued original issue discount with respect to such Notes through the date
of determination, or, if a Holder has converted some or all of its Notes into
Shares, such sum calculated as if such Notes were then outstanding, except to
the extent such Shares have been registered. Notwithstanding anything to the
contrary set forth herein, (1) upon filing the Notes Shelf Registration
Statement, in the case of clause (i) above, (2) upon the effectiveness of the
Notes Shelf Registration Statement, in the case of clause (ii) above, and (3)
upon the filing of a post-effective amendment or report as contemplated above,
in the case of clause (iii) above, Additional Interest shall cease to accrue on
the Notes. In no event will Additional Interest accrue at a rate per year in
excess of 0.50%.
(b) Any amounts of Additional Interest due pursuant to Section 6(a)
will be payable in cash semi-annually in arrears on each May 25 and November 25,
with the first semi-annual payment due on the first such payment date after
which a Registration Default occurs. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest Rate by the initial
issue price of the Notes plus
12
accrued original issue discount with respect to such Notes through the date of
determination and further multiplied by a fraction, the numerator of which is
the number of days such Additional Interest Rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months) and the denominator of which is 360. A Holder will not be entitled to
Additional Interest as provided in Section 6 hereof unless such Holder has
timely delivered to the Company a duly completed Notice and Questionnaire,
together with such other information reasonably requested of such Holder in
accordance with this Agreement.
(c) "TRANSFER RESTRICTED SECURITIES" means each Security until the
earliest to occur of (i) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with a Shelf
Registration Statement and (ii) the date on which such Security is distributed
to the public pursuant to Rule 144 under the Securities Act or is saleable
pursuant to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company and each Guarantor agree with each
Holder, for so long as any Transfer Restricted Securities remain outstanding and
for any period in which the Company or such Guarantor (i) is not subject to
Section 13 or 14 of the Exchange Act, to make available, upon request of any
Holder, to such Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities designated by such Holder or beneficial owner, the
information required by Rule 144(d)(4) under the Securities Act in order to
permit resale of such Transfer Restricted Securities pursuant to Rule 144A, and
(ii) is subject to Section 13(g) or 15(d) of the Exchange Act, to make all
filings required thereby in a timely manner in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by the Shelf Registrations are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Notice Holders of a majority in aggregate principal amount at maturity of
such Transfer Restricted Securities to be included in such offering (provided
that the Holders of Shares issued upon conversion of Notes shall not be deemed
Holders of Shares, but shall be deemed to be Holders of the aggregate principal
amount at maturity of Notes from which such Shares were converted) and shall be
reasonably acceptable to the Company.
No Holder may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such Holder's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the Holders entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires (including the Notice and
Questionnaire), powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
13
9. Miscellaneous.
(a) Remedies. The sole and exclusive remedy of a Holder with respect to
any Registration Default shall be Additional Interest as provided in Section 6
hereof.
(b) No Inconsistent Agreements. The Company and the Guarantors will not
on or after the date of this Agreement enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's or the
Guarantors' securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company, the Guarantors
and the written consent of the Holders of a majority in principal amount at
maturity of the Transfer Restricted Securities (provided that the Holders of
Shares issued upon conversion of Notes shall not be deemed Holders of Shares,
but shall be deemed to be Holders of the aggregate principal amount at maturity
of Notes from which such Shares were converted) affected by such amendment,
modification, supplement, waiver or consents.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail
(registered or certified, return receipt requested), facsimile transmission, or
air courier which guarantees overnight delivery:
(1) if to a Holder, that is not a Notice Holder, at the
address of such Holder as set forth on the records of the Registrar under the
Indenture, with a copy to such Registrar.
(2) if to a Notice Holder, at the most current address given
by such Holder to the Company in a Notice and Questionnaire or any amendment
thereto.
(3) if to the Initial Purchaser;
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇
(4) if to the Company or the Guarantors, at its address as
follows:
Starwood Hotels & Resorts Worldwide, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
14
with a copy to:
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchaser, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon the
Company and the Guarantors and their successors and assigns; provided, however,
that nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms hereof
or of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Transfer Restricted Securities in any manner, whether by operation
of law or otherwise, such Transfer Restricted Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of the Agreement and,
if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Securities Held by the Company and Guarantors. Whenever the consent
or approval of Holders of a specified percentage of principal amount at maturity
of Securities is required hereunder, Securities held by the Company, the
Guarantors or their affiliates (other than subsequent Holders of Securities if
such subsequent Holders are deemed to be affiliates solely by reason of their
holdings of such Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
15
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Guarantors a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the Initial Purchaser, the Company and the
Guarantors in accordance with its terms.
Very truly yours,
STARWOOD HOTELS & RESORTS
WORLDWIDE, INC., a Maryland corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Associate
General Counsel
STARWOOD HOTELS & RESORTS,
a Maryland real estate investment trust
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
16
SLT REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Starwood Hotels & Resorts,
Maryland real estate investment trust,
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
SHERATON HOLDING CORPORATION
(f/k/a ITT Corporation), a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
STARWOOD HOTELS & RESORTS HOLDINGS,
INC., an Arizona corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
CHARLESTON HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
CRYSTAL CITY HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
LONG BEACH HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
SANTA ▇▇▇▇ HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
SLT ALLENTOWN LLC,
a Delaware limited liability company,
SLT ARLINGTON LLC,
a Delaware limited liability company,
SLT ASPEN ▇▇▇▇ STREET, LLC,
a Delaware limited liability company,
SLT BLOOMINGTON LLC,
a Delaware limited liability company,
SLT DANIA LLC,
a Delaware limited liability company,
17
SLT DC MASSACHUSETTS AVENUE, LLC,
a Delaware limited liability company,
SLT INDIANAPOLIS LLC,
a Delaware limited liability company,
SLT KANSAS CITY LLC,
a Delaware limited liability company,
SLT LOS ANGELES LLC,
a Delaware limited liability company,
SLT MINNEAPOLIS LLC,
a Delaware limited liability company,
SLT PALM DESERT LLC,
a Delaware limited liability company,
SLT PHILADELPHIA LLC,
a Delaware limited liability company,
SLT REALTY COMPANY, LLC,
a Delaware limited liability company,
SLT SAN DIEGO LLC,
a Delaware limited liability company,
SLT SOUTHFIELD LLC,
a Delaware limited liability company,
SLT ST. LOUIS LLC,
a Delaware limited liability company,
SLT TUCSON LLC,
a Delaware limited liability company,
STARLEX LLC,
a New York limited liability company,
STARWOOD ATLANTA II LLC,
a Delaware limited liability company,
STARWOOD ATLANTA LLC,
a Delaware limited liability company,
STARWOOD MISSION HILLS, L.L.C.,
a Delaware limited liability company,
STARWOOD ▇▇▇▇▇▇▇ LLC,
a Delaware limited liability company,
18
STARWOOD WALTHAM LLC,
a Delaware limited liability company,
By: SLT Realty Limited Partnership, a
Delaware limited partnership, the
managing member of each of the above
listed entities
By: Starwood Hotels & Resorts, a Maryland
real estate investment trust, its
general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
BW HOTEL REALTY, LP,
a Maryland limited partnership,
CP HOTEL REALTY, LP,
a Maryland limited partnership,
EDISON HOTEL ASSOCIATES, LP,
a New Jersey limited partnership,
NOVI HOTEL ASSOCIATES, LP,
a Delaware limited partnership,
PARK RIDGE HOTEL ASSOCIATES LP,
a Delaware limited partnership,
SLT FINANCING PARTNERSHIP,
a Delaware general partnership,
SLT HOUSTON BRIAR OAKS, LP,
a Delaware limited partnership,
VIRGINIA HOTEL ASSOCIATES, LP,
a Delaware limited partnership,
19
PRUDENTIAL HEI JOINT VENTURE,
a Georgia general partnership,
By: SLT Realty Limited Partnership, a
Delaware limited partnership, the
general partner of each of the above
listed entities
By: Starwood Hotels & Resorts, a Maryland
real estate investment trust, its
general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
HEI HOTELS, L.L.C.,
a Delaware limited liability company,
SLC CENTRAL PARK SOUTH, LLC,
a Delaware limited liability company,
SLC INDIANAPOLIS LLC,
a Delaware limited liability company,
STARWOOD MANAGEMENT COMPANY, LLC,
a Delaware limited liability company,
By: SLC Operating Limited Partnership, a
Delaware limited partnership, the
managing member of each of the above
listed entities
By: Starwood Hotels & Resorts Worldwide,
Inc., a Maryland corporation, its
general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
SLC OPERATING LIMITED PARTNERSHIP,
a Delaware limited partnership,
By: Starwood Hotels & Resorts Worldwide,
Inc., a Maryland corporation, its
general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
20
MILWAUKEE BROOKFIELD LP,
a Wisconsin limited partnership,
By: SLC Operating Limited Partnership, a
Delaware limited partnership, the
general partner of each of the above
listed entities
By: Starwood Hotels & Resorts Worldwide,
Inc., a Maryland corporation, its
general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
ITT BROADCASTING CORP.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
THE SHERATON CORPORATION
(f/k/a ITT Sheraton Corporation), a Delaware
corporation,
DESTINATION SERVICES OF SCOTTSDALE,
INC., a Delaware corporation,
GENERAL FIDUCIARY CORPORATION,
a Massachusetts corporation,
GLOBAL CONNEXTIONS INC.,
a Delaware corporation,
STARWOOD RESERVATIONS CORPORATION
(f/k/a ITT Sheraton Reservations Corporation),
a Delaware corporation,
MANHATTAN SHERATON CORPORATION,
a New York corporation,
SAN DIEGO SHERATON CORPORATION,
a Delaware corporation,
SAN ▇▇▇▇▇▇▇▇ SHERATON CORPORATION,
a Delaware corporation,
SHERATON 45 PARK CORPORATION,
a Delaware corporation,
SHERATON ASIA-PACIFIC CORPORATION,
a Delaware corporation,
21
SHERATON BOSTON CORPORATION
a Massachusetts corporation,
SHERATON CALIFORNIA CORPORATION,
a Delaware corporation,
SHERATON FLORIDA CORPORATION,
a Delaware corporation,
SHERATON HARBOR ISLAND CORPORATION,
a Delaware corporation,
SHERATON HAWAII HOTELS CORPORATION,
a Hawaii corporation,
SHERATON INTERNATIONAL, INC.,
a Delaware corporation,
SHERATON INTERNATIONAL DE MEXICO, INC.,
a Delaware corporation,
SHERATON MANAGEMENT CORPORATION,
a Delaware corporation,
SHERATON OVERSEAS MANAGEMENT CORPORATION,
a Delaware corporation,
SHERATON WARSAW CORPORATION,
a Delaware corporation,
SHERATON MIAMI CORPORATION,
a Delaware corporation,
SHERATON MIDDLE EAST MANAGEMENT CORPORATION,
a Delaware corporation,
SHERATON NEW YORK CORPORATION,
a New York corporation,
SHERATON OVERSEAS TECHNICAL SERVICES
CORPORATION,
a Delaware corporation,
SHERATON PEACHTREE CORPORATION,
a Delaware corporation,
SHERATON PHOENICIAN CORPORATION,
a Delaware corporation,
22
SHERATON SAVANNAH CORPORATION,
a Delaware corporation,
ST. REGIS SHERATON CORPORATION,
a New York corporation,
WORLDWIDE FRANCHISE SYSTEMS, INC.,
a Delaware corporation,
SHERATON VERMONT CORPORATION,
a Vermont corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
▇▇▇▇▇▇ SHERATON CORPORATION LLC,
a Delaware limited liability company
By: The Sheraton Corporation (f/k/a ITT
Sheraton Corporation), a Delaware
corporation, its managing member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
ITT MSG, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
W&S DENVER CORP.,
a Delaware corporation,
W&S REALTY CORPORATION OF DELAWARE,
a Delaware corporation,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ HOTEL, INC.,
a Washington corporation,
LAUDERDALE HOTEL COMPANY,
a Delaware corporation,
WESTIN BAY HOTEL COMPANY,
a Delaware corporation,
CINCINNATI PLAZA COMPANY,
a Delaware corporation,
SOUTH COAST WESTIN HOTEL COMPANY,
a Delaware corporation,
23
TOWNHOUSE MANAGEMENT INC.,
a Delaware corporation,
WVC RANCHO MIRAGE, INC.,
a Delaware corporation,
WESTIN ASSET MANAGEMENT COMPANY,
a Delaware corporation,
W&S ATLANTA CORP.,
a Delaware corporation,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
WESTIN SEATTLE HOTEL COMPANY,
a Washington general partnership,
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Hotel, Inc.,
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
By: W&S Realty Corporation of Delaware,
its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
WESTIN PREMIER, INC.,
a Delaware corporation,
WESTIN VACATION MANAGEMENT CORPORATION,
a Delaware corporation,
STARWOOD VACATION EXCHANGE COMPANY
(f/k/a Westin Vacation Exchange Company),
a Delaware corporation
By: Starwood Hotels & Resorts Worldwide,
Inc., a Maryland corporation, the sole
stockholder of each of the above listed
entities
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Associate
General Counsel
24
W&S LAUDERDALE CORP.,
a Delaware corporation,
W&S SEATTLE CORP.,
a Delaware corporation,
By: SLT Realty Limited Partnership, a
Delaware limited partnership, the sole
stockholder of each of the above listed
entities
By: Starwood Hotels & Resorts, a Maryland
real estate investment trust, its
general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Assistant
Secretary
DATA MARKETING ASSOCIATES EAST, INC.,
a Florida corporation,
P.O.C. REALTY, INC.,
a Colorado corporation,
VACATION MARKETING SERVICES, INC.,
a Florida corporation,
VACATION TITLE SERVICES, INC.,
a Florida corporation,
VACATIONWORKS, INC.,
a Florida corporation,
VCH COMMUNICATIONS, INC.,
a Florida corporation,
VCH CONSULTING, INC.,
a Florida corporation,
VCH PORTFOLIO SERVICES, INC.,
a Florida corporation,
VCH SALES, INC.,
a Florida corporation,
VCH SYSTEMS, INC.,
a Florida corporation,
VCH TRADEMARK, INC.,
a Florida corporation,
VCM OAKS, INC.,
a Florida corporation,
25
SVO VISTANA VILLAGES, INC.
(f/k/a VDI2, Inc.),
a Florida corporation,
VISTANA ACCEPTANCE CORP.,
a Florida corporation,
VISTANA CAVE CREEK, INC.
an Arizona corporation,
VISTANA DEVELOPMENT, INC.,
a Florida corporation d/b/a
Vistana Development, Ltd.,
SVO EAST, INC. (f/k/a Vistana East, Inc.),
a Florida corporation,
SVO INTERNATIONAL, INC.
(f/k/a Vistana International, Inc.),
a Florida corporation,
SVO MANAGEMENT, INC.
(f/k/a Vistana Management, Inc.),
a Florida corporation d/b/a
Vistana Management, Ltd.,
SVO MB MANAGEMENT, INC.,
a South Carolina corporation,
VISTANA NJ, INC.,
a New Jersey corporation,
VISTANA OP INVESTMENT, INC.,
a Florida corporation,
VISTANA PSL, INC.,
a Florida corporation,
VISTANA SCOTTSDALE MANAGEMENT, INC.,
an Arizona corporation,
SVO WEST, INC. (f/k/a Vistana West, Inc.),
a Florida corporation,
POINTS OF COLORADO, INC.,
a Colorado corporation,
26
STARWOOD VACATION OWNERSHIP, INC.
(f/k/a Vistana, Inc.), a Florida corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President, General Counsel,
Secretary
SVO PACIFIC, INC.
(f/k/a Vistana Pacific, Inc.),
a Florida corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President/Law, Secretary
SVO ARIZONA, INC.,
an Arizona corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President/Law, Secretary
SVO CALIFORNIA, INC.,
an California corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President/Law, Secretary
SVO CALIFORNIA MANAGEMENT, INC.,
an California corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President/Law, Secretary
SUCCESS OF ARIZONA, L.L.C.,
an Arizona limited liability company,
SUCCESS OF COLORADO, L.L.C.,
a Nevada limited liability company,
27
FIESTA VACATIONS, L.L.C.,
an Arizona limited liability company,
By: SVO West, Inc. (f/k/a Vistana West,
Inc.), a Florida corporation,
its Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President/Law,
Secretary
SUCCESS DEVELOPMENTS, L.L.C.,
an Arizona limited liability company
By: Points of Colorado, Inc., a Colorado
corporation, its Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President/Law,
Secretary
SUCCESS OF COLORADO REALTY, L.L.C.,
a Nevada limited liability company
By: Success of Colorado, L.L.C., a Nevada
limited liability company, a member
By: SVO West, Inc. (f/k/a Vistana West,
Inc.), a Florida corporation,
its Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President/Law,
Secretary
28
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
by
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
