EXHIBIT 1.1
EXECUTION COPY
2,400,000 SHARES
EQUITY INNS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
April 7, 2004
Citigroup Global Markets Inc.
Real Estate and Lodging Group
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Equity Inns, Inc., a Tennessee corporation (the "Company"), proposes to
issue and sell an aggregate of 2,400,000 shares (the "Firm Shares") of its
Common Stock, $.01 par value per share (the "Common Stock"), to Citigroup Global
Markets, Inc. (the "Underwriter"). The Company also proposes to sell to the
Underwriter, upon the terms and conditions set forth in Section 2 hereof, up to
an additional 360,000 shares (the "Additional Shares") of Common Stock. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"Shares."
Upon consummation of the transactions contemplated hereby and
application of the net proceeds from the sale of the Firm Shares, the Company,
through its wholly-owned subsidiary, Equity Inns Trust, a Maryland real estate
investment trust (the "Trust"), will own an approximate 97.62% partnership
interest in Equity Inns Partnership, L.P., a Tennessee limited partnership (the
"Partnership"), and will own 100% of the Series B Preferred Units (as defined
herein) of the Partnership. The Company, through the Partnership and its other
subsidiaries, currently owns 92 hotels (the "Hotels"). Other capitalized terms
used herein and not otherwise defined herein shall have the respective meanings
set forth in the Registration Statement (as defined herein).
The Company wishes to confirm as follows its agreement with you in
connection with your purchase of the Shares.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 (Registration No. 333-48169) under
the Act, including a prospectus relating to the Company's common stock, $.01 par
value per share, and preferred stock, $.01 par value per share, and such
amendments to such registration statement as may have been required prior to the
date hereof have been filed with the Commission, and such amendments have been
similarly prepared. Such registration statement and any post-effective
amendments thereto have become effective under the Act. The Company also has
filed, or proposes to file, with the Commission pursuant to Rule 424(b) under
the Act, a prospectus supplement specifically relating to the Shares.
The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it became effective, as supplemented or amended prior to the
execution of this Agreement, including all information (if any) deemed to be a
part of such registration at the time it became effective pursuant to Rule 430A
under the Act. If it is contemplated, at the time this Agreement is executed,
that a post-effective amendment to the registration statement will be filed and
must be declared effective before the offering of the Shares may commence, the
term "Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. The term "Prospectus" as
used in this Agreement means the base prospectus in the form included in the
Registration Statement at the time it was declared effective (the "Base
Prospectus") together with the prospectus supplement relating to the offering of
the Shares dated the date hereof in the form first filed with the Commission on
or after the date hereof pursuant to Rule 424(b) under the Act. Any reference in
this Agreement to the registration statement, the Registration Statement, the
Base Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of the Registration Statement or the Prospectus,
as the case may be, and any reference to any amendment or supplement to the
Registration Statement or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), which, upon filing, are incorporated by
reference therein, as required by paragraph (b) of Item 12 of Form S-3. As used
herein, the term "Incorporated Documents" means the documents which are
incorporated by reference in the Registration Statement, the Prospectus, or any
amendment or supplement thereto during the period the Prospectus is required to
be delivered in connection with the sale of the Shares by the Underwriter or any
dealer.
2. Agreements to Sell and Purchase. The Company hereby agrees, subject
to all the terms and conditions set forth herein, to issue and sell to the
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company, the Trust and the Partnership contained in this
Agreement and subject to all the terms and conditions set forth in this
Agreement, the Underwriter agrees to purchase from the Company, at a purchase
price of $8.95 per Share (the "Purchase Price Per Share"), the Firm Shares.
The Company also agrees, subject to all the terms and conditions set
forth herein, to sell to the Underwriter, and, upon the basis of the
representations, warranties and agreements of the Company, the Trust and the
Partnership contained in this Agreement and subject to all the terms and
conditions set forth in this Agreement, the Underwriter shall have the right to
purchase from the
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Company, at the Purchase Price Per Share, pursuant to an option (the
"Over-allotment Option") which may be exercised at any time prior to 9:00 P.M.,
New York City time, on the 30th day after the date of the Prospectus (or, if
such 30th day shall be a Saturday or Sunday or a holiday, on the next business
day thereafter when the New York Stock Exchange (the "NYSE") is open for
trading), up to an aggregate of 360,000 Additional Shares. Additional Shares may
be purchased only for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares.
3. Terms of Public Offering. The Company has been advised by you that
you propose to make a public offering of the Shares as soon after this Agreement
has become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriter of and payment for the Firm Shares shall be made at the office of
King & Spalding LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, at 10:00
A.M., New York City time, on April 14, 2004 (the "Closing Date"). The place of
closing for the Firm Shares and the Closing Date may be varied by agreement
between you and the Company.
Delivery to the Underwriter of and payment for any Additional Shares to
be purchased by the Underwriter shall be made at the office of King & Spalding
LLP mentioned above at such time and on such date (the "Option Closing Date"),
which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor earlier than two nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in a written
notice from you to the Company of your determination to purchase a number,
specified in such notice, of Additional Shares. The place of closing for any
Additional Shares and the Option Closing Date for such Shares may be varied by
agreement between you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of the purchase
price therefor by wire transfer of immediately available funds to the Company.
5. Agreements of the Company. The Company agrees with the Underwriter
as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for a post-effective amendment to the Registration
Statement to be declared effective before the offering of the Shares
may commence, the Company will endeavor to cause such post-effective
amendment to become effective as soon as possible and will advise you
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promptly and, if requested by you, will confirm such advice in writing,
when such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: of any request by the
Commission for amendment of or a supplement to the Registration
Statement or the Prospectus or for additional information; of the
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; and within the
period of time referred to in paragraph (e) below, of any change in the
Company's condition (financial or other), business, prospects,
properties, net worth or results of operations, or of the happening of
any event, which makes any statement of a material fact made in the
Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to
or changes in the Registration Statement or the Prospectus (as then
amended or supplemented) in order to state a material fact required by
the Act or the regulations thereunder to be stated therein or necessary
in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time
within the time period referred to in paragraph (e) the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort
to obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge and upon
your request, (i) such number of conformed copies of the Registration
Statement as originally filed and of each amendment thereto, but
without exhibits, as you may reasonably request, (ii) such number of
copies of the Incorporated Documents, without exhibits, as you may
reasonably request, and (iii) one copy of the exhibits to the
Incorporated Documents.
(d) The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the
Prospectus or, prior to the end of the period of time referred to in
the first sentence in subsection (e) below, file any document which
upon filing, becomes an Incorporated Document, of which you shall not
previously have been advised or to which, after you shall have received
a copy of the document proposed to be filed, you shall reasonably
object.
(e) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the
opinion of counsel for the Underwriter a prospectus is required by the
Act to be delivered in connection with sales by the Underwriter or any
dealer, the Company will expeditiously deliver to the Underwriter and
each dealer, without charge, as many copies of the Prospectus (and of
any amendment or supplement thereto) as you may reasonably request.
Subject to the provisions of subsection (f) below, the Company consents
to the use of the Prospectus (and of any amendment or supplement
thereto) in accordance with the provisions of the Act and with the
securities or Blue Sky laws
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or real estate syndication laws of the jurisdictions in the United
States in which the Shares are offered by the Underwriter and by all
dealers to whom Shares may be sold, both in connection with the
offering and sale of the Shares and for such period of time thereafter
as the Prospectus is required by the Act to be delivered in connection
with sales by the Underwriter or any dealer. If during such period of
time any event shall occur that in the judgment of the Company or in
the opinion of counsel for the Underwriter is required to be set forth
in the Prospectus (as then amended or supplemented) or should be set
forth therein in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is
necessary to supplement or amend the Prospectus (or to file under the
Exchange Act any document which, upon filing, becomes an Incorporated
Document) in order to comply with the Act or any other law, the Company
will forthwith prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate supplement or amendment
thereto (or to such document), and will expeditiously furnish to the
Underwriter and dealers a reasonable number of copies thereof. In the
event that the Company and you agree that the Prospectus should be
amended or supplemented, the Company, if requested by you, will
promptly issue a press release announcing or disclosing the matters to
be covered by the proposed amendment or supplement.
(f) The Company will cooperate with you and with counsel for
the Underwriter in connection with the registration or qualification of
the Shares for offering and sale by the Underwriter and by dealers
under the securities or Blue Sky laws or real estate syndication laws
of such jurisdictions as you may designate and will file such consents
to service of process or other documents necessary or appropriate in
order to effect such registration or qualification; provided that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction
where it is not now so subject.
(g) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
which shall satisfy the provisions of Section 11(a) of the Act.
(h) The Company will furnish to its shareholders, as soon as
practicable after the end of each respective fiscal year, an annual
report (including financial statements audited by independent public
accountants).
(i) If this Agreement shall terminate or shall be terminated
after execution by the Underwriter because of any failure or refusal on
the part of the Company to comply with the terms or fulfill any of the
conditions of this Agreement to be complied with or fulfilled by the
Company, the Company agrees to reimburse you for all reasonable
out-of-pocket expenses (including fees and expenses of your counsel)
incurred by you in connection with this Agreement.
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(j) The Company will apply the net proceeds from the sale of
the Shares substantially in accordance with the description set forth
under the caption "Use of Proceeds" in the Prospectus.
(k) The Company will timely file the Prospectus pursuant to
Rule 424(b) under the Act and will advise you or your counsel of the
time and manner of such filing.
(l) Except as stated in this Agreement and in the Prospectus,
the Company has not taken, nor will it take, directly or indirectly,
any action designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(m) The Company will use its best efforts to list the Shares
on the NYSE.
(n) Subject to the determination by the Board of Directors of
the Company to the contrary, the Company will use its best efforts to
meet the requirements to qualify as a real estate investment trust
under the Internal Revenue Code of 1986, as amended (the "Code") and to
cause the Partnership to be treated as a partnership for federal income
tax purposes.
(o) Except as provided in this Agreement, the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of any
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or grant any options or warrants to
purchase Common Stock for a period of 30 days after the date of the
Prospectus Supplement, without the prior written consent of the
Underwriter, except for options or Common Stock issued pursuant to
stock option or stock purchase plans as described in the Prospectus or
the Incorporated Documents.
6. Representations and Warranties of the Company, the Trust and the
Partnership. The Company, the Trust and the Partnership, jointly and severally,
represent and warrant to the Underwriter that:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission or the securities authority of any state or other
jurisdiction.
(b) The Company and the transactions contemplated by this
Agreement meet the requirements and conditions for using a registration
statement on Form S-3 under the Act, set forth in the General
Instructions to Form S-3. When the Registration Statement or any
amendment thereto was declared effective, and on the Closing Date (or
the Option Closing Date, as the case may be) it (i) contained or will
contain all statements required to be stated therein in accordance
with, and complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the
Commission thereunder and (ii) did not or will not include any untrue
statement of a material fact or omit to state any
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material fact necessary to make the statements therein not misleading.
When the Prospectus or any amendment or supplement thereto is filed
with the Commission pursuant to Rule 424(b) and at the Closing Date (or
the Option Closing Date, as the case may be), the Prospectus, as
amended or supplemented at any such time, (i) contained or will contain
all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of, the Act and the rules and regulations of the Commission thereunder
and (ii) did not or will not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The representation and warranty in this paragraph
(b) does 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 or on behalf of
the Underwriter expressly for use therein.
(c) The Incorporated Documents when they were filed (or, if
any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder, any further Incorporated Documents so filed will, when they
are filed, conform in all material respects with the requirements of
the Exchange Act and the rules and regulations thereunder; no such
document when it was filed (or, if an amendment with respect to any
such document was filed, when such amendment was filed) 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; and no such further document, when
it is filed, will contain an untrue statement of a material fact or
will omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of Tennessee with all requisite corporate power and authority to own
and lease its properties and to conduct its business as now conducted.
The Company has been duly qualified to do business and is in good
standing as a foreign corporation in each other jurisdiction in which
the ownership or leasing of its properties or the nature or conduct of
its business as now conducted requires such qualification, except where
the failure to do so would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole. Except as set forth on
Schedule A-1, the Company does not own or control, directly or
indirectly, any corporation, limited partnership, limited liability
company, association or other entity.
(e) The Trust 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 with all requisite power and authority to own and
lease its properties and to conduct its business as now conducted. The
Trust has been duly qualified to do business and is in good standing in
each other jurisdiction in which the ownership or leasing of its
properties or the nature or conduct
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of its business as now conducted requires such qualification, except
where the failure to do so would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole. The Trust is wholly
owned by the Company.
(f) The Partnership has been duly formed and is validly
existing as a limited partnership in good standing under the Tennessee
Revised Uniform Limited Partnership Act (the "Tennessee Act") with all
requisite partnership power and authority to own and lease its
properties and to conduct its business as now conducted. The
Partnership has been duly qualified or registered to do business and is
in good standing as a foreign partnership in each other jurisdiction in
which the ownership or leasing of its properties or the nature or
conduct of its business as now conducted requires such qualification,
except where the failure to do so would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. The Trust
is the sole general partner of the Partnership and holds approximately
97.49% of the outstanding units of partnership interest in the
Partnership ("Partnership Units"). At the Closing Date, following the
contribution of the net proceeds of the Offering to the Partnership and
the issuance by the Partnership of 2,400,000 Partnership Units to the
Trust (assuming no exercise of the option to purchase the Additional
Shares), the Trust will be the sole general partner of the Partnership
and will be the holder of approximately 97.62% of the Partnership Units
and the holder of all of the outstanding 8.75% Series B Preferred Units
(the "Series B Preferred Units").
(g) Each subsidiary of the Company other than the Partnership
and the Trust has been duly incorporated or organized, as appropriate,
and is validly existing as a corporation, limited partnership or
limited liability company, as appropriate, in good standing under the
laws of the jurisdiction of its incorporation or organization with all
requisite corporate, limited partnership or limited liability company
power and authority to own and lease its properties and to conduct its
business as now conducted. Each such subsidiary has been duly qualified
to do business and is in good standing as a foreign corporation in each
other jurisdiction in which the ownership or leasing of its properties
or the nature or conduct of its business as now conducted requires such
qualification, except where the failure to do so would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole. The Company's ownership percentage of each subsidiary of the
Company is set forth on Schedule A-1.
(h) The Company has full corporate right, power and authority
to enter into this Agreement, to issue, sell and deliver the Shares as
provided herein and to consummate the transactions contemplated herein.
This Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms, except to the extent that
enforceability may be limited by bankruptcy, insolvency, reorganization
or other laws of general applicability relating to or affecting
creditors' rights, or by general equity principles and except to the
extent the indemnification and contribution provisions set forth in
Section 7 of this
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Agreement may be limited by federal or state securities laws or the
public policy underlying such laws.
(i) The Trust has full legal right, power and authority to
enter into this Agreement and to consummate the transactions
contemplated herein. This Agreement has been duly authorized, executed
and delivered by the Trust and constitutes a valid and binding
agreement of the Trust, enforceable in accordance with its terms,
except to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization or other laws of general applicability
relating to or affecting creditors' rights, or by general equity
principles and except to the extent the indemnification and
contribution provisions set forth in Section 7 of this Agreement may be
limited by federal or state securities laws or the public policy
underlying such laws.
(j) The Partnership has full partnership right, power and
authority to enter into this Agreement to issue, sell and deliver the
Partnership Units to the Trust upon contribution of the net proceeds of
the offering and to consummate the transactions contemplated herein.
This Agreement has been duly authorized, executed and delivered on
behalf of the Partnership by the Trust, as the sole general partner of
the Partnership, and constitutes a valid and binding agreement of the
Partnership enforceable in accordance with its terms, except to the
extent that enforceability may be limited by bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or
affecting creditors' rights, or by general equity principles and except
to the extent the indemnification and contribution provisions set forth
in Section 7 of this Agreement may be limited by federal or state
securities laws or the public policy underlying such laws.
(k) Each of the Third Amended and Restated Agreement of
Limited Partnership of the Partnership, as amended by Amendment No. 1
dated June 25, 1998 and Amendment No. 2 to the Partnership Agreement
dated August 11, 2003 ("Amendment No. 2") (the "Partnership
Agreement"), the Consolidated Lease Agreements by and between certain
subsidiaries of Equity Inns TRS Holdings, Inc. (each, a "Lessee") and
the Partnership pursuant to which the Lessees lease the Hotels from the
Partnership (the "Percentage Leases") and the management agreements
with respect to each of the Hotels (the "Management Agreements") have
been duly authorized, executed and delivered by the parties thereto and
constitute valid and binding agreements, enforceable in accordance with
their respective terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting creditors' rights or by
general equity principles.
(l) Each material consent, approval, authorization, order,
license, certificate, permit, registration, designation or filing by or
with any governmental agency or body necessary for the valid
authorization, issuance, sale and delivery of the Shares, the
execution, delivery and performance of this Agreement, and the
consummation by the Company, the Trust and the Partnership of the
transactions contemplated hereby has been made or obtained
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and is in full force and effect except such as may be required under
the Blue Sky laws of any jurisdiction in connection with the purchase
and distribution of the Shares by the Underwriter.
(m) Neither the issuance, sale and delivery by the Company of
the Shares, nor the execution, delivery and performance of this
Agreement nor the consummation of the transactions contemplated hereby
by the Company, the Trust or the Partnership, as applicable, will
conflict with or result in a breach or violation of any of the terms
and provisions of, or (with or without the giving of notice or the
passage of time or both) constitute a default under the charter,
by-laws, Declaration of Trust, certificate of limited partnership,
partnership agreement, limited liability company certificate of
formation or operating agreement, as the case may be, of the Company or
any of its subsidiaries; any material indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or to which
they, any of them, any of their respective properties or other assets
or any Hotel is subject; or, to the Company's knowledge, any applicable
statute, judgment, decree, order, rule or regulation of any court or
governmental agency or body applicable to any of the foregoing or any
of their respective properties; or result in the creation or imposition
of any lien, charge, claim or encumbrance upon any property or asset of
any of the foregoing.
(n) The issuance of the Shares to be issued and sold to the
Underwriter hereunder has been validly authorized by the Company. When
issued and delivered against payment therefor as provided in this
Agreement, the Shares will be duly and validly issued, fully paid and
nonassessable. No statutory or other preemptive rights of shareholders
exist with respect to any of the Shares. No person or entity holds a
right to require or participate in the registration under the Act of
the Shares pursuant to the Registration Statement. No person or entity
has a right of participation or first refusal with respect to the sale
of the Shares by the Company. The form of certificates evidencing the
Shares complies with all applicable requirements of Tennessee law.
(o) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Prospectus. All of the issued shares of
capital stock of the Company have been duly authorized and are validly
issued, fully paid and nonassessable. None of the issued shares of
capital stock of the Company has been issued or is owned or held in
violation of any statutory or other preemptive rights of shareholders.
Except as disclosed in the Prospectus, there is no outstanding option,
warrant or other right calling for the issuance of, and no commitment,
plan or arrangement to issue, any shares of capital stock of the
Company or any security convertible into or exchangeable for capital
stock of the Company.
(p) All offers and sales of the Company's capital stock prior
to the date hereof were at all relevant times duly registered under the
Act or exempt from the registration requirements of the Act by reason
of Sections 3(b), 4(2) or 4(6) thereof and were duly
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registered or were issued pursuant to an available exemption from the
registration requirements under the applicable state securities or Blue
Sky laws.
(q) All of the issued shares of beneficial interest of the
Trust have been duly authorized and validly issued, are fully paid and
nonassessable and are held by the Company. None of the issued shares of
beneficial interest of the Trust has been issued or is owned or held in
violation of any preemptive right. There is no outstanding option,
warrant or other right calling for the issuance of, and no commitment,
plan or arrangement to issue, any shares of beneficial interest of the
Trust or any security convertible into or exchangeable for shares of
beneficial interest of the Trust. All of the outstanding shares of
beneficial interest of the Trust have been issued, offered and sold in
compliance with all applicable laws (including, without limitation,
federal and state securities laws).
(r) All of the issued Partnership Units of the Partnership
have been duly and validly authorized and issued and are fully paid and
nonassessable. None of the issued Partnership Units has been issued or
is owned or held in violation of any preemptive right. All of the
outstanding Partnership Units have been issued, offered and sold in
compliance with all applicable laws (including, without limitation,
federal and state securities laws). The issuance of the Partnership
Units to be issued to the Trust at the Closing Date has been duly and
validly authorized by the Partnership. When issued and delivered
against payment therefore as provided in the Partnership Agreement,
such Partnership Units will be duly and validly issued and fully paid.
(s) The financial statements of the Company incorporated by
reference in the Registration Statement and Prospectus present fairly
the financial position of the Company as of the dates indicated and the
results of operations and cash flows for the Company for the periods
specified, all in conformity with generally accepted accounting
principles applied on a consistent basis. The financial statement
schedules included in the Registration Statement fairly present the
information shown therein and have been compiled on a basis consistent
with the financial statements incorporated by reference in the
Registration Statement and the Prospectus. No other financial
statements or schedules are required by Form S-3 or otherwise to be
included in the Registration Statement or the Prospectus.
(t) PricewaterhouseCoopers LLP, who have examined and are
reporting upon the audited financial statements and schedules of the
Company incorporated by reference in the Registration Statement, are,
and were during the periods covered by their report incorporated by
reference in the Registration Statement and the Prospectus, independent
public accountants within the meaning of the Act, the Exchange Act and
the respective rules and regulations of the Commission thereunder.
(u) None of the Company or any of its subsidiaries has
sustained, since December 31, 2003, any material loss or interference
with its business from fire, explosion, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from
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any labor dispute or arbitrators' or court or governmental action,
order or decree; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
and except as otherwise stated in the Registration Statement and
Prospectus, there has not been (i) any material change in the capital
stock, shares of beneficial interests or partnership interests, as
applicable, long-term debt, obligations under capital leases or
short-term borrowings of the Company or any of its subsidiaries, (ii)
any material adverse change, or any development which could reasonably
be seen as involving a prospective material adverse change, in or
affecting the business, prospects, properties, assets, results of
operations or condition (financial or other) of the Company and its
subsidiaries, taken as a whole, (iii) any liability or obligation,
direct or contingent, incurred or undertaken by the Company or any of
its subsidiaries which is material to the business or condition
(financial or other) of the Company and its subsidiaries, taken as a
whole, except for liabilities or obligations incurred in the ordinary
course of business, (iv) any declaration or payment of any dividend or
distribution of any kind on or with respect to the capital stock,
shares of beneficial interest or partnership interests, as applicable,
of the Company or any of its subsidiaries except as set forth in the
Registration Statement, or (v) any transaction that is material to the
Company and its subsidiaries, taken as a whole, except transactions in
the ordinary course of business or as otherwise disclosed in the
Registration Statement or the Prospectus.
(v) The Partnership or its subsidiaries has good and
marketable title in fee simple to all real property and the
improvements located thereon owned by it, including the Hotels, free
and clear of all liens, encumbrances, claims, security interests,
restrictions and defects except such as (i) are described in the
Prospectus, (ii) which do not materially and adversely interfere with
the Company's use of the Hotels, (iii) were entered into in connection
with the financings described in the Company's financial statements
incorporated by reference in the Registration Statement and Prospectus
(the "Financings"), or (iv) are reflected in the title insurance
policies relating to such properties. The leases under which the
Partnership leases real property as lessee (the "Leases") are valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made, and proposed to be
made, of such property, by the Partnership. The Leases conform in all
material respects to the description thereof, if any, set forth in the
Registration Statement; and no notice has been given or material claim
asserted by anyone adverse to the rights of the Partnership under any
of the Leases or affecting the right to the continued possession of the
leased property. Except with respect to liens relating to the
Financings, the Company and its subsidiaries have good title to all
personal property owned by them, free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and defects,
except such as are disclosed in the Prospectus or do not materially and
adversely affect the value of such property and do not interfere with
the use made or proposed to be made of such property by the Company and
its subsidiaries. Except as disclosed in the Registration Statement, no
person has an option or right of first refusal to purchase all or part
of any Hotel or any interest therein. Each of the Hotels complies with
all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and laws
relating to access to the
-12-
Hotels) and except for such failures to comply that would not
individually or in the aggregate have a material adverse effect on the
condition, financial or otherwise, or on the earnings, assets, business
affairs or business prospects of the Company and its subsidiaries,
taken as a whole. Neither the Company, the Trust nor the Partnership
has knowledge of any pending or threatened condemnation proceedings,
zoning change, or other proceeding or action that will in any manner
affect the size of, use of, improvements on, construction on or access
to the Hotels, except such proceedings or actions that would not have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, assets, business affairs or business prospects of the
Company and its subsidiaries, taken as a whole.
(w) Neither the Company nor any of its subsidiaries is in
violation of its respective charter, bylaws, declaration of trust,
certificate of limited partnership or partnership agreement, as the
case may be, and with respect to the Company and each of its
subsidiaries and, to the Company's knowledge, with respect to each
other party thereto, no default exists, and no event has occurred, nor
state of facts exists, which, with notice or after the lapse of time to
cure or both, would constitute a default in the due performance and
observance of any obligation, agreement, term, covenant, consideration
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or to which any such
entity or any of its properties is subject, except as may be properly
described in the Prospectus or such as in the aggregate do not now have
or will not in the future have a material adverse effect on the
financial position, results of operations or business of the Company
and its subsidiaries, taken as a whole. Neither the Company nor any of
its subsidiaries is in violation of, or in default with respect to, any
statute, rule, regulation, order, judgment or decree, except as may be
properly described in the Prospectus or such as in the aggregate do not
now have and will not in the future have a material adverse effect on
the financial position, results of operations or business of the
Company and its subsidiaries, taken as a whole.
(x) There is not pending or, to the knowledge of the Company,
the Trust, or the Partnership, threatened, any action, suit,
proceeding, inquiry or investigation against the Company or any of its
subsidiaries or any of their respective officers and directors or to
which the properties, assets or rights of any such entity are subject,
before or brought by any court or governmental agency or body or board
of arbitrators, which would have a material adverse effect on the
business, prospects, properties, assets, results of operations or
condition (financial or otherwise) of the Company and its subsidiaries,
taken as a whole, or which could adversely affect the consummation of
the transactions contemplated by this Agreement.
(y) The descriptions in the Registration Statement and the
Prospectus of the contracts, leases and other legal documents therein
described present fairly the information required to be shown, and
there are no contracts, leases, or other documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required. To the best
-13-
knowledge of the Company, the Trust and the Partnership, there are no
statutes or regulations applicable to the Company or any of its
subsidiaries or certificates, permits or other authorizations from
governmental regulatory officials or bodies required to be obtained or
maintained by the Company or any of its subsidiaries of a character
required to be disclosed in the Registration Statement or the
Prospectus which have not been so disclosed and properly described
therein. All agreements, if any, between the Company or any of its
subsidiaries and third parties expressly referenced in the Prospectus
are legal, valid and binding obligations of the Company or such
subsidiary, respectively, enforceable in accordance with their
respective terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting creditors' rights and by general
equitable principles.
(z) The Company and its subsidiaries own, possess or have
obtained all material permits, licenses, franchises (including, with
respect to the Partnership, the franchises relating to the Hotels),
certificates, consents, orders, approvals and other authorizations of
governmental or regulatory authorities or other entities as are
necessary to own or lease, as the case may be, its respective
properties and to carry on its business as presently conducted, or as
contemplated in the Prospectus to be conducted, except where the
failure to so obtain governmental licenses, franchises, certificates,
consents, orders, approvals or other authorizations would not have a
material adverse effect on the business, prospects, properties, assets,
results of operations or conditions (financial or otherwise) of the
Company and its subsidiaries, taken as a whole, and neither the Company
nor any of its subsidiaries has received any notice of proceedings
relating to revocation or modification of any such licenses, permits,
franchises, certificates, consents, orders, approvals or
authorizations.
(aa) Each of the Company and its subsidiaries owns or
possesses adequate license or other rights to use all trademarks,
service marks, trade names, copyrights, software and design licenses,
trade secrets, manufacturing processes, other intangible property
rights and know-how (collectively "Intangibles") necessary to entitle
the Company and its subsidiaries to conduct their business now, and as
proposed to be conducted or operated as described in the Prospectus,
and neither the Company nor any of its subsidiaries has received notice
of infringement or of conflict with (and knows of no such infringement
of or conflict with) asserted rights of others with respect to any
Intangibles which could have a material adverse effect on the business,
prospects, properties, assets, results of operation or condition
(financial or otherwise) of the Company and its subsidiaries, taken as
a whole.
(bb) To the best of the Company's, the Trust's and the
Partnership's knowledge, the Company's and its subsidiaries' system of
internal accounting controls taken as a whole is sufficient to meet the
broad objectives of internal accounting control insofar as those
objectives pertain to the prevention or detection of errors or
irregularities in amounts that would be material in relation to the
Company's financial statements; and, to the best of the Company's, the
Trust's, and the Partnership's knowledge, none of the Company or any of
its subsidiary or any employee or agent thereof, has made any payment
of funds of the Company or any of its subsidiary, as the case may be,
or received or retained any funds and no funds of the Company
-14-
or any of its subsidiaries, as the case may be, have been set aside to
be used for any payment, in each case in violation of any law, rule or
regulation.
(cc) Each of the Company, the Trust (to the extent not
consolidated with the Company) and the Partnership (to the extent not
consolidated with the Company) has filed on a timely basis all material
federal, state, local and foreign income and franchise tax returns
required to be filed through the date hereof and has paid all taxes
shown as due thereon, except where the Company or such subsidiary is
contesting such taxes in good faith and has made adequate reserves
therefor; and no tax deficiency has been asserted against any such
entity, nor does any such entity know of any tax deficiency which is
likely to be asserted against any such entity which if determined
adversely to any such entity, could have a material adverse effect on
the business, prospects, properties, assets, results of operations or
condition (financial or otherwise) of the Company and its subsidiaries,
taken as a whole. All tax liabilities are adequately provided for on
the respective books of such entities.
(dd) Each of the Company, the Trust, the Partnership, and
their officers, directors or affiliates has not taken and will not
take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in or constitute the
stabilization or manipulation of any security of the Company or to
facilitate the sale or resale of the Shares.
(ee) The Common Stock is registered pursuant to Section 12(b)
of the Exchange Act and an application for listing the Shares on the
NYSE has been filed.
(ff) The Company has not incurred any liability for a fee,
commission or other compensation on account of the employment of a
broker or finder in connection with the transactions contemplated by
this Agreement other than as contemplated hereby or as described in the
Registration Statement.
(gg) Except as otherwise disclosed in the Prospectus, neither
the Company nor any of its subsidiaries has authorized or conducted or
has knowledge of the generation, transportation, storage, presence,
use, treatment, disposal, release, or other handling of any hazardous
substance, hazardous waste, hazardous material, hazardous constituent,
toxic substance, pollutant, contaminant, asbestos, radon,
polychlorinated biphenyls ("PCBs"), petroleum product or waste
(including crude oil or any fraction thereof), natural gas, liquefied
gas, synthetic gas or other material defined, regulated, controlled or
potentially subject to any remediation requirement under any
environmental law (collectively, "Hazardous Materials"), on, in, under
or affecting any real property currently leased or owned or by any
means controlled by the Company or any of its subsidiaries, including
the Hotels (the "Real Property") except as in material compliance with
applicable laws; except as otherwise disclosed in the Prospectus, to
the knowledge of the Company, the Trust and the Partnership, the Real
Property and the Company's and its subsidiaries' operations with
respect to the Real Property are in compliance in all material respects
with all federal, state
-15-
and local laws, ordinances, rules, regulations and other governmental
requirements relating to pollution, control of chemicals, management of
waste, discharges of materials into the environment, health, safety,
natural resources, and the environment (collectively, "Environmental
Laws"), and the Company and its subsidiaries have, and are in
compliance with, all material licenses, permits, registrations and
government authorizations necessary to operate under all applicable
Environmental Laws. Except as otherwise disclosed in the Prospectus,
neither the Company nor any of its subsidiaries has received any
written or oral notice from any governmental entity or any other person
and there is no pending or threatened claim, litigation or any
administrative agency proceeding that: (i) alleges a violation of any
Environmental Laws by the Company or any of its subsidiaries; (ii)
alleges that the Company or any of its subsidiaries is a liable party
or a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. ss.
9601, et seq., or any state superfund law; (iii) has resulted in or
could result in the attachment of an environmental lien on any of the
Real Property; or (iv) alleges that the Company or any of its
subsidiaries is liable for any contamination of the environment,
contamination of the Real Property, damage to natural resources,
property damage, or personal injury based on their activities or the
activities of their predecessors or third parties (whether at the Real
Property or elsewhere) involving Hazardous Materials, whether arising
under the Environmental Laws, common law principles, or other legal
standards.
(hh) The Company was organized and has operated in conformity
with the requirements for qualification as a real estate investment
trust under the Code for each of its taxable years ended December 31,
1994 through December 31, 2003, and the Company's method of operation
enables it to meet the requirements for taxation as a real estate
investment trust under the Code. The Partnership is treated as a
partnership for federal income purposes and not as a corporation or an
association taxable as a corporation.
(ii) None of the Company, the Trust or the Partnership is, or
will become as a result of the transactions contemplated hereby, "an
investment company," or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as
amended.
(jj) The Partnership is not currently prohibited, directly or
indirectly, from making distributions to the Trust, from repaying to
the Trust any loans or advances to the Partnership or from transferring
any of the Partnership's property or assets to the Trust, except as
disclosed in the Prospectus and under the agreements relating to the
Financings and except as pursuant to applicable law regarding
insolvency.
(kk) The Trust is not currently prohibited, directly or
indirectly, from making distributions to the Company, from repaying to
the Company any loans or advances to the Trust or from transferring any
of the Trust's property or assets to the Company, except as disclosed
in the Prospectus and under agreements relating to the Financings and
except as pursuant to applicable law regarding insolvency.
-16-
Any certificate signed by any officer of the Company on behalf
of the Company, or by an officer of the Trust on behalf of the Trust or the
Partnership and delivered to you or to counsel for the Underwriter shall be
deemed a representation and warranty by such entity to the Underwriter as to the
matters covered thereby.
7. Indemnification and Contribution. (a) The Company, the Trust and the
Partnership, jointly and severally, agree to indemnify and hold
harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses
arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the
information furnished in writing to the Company by the Underwriter
expressly for use in connection therewith. The foregoing indemnity
agreement shall be in addition to any liability which the Company, the
Trust or the Partnership may otherwise have.
(b) If any action, suit or proceeding shall be brought against
the Underwriter or any person controlling the Underwriter in respect of
which indemnity may be sought against the Company, the Trust or the
Partnership, the Underwriter or such controlling person shall promptly
notify the Company, the Trust or the Partnership, but the failure so to
notify the indemnifying party (i) will not relieve it from liability
under paragraph (a) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation
provided in paragraph (a) above. The Company, the Trust or the
Partnership shall assume the defense thereof, including the employment
of counsel and payment of all reasonable fees and expenses. The
Underwriter or any such controlling person shall have the right to
employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling
person unless the Company, the Trust or the Partnership have agreed in
writing to pay such fees and expenses, the Company, the Trust or the
Partnership have failed to assume the defense and employ counsel, or
the named parties to any such action, suit or proceeding (including any
impleaded parties) include both such Underwriter or such controlling
person and the Company, the Trust or the Partnership and such
Underwriter or such controlling person shall have been advised by its
counsel that representation of such indemnified party and the Company,
the Trust or the Partnership by the same counsel would be inappropriate
under applicable standards of professional conduct
-17-
(whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them
(in which case the Company, the Trust or the Partnership shall not have
the right to assume the defense of such action, suit or proceeding on
behalf of the Underwriter or such controlling person). It is
understood, however, that the Company, the Trust or the Partnership
shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any
local counsel), at any time for the Underwriter and all controlling
persons not having actual or potential differing interests with you or
among themselves, which firm shall be designated in writing by the
Underwriter, and that all such fees and expenses shall be reimbursed as
they are incurred. The Company, the Trust or the Partnership shall not
be liable for any settlement of any such action, suit or proceeding
effected without its written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, the Company, the Trust or the Partnership
agree to indemnify and hold harmless the Underwriter, to the extent
provided in the preceding paragraph, and any such controlling person
from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
(c) The Underwriter agrees to indemnify and hold harmless the
Company, the Trust, the Partnership, their respective directors and
officers who sign the Registration Statement, and any person who
controls the Company, the Trust or the Partnership within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company, the Trust and the
Partnership to the Underwriter, but only with respect to information
furnished in writing by or on behalf of the Underwriter expressly for
use in the Registration Statement or the Prospectus, or any amendment
or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, the Trust, the Partnership or any of their
respective directors, any such officer, or any such controlling person
based on the Registration Statement or the Prospectus, or any amendment
or supplement thereto, and in respect of which indemnity may be sought
against the Underwriter pursuant to this paragraph (c), the Underwriter
shall have the rights and duties given to the Company, the Trust and
the Partnership by paragraph (b) above (except that if the Company, the
Trust and the Partnership shall have assumed the defense thereof the
Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the Underwriter's expense),
and the Company, the Trust, the Partnership or their respective
directors, any such officer, and any such controlling person shall have
the rights and duties given to the Underwriter by paragraph (b) above.
The foregoing indemnity agreement shall be in addition to any liability
which the Underwriter may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof
in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of
-18-
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative benefits received by the Company,
the Trust and the Partnership on the one hand and the Underwriter on
the other hand from the offering of the Shares, or if the allocation
provided by clause (i) above 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, the Trust and the Partnership on the one hand and the
Underwriter on the other in connection with the statements or omissions
that resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Trust and the Partnership on the
one hand and the Underwriter on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering of the
Shares (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the
Underwriter bear to the price to public of the Shares, in each case as
set forth in the table on the cover page of the Prospectus. The
relative fault of the Company, the Trust and the Partnership on the one
hand and the Underwriter on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company,
the Trust or the Partnership on the one hand or by the Underwriter on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Company, the Trust, the Partnership and the
Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by a pro rata
allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating any
claim or defending any such action, suit or proceeding. Notwithstanding
the provisions of this Section 7, the Underwriter shall not be required
to contribute any amount in excess of the underwriting discount or
commission applicable to the Shares purchased by the Underwriter
hereunder. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
action, suit or proceeding.
-19-
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 7 and the representations and
warranties of the Company, the Trust, the Partnership and the
Underwriter set forth in this Agreement shall remain operative and in
full force and effect, regardless of any investigation made by or on
behalf of the Underwriter or any person controlling the Underwriter,
the Company, the Trust, the Partnership, their respective directors or
officers, or any person controlling the Company or the Trust or the
Partnership, acceptance of any Shares and payment therefor hereunder,
and any termination of this Agreement. A successor to the Underwriter
or any person controlling the Underwriter, or to the Company, the Trust
or the Partnership, their respective directors or officers, or any
person controlling the Company or the Trust or the Partnership, shall
be entitled to the benefits of the indemnity, contribution, and
reimbursement agreements contained in this Section 7.
8. Conditions of Underwriter's Obligations. The obligation of the
Underwriter to purchase the Firm Shares hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for a post-effective amendment to the Registration
Statement to be declared effective before the offering of the Shares
may commence, such post-effective amendment shall have become effective
not later than 5:30 P.M., New York City time, on the date hereof, or at
such later date and time as shall be consented to in writing by you,
and all filings, if any, required by Rule 424 under the Act shall have
been timely made; no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the
Company or the Underwriter, threatened by the Commission, and any
request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have
been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the
Company and its subsidiaries taken as a whole not contemplated by the
Prospectus, which in your reasonable opinion would materially,
adversely affect the market for the Shares, or any event or development
relating to or involving the Company or any of its subsidiaries or any
officer or director of the Company which makes any material statement
made in the Prospectus untrue or which, in the reasonable opinion of
the Company and its counsel or the Underwriter and its counsel,
requires the making of any addition to or change in the Prospectus in
order to state a material fact required by the Act or any other law to
be stated therein or necessary in order to make the statements therein
not misleading, if amending or
-20-
supplementing the Prospectus to reflect such event or development
would, in your reasonable opinion materially adversely affect the
market for the Shares.
(c) You shall have received on the Closing Date, an opinion of
Hunton & Xxxxxxxx, counsel for the Company, the Trust and the
Partnership, dated the Closing Date and addressed to you to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Tennessee with the corporate power and
authority to own and lease its properties and to conduct its
business as described in the Prospectus.
(ii) The Trust has been duly formed and is validly
existing as a real estate investment trust in good standing
under the laws of the State of Maryland with all requisite
power and authority to own and lease its properties and to
conduct its business as described in the Prospectus.
(iii) The Partnership is a limited partnership duly
formed and validly existing under the Tennessee Act with the
partnership power and authority to own and lease its
properties and to conduct its business as described in the
Prospectus.
(iv) Each subsidiary of the Company set forth on
Schedule A-2 has been duly formed and is validly existing as a
limited partnership in good standing under the laws of the
jurisdiction of its organization with the limited partnership
power and authority to own and lease its properties and to
conduct its business as described in the Prospectus.
(v) Each subsidiary of the Company set forth on
Schedule A-2 has been duly qualified as a foreign limited
partnership in each jurisdiction set forth on Schedule A-2
(such counsel being entitled to rely in respect of the opinion
in this clause with respect to certificates or verbal advice
of public officials in such jurisdictions).
(vi) The Company has the corporate power and
authority to enter into this Agreement, to issue, sell and
deliver the Shares as provided herein and to consummate the
transactions contemplated herein. This Agreement has been duly
authorized by all necessary corporate action and has been
executed and delivered by the Company.
(vii) The Trust has the legal power and authority to
enter into this Agreement and to consummate the transactions
contemplated herein. This Agreement has been duly authorized
by all necessary trust action and has been executed and
delivered by the Trust.
-21-
(viii) The Partnership has the partnership power and
authority to enter into this Agreement and to consummate the
transactions contemplated herein. This Agreement has been duly
authorized by all necessary partnership action and has been
executed and delivered on behalf of the Partnership.
(ix) The Partnership Agreement has been duly
authorized by all necessary corporate or trust action on
behalf of the Company and the Trust, respectively, and has
been executed and delivered by the parties thereto and
assuming the execution and delivery by the limited partners,
constitutes a valid and binding agreement, enforceable in
accordance with its terms, except to the extent enforceability
may be limited by bankruptcy, insolvency, moratorium,
reorganization or other laws affecting the rights of creditors
generally and by principles of equity, whether considered at
law or in equity.
(x) Each consent, approval, authorization, order,
license, certificate, permit, registration, designation or
filing by or with any governmental agency or body necessary
for the valid authorization, issuance, sale and delivery of
the Shares, the execution, delivery and performance of this
Agreement and the consummation by the Company, the Trust and
the Partnership of the transactions contemplated hereby, has
been made or obtained and is in full force and effect, except
such as may be necessary under state securities or real estate
syndication laws or required by the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the
purchase and distribution of the Shares by the Underwriter, as
to which such counsel need express no opinion.
(xi) Neither the issuance, sale and delivery by the
Company of the Shares, nor the execution, delivery and
performance of this Agreement will (a) violate the charter,
bylaws, declaration of trust, certificate of limited
partnership or partnership agreement, as the case may be, of
the Company, the Trust or the Partnership; (b) constitute a
default under any contract or agreement filed or incorporated
by reference as an exhibit to the Registration Statement or
(c) to such counsel's knowledge, violate any applicable
statute, judgment, decree, order, rule or regulation of any
court or governmental agency or body applicable to the
Company.
(xii) The issuance of the Shares to the Underwriter
hereunder has been validly authorized by the Company. When
issued and delivered against payment therefor as provided in
this Agreement, the Shares will be validly issued, fully paid
and nonassessable. No statutory or, to such counsel's
knowledge, other preemptive rights of shareholders exist with
respect to any of the Shares. To such counsel's knowledge, no
person or entity holds a right to require or participate in
the registration under the Act of the Shares pursuant to the
Registration Statement. To such counsel's knowledge, no person
or entity has a right of participation or first
-22-
refusal with respect to the sale of the Shares by the Company.
The form of certificates evidencing the Shares complies with
all applicable requirements of Tennessee law.
(xiii) The Company has authorized capital stock as
set forth in the Prospectus under the caption "Capitalization"
and the Shares conform to the description thereof contained in
the Prospectus.
(xiv) All of the issued shares of beneficial interest
of the Trust have been duly authorized and validly issued and
are fully paid and nonassessable and are owned by the Company.
(xv) The issuance of Partnership Units to be issued
to the Trust at the Closing Date has been duly and validly
authorized by the Partnership. When issued and delivered
against payment therefor as provided in the Partnership
Agreement, such Partnership Units will be duly and validly
issued and fully paid.
(xvi) To such counsel's knowledge and except as
described in the Prospectus, there is not pending or
threatened, any action, suit, proceeding, inquiry or
investigation against the Company or any of its subsidiaries
or any of their respective officers and directors or to which
the properties, assets or rights of any such entity are
subject, which, if determined adversely to any such entity,
would in the aggregate have a material adverse effect on the
financial position, results of operations or business of the
Company and its subsidiaries, taken as a whole.
(xvii) The descriptions in the Registration Statement
and the Prospectus of the contracts, leases and other legal
documents therein described present fairly the information
required to be shown and there are no contracts, leases or
other documents known to such counsel of a character required
to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement which are not described or filed as required. To
such counsel's knowledge, there are no statutes or regulations
applicable to the Company, the Trust or the Partnership or
certificates, permits or other authorizations from
governmental regulatory officials or bodies required to be
obtained or maintained by any such entity of a character
required to be disclosed in the Registration Statement or the
Prospectus which have not been so disclosed and properly
described therein.
(xviii) The Company was organized and has operated in
conformity with the requirements for qualification and
taxation as a real estate investment trust ("REIT") pursuant
to Sections 856 through 860 of the Code for each of the
taxable years ended December 31, 1994 through 2003, and the
Company's current organization and method of operation should
permit the Company to continue to qualify as a REIT
-23-
under the Code. The Partnership is treated as a partnership
for federal income purposes and not as a corporation or an
association taxable as a corporation.
(xix) The Registration Statement has become effective
under the Act and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or is pending or contemplated under the
Act. Other than financial statements, the notes thereto, and
other financial and operating data and schedules contained
therein, as to which counsel need express no opinion, the
Registration Statement at its effective date, the Prospectus
and any amendment or supplement thereto comply as to form in
all material respects with the requirements of the Act and the
Act Regulations.
(xx) Such counsel has no reason to believe that the
Registration Statement, or any further amendment thereto made
prior to the Closing Date, on its effective date, contained
any untrue statement of a material fact or omitted to state
any 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 made prior
to the Closing Date, as of its date and as of the Closing
Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact necessary
to make the statements therein, in light of the circumstances
under which they were made, not misleading (provided that such
counsel need express no belief regarding the financial
statements and related schedules and other statistical and
financial data included therein.
(xxi) The Incorporated Documents (other than the
financial statements and related schedules and other financial
and statistical data included therein, as to which such
counsel need express no opinion) when they were filed with the
Commission complied as to form in all material respects with
the requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder; and nothing has come
to such counsel's attention which causes them to believe that
any of such Incorporated Documents (other than the financial
statements and related schedules and other financial and
statistical data included therein, as to which such counsel
need express no belief), when such Incorporated Documents were
so filed, contained an untrue statement of material fact or
omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made when such documents were so filed, not
misleading.
(xxii) Neither the Company, the Trust nor the
Partnership is, or solely as a result of the consummation of
the transactions contemplated hereby will become, subject to
registration as an "investment company" under the Investment
Company Act of 1940, as amended.
-24-
(xxiii) The description of the law and the legal
conclusions contained in the Prospectus under the caption
"Federal Income Tax Consequences of Our Status as a REIT," are
correct in all material respects and the discussions
thereunder fairly summarize the federal income tax
considerations that are likely to be material to a holder of
the Common Stock.
(xxiv) To such counsel's knowledge, the conditions
for use of a Registration Statement on Form S-3 set forth in
the General Instructions to Form S-3 have been satisfied with
respect to the Company and the transactions contemplated by
this Agreement.
(xxv) Such counsel has been advised that the Shares
have been approved for listing on the NYSE, subject to
official notice of issuance.
(d) You shall have received on the Closing Date an opinion of
King & Spalding, counsel for the Underwriter, dated the Closing Date
and addressed to you with respect to the matters referred to in clauses
(vi), (xii) and (xx) of the foregoing paragraph (c) and such other
related matters as you may request.
(e) You shall have received letters addressed to you and dated
the date hereof and the Closing Date from PricewaterhouseCoopers LLP,
independent certified public accountants, substantially in the forms
heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of the
Registration Statement 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 at or prior to the Closing
Date; (ii) there shall not have been any material change in the capital
stock of the Company nor any material increase in the consolidated
short-term or long-term debt of the Company (other than in the ordinary
course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto); (iii) there shall not have been, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
except as may otherwise be stated in the Registration Statement and
Prospectus (or any amendment or supplement thereto), any material
adverse change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of the
Company and its subsidiaries taken as a whole; (iv) the Company and its
subsidiaries shall not have any liabilities or obligations, direct or
contingent (whether or not in the ordinary course of business), that
are material to the Company and its subsidiaries, taken as a whole,
other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Company, the Trust, and the
Partnership contained in this Agreement shall be true and correct on
and as of the date hereof and on and as of the Closing Date as if made
on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief
-25-
executive officer and the chief financial officer of the Company and
similar officers of the Trust as general partner of the Partnership (or
such other officers as are acceptable to you), to the effect set forth
in this Section 8(f) and in Section 8(g) hereof.
(g) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements
herein contained and required to be performed or complied with by it
hereunder at or prior to the Closing Date.
(h) The Shares shall have been listed or approved for listing
upon notice of issuance on the NYSE.
(i) The Company shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have
reasonably requested.
(j) You shall have received signed "lock-up" letters, in form
and substance satisfactory to you, from the executive officers of the
Company named in the Prospectus on the terms described in the
Prospectus.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are satisfactory
in form and substance to you and your counsel in your reasonable discretion.
Any certificate or document signed by any officer of the
Company, the Trust or the general partner of the Partnership and delivered to
you or to counsel for the Underwriter, shall be deemed a representation and
warranty by the Company, the Trust or the Partnership, as applicable, to the
Underwriter as to the statements made therein.
The obligation of the Underwriter to purchase Additional
Shares hereunder is subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (f) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (c) and (d)
shall be revised to reflect the sale of Additional Shares.
9. Expenses. The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by it of its
obligations hereunder: the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), the Prospectus, and each amendment or
supplement to any of them; the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Prospectus, and all amendments or supplements to any of
them as may be reasonably requested for use in connection with the offering and
sale of the Shares; the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp taxes in connection
with the original issuance and sale of the
-26-
Shares; the listing of the Shares on the NYSE; the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws or real estate syndication laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriter relating to the preparation, reproduction, and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification); the filing fees and the fees and expenses of
counsel for the Underwriter in connection with any filings required to be made
with the NASD; the transportation and other expenses incurred by or on behalf of
the Company's representatives in connection with presentations to prospective
purchasers of the Shares; the fees and expenses of the Company's accountants and
the fees and expenses of counsel (including local and special counsel) for the
Company.
10. Effective Date of Agreement. This Agreement shall become effective:
upon the execution and delivery hereof by the parties hereto; or if, at the time
this Agreement is executed and delivered, it is necessary for a post-effective
amendment to the Registration Statement to be declared effective before the
offering of the Shares may commence, when notification of the effectiveness of
or such post-effective amendment has been released by the Commission. Until such
time as this Agreement shall have become effective, it may be terminated by the
Company, by notifying you, or by you by notifying the Company.
Any notice under this Section 10 may be given by e-mail, facsimile
or telephone but shall be subsequently confirmed within 24 hours by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of the
Underwriter to the Company, by notice to the Company, if prior to the Closing
Date or any Option Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, trading in the Company's
Common Stock shall have been suspended by the Commission or the NYSE or trading
in securities generally on the NYSE shall have been suspended or limited or
minimum prices shall have been established on such Exchange, a banking
moratorium shall have been declared either by Federal or New York State
authorities or there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on the financial markets is such as
to make it, in your reasonable judgment, impracticable or inadvisable to proceed
with the offering or delivery of the Shares as contemplated by the Prospectus
(exclusive of any supplement thereto). Notice of such termination may be given
to the Company by e-mail, facsimile or telephone and shall be subsequently
confirmed within 24 hours by letter.
12. Information Furnished by the Underwriter. The statements set forth
in the third, fourth, ninth, tenth and eleventh paragraphs under the caption
"Underwriting" in the Prospectus and in the last paragraph on the cover page of
the Prospectus, constitute the only information furnished by or on behalf of the
Underwriter as such information is referred to in Sections 6(b) and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered if to the
-27-
Company, the Trust or the Partnership, at the office of the Company at Equity
Inns, Inc., 0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Xxxxxx X. Silver or if to you at Citigroup Global Markets Inc., Real Estate and
Lodging Group, 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of
the Underwriter, the Company, the Trust and the Partnership, their respective
directors and officers, and the other controlling persons referred to in Section
7 hereof and their respective successors and assigns, to the extent provided
herein, and no other person shall acquire or have any right under or by virtue
of this Agreement. Neither the term "successor" nor the term "successors and
assigns" as used in this Agreement shall include a purchaser from the
Underwriter of any of the Shares in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
-28-
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Partnership, the Trust and the Underwriter.
Very truly yours,
EQUITY INNS, INC.
By: /s/ J. Xxxxxxxx Xxxxxxx
---------------------------
J. Xxxxxxxx Xxxxxxx
Executive Vice President,
Chief Financial Officer,
Secretary, and Treasurer
EQUITY INNS TRUST
By: /s/ J. Xxxxxxxx Xxxxxxx
---------------------------
J. Xxxxxxxx Xxxxxxx
Executive Vice President,
Chief Financial Officer,
Secretary, and Treasurer
EQUITY INNS PARTNERSHIP, L.P.
By: EQUITY INNS TRUST
General Partner
By: /s/ J. Xxxxxxxx Xxxxxxx
--------------------------
J. Xxxxxxxx Xxxxxxx
Executive Vice President,
Chief Financial Officer,
Secretary, and Treasurer
-29-
Confirmed as of the date first above
mentioned.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
SCHEDULE A-1
DIRECT AND INDIRECT SUBSIDIARIES OF EQUITY INNS, INC.
JURISDICTION OF
INCORPORATION/
NAME ORGANIZATION OWNERSHIP PERCENTAGE
---- ------------ --------------------
Equity Inns Trust (the "Trust") Maryland 100% owned by Equity Inns,
Inc. (the "REIT")
Equity Inns Services, Inc. ("Services") Tennessee 100% owned by the REIT
Equity Inns TRS Holdings, Inc. ("TRS Holdings") Tennessee 100% owned by the Partnership
Equity Inns Partnership, L.P. (the "Partnership") Tennessee Approximately 96.8% owned by
the Trust; approximately 3.2%
owned by various limited
partners
Equity Inns Partnership II, L.P. Tennessee 1% GP interest held by the
Trust; 99% LP interest held
by the Partnership
Equity Inns/West Virginia Partnership, L.P. Tennessee 1% GP interest held by
Services; 99% LP interest
held by the Partnership
EQI Financing Corporation Tennessee 100% owned by the Trust
EQI Financing Partnership I, L.P. Tennessee Approximate 1%-GP interest
held by EQI Financing
Corporation; approximately
99% LP interest held by the
Partnership
EQI Financing Corporation II Tennessee 100% owned by the Trust
EQI Financing Partnership II, L.P. Tennessee 1% GP interest held by EQI
Financing Corporation II; 99%
LP interest held by the
Partnership
JURISDICTION OF
INCORPORATION/
NAME ORGANIZATION OWNERSHIP PERCENTAGE
---- ------------ --------------------
EQI/WV Financing Partnership, L.P. Tennessee 1% GP interest held by EQI
Financing Corporation II; 99%
LP interest held by the
Partnership
EQI Financing Corporation III Tennessee 100% owned by the Trust
EQI Financing Partnership III, L.P. Tennessee 1% GP interest held by EQI
Financing Corporation III;
99% LP interest held by the
Partnership
EQI Financing Corporation IV Tennessee 100% owned by the Trust
EQI Financing Partnership IV, L.P. Tennessee 1% GP interest held by EQI
Financing Corporation IV; 99%
LP interest held by the
Partnership
EQI Financing Corporation V Tennessee 100% owned by the Trust
EQI Financing Partnership V, L.P. Tennessee 1% GP interest held by EQI
Financing Corporation V; 99%
LP interest held by the
Partnership
EQI/WV Financing Corporation Tennessee 100% owned by the Trust
EQI/WV Financing Partnership II, L.P. Tennessee 1% GP interest held by EQI/WV
Financing Corporation; 99% LP
interest held by the
Partnership
E. Inns Orlando, Inc. Tennessee 100% owned by Services
E.I.P. Orlando, L.P. Tennessee 1% GP interest held by E.
Inns Orlando, Inc.; 99% LP
interest held by the
Partnership
JURISDICTION OF
INCORPORATION/
NAME ORGANIZATION OWNERSHIP PERCENTAGE
---- ------------ --------------------
ENN Leasing Company, Inc. Tennessee 100% owned by TRS Holdings
ENN Leasing Company I, L.L.C. Delaware 100% owned by TRS Holdings
ENN Leasing Company II, L.L.C. Delaware 100% owned by TRS Holdings
ENN Leasing Company III, L.L.C. Delaware 100% owned by TRS Holdings
ENN Leasing Company IV, L.L.C. Delaware 100% owned by TRS Holdings
ENN Leasing Company V, L.L.C. Delaware 100% owned by TRS Holdings
ENN KS, Inc. Kansas 100% owned by TRS Holdings
ENN TRS, Inc. Tennessee 100% owned by TRS Holdings
ENN TN, LLC Delaware 100% owned by TRS Holdings
ENN TN I, LLC Delaware 99% owned by TRS Holdings, 1%
owned by ENN TN, Inc.
ENN TN II, LLC Delaware 99% owned by TRS Holdings, 1%
owned by ENN TN, Inc.
ENN TN IV, LLC Delaware 99% owned by TRS Holdings, 1%
owned by ENN TN, Inc.
ENN TN V, LLC Delaware 99% owned by TRS Holdings, 1%
owned by ENN TN, Inc.
EQI Tallahassee, L.P. Tennessee 1% GP interest held by EQI FL
Corporation, 99% LP interest
held by the Partnership
EQI Tampa, L.P. Tennessee 1% GP interest held by EQI FL
Corporation, 99% LP interest
held by the Partnership
JURISDICTION OF
INCORPORATION/
NAME ORGANIZATION OWNERSHIP PERCENTAGE
---- ------------ --------------------
EQI Gainesville, L.P. Tennessee 1% GP interest held by EQI FL
Corporation, 99% LP interest
held by the Partnership
XxXxxxxx Hotel Group of Tallahassee, Florida #3 Georgia 1% GP interest held by EQI FL
Corporation, 99% LP interest
held by the Partnership
SCHEDULE A-2
SUBSIDIARIES--GOOD STANDING
AND FOREIGN QUALIFICATIONS
Equity Inns Partnership, L.P.--TN, FL, TX
EQI Financing Partnership I, L.P.--TN, FL, NC, TX
EQI Financing Partnership II, L.P.--TN
EQI Financing Partnership III, L.P.--TN
EQI Financing Partnership IV, L.P.--TN
EQI Financing Partnership V, L.P.--TN
