COMMON STOCK PURCHASE AGREEMENT
688,837 SHARES OF COMMON STOCK
OF
AMERICAN GENERAL HOSPITALITY CORPORATION
TABLE OF CONTENTS
PAGE
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I. PURCHASE AND SALE OF STOCK......................................... 1
1.1. Sale and Issuance of Common Stock ........................ 1
1.2. Closing................................................... 1
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................... 2
2.1. Registration of Common Stock.............................. 2
2.2. Organization, Good Standing and Qualification............. 3
2.3. Capitalization............................................ 4
2.4. Authorization; Enforcement................................ 5
2.5. Valid Issuance of Shares.................................. 5
2.6. Compliance with Other Instruments......................... 6
2.7. SEC Documents; Financial Statements; Other Information.... 6
2.8. Litigation................................................ 7
2.9. Title to Properties; Leasehold Interests.................. 7
2.10. Environmental Compliance.................................. 8
2.11. Taxes..................................................... 9
2.12. Employees; ERISA.......................................... 10
2.13. Legal Compliance.......................................... 10
2.14. Accountants............................................... 10
2.15. Insurance................................................. 11
2.16. Operating Partnership..................................... 11
2.17. Approval Rights........................................... 11
2.18. Investment Company........................................ 12
2.19. Cuba...................................................... 12
2.20. Affiliate Status.......................................... 12
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.................... 12
3.1. Authorization............................................. 12
3.2. Enforcement............................................... 13
3.3. Approval; Consents........................................ 13
3.4. Current Holdings.......................................... 13
IV. CONDITIONS OF THE INVESTOR'S OBLIGATIONS
AT CLOSING........................................................ 13
4.1. Representations and Warranties............................ 13
4.2. Performance............................................... 13
4.3. Compliance Certificate.................................... 14
4.4. Opinions of Company Counsel............................... 14
4.5. NYSE Listing.............................................. 14
4.6. No Material Change........................................ 14
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4.7. No Stop Order............................................. 14
4.8. Agreement with Xxxxxx Xxxxx and Xxxxx Xxxxx............... 14
4.9. Key Employees............................................. 15
4.10. Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976....... 15
V. CONDITIONS OF COMPANY'S OBLIGATIONS AT CLOSING.................... 15
5.1. Representations and Warranties............................ 15
5.2. Performance............................................... 15
5.3. Compliance Certificate.................................... 15
5.4. Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976....... 16
5.5. NYSE Listing.............................................. 16
VI. COVENANTS......................................................... 16
6.1. Opinion of Company Counsel for REIT Status................ 16
6.2. Stop Orders............................................... 16
6.3. Use of Proceeds........................................... 17
6.4. Confidentiality........................................... 17
6.5. Future Offerings.......................................... 17
6.6. Registration Rights....................................... 18
6.7. Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976....... 18
6.8. Preemptive Rights......................................... 18
VII. INDEMNIFICATION................................................... 18
7.1. Indemnification by Investor and the Company............... 18
7.2. Third-Party Claims........................................ 19
7.3. Survival.................................................. 20
VIII.MISCELLANEOUS..................................................... 20
8.1. Survival of Warranties................................... 20
8.2. Successors and Assigns................................... 20
8.3. Governing Law............................................ 20
8.4. Counterparts............................................. 20
8.5. Titles and Subtitles..................................... 20
8.6. Notices.................................................. 21
8.7. No Finder's Fees......................................... 21
8.8. Expenses................................................. 22
8.9. Amendments and Waivers................................... 22
8.10. Severability............................................. 22
8.11. Entire Agreement......................................... 22
8.12. Knowledge................................................ 23
8.13. Schedules................................................ 23
8.14. Cross-Default............................................ 23
Exhibit A.............................................................. 25
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COMMON STOCK PURCHASE AGREEMENT
This COMMON STOCK PURCHASE AGREEMENT (this "Agreement") is made as of this
9th day of September, 1997, by and between American General Hospitality
Corporation, a Maryland corporation (the "Company"), and ABKB/LaSalle Securities
Limited Partnership, a registered investment adviser (the "Investor"), as agent
for and for the benefit of certain clients (each a "Pecuniary Owner," and
collectively, the "Pecuniary Owners") listed on Exhibit A attached hereto.
THE PARTIES HEREBY AGREE AS FOLLOWS:
I. PURCHASE AND SALE OF STOCK.
1.1. SALE AND ISSUANCE OF COMMON STOCK.
Subject to the terms and conditions of this Agreement, the Investor agrees
to purchase at the Closing Date (as defined below), and the Company agrees to
sell and issue to the Investor on behalf of the Pecuniary Owners at the Closing
Date (as defined below), 688,837 fully registered shares (the "Shares") of the
Company's Common Stock, par value $0.01 per share (the "Common Stock"), for an
aggregate purchase price of $17,999,999.65 (the "Purchase Price") based upon a
per-share price of $26.131 (the "Price").
1.2. CLOSING.
The transactions contemplated by this Agreement shall be funded from time
to time (each, a "Closing"), but in no event shall the combined funding for each
Closing contemplated by this Agreement and that certain Common Stock Purchase
Agreement, dated September 9, 1997 (the "Private Placement Agreement"), between
the same signatories hereto (the "Combined Funding"), be funded in increments of
less than $15 million, subsequent to an initial $10 million Combined Funding,
which will occur upon ten (10) days' prior written notice from the Company, but
in any event, on or before October 16, 1997 (the "First Funding Date"). The
first Closing shall occur no later than October 16, 1997. The entire commitment
for the Combined Funding must be drawn prior to January 31, 1998, subject to an
extension to March 31, 1998, at the Investor's discretion. Each Closing
described in this Agreement and each Closing described in the Private Placement
Agreement shall occur simultaneously on a pro rata basis determined with respect
to the aggregate funding commitments under the Private Placement Agreement and
this Agreement. In such event, or in the event that the Investor is terminated
as investment manager under the Private Placement Agreement, the Combined
Funding amount of each subsequent Closing shall be adjusted accordingly. In the
event the Investor is terminated as investment manager by a Pecuniary Owner and
neither the Investor nor any of its affiliates is reengaged as investment
manager by the Pecuniary Owner for at least one (1) year, there shall not be any
obligation to fund that Pecuniary Owner's pro rata amount.
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The Closing will be handled through Depository Trust Company ("DTC") in the
same manner it generally would be handled for the trading of registered
securities, with the names and denominations representing the shares of Common
Stock to be sold to the Investor hereunder to be set forth on Exhibit A. The
date for Closing (each, a "Closing Date") shall be within ten (10) days
following written notice from the Company that all of the conditions set forth
in Section 4 of this Agreement have been fulfilled, but in no event later than
January 31, 1998, subject to an extension to March 31, 1998, at Investor's
discretion.
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby makes the representations and warranties set forth below
to the Investor and the Pecuniary Owners.
2.1. REGISTRATION OF COMMON STOCK.
(a) A registration statement on Form S-3 (File No. 333-33007) with respect
to the Shares has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder and has been filed with
the Commission under the Securities Act. The Company has complied with the
conditions for the use of Form S-3. Copies of such registration statement,
including any amendments thereto, the preliminary prospectuses contained therein
and the exhibits, financial statements and schedules, as finally amended and
revised, have heretofore been delivered by the Company to you. Such registration
statement, herein referred to as the "Registration Statement," has been declared
effective by the Commission under the Securities Act and no post-effective
amendment to the Registration Statement has been filed as of the date of this
Agreement. The prospectus constituting a part of the Registration Statement and
the prospectus supplement relating to the offering of the Common Stock (the
"Prospectus Supplement"), including all documents incorporated by reference
therein, as from time to time amended or supplemented pursuant to the Securities
Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
otherwise, are collectively referred to herein as the "Prospectus." Any
reference herein to the Registration Statement, any Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the documents incorporated by
reference therein, as of the date of such Registration Statement, Prospectus or
Prospectus Supplement, as the case may be, and, in the case of any reference
herein to any Prospectus or Prospectus Supplement, also shall be deemed to
include any documents incorporated by reference therein, and any supplements or
amendments relating to the Common Stock being issued and sold pursuant hereto,
filed with the Commission after the date of filing of the Prospectus under Rule
424(b), and prior to the Closing Date.
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(b) The Commission has not issued an order preventing or suspending the use
of any Prospectus relating to the proposed offering of the Common Stock nor
instituted proceedings for that purpose. The Registration Statement and the
Prospectus and any amendments or supplements thereto comply, or will comply, in
all respects with the requirements of the Securities Act and the Rules and
Regulations. The documents incorporated by reference in the Prospectus, at the
time they were filed or will be filed with the Commission, complied or will
comply at the time of filing, in all material respects to the requirements of
the Exchange Act or the Securities Act, as applicable, and the Rules and
Regulations of the Commission thereunder. Neither the Registration Statement
nor any amendment thereto, and neither the Prospectus nor any supplement
thereto, including any documents incorporated by reference therein, contains or
will contain, as the case may be, any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the
Registration Statement, as it may be amended or supplemented, there has not been
any material adverse change or any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise, of the
Company or the funds from operations, business affairs, management or business
prospects of the Company, whether or not occurring in the ordinary course of
business, and there has not been any material transaction entered into by the
Company other than transactions in the ordinary course of business and changes
and transactions contemplated by the Registration Statement, as it may be
amended or supplemented. The Company has no material contingent obligations
which are not disclosed in the Registration Statement, as it may be amended or
supplemented.
2.2. ORGANIZATION, GOOD STANDING AND QUALIFICATION.
(a) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland with full
corporate power and authority to own its properties and conduct its business as
now being conducted, and has been duly qualified as a foreign corporation for
the conduct of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business so
as to require such qualification, except where the failure to be so qualified
would not have a Material Adverse Effect. "Material Adverse Effect" means any
material adverse effect on the operations, assets, business, affairs, properties
or financial or other condition of the Company and its Subsidiaries (as defined
below) taken as a whole.
(b) Each "significant subsidiary" (as such term is defined in Rule 1-02 of
Regulation S-X) of the Company (each a "Subsidiary," and collectively, the
"Subsidiaries") is listed on Schedule 2.2 hereto. Each Subsidiary is a
corporation, limited partnership, limited liability company or trust, as the
case may be, duly
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organized or formed and validly existing and in good standing under the laws of
its jurisdiction of incorporation or formation. Each Subsidiary has the power
and authority (corporate and other) to conduct its businesses as now being
conducted, and each Subsidiary has been duly qualified as a foreign corporation
for the conduct of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, except where the failure to be so qualified
would not have a Material Adverse Effect. All of the outstanding capital stock,
partnership interests, limited liability company membership interests or trust
beneficial interests, as the case may be, issued by the Subsidiaries or created
by agreements to which the Subsidiaries are parties (i) have been duly and
validly issued or created (and in the case of capital stock are fully paid and
nonassessable) and (ii) are owned or held, directly or indirectly by the Company
in the percentage amounts set forth on Schedule 2.2 hereto free and clear of any
security interest, lien, adverse claim, equity or other encumbrance (each of the
foregoing, a "Lien") except for Liens disclosed in the SEC Documents (as defined
below) or incurred in the ordinary course of business since the date of the
Company's last Quarterly Report on Form 10-Q prior to the date hereof.
(c) References to the Company in the representations and warranties shall
be deemed to include each Subsidiary unless the context otherwise requires.
2.3. CAPITALIZATION.
(a) As of the date of this Agreement, the authorized capital stock (the
"Capital Stock") of the Company consists of 100,000,000 shares currently
classified as Common Stock, par value $0.01 (the "Common Stock"), of which
14,770,110 shares are issued and outstanding. All of such outstanding shares
have been duly authorized and validly issued and are fully paid and
nonassessable.
(b) As of the date of this Agreement, no shares of Capital Stock are
entitled to preemptive rights. Except as disclosed in the SEC Documents (as
defined below) or as set forth in Schedule 2.3(b), there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, any
shares of Capital Stock of the Company or any of its subsidiaries, or contracts,
commitments, understandings or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Capital Stock of
the Company or any Subsidiary. The Company has furnished to the Investor true
and correct copies of the Company's Amended and Restated Articles of
Incorporation, as amended as of the date hereof (the "Charter") and the
Company's Bylaws, as in effect on the date hereof (the "Bylaws").
(c) As of the date of this Agreement, the Company has no obligation
(contingent or other) to purchase, redeem or otherwise acquire any of its
capital stock or any interest therein or to pay any dividend or make any other
distribution in respect thereof, other than as required by the Real Estate
Investment Trust provisions of the Internal Revenue Code.
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(d) The Company has no knowledge of any voting agreements, voting trusts,
stockholders' agreements, proxies or other agreements or understandings that are
currently in effect or that are currently contemplated with respect to the
voting of any capital stock of the Company.
(e) All of the outstanding securities of the Company were issued in
compliance with all applicable federal and state securities laws.
2.4. AUTHORIZATION; ENFORCEMENT.
(a) The Company has the requisite corporate power and authority to enter
into and perform this Agreement and to issue the Common Stock in accordance with
the terms hereof. Except for the Ownership Limit and the Look-Through Ownership
Limit (as such terms are defined in the Charter), the Charter does not in any
way prevent or restrict the transactions contemplated hereby or preclude the
Investor, acting as agent on behalf of the Pecuniary Owners, or the Pecuniary
Owners from owning or holding the amount, value or class of Capital Stock to be
purchased hereby.
(b) The execution and delivery of this Agreement by the Company and the
consummation by it of the transactions contemplated hereby have been duly
authorized by the Company's Board of Directors and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required.
(c) This Agreement has been duly executed and delivered by the Company.
(d) This Agreement constitutes the legal, valid and binding obligation of
the Company enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
2.5. VALID ISSUANCE OF SHARES.
The Shares which are being purchased by the Investor hereunder, when
issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly issued, fully paid and
nonassessable and will be issued in compliance with all applicable federal and
state securities laws and stock exchange requirements.
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2.6. COMPLIANCE WITH OTHER INSTRUMENTS.
The execution, delivery and performance of this Agreement by the Company
and the consummation by the Company of the transactions contemplated hereby do
not (i) result in a violation of the Charter or Bylaws or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party, or result
in a violation of any law, rule, regulation, order, judgment or decree
applicable to the Company, any of its Subsidiaries or by which any property or
asset of the Company or any of its Subsidiaries is bound or affected (except for
such conflicts, defaults, terminations, amendments, accelerations, cancellations
and violations as would not, individually or in the aggregate, have a Material
Adverse Effect or materially impair the Company's ability to perform its
obligations under this Agreement). Other than in connection with the listing of
the Common Stock with the New York Stock Exchange (the "NYSE") and filings
required in connection with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"), if applicable, no governmental license, permit
or authorization, and no registration, declaration or filing with any
governmental authority or regulatory agency by the Company or any of its
affiliates is required in connection with the execution, delivery and
performance of this Agreement and the performance of the transactions
contemplated by this Agreement by the Company or any of its affiliates.
2.7. SEC DOCUMENTS; FINANCIAL STATEMENTS; OTHER INFORMATION.
(a) Since the completion of the Company's initial public offering on July
31, 1996, the Company has timely filed all reports, schedules, forms, statements
and other documents required to be filed by it with the Commission pursuant to
the reporting requirements of Section 13 of the Exchange Act (all of the
foregoing filed prior to the date hereof being hereinafter referred to as the
"SEC Documents"). As of their respective dates, the SEC Documents complied in
all material respects with the requirements of the Exchange Act and the rules
and regulations of the Commission promulgated thereunder applicable to such SEC
Documents, and none of the SEC Documents (when read together with all exhibits
included therein and financial statement schedules thereto and documents (other
than exhibits) incorporated by reference) contained any 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, in light of the
circumstances in which they were made, not misleading. The financial statements
of the Company included in the SEC Documents comply as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the Commission with respect thereto. Such financial statements
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto or (ii) in
the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or
6
summary statements) and fairly present in all material respects the consolidated
financial position of the Company and the Subsidiaries as of the dates thereof
and the consolidated results of their operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-end
audit adjustments).
(b) Since June 30, 1997, (i) the business of the Company has been
conducted in the ordinary course and (ii) there has been no Material Adverse
Effect on the Company and its Subsidiaries taken as a whole that has not been
described in the SEC Documents. As of the Closing Date and as of the date
hereof, there are no material liabilities of the Company which would be required
to be provided for in a consolidated balance sheet of the Company as of either
such date prepared in accordance with generally accepted accounting principles
consistently applied, other than liabilities incurred in connection with the
acquisition of real estate assets or hotels or related improvements to such
hotels or real estate assets in the ordinary course of business.
(c) As of the date hereof, the Company is not aware of any material
liabilities, contingent or otherwise, of the Company that have not been
disclosed in the financial statements (including the notes thereto) referred to
above or otherwise disclosed in the SEC Documents or other items provided to the
Investor.
2.8. LITIGATION.
Except as set forth on Schedule 2.8 or in the SEC Documents, there is no
action, suit, proceeding, investigation or claim pending against the Company or,
to the knowledge of the Company, threatened against the Company in law, equity
or otherwise before any federal, state, municipal or local court, administrative
agency, commission, board, bureau, instrumentality or arbitrator which either
(a) questions the validity of this Agreement or the Common Stock or any action
taken or to be taken pursuant hereto or thereto, or (b) may adversely affect the
right, title or interest of the Investor to the Common Stock or (c), if decided
adversely to the Company, may individually or in the aggregate have a Material
Adverse Effect. The Company is not aware of facts or circumstances that could
give rise to a legal action that, if determined adversely, would have a Material
Adverse Effect. There is no action or suit by the Company pending or threatened
against others except litigation in the ordinary course of business, none of
which individually or in the aggregate will result in a Material Adverse Effect.
2.9. TITLE TO PROPERTIES; LEASEHOLD INTERESTS.
Except as disclosed in the SEC Documents, the Company and its Subsidiaries
have good and marketable title to each of the properties and assets owned by
them. Certain real property used by the Company and its Subsidiaries in the
conduct of their business is held under lease, and the Company is not aware of
any pending or threatened claim or action by any lessor of any such property to
terminate any such lease. None of the properties owned or leased by the Company
and its subsidiaries is
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subject to any liens, other than in the ordinary course of business or, which,
taken as a whole, could reasonably be expected to have a Material Adverse
Effect. "Lien," in this Section 2.9 only, means a mortgage, lien (statutory or
otherwise), charge, pledge, hypothecation, adverse claim, or other security
interest or encumbrance on any interest or title of the Company or its
subsidiaries with respect to any property or asset of such person. Each lease or
agreement to which the Company is a party under which it is the lessee of any
property, real or personal, is a valid and subsisting agreement without any
material default of the Company thereunder and, to the best of the Company's
knowledge, without any material default thereunder of any other party thereto.
No event has occurred and is continuing which, with due notice or lapse of time
or both, would constitute a default or event of default by the Company under any
such lease or agreement or, to the best of the Company's knowledge, by any party
thereto, except for such defaults that would not individually or in the
aggregate have a Material Adverse Effect. The Company's possession of such
property has not been disturbed and, to the best of the Company's knowledge, no
claim has been asserted against it adverse to its rights in such leasehold
interests that would have a Material Adverse Effect.
2.10. ENVIRONMENTAL COMPLIANCE.
(a) Except as disclosed and described in all material respects in the SEC
Documents or on Schedule 2.10 hereto, there is no hazardous material about or in
any property, real or personal, in which the Company has any interest, in
violation of law in a manner which could reasonably be expected to have a
Material Adverse Effect.
(b) Except as disclosed and described in the SEC Documents or on Schedule
2.10 hereto, there is no (and has not been any) off-site disposal or on-site
disposal by the Company, or to the best knowledge of the Company by any prior
owner, operator, tenant, subtenant, or invitee at any locations currently or
formerly owned or occupied by the Company as a result of which disposal there
would exist a reasonably foreseeable risk that the Company would incur a
material liability or obligation under federal, state or local environmental or
other laws, regulations or ordinances which could reasonably be expected to have
a Material Adverse Effect.
(c) Except as disclosed and described in all material respects in the SEC
documents or on Schedule 2.10 hereto, neither the Company nor, to the knowledge
of the Company, any prior or present owner, operator, tenant, subtenant or
invitee of any of the real property (including improvements) currently or
formerly owned or occupied by the Company has (i) used, installed, stored,
spilled, released, transported, disposed of or discharged any hazardous material
upon, into, beneath, from or affecting such real property (including
improvements) in violation of law in a manner which could reasonably be expected
to have a Material Adverse Effect, or (ii) received any written notice,
citation, subpoena, summons, complaint or other correspondence or communication
from any person (as defined below) (not previously satisfactorily resolved) with
respect to the presence of hazardous material upon, into, beneath, or
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emanating from or affecting any of the real property (including improvements)
currently or formerly owned or occupied by the Company which could reasonably be
expected to have a Material Adverse Effect. Person, in this Section 2.10, means
an individual, partnership, corporation, limited liability company, trust or
unincorporated organization, or a government agency or political subdivision
thereof.
(d) Except as disclosed and described in all material respects on Schedule
2.10 hereto, there has been no intentional or unintentional, gradual or sudden,
release, disposal or discharge upon, into or beneath the real property
(including improvements) currently or formerly owned or occupied by the Company
or, to the best of the knowledge of the Company, by any prior owner, operator,
tenant, subtenant or invitee with respect thereto, that has caused or is causing
soil or ground water contamination which under applicable environmental laws,
regulations or ordinances could reasonably be expected to have a Material
Adverse Effect.
2.11. TAXES.
The Company has filed all Federal, state, local and other tax returns and
reports (except for foreign returns and reports the failure to file which will
not result in any material liability to the Company), and any other material
returns and reports with any governmental authorities (Federal, state or local),
required to be filed by it. The Company has paid or caused to be paid all taxes
(including interest and penalties) that are due and payable, except those which
are being contested by it in good faith by appropriate proceedings and in
respect of which adequate reserves are being maintained on its books in
accordance with generally accepted accounting principles consistently applied.
The Company does not have any material liabilities for taxes other than those
incurred in the ordinary course of business and in respect of which adequate
reserves are being maintained by it in accordance with generally accepted
accounting principles consistently applied. As of the date hereof, no Federal
and state income tax returns for the Company have been audited by the Internal
Revenue Service or state authorities. No deficiency assessment with respect to
or proposed adjustment of the Company's Federal, state, local or other tax
returns is pending or, to the best of the Company's knowledge, threatened which
could reasonably be expected to have a Material Adverse Effect. There is no
material tax lien, whether imposed by any Federal, state, local or other tax
authority outstanding against the assets, properties or business of the Company
which could reasonably be expected to have a Material Adverse Effect. There are
no applicable taxes, fees or other governmental charges payable by the Company
in connection with the execution and delivery of this Agreement or the issuance
by the Company of the Common Stock, except for governmental fees paid in
connection with securities law filings.
With respect to all tax periods regarding which the Internal Revenue
Service is or will be entitled to assert any claim, the Company has met the
requirements for qualification as a real estate investment trust under Sections
856 through 860 of the Internal Revenue Code, as amended, and the Company's
present and contemplated operations, assets and income continue to meet such
requirements.
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2.12. EMPLOYEES; ERISA.
The Company has good relationships with its employees and has not had any
substantial labor problems. As of the date hereof, no key employee has left the
employ of the Company, and the Company does not have any knowledge of any
intentions of any key employee or any group of employees to leave the employ of
the Company. Other than as disclosed in the SEC Documents or on Schedule 2.12,
the Company has not established, sponsored, maintained, made any contributions
to or been obligated by law to establish, maintain, sponsor or make any
contributions to any "employee pension benefit plan" or "employee welfare
benefit plan" (as such terms are defined in ERISA), including, without
limitation, any "multi-employer plan." The Company has complied in all material
respects with all applicable laws relating to the employment of labor, including
provisions relating to wages, hours, equal opportunity, collective bargaining
and the payment of Social Security and other taxes, and with ERISA, other than
such non-compliance as would not have a Material Adverse Effect.
2.13. LEGAL COMPLIANCE.
(a) The Company has complied with all applicable laws, rules, regulations,
orders, licenses, judgments, writs, injunctions, decrees or demands, except to
the extent that failure to comply would not have a Material Adverse Effect. The
Company has all necessary permits, licenses and other authorizations required to
conduct its business as currently conducted, and as proposed to be conducted, in
all material respects, other than such authorizations the failure to obtain of
which would not have a Material Adverse Effect.
(b) There are no adverse orders, judgments, writs, injunctions, decrees or
demands of any court or administrative body, domestic or foreign, or of any
other governmental agency or instrumentality, domestic or foreign, outstanding
against the Company which may result in a Material Adverse Effect.
(c) There is no existing law, rule, regulation or order, and the Company is
not aware of any proposed law, rule, regulation or order, which would prohibit
or materially restrict the Company from, or otherwise materially adversely
affect the Company in, conducting its business as now being conducted and as
proposed to be conducted.
2.14. ACCOUNTANTS.
Coopers & Xxxxxxx, L.L.P. who has certified the financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), is an independent public
accountant with respect to the Company as required by the Securities Act.
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2.15. INSURANCE.
The Company and the Subsidiaries self insure or maintain insurance with
insurers of recognized financial responsibility against losses and risks and in
such amounts as are generally deemed adequate for their respective businesses
and consistent with coverage maintained by similar companies in the businesses
in which they are engaged; and neither the Company nor any Subsidiary has any
reason to believe that it will not be able to renew the coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have a Material
Adverse Effect.
2.16. OPERATING PARTNERSHIP.
As of the date hereof, the Company indirectly owns an aggregate of
approximately 88.5% of the partnership interests in American General Hospitality
Operating Partnership, L.P., a Delaware limited partnership (the "Operating
Partnership"), free and clear of all Liens. A wholly-owned subsidiary of the
Company is the sole general partner of the Operating Partnership.
2.17. APPROVAL RIGHTS.
(a) The Company has the right to approve (which approval will not be
unreasonably withheld) the engagement by AGH Leasing, L.P. (the "Lessee") of any
operator of a hotel other than American General Hospitality, Inc. ("XXXX") or an
affiliate of XXXX. The Company has the right to approve the payment of
management fees to XXXX under the management agreements in excess of 3.5% of the
gross revenues of a particular hotel.
(b) The stockholders of XXXX have agreed, for so long as more than fifty
percent (50.0%) of the management agreements with respect to the hotels as of
July 31, 1996 remain in place, to grant to the Lessee or its designee a right of
first refusal to acquire, under certain circumstances, any stock of XXXX that is
proposed to be sold in a Change of Control Transaction (as defined below). The
Lessee has assigned this right to the Company. The Company intends to assign
this right to a designee. This right is subordinate to a right of first refusal
in favor of XXXX and the existing stockholders of XXXX set forth in AGHI's
existing stockholders' agreement. For this purpose, a Change of Control
Transaction means a sale of stock in XXXX that will result in the ability of a
person (other than a current stockholder of XXXX) and his or its controlled
affiliates to elect at least a majority of the Board of XXXX. A Change of
Control Transaction does not include (i) an underwritten public offering of
common stock of XXXX, (ii) the transfer of stock to a spouse of an XXXX
stockholder, (iii) the transfer of stock to a trust for the benefit of the
spouse and/or children of an XXXX
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stockholder, or (iv) the transfer of stock to any corporation or other entity of
which a stockholder controls at least fifty percent (50.0%) of the voting
interests. The stockholders of XXXX have also agreed to grant to the Lessee or
its designee, for so long as more than fifty percent (50.0%) of the management
agreements in effect at July 31, 1996, remain in place, a right of first offer
to acquire such stockholders' interests in XXXX prior to any proposed merger or
business combination transaction involving XXXX that would result in the
stockholders of XXXX or their affiliates holding less than twenty-five percent
(25.0%) of the interests in the surviving entity. The Lessee has assigned this
right to the Company, and the Company intends to assign this right to a
designee.
2.18. INVESTMENT COMPANY.
The Company and the Subsidiaries are not now, and after the sale of the
Common Stock to be sold hereunder and application of the net proceeds from such
sale as described in the Prospectus Supplement under the caption "Use of
Proceeds," none of them will be, an "investment company" or an entity controlled
by an "investment company" as such terms are defined in the Investment Company
Act of 1940, as amended.
2.19. CUBA.
The Company has complied with all provisions of Florida statutes Section
517.075 relating to issuers doing business with Cuba.
2.20. AFFILIATE STATUS.
Assuming that no relationship exists between the Investor and the Pecuniary
Owners on the one hand and the Company and its officers and directors on the
other, based solely upon the purchase of shares of Common Stock hereunder,
neither the Investor nor the Pecuniary Owners will be "affiliates" of the
Company as that term is defined in Securities Act Rule 144(a)(1) in accordance
with SEC rules and regulations as in effect on the date hereof.
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
The Investor, as agent for and on behalf of the Pecuniary Owners, hereby
represents and warrants that:
3.1. AUTHORIZATION.
(a) The Investor has the requisite power and authority to enter into and
perform this Agreement on behalf of the Pecuniary Owners and to purchase the
Shares in accordance with the terms hereof.
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(b) The execution and delivery of this Agreement by the Investor as agent
for the Pecuniary Owners and the consummation by it of the transactions
contemplated hereby have been duly authorized, and no further consent or
authorization of the Investor or any Pecuniary Owner is required.
(c) This Agreement has been duly executed and delivered by the Investor.
3.2. ENFORCEMENT.
This Agreement constitutes the legal, valid and binding obligation of the
Investor and each Pecuniary Owner enforceable in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
3.3. APPROVAL; CONSENTS.
Except for the requirements of the HSR Act, if applicable, no consent,
authorization or waiver by or filing with any governmental agency or any other
person or entity not a party to this Agreement is required to be obtained or
made by Investor in connection with the execution or performance of this
Agreement or the taking of any action contemplated hereby.
3.4. CURRENT HOLDINGS.
As of the date hereof, Investor, on behalf of clients, "beneficially owns,"
as that term is defined in Rule 13d-3 under the Exchange Act, 323,800 shares of
Common Stock of the Company.
IV. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING.
The Investor's obligations at each Closing under Section 1 of this
Agreement are subject to the fulfillment on or before each Closing of each of
the following conditions:
4.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company contained in Section 2
shall be true on and as of each Closing Date with the same effect as though such
representations and warranties had been made on and as of such Closing Date.
4.2. PERFORMANCE.
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The Company shall have performed and complied in all material respects with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before each Closing Date.
4.3. COMPLIANCE CERTIFICATE.
The Chief Executive Officer of the Company shall have delivered to the
Investor at each Closing a certificate certifying that the conditions specified
in Sections 4.1 and 4.2 have been fulfilled.
4.4. OPINIONS OF COMPANY COUNSEL.
The Investor shall have received from Battle Xxxxxx LLP or Xxxxxxx Xxxxx
Xxxxxxx & Xxxxxxxxx, counsel for the Company, an opinion dated as of each
Closing Date, substantially in the form attached hereto as Schedule 4.4 and the
Opinion of Counsel described in Section 6.1 hereto. In rendering any such
opinion, such counsel may rely, as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the Company and
public officials. Such opinion may also include customary and reasonable
assumptions and qualifications that are acceptable to the Investor and its
counsel.
4.5. NYSE LISTING.
The shares of Common Stock being purchased hereunder shall have been
approved for listing on the NYSE upon official notice of issuance. If required
by the NYSE, at the Company's option, the Company may seek stockholder approval
in connection with the listing of the Common Stock with the NYSE, but in no
event shall the Company have any obligation to seek such stockholder approval.
The parties hereto agree that the Company shall not be in breach of this
Agreement if it decides not to obtain stockholder approval in order to list the
Common Stock with the NYSE.
4.6. NO MATERIAL CHANGE.
No event or change of circumstances shall have occurred and be continuing
at the time of disbursement of funds by the Investor which is likely to have a
Material Adverse Effect.
4.7. NO STOP ORDER.
No stop order suspending the effectiveness of the Registration Statement,
as amended from time to time, shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission.
4.8. AGREEMENT WITH XXXXXX XXXXX AND XXXXX XXXXX.
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The Company shall have delivered to the Investor an agreement of Xxxxxx
Xxxxx and Xxxxx Xxxxx to not sell their positions in XXXX and Lessee for a
period of three (3) years or for the period during which the Investor manages at
least 250,000 shares of Common Stock purchased under this Agreement and the
Private Placement Agreement, whichever is shorter, except (i) if the sale is in
conjunction with a sale of the Company and has been approved by the Board of
Directors and, if required by law, by the stockholders of the Company or (ii) in
the case of the death or transfer to a family member of Xxxxxx Xxxxx or Xxxxx
Xxxxx, as long as the transferees agree to be bound by the same restrictions.
4.9. KEY EMPLOYEES.
The Company shall have delivered to the Investor at the Closing a
certificate certifying that Xxxxxx Xxxxx, Xxxxx Xxxxx or Xxxxxxx Xxxx have not
left the employ of the Company and that the Company has no knowledge that they
have the intent to leave the employ of the Company.
4.1. XXXX-XXXXX-XXXXXX ANTITRUST IMPROVEMENT ACT OF 1976.
If applicable, the waiting period under the HSR Act shall have expired or
Investor and the Company shall have received notice from the FTC or the
Antitrust Division of the early termination thereof.
V. CONDITIONS OF COMPANY'S OBLIGATIONS AT CLOSING.
The obligations of the Company under Section 1 of this Agreement are
subject to the fulfillment on or before the Closing Date of each of the
following conditions:
5.1. REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Investor, as agent for and on
behalf of the Pecuniary Owners, contained in Section 3 shall be true on and as
of each Closing Date with the same effect as though such representations and
warranties had been made on and as of each Closing Date.
5.2. PERFORMANCE.
The Investor shall have performed and complied in all material respects
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it or before the Closing Date.
5.3. COMPLIANCE CERTIFICATE.
The Investor shall deliver to the Company at the Closing a certificate
certifying that the conditions specified in Sections 5.1 and 5.2 have been
fulfilled.
15
5.4. XXXX-XXXXX-XXXXXX ANTITRUST IMPROVEMENT ACT OF 1976.
If applicable, the waiting period under the HSR Act shall have expired or
Investor and the Company shall have received notice from the FTC or Antitrust
Division of the early termination thereof.
5.5. NYSE LISTING.
The shares of Common Stock being purchased hereunder shall have been
approved for listing on the NYSE upon official notice of issuance. If required
by the NYSE, at the Company's option, the Company may seek stockholder approval
in connection with the listing of the Common Stock with the NYSE, but in no
event shall the Company have any obligation to seek such stockholder approval.
The parties hereto agree that the Company shall not be in breach of this
Agreement if it decides not to obtain stockholder approval in order to list the
Common Stock with the NYSE.
VI. COVENANTS.
6.1. OPINION OF COMPANY COUNSEL FOR REIT STATUS.
(a) At or before the Closing, the Investor and the Pecuniary Owners shall
have received from Battle Xxxxxx LLP, counsel for the Company (or such other
counsel as shall be reasonably acceptable to the Investor and the Pecuniary
Owners), an opinion that the Company should be classified as a "real estate
investment trust" under Section 856 of the Internal Revenue Code of 1986, as
amended (after giving effect to the investment contemplated by this Agreement).
Such opinion may include customary reasonable assumptions and qualifications and
counsel may rely upon certificates of responsible officers of the Company.
(b) The Company will use its commercially reasonable efforts to operate in
a manner which will not cause it to be classified other than as a real estate
investment trust in accordance with Section 6.1(a) above.
6.2. STOP ORDERS.
The Company will promptly advise the Company in writing of (i) any request
by the Commission for amendment of or a supplement to the Registration Statement
or the Prospectus, and (ii) any issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose. If at any time the Commission
shall issue a stop order suspending the effectiveness of the Registration
Statement, the Company will use its commercially reasonable best efforts to
obtain the withdrawal of such order as soon as possible.
16
6.3. USE OF PROCEEDS.
The Company will contribute the net proceeds from the sale of the Common
Stock to American General Hospitality Operating Partnership, L.P. (the
"Operating Partnership"). The Company shall cause the Operating partnership to
contribute the net proceeds from the sale of the Common Stock to pay down a
credit line used for the acquisition, development or renovation of hotels and
related real estate of the character, quality and estimated investment returns
reasonably similar to those previously purchased by the Company.
6.4. CONFIDENTIALITY.
The parties to this Agreement will not disclose to any other party any
information about this Agreement, the transactions contemplated hereby, and the
parties hereto except as required by law or the rules of the New York Stock
Exchange, or with the prior written consent of the other party, which consent
will not be unreasonably withheld. Any public announcement of the commitment of
the Investor or the Pecuniary Owners hereunder must be approved by the Company
and the Investor (except as required by the NYSE or applicable law or
regulation). Such approval shall not be unreasonably withheld.
6.5. FUTURE OFFERINGS.
The Company will give prior written notice to the Investor of potential
offerings of the Capital Stock or any other equity security of the Company (an
"Offering"). Notwithstanding the foregoing, the Company shall not be obligated
to provide such notice prior to any public announcement of the Offering.
Exclusive of private equity offerings of securities and non-syndicated
underwritten registered equity offerings of capital stock of the Company such as
"spot offerings" or "ROCS offerings," until December 21, 2000, the Company shall
use commercially reasonable efforts to allow the Investor to participate in
syndicated underwritten registered equity offerings of the Company on the same
terms and conditions contemplated by that underwritten offering (except there
shall be no right to participate with respect to the exercise of the
underwriter's over-allotment option thereto) as necessary in order to allow the
Investors to maintain its percentage equity interest in the Company. The
foregoing shall be limited by the share ownership limitations of Company's
Charter and by necessary authorizations that may be imposed upon such issuance
to the Investors under the rules and regulations of the NYSE and in no event
shall the Company be required to obtain stockholder consent in order to list
such shares with the NYSE. In the event the Investor desires to substitute a
client who is not a Pecuniary Owner for one (1) or more of the Pecuniary Owners
in respect of any future offerings, the Investor shall be free to do so, subject
to any authorizations or consents that such substitution may require; provided,
however, that the Company shall not be required to obtain stockholder approval
or violate its Charter provisions in connection with the substitution.
17
6.6. REGISTRATION RIGHTS.
Upon request of Investor, the Company agrees to include in that certain
shelf registration statement, defined and described in Section 6.4 of the
Private Placement Agreement, the Common Stock hereby purchased, subject to the
same terms, conditions and procedures described in Section 6.4 of such
agreement.
6.7. XXXX-XXXXX-XXXXXX ANTITRUST IMPROVEMENT ACT OF 1976.
If required, the Company and Investor shall, as soon as practicable, file a
Notification and Report Form under the HSR Act with the FTC and the Antitrust
Division and shall use their best efforts to respond as promptly as practicable
to all inquiries received from the FTC or the Antitrust Division for additional
information or documentation.
6.8. PREEMPTIVE RIGHTS.
The Company agrees not to grant any preemptive rights without Investor's
consent prior to the time period in which the full commitment for the Combined
Funding has been drawn, which shall be prior to January 31, 1998, subject to an
extension to March 31, 1998, at the Investor's discretion, unless this Agreement
is otherwise terminated prior thereto.
VII. INDEMNIFICATION.
7.1. INDEMNIFICATION BY INVESTOR AND THE COMPANY.
(a) Subject to Sections 7.3 and 8.1, from and after any Closing Date,
Investor shall indemnify and hold harmless the Company, its successors and
assigns, from and against any and all damages, claims, losses, expenses, costs,
obligations, and liabilities, including liabilities for all reasonable
attorneys' fees and expenses (including attorney and expert fees and expenses
incurred to enforce the terms of this Agreement) (collectively, "Loss and
Expenses") suffered, directly or indirectly, by the Company by reason of, or
arising out of, (i) any breach as of the date made or deemed made or required to
be true of any representation or warranty made by Investor in or pursuant to
this Agreement, or any certificates delivered pursuant to this Agreement, or
(ii) any failure by Investor or the Pecuniary Owners to perform or fulfill any
of its or their covenants or agreements set forth herein. Notwithstanding any
other provisions of this Agreement to the contrary, in no event shall Loss and
Expenses include a party's incidental or consequential damages.
(b) Subject to Sections 7.3 and 8.1, from and after any Closing Date, the
Company shall indemnify and hold harmless Investor, its successors and assigns,
from and against any and all Loss and Expenses, suffered directly or indirectly
by Investor by reason of, or arising out of, (i) any breach as of the date made
or deemed made or
18
required to be true of any representation or warranty made by the Company in or
pursuant to this Agreement and any statements made in any certificate delivered
pursuant to this Agreement, or (ii) any failure by the Company to perform or
fulfill any of its covenants or agreements set forth herein. Notwithstanding any
other provision of this Agreement to the contrary, in no event shall Loss and
Expenses include a party's incidental or consequential damages. The damages for
breach by the Company of any of the representations and warranties, or any of
the covenants or agreements, shall be measured with respect to all of Investor's
purchases of Common Stock hereunder, but such measurement shall not in any event
include any shares of Company Stock that Investor may have purchased other than
from the Company.
(c) Notwithstanding the foregoing, the cumulative aggregate indemnity
obligation of each of Investor and the Pecuniary Owners, on the one hand, and
the Company on the other hand, under this Section 7.1 shall in no event exceed
the actual aggregate amount paid by Investor for the shares of Common Stock
purchased by it from the Company pursuant to this Agreement. Except with
respect to third-party claims being defended in good faith or claims for
indemnification with respect to which there exists a good faith dispute, the
indemnifying party shall satisfy its obligations hereunder within thirty (30)
days of receipt of a notice of claim under this Article 7.
7.2. THIRD-PARTY CLAIMS.
If a claim by a third party is made against an indemnified party and if
such indemnified party intends to seek indemnity with respect thereto under this
Section, such indemnified party shall promptly notify the indemnifying party in
writing of such claims setting forth such claims in reasonable detail; provided,
however, the foregoing notwithstanding, the failure of any indemnified party to
give any notice required to be given hereunder shall not affect such indemnified
party's right to indemnification hereunder except to the extent the indemnifying
party from whom such indemnity is sought shall have been prejudiced in its
ability to defend the claim or action for which such indemnification is sought
by reason of such failure. The indemnifying party shall have twenty (20) days
after receipt of such notice to undertake, through counsel of its own choosing
and at its own expense, the settlement or defense thereof, and the indemnified
party shall cooperate with it in connection therewith; provided, however, that
the indemnified party may participate in such settlement or defense through
counsel chosen by such indemnified party, provided that the fees and expenses of
such counsel shall be borne by such indemnified party. The indemnified party
shall not pay or settle any claim which the indemnifying party is contesting.
Notwithstanding the foregoing, the indemnified party shall have the right to pay
or settle any such claim, provided that in such event it shall waive any right
to indemnity therefor by the indemnifying party. If the indemnifying party does
not notify the indemnified party within twenty (20) days after the receipt of
the indemnified party's notice of a claim of indemnity hereunder that it elects
to undertake the defense thereof, the indemnified party shall have the right to
contest, settle or compromise the claim but shall not thereby waive any right to
indemnity therefor pursuant to this Agreement.
19
7.3. SURVIVAL.
The indemnity set forth in this Section 7 shall survive each Closing or any
termination of this Agreement and shall remain in effect for a period of (a)
with respect to a breach of a representation or warranty, for the period through
which such representation or warranty shall continue pursuant to Section 8.1
(including such period of time through which such representation or warranty
shall be extended until resolution of a claim with respect thereto) and (b) with
respect to a breach of a covenant or agreement referred to in Sections 2.3 and
2.4, forever.
VIII. MISCELLANEOUS.
8.1. SURVIVAL OF WARRANTIES.
The warranties, representations and covenants of the Company and the
Investor contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement for a period of three (3) years
following the last Closing Date hereunder.
8.2. SUCCESSORS AND ASSIGNS.
Except as otherwise provided herein, the terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto, including the Pecuniary Owners.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto and the Pecuniary Owners or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement.
8.3. GOVERNING LAW.
This Agreement shall be governed by and construed under the internal laws
of the State of Maryland.
8.4. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
8.5. TITLES AND SUBTITLES.
The titles and subtitles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
20
8.6. NOTICES.
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given (a)
upon personal delivery to the party to be notified, (b) on the fifth business
day after deposit with the United States Post Office, by registered or certified
mail, postage prepaid, (c) on the next business day after dispatch via
nationally recognized overnight courier or (d) upon confirmation of transmission
by facsimile. Notices should be provided in accordance with this Section at the
following addresses or at such other address as such party may designate by ten
(10) days' advance written notice to the other parties:
If to the Investor, to: With a copy to:
ABKB/LaSalle Securities Limited Partnership Piper & Marbury L.L.P.
000 Xxxx Xxxxx Xxxxxx 00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Xx. Attn: Xxxxxxxxx Xxxxx, Esq.
Managing Director
If to the Company, to: With a copy to:
American General Hospitality Corporation Battle Xxxxxx LLP
0000 XxxXxxxxx Xxxxxxxxx 00 Xxxx 00xx Xxxxxx
Xxxxx 0000 Xxx Xxxx, Xxx Xxxx 10022
Xxxxxx, Xxxxx 00000 Attn: Xxxxx X. Xxxx, Esq.
Attn: Xxxxxx X. Xxxxx
Chairman of the Board of Directors
Chief Executive Officer and President
8.7. NO FINDER'S FEES.
Each party represents that it neither is nor will be obligated for any
finders' fee or commission in connection with this transaction. The Investor
agrees to indemnify and to hold harmless the Company from any liability for any
commission or compensation in the nature of a finder's fee (and the costs and
expenses of defending against such liability or asserted liability) for which
the Investor or any of its officers, partners, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless the Investor
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company or any of its officers, employees or
representatives is responsible.
21
8.8. EXPENSES.
The Company shall pay all costs and expenses incident to the performance by
the Company of its obligations hereunder and pay the Investor's reasonable fees
and expenses, including but not limited to the fees and expenses of Piper &
Marbury L.L.P., incurred in connection with the transactions contemplated by
this Agreement, up to a maximum of $25,000 in the aggregate for transactions
contemplated by this Agreement and the Private Placement Agreement, except as
otherwise provided under Section 6.4 of the Private Placement Agreement. Any
expenses of the NYSE listing provided for under the Private Placement Agreement
shall be borne by the Company. If it is required by law for Investor to make a
filing under the HSR Act, with respect to this Agreement and the Private
Placement Agreement, the Company shall advance to Investor the amount of the fee
required with respect to Investor's filing, and the purchase price for the
Shares purchased hereunder and the Private Placement Agreement shall be
increased in the same amount. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
8.9. AMENDMENTS AND WAIVERS.
Any term of this Agreement may be amended, and the observance of any term
of this Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of the
Company and the Investor. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each holder of any securities purchased
under this Agreement at the time outstanding, including securities into which
such securities are convertible, each future holder of all such securities, and
the Company.
8.10. SEVERABILITY.
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement and
the balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
8.11. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement among the parties and no
party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth
herein.
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8.12. KNOWLEDGE.
As used herein, the "knowledge" of the Company, or any derivative thereof,
shall mean the actual knowledge, without independent investigation, of Xxxxxx X.
Xxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxx or Xxxx X. Xxxxxxxxx.
8.13. SCHEDULES.
With respect to each Closing, each Schedule previously delivered hereto
shall be updated to reflect the facts and circumstances which exist as of the
date of such subsequent Closing.
8.14. CROSS-DEFAULT.
A default of the terms and conditions under this Agreement, including
without limitation, representations, warranties and covenants, shall constitute
a default of the Private Placement Agreement.
[Remainder of Page Intentionally Left Blank]
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ABKB/LASALLE SECURITIES
LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
Managing Director
Address:
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
AMERICAN GENERAL HOSPITALITY
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx
Chairman of the Board of Directors,
Chief Executive Officer and President
Address:
0000 XxxXxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
24
