STARWOOD HOTELS AND RESORTS WORLDWIDE,
INC.
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
SUPPLEMENTAL INDENTURE NO. 3
Dated as of May 7, 2009
THIS
SUPPLEMENTAL INDENTURE No. 3 (this “ Supplemental
Indenture No. 3 ”), dated as of May 7, 2009, is
between STARWOOD HOTELS AND RESORTS WORLDWIDE, INC., a Maryland
corporation (the “ Company ”), and U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as trustee
(the “ Trustee ”).
RECITALS
WHEREAS, the Company has heretofore executed and
delivered to the Trustee an Indenture dated as of
September 13, 2007, between the Company and the Trustee (the
“ Base Indenture ” and together with this
Supplemental Indenture No. 3, the “ Indenture
”), providing for the issuance from time to time of series of
the Company’s Securities;
WHEREAS, Section 10.01(e) of the Base
Indenture provides for the Company and the Trustee to enter into an
indenture supplemental to the Base Indenture to establish the forms
or terms of Securities of any series as permitted by
Section 2.01 or Section 2.02 of the Base
Indenture;
WHEREAS, pursuant to Section 2.02 of the
Base Indenture, the Company wishes to provide for the issuance of a
new series of Securities to be known as its 7.875% Senior Notes due
2014 (the “ Notes ”), the form and terms of such
Notes and the terms, provisions and conditions thereof to be set
forth as provided in this Supplemental Indenture No. 3;
and
WHEREAS, the Company has requested that the
Trustee execute and deliver this Supplemental Indenture No. 3
and all requirements necessary to make this Supplemental Indenture
No. 3 a valid, binding and enforceable instrument in
accordance with its terms, and to make the Notes, when executed by
the Company and authenticated and delivered by the Trustee, the
valid, binding and enforceable obligations of the Company, have
been done and performed, and the execution and delivery of this
Supplemental Indenture No. 3 has been duly authorized in all
respects;
NOW,
THEREFORE, in consideration of the covenants and agreements set
forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Relation to Base
Indenture . This Supplemental
Indenture No. 3 constitutes an integral part of the Base
Indenture.
Section 1.02 Definition Of
Terms . For all purposes of this
Supplemental Indenture No. 3:
(a) Capitalized terms used herein without definition
shall have the meanings set forth in the Base Indenture;
(b) a term defined anywhere in this Supplemental
Indenture No. 3 has the same meaning throughout;
(c) the singular includes the plural and vice
versa;
(d) headings are for convenience of reference only
and do not affect interpretation;
(e) the following terms have the meanings given to
them in this Section 1.02(e):
“ Business Day ” shall mean,
unless otherwise specified, any calendar day that is not a
Saturday, Sunday or legal holiday in New York, New York and on
which commercial banks are open for business in New York, New
York.
“ Change of Control ” shall
mean the occurrence of any of the following: (1) the direct or
indirect sale, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of
related transactions, of all or substantially all of the assets of
the Company and its Subsidiaries taken as a whole to any Person
other than the Company or one of its subsidiaries, provided
that the Company will be deemed to own any asset that the Company
sells, transfers, conveys or otherwise disposes and, following such
transaction, manages pursuant to a management agreement or it is
operated by a third party subject to a franchise or license
agreement with the Company; (2) the consummation of any
transaction (including, without limitation, any merger or
consolidation) the result of which is that any Person becomes the
beneficial owner, directly or indirectly, of more than 50% of the
then outstanding number of shares of the Company’s Voting
Stock; or (3) the first day on which a majority of the members
of the Company’s Board of Directors are not Continuing
Directors.
“ Capitalized Lease-Back Obligation
” shall mean the total net rental obligations of the Company
or any Restricted Subsidiary under any lease entered into as part
of a sale and lease-back transaction involving a Principal Property
discounted to present value at the rate of 9% per annum.
“ Comparable Treasury Issue ”
shall mean the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to
the remaining term (“ Remaining Life ”) of the
Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
“ Comparable Treasury Price ”
shall mean, with respect to any Redemption Date, (A) the
average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (B) if the
Independent Investment Banker obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such
Quotations or, if only one such Quotation is obtained, such
Quotation.
“ Continuing Directors ”
shall mean, as of any date of determination, any member of the
Company’s Board of Directors who (1) was a member of
such Board of Directors on the date of the issuance of the Notes;
or (2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing
Directors who were members of such Board of Directors at the time
of such nomination or election (either by a specific vote or by
approval of the Company’s proxy statement in which such
member was named as a nominee for election as a director, without
objection to such nomination).
“ Exchange Act ” shall mean
the Securities Exchange Act of 1934, as amended.
“ Fair Value ” when used with
respect to property, shall mean the fair value as determined in
good faith by the Board of Directors.
“ Global Note ” shall have
the meaning set forth in Section 2.04.
“ Independent Investment Banker
” shall mean an independent investment banking institution of
national standing appointed by the Company, which may be one of the
Reference Treasury Dealers.
“ Interest Payment Date ”
shall have the meaning set forth in
Section 2.05(b).
“ Maturity Date ” shall have
the meaning set forth in Section 2.02.
“ Person ” has the meaning
set forth in the Base Indenture and includes a “person”
or “group” as these terms are used in
Section 13(d)(3) of the Exchange Act.
“ Principal Property ” shall
mean any single property owned by the Company or any of its
Subsidiary having a gross book value in excess of the greater of
(i) $100 million and (ii) 5% of Consolidated Net Assets,
except any such property or portion thereof which the Board of
Directors by resolution declares is not of material importance to
the total business conducted by the Company and its Subsidiaries as
an entirety.
“ Record Date ” shall mean,
with respect to any Interest Payment Date for the Notes, the first
day, whether or not a Business Day, of the calendar month in which
such Interest Payment Date falls.
“ Redemption Date ” shall
mean, with respect to any redemption of Notes, the date fixed for
such redemption pursuant to the Indenture and such
Notes.
“ Reference Treasury Dealer ”
shall mean any primary U.S. government securities dealer in New
York City (a “ Primary Treasury Dealer ”) that
the Company selects. The Company has selected Banc of America
Securities LLC and J.P. Morgan Securities Inc., and their
respective successors as Primary Treasury Dealers.
“ Reference Treasury Dealer
Quotations ” shall mean, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined
by the Independent Investment Banker, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Independent Investment Banker by the Reference Treasury Dealer at
5:00 p.m., New York City time, on the third Business Day preceding
such Redemption Date.
“ Restricted Subsidiary ”
shall mean any of the Company’s Subsidiaries organized and
existing under the laws of the United States of America and the
principal business of which is carried on within the United States
of America (x) which owns, or is a lessee pursuant to a
capital lease of, any Principal Property or (y) in which the
investment of the Company and all of its Subsidiaries exceeds 5% of
Consolidated Net Assets as of the date of such determination other
than, in the case of either clause (x) or (y), (i) each
Subsidiary whose principal business consists of finance, banking,
credit, leasing, insurance, financial services or other similar
operations, or any combination thereof, (ii) each Subsidiary
formed or acquired after the date hereof for the purpose of
developing new assets or acquiring the business or assets of
another Person and which does not acquire any part of the business
or assets of the Company or any Restricted Subsidiary,
(iii) each Subsidiary organized under the laws of the United
States of America whose principal business consists of managing,
licensing, supervising, directing or controlling activities outside
the United States of America; and (iv) each subsidiary whose
principal business consists of conducting timeshare, fractional,
residential and related activities.
“ Unrestricted Subsidiary ”
shall mean any of the Company’s Subsidiaries other than a
Restricted Subsidiary.
“ Treasury Rate ” shall mean,
with respect to any Redemption Date, (i) the yield, under the
heading which represents the average for the immediately preceding
week, appearing in the most recently published statistical release
designated “H.15 (519)” or any successor publication
which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded
United States Treasury securities adjusted to constant maturity
under the caption “Treasury Constant Maturities,” for
the maturity corresponding to the Comparable Treasury Issue (if no
maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding
to the Comparable Treasury Issue shall be determined and the
Treasury Rate shall be interpolated or extrapolated from such
yields on a straight line basis, rounding to the nearest month),
(ii) if the period from the Redemption Date to the Maturity
Date of the Notes to be redeemed is less than one year, the weekly
average yield on actually traded United States Treasury securities
adjusted to a constant maturity of one year will be used, or
(iii) if such release (or any successor release) is not
published during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date. The Treasury
Rate shall be calculated by the Company on the third Business Day
preceding such Redemption Date. The Trustee shall not be
responsible for any such calculation.
“ Voting Stock ” of any
Person as of any date means the capital stock of such Person that
is at the time entitled to vote generally in the election of the
Board of Directors or similar governing body of such
Person.
The
terms “ Company ,” “ Trustee
,” “ Indenture ,” “ Base
Indenture ,” and “ Notes ” shall have
the respective meanings set forth in the recitals to this
Supplemental Indenture No. 3 and the paragraph preceding such
recitals.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.01 Designation and
Principal Amount . The Notes may
be issued from time to time upon written order of the Company for
the authentication and delivery of Notes pursuant to
Section 2.03 of the Base Indenture. There is hereby authorized
a series of Securities designated as the 7.875% Senior Notes due
2014, limited in aggregate principal amount to U.S. $500,000,000
(except for Notes authenticated and delivered in accordance with
the last paragraph of Section 2.02 of the Base Indenture or
upon registration of transfer of, or in exchange for, or in lieu
of, other Notes pursuant to Sections 2.06, 2.07, 2.08, 3.03 or
10.04 of the Base Indenture).
Section 2.02 Maturity
. The date upon which the Notes
shall become due and payable at final maturity, together with any
accrued and unpaid interest, is October 15, 2014 (the “
Maturity Date ”).
Section 2.03 Form, Payment
and Appointment . Except as
provided in Section 2.04, the Notes shall be issued in fully
registered, certificated form. Principal of and interest on the
Notes will be payable, the transfer of such Notes will be
registrable, and such Notes will be exchangeable for Notes of a
like aggregate principal amount, at the office or agency of the
Company maintained for such purpose in the Borough of Manhattan,
The City of New York, which shall initially be the Principal Office
of the Trustee; provided , however , that payment of
interest may be made at the option of the Company by check mailed
to the Person entitled thereto at such address as shall appear in
the Security register or by wire transfer to an account
appropriately designated by the Person entitled to payment;
provided , that the paying agent shall have received written
notice of such account designation at least five Business Days
prior to the date of such payment (subject to surrender of the
relevant Note in the case of a payment of interest on a Redemption
Date or the Maturity Date).
No
service charge shall be made for any registration of transfer or
exchange of the Notes, but the Company may require payment from the
holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
The
Security registrar and paying agent for the Notes shall initially
be the Trustee.
The
Notes shall be issuable in denominations of U.S. $2,000 and
integral multiples of U.S. $1,000 in excess thereof.
The
Specified Currency of the Notes shall be U.S. Dollars.
Section 2.04 Global Notes
. The Notes shall be issued
initially in the form of a permanent Global Security in registered
form (a “ Global Note ”), deposited with The
Depository Trust Company or such other Depositary as any officer of
the Company may from time to time designate. Unless and until such
Global Note is exchanged for Notes in certificated form, such
Global Note may be transferred, in whole but not in part, and any
payments on the Notes shall be made only to the Depositary or a
nominee of the Depositary, or to a successor Depositary selected or
approved by the Company or to a nominee of such successor
Depositary.
Section 2.05 Interest
. (a) Interest payable on any
Interest Payment Date, the Maturity Date or, if applicable, the
Redemption Date, with respect to the Notes shall be the amount of
interest accrued from, and including, the immediately preceding
Interest Payment Date in respect of which interest has been paid or
duly provided for (or from and including the original issue
date
