Exhibit 1.1
EXECUTION COPY
$300,000,000
HOSPITALITY PROPERTIES TRUST
(A MARYLAND REAL ESTATE INVESTMENT TRUST)
5 1/8% SENIOR NOTES DUE FEBRUARY 15, 2015
UNDERWRITING AGREEMENT
February 10, 2005
Wachovia Capital Markets, LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
RBC Capital Markets Corporation
as Representative of the Underwriters
c/o Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx, mail code NC0602
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Hospitality Properties Trust, a Maryland real estate investment trust (the
"Company"), confirms its agreement with Wachovia Capital Markets, LLC, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and RBC Capital Markets Corporation
(the "Representatives") on behalf of the several underwriters named in SCHEDULE
I hereto (the "Underwriters", which shall include any other underwriter
substituted as provided in Section 10 hereof), with respect to the sale by the
Company and the purchase by each such Underwriter, severally, of the principal
amount of the Company's 5 1/8% Senior Notes due February 15, 2015 (the "Notes")
set forth opposite the name of each such Underwriter listed in SCHEDULE I
hereto at a purchase price of 99.164% of the principal amount of the Notes.
The Notes are to be issued pursuant to that certain Indenture dated as of
February 25, 1998 and that certain Supplemental Indenture No. 8 to be dated
as of February 15, 2005 (together, the "Indenture"), each between the Company
and U.S. Bank National Association as successor trustee to State Street Bank
and Trust Company (the "Trustee").
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (Nos. 333-43573 and 333-84064)
for the registration of debt securities, preferred shares of beneficial
interest, depositary shares representing preferred shares, common shares of
beneficial interest and warrants (collectively, the "Registered Securities")
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statements have been declared effective by the Commission on
January 15, 1998 and March 20, 2002, respectively, and the Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the Company has filed such post-effective amendments thereto
as may be required and each such post-effective amendment has been declared
effective by the Commission. Such registration statements (as so amended, if
applicable) are referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Notes, in the form first furnished to the Underwriters by the Company for
use in connection with the offering of the Notes, are collectively referred to
herein as the "Prospectus"; provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall also be deemed to include
all documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the date hereof;
provided, further, that if the Company files a registration statement with the
Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement. For purposes of this Underwriting Agreement, all
references to the Registration Statement and Prospectus, or to any amendment or
supplement to either of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement or the Prospectus
shall be deemed to mean and include all such financial statements and schedules
and other information which is incorporated by reference in the Registration
Statement or the Prospectus, as the case may be, prior to the execution of this
Underwriting Agreement; and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated by reference in the
Registration Statement or Prospectus, as the case may be, after the execution of
this Underwriting Agreement.
The 285 hotels described in the Prospectus as being currently owned by the
Company as of the date hereof are collectively referred to herein as the
"Hotels".
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to each Underwriter, as of the date hereof, as follows:
(1) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement (or such Rule 462(b) Registration Statement)
has been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. In addition,
the Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendments thereto
(including the filing
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of the Company's most recent Annual Report on Form 10-K for the year ended
December 31, 2003 with the Commission (the "Annual Report")) became
effective and as of the date hereof, the Registration Statement (including
any Rule 462(b) Registration Statement) and any amendments thereto complied
and will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations") and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. At the
date of the Prospectus and at the Closing Time as defined below, neither
the Prospectus nor any amendments and supplements thereto included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Representative expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and the
Prospectus delivered to the Underwriters for use in connection with the
offering of the Notes will, at the time of such delivery, be identical to
any electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(2) INCORPORATED DOCUMENTS. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the date of the Prospectus
and at the Closing Time did not and will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(3) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus were, as of the dates of their
respective certifications, independent public accountants as required by
the 1933 Act and the 1933 Act Regulations, and Ernst & Young LLP currently
is an independent registered public accounting firm, as defined by the 1934
Act and the Public Company Accounting Oversight Board (United States).
(4) FINANCIAL STATEMENTS. The financial statements of the Company
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present fairly
the financial position of the Company and its consolidated
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subsidiaries, or such other entity, as the case may be, at the dates
indicated and the statement of operations, shareholders' equity and cash
flows of the Company and its consolidated subsidiaries, or such other
entity, as the case may be, for the periods specified; no other historical
or pro forma financial statements, schedules or notes are required to be
included in the Prospectus. Such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States ("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Registration
Statement and the Prospectus. In addition, any pro forma financial
statements of the Company and its subsidiaries and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(5) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
results of operations, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse Effect"),
(B) there have been no transactions entered into by the Company or any of
its subsidiaries, other than those arising in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, (C) except for regular dividends
on the Company's common shares or preferred shares, in amounts per share
that are consistent with past practice or the applicable charter document
or supplement thereto, respectively, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital shares and (D) the Company has not issued any shares of
beneficial interest (other than the issuance of common shares of beneficial
interest pursuant to the Company's incentive share award plans and
issuances under the Registration Statement).
(6) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a real estate investment trust in good
standing under the laws of the State of Maryland and has power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under, or as contemplated under, this Underwriting Agreement.
The Company is duly qualified to transact business and is in good standing
in each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not result in a Material Adverse Effect.
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(7) GOOD STANDING OF SUBSIDIARIES. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 0000 Xxx) (each, a "Subsidiary" and, collectively,
the "Subsidiaries"), if any, has been duly organized and is validly
existing as a corporation or a real estate investment trust, as the case
may be, in good standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation or a real estate investment trust, as the case may be, to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Material Adverse
Effect. Except as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital shares of each
Subsidiary have been duly authorized and are validly issued, fully paid and
non-assessable and are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity. None of the outstanding capital shares
of any Subsidiary was issued in violation of preemptive or other similar
rights of any securityholder of such Subsidiary.
(8) CAPITALIZATION. The authorized, issued and outstanding capital
shares of the Company have been duly authorized and validly issued by the
Company and are fully paid and non-assessable (except as otherwise
described in the Registration Statement), and none of such capital shares
was issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(9) AUTHORIZATION OF THIS UNDERWRITING AGREEMENT. This Underwriting
Agreement has been duly authorized, executed and delivered by the Company.
(10) AUTHORIZATION OF THE NOTES. The Notes have been duly authorized
by the Company for issuance and sale pursuant to this Underwriting
Agreement. The Notes, when issued and authenticated in the manner provided
for in the Indenture and delivered against payment of the consideration
therefor specified herein, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding
in equity or at law).
(11) AUTHORIZATION OF THE INDENTURE. The Indenture has been duly
authorized, executed and delivered by the Company and constitutes a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
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(12) DESCRIPTIONS OF THE NOTES AND THE INDENTURE. The Notes and the
Indenture will conform in all material respects to the statements relating
thereto contained in the Prospectus and will be in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit to
the Registration Statement.
(13) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any
of its subsidiaries is in violation of its declaration of trust, charter,
bylaws or other comparable governing document or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the assets, properties or
operations of the Company or any of its subsidiaries is subject
(collectively, "Agreements and Instruments"), except for such defaults that
would not result in a Material Adverse Effect. The execution, delivery and
performance of this Underwriting Agreement and the Indenture and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the Prospectus and
the consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and sale
of the Notes and the use of the proceeds from the sale of the Notes as
described under the caption "Use of Proceeds") and compliance by the
Company with its obligations hereunder and thereunder have been duly
authorized by all necessary trust action and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge
or encumbrance upon any assets, properties or operations of the Company or
any of its subsidiaries pursuant to, any Agreements and Instruments, nor
will such action result in any violation of the provisions of the charter
or bylaws of the Company or any of its subsidiaries or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any of its
subsidiaries.
(14) ABSENCE OF LABOR DISPUTE. To the knowledge of the Company, no
labor problem exists or is imminent with employees of the Company or any of
its subsidiaries that could have a Material Adverse Effect.
(15) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company threatened or contemplated, against or affecting the Company or
any of its subsidiaries which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated therein),
or which, if determined adversely to the Company or any of its
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subsidiaries, might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated under the
Prospectus, this Underwriting Agreement, the Indenture or the performance
by the Company of its obligations hereunder and thereunder. The aggregate
of all pending legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or of which any of their respective
assets, properties or operations is the subject which are not described in
the Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(16) ACCURACY OF FILINGS. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(17) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company of this Underwriting Agreement or for
the performance by the Company of the transactions contemplated under the
Prospectus, this Underwriting Agreement, or the Indenture, except such as
may be required and will be obtained at or prior to the Closing Time and
such as may be required by the securities or Blue Sky laws or real estate
syndication laws of the various states in connection with the offer and
sale of the Notes and, in the case of the performance thereof, except as
are contemplated by the express terms of such documents to occur after the
Closing Time and except (x) such as are otherwise described in the
Prospectus and (y) such that the failure to obtain would not have a
Material Adverse Effect.
(18) POSSESSION OF INTELLECTUAL PROPERTY. The Company and each of its
subsidiaries owns, or possesses adequate rights to use, all patents,
trademarks, trade names, service marks, copyrights, licenses and other
rights necessary for the conduct of their respective businesses as
described in the Registration Statement and in the Prospectus, and neither
the Company nor any of its subsidiaries has received any notice of conflict
with, or infringement of, the asserted rights of others with respect to any
such patents, trademarks, trade names, service marks, copyrights, licenses
and other such rights (other than conflicts or infringements that, if
proven, would not have a Material Adverse Effect), and neither the Company
nor any of its subsidiaries knows of any basis therefor.
(19) POSSESSION OF LICENSES AND PERMITS. The Company has, and as of
the Closing Time will have, all permits, licenses, approvals, certificates,
franchises and authorizations of governmental or regulatory authorities
("Approvals") as may be necessary for the conduct of its business as
described in the Registration Statement and in the Prospectus, except for
those Approvals the absence of which would not have a Material Adverse
Effect, and, to the best knowledge of the Company, each lessee of the
Hotels has, and as of the Closing Time will have, all Approvals as may be
necessary to
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lease, operate or manage the Hotels in the manner described in or
contemplated by the Prospectus, except for those Approvals the absence of
which would not have a Material Adverse Effect.
(20) TITLE TO PROPERTY. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind, except (A) as otherwise
stated in the Registration Statement and the Prospectus, (B) in the case of
personal property located at certain Hotels, such as are subject to
equipment lease financing arrangements which have been entered into in the
ordinary course of business and have an aggregate outstanding balance not
in excess of $1 million or (C) those which do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the leases and subleases
material to the business of the Company and its subsidiaries considered as
one enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus, are in full force and effect,
and neither the Company nor any of its subsidiaries has received any notice
of any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any of its subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning the rights
of the Company or such subsidiary of the continued possession of the leased
or subleased premises under any such lease or sublease.
(21) COMMODITY EXCHANGE ACT. The Notes, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules and
regulations of the Commodity Futures Trading Commission under the Commodity
Exchange Act.
(22) INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Notes as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be,
an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
(23) ENVIRONMENTAL LAWS. (a) The Company has received and reviewed
certain environmental reports on (which included physical inspection of the
surface of) each Hotel's property and has obtained certain representations
and warranties relating to environmental matters from the sellers of the
Hotels set forth in purchase agreements therefor.
(b) Except as described in the Prospectus, (i) the Company, and,
to its knowledge, each Hotel's property, is, and as of the Closing Time
will be, in compliance with all applicable federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment, hazardous or toxic substances and wastes, pollutants and
contaminants ("Environmental Laws"), (ii) the Company, or, to its
knowledge, its lessees have received, or as of the Closing Time will
receive, all permits, licenses or other approvals required under applicable
Environmental Laws to conduct the
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respective hotel businesses presently conducted at each Hotel's property
and (iii) the Company or, to its knowledge, its lessees are, or as of the
Closing Time will be, in compliance with all terms and conditions of any
such permit, license or approval, except, in respect of clauses (i), (ii)
and (iii), as otherwise disclosed in the Prospectus or as would not, singly
or in the aggregate, have a Material Adverse Effect.
(c) To the best knowledge of the Company, except as described in
the Prospectus, there are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, remediation or closure of properties or
compliance with Environmental Laws and any potential liabilities to third
parties) that, as of the date hereof, would, or as of the Closing Time
will, singly or in the aggregate, have a Material Adverse Effect.
(d) The Company has received and reviewed engineering reports on
each Hotel's property, has obtained certain representations and warranties
from the sellers of the Hotels set forth in purchase agreements therefor
and has conducted physical inspections of each Hotel's property.
(e) In respect of each Hotel, (i) each Hotel is not in violation
of any applicable building code, zoning ordinance or other law or
regulation, except where such violation of any applicable building code,
zoning ordinance or other law or regulation would not, singly or in the
aggregate, have a Material Adverse Effect; (ii) the Company has not
received notice of any proposed material special assessment or any proposed
change in any property tax, zoning or land use laws or availability of
water affecting any Hotel that would have, singly or in the aggregate, a
Material Adverse Effect; (iii) except as disclosed in the Prospectus, there
does not exist any material violation of any declaration of covenants,
conditions and restrictions with respect to any Hotel that would have,
singly or in the aggregate, a Material Adverse Effect, or any state of
facts or circumstances or condition or event which could, with the giving
of notice or passage of time, or both, constitute such a violation; and
(iv) the improvements comprising any portion of each Hotel (the
"Improvements") are free of any and all material physical, mechanical,
structural, design and construction defects that would have, singly or in
the aggregate, a Material Adverse Effect and the mechanical, electrical and
utility systems servicing the Improvements (including, without limitation,
all water, electric, sewer, plumbing, heating, ventilation, gas and air
conditioning) are in good condition and proper working order and are free
of defects that would have, singly or in the aggregate, a Material Adverse
Effect.
(24) REIT QUALIFICATION. The Company is organized in conformity with
the requirements for qualification, and, as of the date hereof the Company
operates, and as of Closing Time the Company will operate, in a manner that
qualifies the Company as a "real estate investment trust" under the
Internal Revenue Code of 1986, as amended (the "Code"), and the rules and
regulations thereunder, for 2005 and subsequent years. The Company
qualified as a real estate investment trust under the Code for each of the
taxable years ended December 31, 1995 through December 31, 2004.
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(25) POSSESSION OF INSURANCE. The Company and its Hotels are, and as
of the Closing Time will be, insured in the manner described in the
Prospectus by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are customary in the businesses in
which the Company is engaged and proposes to engage and the Company has no
reason to believe that it or its tenants will not be able to renew such
insurance coverage as and when such coverage expires or to obtain similar
coverage as may be necessary to continue its business at economically
viable rates. The Company and/or its subsidiaries, as applicable, has
obtained an ALTA Extended Coverage Owner's Policy of Title Insurance or its
local equivalent (or an irrevocable commitment to issue such a policy) on
all of the Hotels owned by the Company or its subsidiaries and such title
insurance is in full force and effect.
(26) ABSENCE OF INDEBTEDNESS. At the Closing Time, the Company will
have no indebtedness for money borrowed except (i) amounts outstanding
under the Company's $350 million aggregate principal amount credit facility
which matures in 2005, (ii) $150 million aggregate principal amount of the
Company's 7% Senior Notes due 2008, (iii) $50 million aggregate principal
amount of the Company's 9.125% Senior Notes due 2010, (iv) $125 million
aggregate principal amount of the Company's 6.85% Senior Notes due 2013,
(v) $300 million aggregate principal amount of the Company's 6.75% Senior
Notes due 2013, (vi) equipment financing arrangements in respect of
personal property located at certain Hotels which have been entered into in
the ordinary course of business and have an aggregate outstanding balance
not in excess of $1 million and (vii) other indebtedness as described in
the Prospectus.
(27) DISCLOSURE CONTROLS. The Company has established and maintains
disclosure controls and procedures (as such term is defined in Rule 13a-14
and 15d-14 under the 0000 Xxx) that (a) are designed to ensure that
material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company's Chief Executive Officer and
its Chief Financial Officer (or persons performing similar functions),
particularly during the periods in which the filings made by the Company
with the Commission which it may make under Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act are being prepared, (b) have been evaluated for
effectiveness as of a date within 90 days prior to the filing of the
Company's most recent Annual Report on Form 10-K filed with the Commission
and (c) are effective to perform the functions for which they were
established.
(28) GOOD STANDING OF THE ADVISOR. Except as otherwise disclosed in
the Prospectus, since the respective dates as of which information is given
in the Prospectus, there has been no material adverse change in the
business, operations, earnings, prospects, properties or condition
(financial or otherwise) of Reit Management & Research LLC (the "Advisor"),
whether or not arising in the ordinary course of business, that would have
a Material Adverse Effect. The Advisor (A) is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and (B) has the requisite limited liability company
power and authority to conduct its business as described in the Prospectus
and to own and operate its material properties. The Advisory Agreement,
dated as of January 1, 1998 and Amendment No. 1 thereto dated as of October
12, 1999 (the "Advisory Agreement"),
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between the Company and the Advisor, has been duly authorized, executed and
delivered by the parties thereto and constitutes the valid agreement of the
parties thereto, enforceable in accordance with its terms, except as
limited by (a) the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws relating to or
affecting the rights or remedies of creditors or (b) the effect of general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(29) PERIODIC REPORTING REQUIREMENTS. The Company is subject to the
reporting requirements of either Section 13 or Section 15(d) of the 1934
Act and files reports with the Commission on XXXXX.
(30) XXXXXXXX-XXXXX ACT. There is and has been no failure on the part
of the Company or, to the Company's knowledge, any of the Company's
directors or officers, in their capacities as such, to comply in any
material respect with any applicable provision of the Xxxxxxxx-Xxxxx Act of
2002 (the "Xxxxxxxx-Xxxxx Act") and the rules and regulations promulgated
by the Commission in connection therewith, including Section 402 related to
loans and Sections 302 and 906 related to certifications.
(31) SECTION 404 COMPLIANCE. The Company has not identified any
material deficiencies that have not been or will not be remediated in time
to meet the reporting deadline imposed by Section 404 of the Xxxxxxxx-Xxxxx
Act and the rules and regulations promulgated by the Commission in
connection therewith (collectively, "Section 404") for compliance with the
requirements of Section 404. The Company has not received any notice, oral
or written, from its auditor, that the auditor believes the Company is
behind schedule with respect to the compliance requirements of Section 404.
To the Company's knowledge, the Company will be able to complete its
required assessment under Section 404 before the related filing deadline
with the Commission and in sufficient time for the Company's auditor to
complete its required assessment.
(b) OFFICERS' CERTIFICATES. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Representative or to
counsel for the Underwriters in connection with the offering of the Notes shall
be deemed a representation and warranty by the Company to the Underwriters as to
the matters covered thereby on the date of such certificate.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) NOTES. The commitment of each Underwriter to purchase, severally and
not jointly, the respective principal amount of Notes set forth opposite its
name on SCHEDULE I hereto pursuant to the terms hereof shall be deemed to have
been made on the basis of the representations, warranties and agreements herein
contained and shall be subject to the terms and conditions herein set forth.
(b) PAYMENT. The Company will deliver against payment of the purchase
price (99.164% of the aggregate principal amount of the Notes or $297,492,000)
the Notes in the form of a permanent global security in definitive form (the
"Global Security") deposited with the Trustee as custodian for The Depository
Trust Company ("DTC") and registered in the name of
11
Cede & Co., as nominee for DTC. Interests in the Global Security will be held
only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Notes shall be made by the
Underwriters in Federal (same day) funds by one or more wire transfers to an
account of the Company at a bank reasonably acceptable to the Underwriters on
February 15, 2005, or at such other time not later than ten full business days
thereafter as the Representatives and the Company determine, such time being
herein referred to as the "Closing Time", against delivery to the Trustee as
custodian for DTC of the Global Security representing all of the Notes. The
Global Security will be made available for checking at the office of Xxxxxxxx &
Worcester LLP, Boston, Massachusetts at least 24 hours prior to the Closing
Time.
(c) DENOMINATIONS; REGISTRATION. The Notes shall be issued in such
authorized denominations and registered in such names as the Representatives
shall request not later than one business day prior to the Closing Time. The
Notes shall be made available for inspection not later than 10:00 a.m. (Eastern
Time) on the business day prior to the Closing Time, at the office of The
Depository Trust Company or its designated custodian.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of this Underwriting Agreement,
the Company will prepare a Prospectus Supplement setting forth the aggregate
principal amount of Notes covered thereby and their terms not otherwise
specified in the Prospectus, the names of the Underwriters, the price at which
the Notes are to be purchased by the Underwriters, severally and not jointly,
from the Company, and such other information as the Representatives and the
Company deem appropriate in connection with the offering of the Notes; and the
Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations and
will furnish to the Underwriters as many copies (including by electronic means,
if so requested in lieu of paper copies) of the Prospectus (including such
Prospectus Supplement) as they shall reasonably request.
(b) Until the termination of the initial offering of the Notes, the
Company will notify the Representatives immediately, and confirm the notice in
writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for filing of any
supplement or amendment to the Prospectus or any document to be filed pursuant
to the 1934 Act, (iii) of the receipt of any comments from the Commission with
respect to the Notes, (iv) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus with
respect to the Notes or for additional information relating thereto, and (v) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the issuance
of any such stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(c) Until the termination of the initial offering of the Notes, the
Company will give the Representatives notice of its intention to file or prepare
any post-effective amendment to the Registration Statement or any amendment or
supplement to the Prospectus (including any
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revised prospectus which the Company proposes for use by the Underwriters in
connection with the offering of the Notes which differs from the prospectus on
file at the Commission at the time that the Registration Statement becomes
effective, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the
Underwriters with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to which
counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to the Underwriters a conformed copy of the
Registration Statement as originally filed and of each amendment thereto filed
prior to the termination of the initial offering of the Notes (including
exhibits filed therewith or incorporated by reference therein and the documents
incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3).
(e) The Company will furnish to the Underwriters, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, such number of copies (including by electronic means, if so
requested in lieu of paper copies) of the Prospectus (as amended or
supplemented) as any Representative may reasonably request for the purposes
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or 1934 Act
Regulations.
(f) Until the termination of the initial offering of the Notes, if any
event shall occur as a result of which it is necessary, in the opinion of
counsel for the Underwriters, to amend or supplement the Prospectus in order to
make the Prospectus not misleading in the light of the circumstances existing at
the time it is delivered, the Company will promptly notify the Representatives
and either (i) forthwith prepare and furnish to the Underwriters an amendment of
or supplement to the Prospectus or (ii) make an appropriate filing pursuant to
Section 13, 14 or 15 of the 1934 Act, in each case, in form and substance
reasonably satisfactory to counsel for the Underwriters, which will amend or
supplement the Prospectus so that it will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time it is
delivered, not misleading. Any Underwriter's delivery of any such amendment or
supplement shall not constitute a waiver of any of the conditions in Section 5
hereof.
(g) The Company will endeavor in good faith, in cooperation with the
Underwriters, to qualify the Notes for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as the Underwriters may designate; provided
that, in connection therewith, the Company shall not be required to qualify as a
foreign corporation or trust or to file any general consent to service of
process. In each jurisdiction in which the Notes have been so qualified the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for so long as
required for the distribution of the Notes.
(h) The Company will make generally available to its security holders as
soon as reasonably practicable, but not later than 90 days after the close of
the period covered thereby, an earning statement of the Company (in form
complying with the provisions of Rule 158 of the
13
1933 Act Regulations) covering a period of at least twelve months beginning not
later than the first day of the Company's fiscal quarter next following the
effective date of the Registration Statement. "Earning statement", "make
generally available" and "effective date" will have the meanings contained in
Rule 158 of the 1933 Act Regulations.
(i) The Company will use the net proceeds received by it from the sale of
the Notes in the manner specified in the Prospectus under the caption "Use of
Proceeds" in all material respects.
(j) The Company currently intends to continue to qualify as a "real estate
investment trust" under the Code, and use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust" under the Code.
(k) The Company will comply in all material respects with all applicable
securities and other applicable laws, rules and regulations, including, without
limitation, the Xxxxxxxx-Xxxxx Act, and use its best efforts to cause the
Company's directors and officers, in their capacities as such, to comply with
such laws, rules and regulations, including, without limitation, the provisions
of the Xxxxxxxx-Xxxxx Act.
(l) The Company will timely file any document which it is required to file
pursuant to the 1934 Act prior to the termination of the offering of the Notes.
(m) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the 1933 Act relating to debt securities issued or
guaranteed by the Company and having a maturity of more than one year from the
date of issue, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of the
Representatives for a period beginning at the date of this Underwriting
Agreement and ending at the later of the Closing Time or the lifting of trading
restrictions by the Representatives; provided however, such period shall not end
later than the 15th day after the Closing Time.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement, including (i)
the preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the Notes and any
certificates for the Notes to the Underwriters, including any transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Notes to the Underwriters, (iii) the fees and disbursements of the Company's
counsel, accountants and other advisors or agents, as well as the fees and
disbursements of the Trustee, and their respective counsel, (iv) the
qualification of the Notes under state securities laws in accordance with the
provisions of Section 3(g) hereof, including filing fees and the reasonable fees
and disbursements of counsel in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey, and any amendment
thereto, (v) the printing and delivery to the Underwriters of copies of the
Prospectus and any amendments or supplements thereto, (vi) the fees charged by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the 1933
14
Act, a "NRSRO") for the rating of the Notes, (vii) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Notes, and (viii) the
cost of providing any CUSIP or other identification numbers on the Notes.
(b) TERMINATION OF AGREEMENT. If this Underwriting Agreement is terminated
by the Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Representatives for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters, acting severally and not jointly, to purchase and pay for the
Notes pursuant to the terms hereof are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Notes, the specific method of distribution and similar
matters shall have been filed with the Commission in accordance with Rule
424(b).
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the Representatives
shall have received the favorable opinion, dated as of Closing Time, of Xxxxxxxx
& Worcester LLP, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, to the effect set forth in EXHIBIT A hereto. In
rendering their opinion, such counsel may rely on an opinion dated the Closing
Time of Xxxxxxx LLP, as to matters governed by the laws of the State of
Maryland. In addition, in rendering their opinion, such counsel may state that
their opinion as to laws of the State of Delaware is limited to the Delaware
General Corporation Law and the Delaware Limited Liability Company Act. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(c) OPINION OF SPECIAL MARYLAND COUNSEL FOR COMPANY. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxx LLP, special Maryland counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, to the effect set forth
in EXHIBIT B hereto.
(d) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Hunton & Xxxxxxxx LLP, counsel for the Underwriters with respect to the
matters set forth in paragraphs (4), (5), (6), (7), (15) and (16) of Exhibit A
and a statement to the following effect: no fact has come to their
15
attention that has caused them to believe that the Registration Statement
(including any Rule 462(b) Registration Statement) or any post-effective
amendment thereto (except for financial statements and supporting schedules and
other financial data included therein or omitted therefrom and for the Form
T-1s, as to which they make no statement), at the time the Registration
Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (including the filing of the Company's Annual
Report with the Commission) became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and supporting schedules and other financial data included therein or
omitted therefrom, as to which they make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York and the federal law of the United States, upon the opinions of counsel
satisfactory to the Representatives and may rely on an opinion dated the Closing
time of Xxxxxxx LLP as to matters governed by the laws of the State of Maryland
and on an opinion of Xxxxxxxx & Worcester LLP as to matters governed by the laws
of the Commonwealth of Massachusetts. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(e) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any Material Adverse Effect and the Representatives
shall have received a certificate of the President or a Vice President of the
Company and of the chief financial officer or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has been no
Material Adverse Effect, (ii) the representations and warranties in Section 1(a)
are true and correct with the same force and effect as though expressly made at
and as of the Closing Time, (iii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted, are pending or, to the best of such officer's
knowledge, are threatened by the Commission.
(f) CERTIFICATE OF THE COMPANY REGARDING FINANCIAL STATEMENTS. At the
Closing Time the Representatives shall have received a certificate of the
Company substantially in the form of Exhibit C hereto.
(g) ADVISOR'S CERTIFICATE. At Closing Time, there shall not have been,
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Advisor, whether or not
arising in the ordinary course of business; and the Representatives
16
shall have received, at Closing Time, a certificate of the President or a Vice
President of the Advisor evidencing compliance with this subsection (g).
(h) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Underwriting Agreement, the Representatives shall have received from Ernst &
Young LLP a letter dated such date, in form and substance satisfactory to the
Representatives containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(i) BRING-DOWN COMFORT LETTER. At Closing Time, the Representatives shall
have received from Ernst & Young LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (h) of this Section 5, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Time.
(j) RATINGS. At Closing Time, the Notes shall have the ratings of Baa3 by
Xxxxx'x Investors Service, Inc. ("Xxxxx'x") and BBB- by Standard & Poor's Rating
Service ("S&P"). Since the time of execution of this Underwriting Agreement,
there shall not have occurred a downgrading in, or withdrawal of, the rating
assigned to the Notes or any of the Company's other securities by Moody's or
S&P, and neither Moody's nor S&P shall have publicly announced that it has under
surveillance or review its rating of the Notes or any of the Company's other
securities.
(k) NO OBJECTION. If the Registration Statement or the offering of the
Notes has been filed with the NASD for review, the NASD shall not have raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(l) ADDITIONAL DOCUMENTS. At Closing Time, counsel to the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Notes as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Notes as herein contemplated shall
be reasonably satisfactory in form and substance to the Representatives and
counsel to the Underwriters.
(m) TERMINATION OF THIS AGREEMENT. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Underwriting Agreement may be terminated by the Representatives by notice
to the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify and
hold harmless each Underwriter, its officers and directors and each person, if
any, who controls each
17
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriters),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Representatives expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); and provided, further, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter, its officers or directors, or the benefit of
any person controlling any Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto sufficiently in advance of the required delivery time to
enable the Underwriter to make delivery and excluding documents incorporated or
deemed to be incorporated by reference therein) was not sent or given by or on
behalf of the Underwriter to such person asserting any such losses, claims,
damages or liabilities at or prior to the written confirmation of the sale of
such Notes to such person, if required by law so to have been delivered, and if
the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or expense.
(b) INDEMNIFICATION OF COMPANY, TRUSTEES AND OFFICERS. Each Underwriter,
severally and not jointly, agrees to indemnify and hold harmless the Company,
its trustees, each of its
18
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter or through a
Representative on behalf of such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. The indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such indemnified parties
and payment of all fees and expenses. The indemnified parties shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified parties unless (i) the employment of such counsel
shall have been specifically authorized in writing by the indemnifying party,
(ii) the indemnifying party shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any impleaded
parties) include both the indemnified parties and the indemnifying party and the
indemnified parties shall have been advised by such counsel that there may be
one or more legal defenses available to them which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified parties, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for the indemnified parties, which firm shall be designated in writing
by the indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred). No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) 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) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and
19
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the Notes
pursuant hereto or (ii) if the allocation provided by 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 Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Notes
pursuant hereto shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Notes (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of such Notes as set forth on such
cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
20
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each trustee of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of the Notes set forth opposite their
respective names in SCHEDULE I hereto, and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Underwriting
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of and payment for the Notes.
SECTION 9. TERMINATION.
(a) The Representatives may terminate this Underwriting Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
occurred any change, or any development or event involving a prospective change,
in the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as one enterprise which, in
the judgment of a majority in interest of the Representatives, is material and
adverse and makes it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Notes; (ii) any
downgrading in the rating of any debt securities of the Company by any NRSRO, or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change in U.S.
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a majority in
interest of the Representatives, be likely to prejudice materially the success
of the proposed issue, sale or distribution of the Notes, whether in the primary
market or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (v) any banking moratorium declared
by U.S. Federal or New York authorities; (vi) any major disruption of
settlements of
21
securities or clearance services in the United States or (vii) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of a majority in
interest of the Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Notes.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except as
provided in Section 4, and provided further that Sections 6 and 7 hereof shall
survive such termination.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Notes which it
or they are obligated to purchase hereunder (the "Defaulted Securities"), then
one or more of the non-defaulting Underwriters, or any other underwriters, shall
have the right, within 24 hours thereafter, to make arrangements for to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the
non-defaulting Underwriters shall not have completed such arrangements within
such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Notes to be purchased
on such date pursuant hereto, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Notes to be purchased on such
date pursuant hereto, this Underwriting Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Underwriting Agreement, either the Representatives or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Wachovia Capital Markets, LLC at One Wachovia
Center, 000 Xxxxx Xxxxxxx Xxxxxx, mail code NC0602, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000 or via fax at (000)000-0000, attention: Xxxxxx Xxx; and notices to the
22
Company shall be directed to it at 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000,
attention of Xxxx X. Xxxxxx.
SECTION 12. PARTIES. This Underwriting Agreement shall inure to the benefit
of and be binding upon the Company, and the Underwriters and their respective
successors. Nothing expressed or mentioned in this Underwriting Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and their respective successors and the
controlling persons and officers and trustees referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Underwriting Agreement or any provision
herein contained. This Underwriting Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons and
officers and trustees and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of the Notes from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein are
for convenience only and shall not affect the construction hereof.
[Signatures on the Following Page]
23
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
HOSPITALITY PROPERTIES TRUST
By: /s/ XXXX X. XXXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
Each of the undersigned hereby
confirms and accepts the foregoing
Underwriting Agreement as of the date
first above written, as Underwriter named in,
and as the Representative of the other Underwriters
named in, SCHEDULE I hereto.
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ XXXXXXXX X. XXXX
-----------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ ALEXANDER VIRTUE
-----------------------------------------
Name: Alexander Virtue
Title: Vice President,
Investment Banking
RBC CAPITAL MARKETS CORPORATION
By: /s/ XXXXX XXXXXXX
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
24
SCHEDULE I
PRINCIPAL AMOUNT OF
UNDERWRITER NOTES TO BE PURCHASED
Wachovia Capital Markets, LLC.................................... $ 90,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated............... 45,000,000
RBC Capital Markets Corporation.................................. 45,000,000
Xxxxxx Xxxxxxx Corp.............................................. 6,000,000
KeyBanc Capital Markets, a division of McDonald Investments Inc.. 6,000,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated............................. 6,000,000
Xxxxxx Xxxxxx & Co., Inc......................................... 6,000,000
Xxxxxxxxxxx & Co. Inc............................................ 6,000,000
Scotia Capital (USA) Inc......................................... 6,000,000
SunTrust Capital Markets, Inc.................................... 6,000,000
Xxxxx Fargo Securities, LLC...................................... 6,000,000
Advest, Inc. .................................................... 6,000,000
Banc of America Securities LLC................................... 6,000,000
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc. .. 6,000,000
Calyon Securities (USA) Inc. .................................... 6,000,000
Citigroup Global Markets Inc. ................................... 6,000,000
Commerzbank Capital Markets Corp. ............................... 6,000,000
Deutsche Bank Securities Inc. ................................... 6,000,000
PNC Capital Markets, Inc. ....................................... 6,000,000
Xxxxxx, Xxxxxxxx & Company, Incorporated......................... 6,000,000
Xxxxx Xxxxxxx & Co. ............................................. 6,000,000
Wedbush Xxxxxx Securities Inc. .................................. 6,000,000
Xxxxxx, Xxxxx Xxxxx, Incorporated................................ 6,000,000
-------------------------------
TOTAL................................................... $ 300,000,000
-------------------------------
I-1
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company is a real estate investment trust duly formed and validly
existing under and by virtue of the laws of the State of Maryland and is in good
standing with the State Department of Assessments and Taxation of Maryland.
(2) The Company has trust power to own and lease its properties and to
conduct its business as described in the Prospectus and to enter into and
perform its obligations under the Underwriting Agreement.
(3) The Company is duly qualified to transact business and is in good
standing in each jurisdiction other than the State of Maryland in which the
ownership or leasing of its properties requires such qualification, except where
the failure to so qualify or be in good standing would not result in a Material
Adverse Effect.
(4) The Underwriting Agreement and the Indenture have been duly authorized,
executed and delivered by the Company.
(5) The Notes have been duly authorized and, when executed and
authenticated in accordance with the terms of the Indenture, will be valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms. The holders of the Notes will be entitled to the
benefits of the Indenture.
(6) The Indenture is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(7) The Notes and the Indenture conform in all material respects to the
descriptions thereof in the Registration Statement and the Prospectus.
(8) (a) The statements under the captions (i) "Recent Developments," and
"Description of the Notes" in the Prospectus Supplement and (ii) "Description of
Debt Securities," in the Prospectus, and (b) the statements under the captions
(i) "Item 1. Business -- The Company -- Principal Lease or Management Agreement
Features," "Item 5. Market for the Registrant's Common Equity and Related
Shareholder Matters," "Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Overview," and "Item 7. Management's
Discussion and Analysis of Results of Operations and Financial Condition --
Liquidity and Capital Resources" in the Annual Report, (ii) "Other Information
-- Certain Relationships and Related Party Transactions" in the Company's Proxy
Statement relating to the May 11, 2004 Annual Meeting of Shareholders
(incorporated by reference in the Annual Report), insofar as such statements
constitute summaries of legal matters, documents or proceedings referred to
therein, fairly present in all material respects the information called for with
respect to such legal matters, documents and proceedings.
A-1
(9) The statements under the captions "Material Federal Income Tax
Considerations" in the Prospectus Supplement and the statements under the
captions "Federal Income Tax Considerations" and "ERISA Plans, Xxxxx Plans and
Individual Retirement Accounts" under the caption "Items 1. Business" in the
Annual Report, as of the date of the filing of the Annual Report with the
Commission, insofar as such statements constitute summaries of legal matters or
documents referred to therein, fairly present in all material respects the
information called for with respect to such legal matters and documents.
(10) To such counsel's knowledge, except as disclosed in the Prospectus,
the Company is not in violation of its declaration of trust or bylaws and no
default by the Company exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement and to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound or to which any of the assets,
properties or operations of the Company is subject, except for such violations
or defaults which would not result in a Material Adverse Effect.
(11) The execution, delivery and performance of the Underwriting Agreement
and the consummation of the transactions contemplated in the Underwriting
Agreement and in the Registration Statement and the Prospectus (including the
issuance and sale of the Notes and the use of the proceeds from the sale of the
Notes as described under the caption "Use of Proceeds" in the Prospectus
Supplement) and compliance by the Company with its obligations thereunder do not
and will not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment Event
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Company or pursuant
to, any material contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument that is described or
referred to in the Registration Statement or the Prospectus or filed or
incorporated by reference as an exhibit to the Registration Statement and to
which the Company or any of its subsidiaries is a party or by which it or any of
them may be bound or to which any of the assets, properties or operations of the
Company is subject, nor will such action result in any violation of the
provisions of the declaration of trust or bylaws of the Company or in any
material respect any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to such counsel, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations, in each case except as disclosed in the Prospectus.
(12) To such counsel's knowledge, except as disclosed in the Prospectus
there is not pending or threatened any action, suit, proceeding, inquiry or
investigation to which the Company is a party or to which the assets, properties
or operations of the Company is subject, before or by any court or government
agency or body which would, if determined adversely to the Company, result in a
Material Adverse Effect or materially and adversely affect the consummation of
the transactions contemplated under the Underwriting Agreement, the issuance of
the Notes pursuant thereto or the right or ability of the Company to perform its
obligations thereunder.
A-2
(13) To such counsel's knowledge, there is no contract or other document
which is required to be described in the Registration Statement or the
Prospectus that is not described therein or is required to be filed as an
exhibit to the Registration Statement which is not so filed.
(14) To such counsel's knowledge, there are no statutes or regulations that
are required to be described in the Prospectus that are not described as
required.
(15) The Registration Statement has been declared effective under the 1933
Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b). To such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been initiated or are pending or threatened by the Commission.
(16) The Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
financial statements and other financial data and schedules and the Trustee's
Statement of Eligibility on Form T-1, as to which such counsel need not express
any opinion), complied as to form in all material respects with the requirements
of the 1933 Act.
(17) Each document incorporated by reference in the Registration Statement
or Prospectus (other than financial statements and other financial data and
schedules, as to which such counsel need not express any opinion) complied as to
form in all material respects with the 1934 Act when filed with the Commission.
(18) No authorization, approval, consent, license, order, registration,
qualification or decree of any federal, Massachusetts, Delaware or Maryland
court or governmental authority or agency is necessary or required for the due
authorization, execution or delivery by the Company of the Underwriting
Agreement or for the performance by the Company of the transactions contemplated
under the Prospectus, the Underwriting Agreement or the Indenture, other than
those which have already been made, obtained or rendered as applicable.
(19) The Indenture has been duly qualified under the 1939 Act.
(20) The Company is not, and upon the issuance and sale of the Notes as
contemplated by the Underwriting Agreement and the application of the net
proceeds therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(21) The Company has qualified to be taxed as a real estate investment
trust pursuant to Sections 856-860 of the Code for each of the taxable years
ended December 31, 1995 through December 31, 2004, and the Company's current
anticipated investments and its current plan of operation will enable it to
continue to meet the requirements for qualification and taxation as a real
estate investment trust under the Code; actual qualification of the Company as a
real estate investment trust, however, will depend upon the Company's continued
ability to meet, and its
A-3
meeting, through actual annual operating results and distributions, the various
qualification tests imposed under the Code.
(22) The Advisor is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the requisite limited liability company power and authority to conduct its
business as described in the Prospectus and to own and operate its material
properties.
(23) The Advisory Agreement has been duly authorized, executed and
delivered by the parties thereto and constitutes the valid agreement of the
parties thereto, enforceable in accordance with its terms.
(24) No facts have come to such counsel's attention that would lead them to
believe that (x) the Registration Statement, as of the filing of the Company's
Annual Report with the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or (y) the
Prospectus, at the time it was first provided to the Underwriters for use in
connection with the offering of the Notes or at the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that such
counsel need not express any views as to the financial statements and other
financial data and schedules included in the Registration Statement or the
Prospectus.
Such counsel need not express any opinion as to compliance with, or filings
with or authorizations, approvals, consents, licenses, orders, registrations,
qualifications or decrees under, state securities or "Blue Sky" laws. Such
counsel's opinions with respect to the validity or enforceability of agreements
may be qualified to the extent that the obligations, rights and remedies of
parties may be limited by (i) bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting generally creditors' rights and remedies, and
(ii) general principles of equity (regardless of whether considered in a
proceeding at law or in equity), and otherwise in a manner acceptable to the
Underwriters.
A-4
EXHIBIT B
FORM OF OPINION OF SPECIAL MARYLAND COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(c)
1. The Company is a real estate investment trust duly formed and validly
existing under and by virtue of the laws of the State of Maryland and is in good
standing with the State Department of Assessments and Taxation of the State of
Maryland, with trust power to own and lease its properties and to conduct its
business, in all material respects as described in the Prospectus, and to enter
into and perform its obligations under, or as contemplated under, the
Underwriting Agreement.
2. The Company has trust power to execute, deliver and perform its
obligations under the Underwriting Agreement and to issue and deliver the Notes.
The execution and delivery of the Underwriting Agreement and the Indenture and
the performance by the Company of is obligations thereunder have been duly
authorized by the Board of Trustees of the Company.
3. The Underwriting Agreement and the Indenture have been duly executed
and, so far as is known to us, delivered by the Company.
4. The sale and issuance of the Notes pursuant to the Underwriting
Agreement have been duly authorized by the Board of Trustees of the Company and
when the Notes are executed, issued and authenticated in the manner provided for
in the Indenture and delivered against payment of the consideration therefor
specified in the Underwriting Agreement and otherwise in accordance with the
Resolutions, the Notes will be validly issued.
5. The execution, delivery and performance by the Company of the
Underwriting Agreement and the consummation of the transactions contemplated
therein will not constitute a violation of the Maryland REIT Law, the
Declaration of Trust or the Bylaws.
6. The information in the Base Prospectus under the caption "Description of
Certain Provisions of Maryland Law and our Declaration of Trust and Bylaws" as
of the Closing Time, insofar as such information relates to provisions of
Maryland law, fairly summarizes such provisions of Maryland law in all material
respects.
8. So far as is known to us, except as disclosed in the Prospectus, the
Company is not in violation of the Declaration of Trust or Bylaws except for any
such violations which would not in the aggregate result in a material adverse
effect on the business, operations, earnings, business prospects, properties or
condition (financial or otherwise) of the Company.
9. The execution, delivery and performance of the Underwriting Agreement
and the consummation of the transactions contemplated in the Underwriting
Agreement and in the Registration Statement and the Prospectus (including the
issuance and sale of the Notes and the use of the proceeds from the sale of the
Notes as described under the caption "Use of Proceeds" in the Prospectus
Supplement) and compliance by the Company with its obligations thereunder
B-1
do not and will not result in a violation of the Declaration of Trust or the
Bylaws or in any material respect the Maryland REIT Law.
11. No authorization, approval, consent, license, order or decree of, or
filing, registration of qualification with, any Maryland governmental authority
or agency (other than any Maryland governmental authority or agency dealing with
securities laws or laws relating to the ownership or operation of the properties
owned by the Company located in the State of Maryland, as to both of which no
opinion is hereby expressed) is necessary or required for the due authorization,
execution or delivery by the Company of the Underwriting Agreement or for the
performance by the Company of the transactions contemplated under the Prospectus
or the Underwriting Agreement, other than those which have already been made,
obtained or rendered, as applicable.
B-2
EXHIBIT C
CERTIFICATE OF
HOSPITALITY PROPERTIES TRUST
PURSUANT TO SECTION 5(f) OF THE UNDERWRITING AGREEMENT
Each of the undersigned hereby certifies:
1. Each of the undersigned is providing this certificate in connection with
the offering of $300,000,000 aggregate principal amount of
Hospitality
Properties Trust's (the "Company") 5 1/8% Senior Notes due February 15,
2015 (the "Offering"). In connection with the Offering, the Company has
executed an Underwriting Agreement, dated February 10, 2005 (the
"Underwriting Agreement"), with Wachovia Capital Markets, LLC, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and RBC Capital Markets
Corporation. Certain terms not defined herein have the meaning given to
them in the Underwriting Agreement.
2. Each of the undersigned is familiar with the accounting, operations and
records systems of the Company.
3. Each of the undersigned has reviewed the audited consolidated balance
sheets and consolidated statements of capitalization of the Company and its
subsidiaries as of December 31, 2003 and 2002 and the related consolidated
statements of income, retained earnings, comprehensive income and cash
flows for each of the three years in the period ended December 31, 2003,
all incorporated by reference into the Prospectus.
To the best of each of the undersigned's knowledge, such financial
statements described in this paragraph 3 fairly present, in all material
respects, the financial condition of the Company and its consolidated
subsidiaries, and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with U.S. generally accepted accounting principles applied on a
consistent basis;
The Annual Report on Form 10-K for the year ended December 31, 2003, and
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, June
30, and September 30, 2004 (collectively, the "Reports"), fully comply with
the requirements of Section 13(a) or 15(d) of the Securities and Exchange
Act of 1934; and the information contained in each Report fairly presents,
in all material respects, the financial condition and results of operations
of the Company as of its date of filing with the Securities and Exchange
Commission.
This certificate is being furnished to the Underwriters in connection with
the Offering, solely to assist in conducting its investigation of the
Company and its subsidiaries in connection with the Offering. This
certificate shall not be used, quoted or otherwise referred to without the
prior written consent of the Company.
C-1
IN WITNESS WHEREOF, the undersigned have hereunto set their hand this _____
day of February 2005.
--------------------------------------- ----------------------------------
Xxxx X. Xxxxxx Xxxxx X. Xxxxxxx
President and Chief Operating Officer Managing Trustee
---------------------------------------
Xxxx Xxxxxxxx
Chief Financial Officer and Treasurer
C-2
