EXHIBIT 1.1
3,000,000 Shares
HOSPITALITY PROPERTIES TRUST
(a Maryland real estate investment trust)
8.875% Series B Cumulative Redeemable
Preferred Shares of Beneficial Interest
UNDERWRITING AGREEMENT
December 5, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
UBS Warburg LLC
as Representatives of the several Underwriters
named in Schedule A hereto
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Hospitality Properties Trust, a Maryland real estate investment trust
(the "Company"), confirms its agreement with Xxxxxxx Xxxxx Xxxxxx Inc.
("Salomon"), UBS Warburg LLC ("UBS") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters" which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Salomon and UBS are acting as representatives (in such
capacity, Salomon and UBS are hereinafter collectively referred to as the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers set forth in Schedule A of the Company's 8.875% Series B
Cumulative Redeemable Preferred Shares of Beneficial Interest, without par value
(the "Preferred Shares"), at a purchase price of $24.2125 per Preferred Share
and with respect to the grant by the Company to the Underwriters, acting
severally and not jointly, of the option described in Section 2 hereof to
purchase all or any part of an additional 450,000 Preferred Shares to cover
over-allotments, if any. The aforesaid 3,000,000 Preferred Shares (the "Initial
Shares"), together with all or any part of the 450,000 Preferred Shares subject
to the option described in Section 2 hereof (the "Option Shares"), are
collectively hereinafter called the "Shares."
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (Nos. 333-43573 and 333-84064)
for the registration of debt securities, preferred shares of beneficial
interest, depositary shares, common shares of beneficial interest and warrants
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statements have been declared effective by the Commission on
January 15, 1998 and March 20, 2002, respectively, and the Company has filed
such post-effective amendments thereto, if any, as may be required to the date
hereof and each such post-effective amendment
has been declared effective by the Commission. Such registration statements (as
so amended, if applicable) are referred to herein as the "Registration
Statement"; and the final prospectus and the final prospectus supplement
relating to the offering of the Shares, in the form first furnished to the
Underwriters by the Company for use in connection with the offering of the
Shares, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the date hereof; provided, further, that if the Company
files a registration statement with the Commission pursuant to Rule 462(b) of
the 1933 Act Regulations (the "Rule 462(b) Registration Statement"), then, after
such filing, all references to "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. For purposes of this
Underwriting Agreement, all references to the Registration Statement and
Prospectus, or to any amendment or supplement to either of the foregoing shall
be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering Analysis and Retrieval system ("XXXXX").
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement or the
Prospectus shall be deemed to mean and include all such financial statements and
schedules and other information which is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be, prior to the
execution of this Underwriting Agreement; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement or Prospectus, as the case may be, after
the execution of this Underwriting Agreement.
The 251 hotels described in the Prospectus as being currently owned by
the Company as of the date hereof are collectively referred to herein as the
"Hotels".
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each of the Underwriters, as of the date hereof, as
follows:
(1) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement (including any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement (including
any Rule 462(b) Registration Statement) and any post-effective
amendments thereto (including the filing of the Company's most recent
Annual Report on Form 10-K with the Commission (the
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"Annual Report on Form 10-K")) became effective and as of the date
hereof, the Registration Statement (including any Rule 462(b)
Registration Statement) and any amendments thereto complied and will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at the Closing Time as
defined below, neither the Prospectus nor any amendments and
supplements thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriters through the Representatives expressly for use in the
Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and the Prospectus delivered to the Underwriters for use in
connection with the offering of the Shares will, at the time of such
delivery, be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they became effective or at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus and at the Closing Time did
not and will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in
the Registration Statement and the Prospectus were, as of the dates of
their respective certifications, independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the
Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be, at
the dates indicated and the statement of operations, shareholders'
equity and cash flows of the Company and its consolidated subsidiaries,
or such other entity, as the case may be, for the periods specified.
Such financial statements have been prepared in conformity with
generally
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accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement
and the Prospectus. In addition, any pro forma financial statements of
the Company and its subsidiaries and the related notes thereto included
in the Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those arising in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise and (C) except for regular dividends on the Company's common
shares or preferred shares, in amounts per share that are consistent
with past practice or the applicable charter document or supplement
thereto, respectively, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital shares.
(6) Good Standing of the Company. The Company has been duly
organized and is validly existing as a real estate investment trust in
good standing under the laws of the State of Maryland and has power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under, or as contemplated under, this Underwriting
Agreement. The Company is duly qualified to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect; and the
Articles Supplementary relating to the Preferred Shares (the "Articles
Supplementary") will be in full force and effect as of the Closing
Time.
(7) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the 0000 Xxx) (each, a "Subsidiary"
and, collectively, the "Subsidiaries"), if any, has been duly organized
and is validly existing as a corporation or a real estate investment
trust, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation or formation, as the case may be, has
corporate power and authority to own, lease and
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operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation or a real
estate investment trust, as the case may be, to transact business and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect. Except
as otherwise stated in the Registration Statement and the Prospectus,
all of the issued and outstanding capital shares of each Subsidiary has
been duly authorized and is validly issued, fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity. None of the outstanding
capital shares of any Subsidiary was issued in violation of preemptive
or other similar rights of any securityholder of such Subsidiary.
(8) Capitalization. The authorized, issued and outstanding
capital shares of the Company have been duly authorized and validly
issued by the Company and are fully paid and non-assessable (except as
otherwise described in the Registration Statement), and none of such
capital shares was issued in violation of preemptive or other similar
rights of any securityholder of the Company.
(9) Authorization of this Underwriting Agreement. This
Underwriting Agreement has been duly authorized, executed and delivered
by the Company.
(10) Authorization of the Shares. The Shares to be issued and
sold pursuant to this Underwriting Agreement have been duly authorized
and, when issued and delivered to the Underwriters against payment
therefor as provided hereunder, will have been validly issued and will
be fully paid, non-assessable (except as otherwise described in the
Registration Statement) and free of preemptive or similar rights; the
Preferred Shares conform to the provisions of the Articles
Supplementary; there are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities, commitments of sale
or liens related to or entitling any person to purchase or otherwise to
acquire any Common Shares of, or other ownership interest in, the
Company, except as otherwise disclosed in the Registration Statement or
the Prospectus and except for awards under the Company's Incentive
Share Award Plan made in the ordinary course of business; all
outstanding Common Shares, except for shares issued pursuant to the
Company's Incentive Share Award Plan and shares issued to the Advisor
(as defined below) and its affiliates, are listed on the New York Stock
Exchange, Inc. (the "NYSE") and the Company knows of no reason or set
of facts which is likely to result in the delisting of such Common
Shares or the inability to list the Shares; and there are no rights of
holders of securities of the Company to the registration of Common
Shares or other securities that would require inclusion of such Common
Shares or other securities in the offering of the Shares.
(11) Descriptions of the Shares. The Shares will conform in
all material respects to the statements relating thereto contained in
the Prospectus.
(12) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its declaration of
trust, charter, by-laws or other comparable
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governing document or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the assets, properties or operations of the
Company or any of its subsidiaries is subject (collectively,
"Agreements and Instruments"), except for such defaults that would not
result in a Material Adverse Effect. The execution, delivery and
performance of this Underwriting Agreement and any other agreement or
instrument entered into or issued or to be entered into or issued by
the Company in connection with the transactions contemplated hereby or
thereby or in the Registration Statement and the Prospectus and the
consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and
sale of the Shares and the use of the proceeds from the sale of the
Shares as described under the caption "Use of Proceeds") and compliance
by the Company with its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any assets, properties or
operations of the Company or any of its subsidiaries pursuant to, any
Agreements and Instruments, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(13) Absence of Labor Dispute. To the knowledge of the
Company, no labor problem exists or is imminent with employees of the
Company or any of its subsidiaries that could have a Material Adverse
Effect.
(14) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Company threatened, against or affecting the
Company or any of its subsidiaries which is required to be disclosed in
the Registration Statement and the Prospectus (other than as stated
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated
under the Prospectus, this Underwriting Agreement, or the performance
by the Company of its obligations hereunder. The aggregate of all
pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of their respective
assets, properties or operations is the subject which are not described
in the Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
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(15) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(16) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company of this
Underwriting Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus or this Underwriting
Agreement, except such as may be required and will be obtained at or
prior to the Closing Time and such as may be required by the securities
or Blue Sky laws or real estate syndication laws of the various states
in connection with the offer and sale of the Shares and, in the case of
the performance thereof, except as are contemplated by the express
terms of such documents to occur after the Closing Time and except (x)
such as are otherwise described in the Prospectus and (y) such that the
failure to obtain would not have a Material Adverse Effect.
(17) Possession of Intellectual Property. The Company and each
of its subsidiaries owns, or possesses adequate rights to use, all
patents, trademarks, trade names, service marks, copyrights, licenses
and other rights necessary for the conduct of their respective
businesses as described in the Registration Statement and in the
Prospectus, and neither the Company nor any of its subsidiaries has
received any notice of conflict with, or infringement of, the asserted
rights of others with respect to any such patents, trademarks, trade
names, service marks, copyrights, licenses and other such rights (other
than conflicts or infringements that, if proven, would not have a
Material Adverse Effect), and neither the Company nor any of its
subsidiaries knows of any basis therefor.
(18) Possession of Licenses and Permits. To the best knowledge
of the Company, each lessee of the Hotels has, and as of the Closing
Time will have, all permits, licenses, approvals, certificates,
franchises and authorizations of governmental or regulatory authorities
("Approvals") as may be necessary to lease, operate or manage the
Hotels in the manner described in or contemplated by the Prospectus,
except for those Approvals the absence of which would not have a
Material Adverse Effect.
(19) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and
its subsidiaries and good title to all other properties owned by them,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind, except (A)
as otherwise stated in the Registration Statement and the Prospectus,
(B) in the case of personal property located at certain Hotels, such as
are subject to equipment lease financing arrangements which have been
entered into in the ordinary course of business and have an aggregate
outstanding balance not in excess of $1 million, (C) those which do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries or (D) liens
for taxes not yet due and payable. All of the leases and
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subleases material to the business of the Company and its subsidiaries
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect (except where the failure to be in full force and
effect would not result in a Material Adverse Effect), and neither the
Company nor any of its subsidiaries has received any notice of any
material claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any of its subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of
the leased or subleased premises under any such lease or sublease.
(20) Investment Company Act. The Company is not, and upon the
issuance and sale of the Shares as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(21) Environmental Laws. The Company has received and reviewed
certain environmental reports on (which included physical inspection of
the surface of) each Hotel's property and has obtained certain
representations and warranties relating to environmental matters from
the sellers of the Hotels set forth in purchase agreements therefor.
Except as described in the Prospectus, (i) the Company, and, to its
knowledge, each Hotel's property, is, and as of the Closing Time will
be, in compliance with all applicable federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment, hazardous or toxic substances and wastes, pollutants and
contaminants ("Environmental Laws"), (ii) the Company, or, to its
knowledge, its lessees have received, or as of the Closing Time will
receive, all permits, licenses or other approvals required under
applicable Environmental Laws to conduct the respective hotel
businesses presently conducted at each Hotel's property and (iii) the
Company or, to its knowledge, its lessees are, or as of the Closing
Time will be, in compliance with all terms and conditions of any such
permit, license or approval, except, in respect of clauses (i), (ii)
and (iii), as otherwise disclosed in the Prospectus or as would not,
singly or in the aggregate, have a Material Adverse Effect. To the best
knowledge of the Company, except as described in the Prospectus, there
are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures
required for clean-up, remediation or closure of properties or
compliance with Environmental Laws and any potential liabilities to
third parties) that, as of the date hereof, would, or as of the Closing
Time will, singly or in the aggregate, have a Material Adverse Effect.
The Company has received and reviewed engineering reports on each
Hotel's property, has obtained certain representations and warranties
from the sellers of the Hotels set forth in purchase agreements
therefor and has conducted physical inspections of each Hotel's
property. In respect of each Hotel, (i) each Hotel is not in violation
of any applicable building code, zoning ordinance or other law or
regulation, except where such violation of any applicable building
code, zoning ordinance or other law or regulation would not, singly or
in the aggregate, have a Material Adverse Effect; (ii) the Company has
not received notice of any proposed material special assessment or any
proposed change in any property tax, zoning or land use laws or
availability of water affecting any Hotel that would have, singly or in
the aggregate, a Material Adverse Effect; (iii) except as disclosed in
the Prospectus, there does not exist any material
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violation of any declaration of covenants, conditions and restrictions
with respect to any Hotel that would have, singly or in the aggregate,
a Material Adverse Effect, or any state of facts or circumstances or
condition or event which could, with the giving of notice or passage of
time, or both, constitute such a material violation; and (iv) the
improvements comprising any portion of each Hotel (the "Improvements")
are free of any and all material physical, mechanical, structural,
design and construction defects that would have, singly or in the
aggregate, a Material Adverse Effect and the mechanical, electrical and
utility systems servicing the Improvements (including, without
limitation, all water, electric, sewer, plumbing, heating, ventilation,
gas and air conditioning) are in good condition and proper working
order and are free of defects that would have, singly or in the
aggregate, a Material Adverse Effect.
(22) REIT Qualification. The Company is organized in
conformity with the requirements for qualification, and, as of the date
hereof the Company operates, and as of Closing Time the Company will
operate, in a manner that qualifies the Company as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended
(the "Code"), and the rules and regulations thereunder, for 2002 and
subsequent years. The Company qualified as a real estate investment
trust under the Code for each of the taxable years ended December 31,
1995 through December 31, 2001.
(23) Possession of Insurance. The Company and its Hotels are,
and as of the Closing Time will be, insured in the manner described in
the Prospectus by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are customary in
the businesses in which the Company is engaged and proposes to engage
and the Company has no reason to believe that it or its tenants will
not be able to renew such insurance coverage as and when such coverage
expires or to obtain similar coverage as may be necessary to continue
its business at economically viable rates. The Company and/or its
subsidiaries, as applicable, has obtained an ALTA Extended Coverage
Owner's Policy of Title Insurance or its local equivalent (or an
irrevocable commitment to issue such a policy) on all of the Hotels
owned by the Company or its subsidiaries and such title insurance is in
full force and effect.
(24) Absence of Indebtedness. At the Closing Time, the Company
will have no indebtedness for money borrowed except (i) amounts
outstanding under the Company's $350 million aggregate principal amount
credit facility (the "Credit Facility"), (ii) the Company's 7% Senior
Notes due 2008, (iii) the Company's 8 1/2% Monthly Income Senior Notes
due 2009, (iv) the Company's 9.125% Senior Notes due 2010, (v) the
Company's 6.85% Senior Notes due 2012, (vi) equipment financing
arrangements in respect of personal property located at certain Hotels
which have been entered into in the ordinary course of business and
have an aggregate outstanding balance not in excess of $1 million, and
(vii) any indebtedness as to which you shall have given your prior
written consent.
(25) Good Standing of the Advisor. Except as otherwise
disclosed in the Prospectus, since the respective dates as of which
information is given in the Prospectus, there has been no material
adverse change in the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of Reit Management &
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Research LLC (the "Advisor"), whether or not arising in the ordinary
course of business, that would have a Material Adverse Effect. The
Advisor (A) is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and (B) has the requisite limited liability company power and authority
to conduct its business as described in the Prospectus and to own and
operate its material properties. The Advisory Agreement, dated as of
January 1, 1998 and Amendment No. 1 thereto, dated as of October 12,
1999 (the "Advisory Agreement"), between the Company and the Advisor,
has been duly authorized, executed and delivered by the parties thereto
and constitutes the valid agreement of the parties thereto, enforceable
in accordance with its terms, except as limited by (a) the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws relating to or affecting the rights or remedies
of creditors or (b) the effect of general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to the Underwriters or to
counsel to the Underwriters in connection with the offering of the Shares shall
be deemed a representation and warranty by the Company to each of the
Underwriters as to the matters covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Shares. The commitments of the several Underwriters to purchase the
Shares pursuant to the terms hereof shall be deemed to have been made on the
basis of the representations, warranties and agreements herein contained and
shall be subject to the terms and conditions herein set forth.
(b) Over-allotment Option. In addition, on the basis of the
representations and warranties herein included and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, acting severally and not jointly, to purchase up to an additional
450,000 Shares at the purchase price set forth on the first page of this
Underwriting Agreement. The option hereby granted will expire 30 days after the
date of this Underwriting Agreement and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial Shares upon
notice by the Underwriters to the Company setting forth the number of Option
Shares as to which the Underwriters are then exercising the option and the time,
date and place of payment and delivery for such Option Shares. Any such time and
date of delivery (a "Date of Delivery") shall be determined by the Underwriters
but shall not be later than seven full business days, nor earlier than two full
business days, after the exercise of said option, nor in any event prior to
Closing Time, unless otherwise agreed upon by the Underwriters and the Company.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Shares shall be made at the offices of Xxxxxxxx & Worcester LLP, Boston,
Massachusetts, or at such other place as shall be agreed upon by you and the
Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 P.M. (Eastern time) on any given day) business day
10
following the date of this Underwriting Agreement, or such other time not later
than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called "Closing Time"). In addition, in the event that the over-allotment
option described in (b) above is exercised by the Underwriters, payment of the
purchase price for and delivery of the Option Shares shall be made at the
above-mentioned office of Xxxxxxxx & Worcester LLP, or at such other place as
shall be agreed upon by the Underwriters and the Company on each Date of
Delivery as specified in the notice to the Company. Payment shall be made to the
Company by wire transfer of immediately available funds to a bank account
designated by the Company, against delivery to the Underwriters of certificates
for the Shares to be purchased by you.
(d) Registration. The Shares shall be issued and registered in such
names as the Underwriters shall request not later than one business day prior to
the Closing Time or the Date of Delivery, as the case may be. The Shares shall
be made available for inspection not later than 10:00 a.m. (Eastern Time) on the
business day prior to the Closing Time or the Date of Delivery, as the case may
be, at the office of The Depository Trust Company or its designated custodian.
SECTION 3. Covenants of the Company. The Company covenants with each of
the Underwriters as follows:
(a) Immediately following the execution of this Underwriting Agreement,
the Company will prepare a Prospectus Supplement setting forth the number of
Shares covered thereby and their terms not otherwise specified in the
Prospectus, the names of the Underwriters, the price at which the Shares are to
be purchased by the Underwriters, severally and not jointly, from the Company,
and such other information as the Underwriters and the Company deem appropriate
in connection with the offering of the Shares; and the Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the
Underwriters as many copies (including by electronic means, if so requested in
lieu of paper copies) of the Prospectus (including such Prospectus Supplement)
as you shall reasonably request.
(b) Until the termination of the initial offering of the Shares, the
Company will notify the Underwriters immediately, and confirm the notice in
writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for filing of any
supplement or amendment to the Prospectus or any document to be filed pursuant
to the 1934 Act, (iii) of the receipt of any comments from the Commission with
respect to the Shares, (iv) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
with respect to the Shares or for additional information relating thereto, and
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) Until the termination of the initial offering of the Shares, the
Company will give the Underwriters notice of its intention to file or prepare
any post-effective amendment to the Registration Statement or any amendment or
supplement to the Prospectus (including any
11
revised prospectus which the Company proposes for use by the Underwriters in
connection with the offering of the Shares which differs from the prospectus on
file at the Commission at the time that the Registration Statement becomes
effective, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the
Underwriters with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to which
counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to the Underwriters a conformed copy of
the Registration Statement as originally filed and of each amendment thereto
filed prior to the termination of the initial offering of the Shares (including
exhibits filed therewith or incorporated by reference therein and the documents
incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3).
(e) The Company will furnish to the Underwriters, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies (including by electronic means, if so
requested in lieu of paper copies) of the Prospectus (as amended or
supplemented) as the Underwriters may reasonably request for the purposes
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or 1934 Act
Regulations.
(f) Until the termination of the initial offering of the Shares, if any
event shall occur as a result of which it is necessary, in the opinion of
counsel to the Underwriters, to amend or supplement the Prospectus in order to
make the Prospectus not misleading in the light of the circumstances existing at
the time it is delivered, the Company will either (i) forthwith prepare and
furnish to the Underwriters an amendment of or supplement to the Prospectus or
(ii) make an appropriate filing pursuant to Section 13, 14 or 15 of the 1934
Act, in form and substance reasonably satisfactory to counsel to the
Underwriters, which will amend or supplement the Prospectus so that it will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered, not misleading.
(g) The Company will endeavor in good faith, in cooperation with the
Underwriters, to qualify the Shares for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as the Underwriters may designate; provided
that, in connection therewith, the Company shall not be required to qualify as a
foreign corporation or trust or to file any general consent to service of
process. In each jurisdiction in which the Shares have been so qualified the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for so long as
required for the distribution of the Shares.
(h) The Company will make generally available to its security holders
as soon as reasonably practicable, but not later than 90 days after the close of
the period covered thereby, an earning statement of the Company (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations) covering
a period of at least twelve months beginning not later than the first day of the
Company's fiscal quarter next following the effective date of the Registration
12
Statement. "Earning statement," "make generally available" and "effective date"
will have the meanings contained in Rule 158 of the 1933 Act Regulations.
(i) The Company will use the net proceeds received by it from the sale
of the Shares in the manner specified in the Prospectus under the caption "Use
of Proceeds" in all material respects.
(j) The Company currently intends to continue to qualify as a "real
estate investment trust" under the Code, and use its best efforts to continue to
meet the requirements to qualify as a "real estate investment trust" under the
Code.
(k) The Company will timely file any document which it is required to
file pursuant to the 1934 Act prior to the termination of the offering of the
Shares.
(l) The Company will use its best efforts to effect the listing of the
Shares on the NYSE.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement, including (i)
the preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the Shares and any
certificates for the Shares to the Underwriters, including any transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Shares to the Underwriters, (iii) the fees and disbursements of the Company's
counsel, accountants and other advisors or agents, as well as their respective
counsel, (iv) the qualification of the Shares under state securities laws in
accordance with the provisions of Section 3(g) hereof, including filing fees and
the reasonable fees and disbursements of counsel in connection therewith and in
connection with the preparation, printing and delivery of any Blue Sky Survey,
and any amendment thereto, (v) the printing and delivery to the Underwriters of
copies of the Prospectus and any amendments or supplements thereto, (vi) the
fees and expenses incurred in connection with the listing of the Shares on the
NYSE, (vii) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review, if
any, by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Shares and (viii) the cost of providing any CUSIP or
other identification numbers for the Shares.
(b) Termination of Agreement. If this Underwriting Agreement is
terminated by the Underwriters in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
their counsel.
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SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters, acting severally and not jointly, to purchase and pay for the
Shares pursuant to the terms hereof are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing information
relating to the description of the Shares, the specific method of distribution
and similar matters shall have been filed with the Commission in accordance with
Rule 424(b). At Closing Time the rating assigned by any nationally recognized
statistical rating organization to any preferred shares of the Company, as of
the date hereof shall not have been lowered since such date nor shall any such
rating organization have publicly announced that is has placed any preferred
shares of the Company on what is commonly termed a "watch list" for possible
downgrading.
(b) Opinion of Counsel for Company. At Closing Time, the Underwriters
shall have received the favorable opinion, dated as of Closing Time, of Xxxxxxxx
& Worcester LLP, counsel for the Company, in form and substance satisfactory to
counsel to the Underwriters, to the effect set forth in Exhibit A hereto. In
rendering their opinion, such counsel may rely on an opinion dated the Closing
Time of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, as to matters governed by the
laws of the State of Maryland. In addition, in rendering their opinion, such
counsel may state that their opinion as to laws of the State of Delaware is
limited to the Delaware General Corporation Law. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(c) Opinion of Special Maryland Counsel for Company. At Closing Time,
the Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, special Maryland counsel for
the Company, in form and substance satisfactory to counsel to the Underwriters,
to the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, with
respect to the matters set forth in paragraphs (7), (8), (9), (17), and (18) of
Exhibit A and a statement to the following effect: no fact has come to their
attention that has caused them to believe that the Registration Statement
(including any Rule 462(b) Registration Statement) or any post-effective
amendment thereto (except for financial statements and supporting schedules and
other financial data included therein or omitted therefrom, as to which they
make no statement), at the time the Registration Statement (including any Rule
462(b) Registration Statement) or any post-effective amendment thereto
(including the filing of the Company's Annual Report on Form 10-K with the
Commission) became effective, contained
14
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or supplement thereto (except
for financial statements and supporting schedules and other financial data
included therein or omitted therefrom, as to which they make no statement), at
the time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the laws of the State of New
York, the federal laws of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Underwriters and may rely on an opinion dated the Closing Time of Xxxxxxx Xxxxx
Xxxxxxx and Ingersoll, LLP as to matters governed by the laws of the State of
Maryland and on an opinion of Xxxxxxxx & Worcester LLP as to matters governed by
the laws of The Commonwealth of Massachusetts. Such counsel may also state that,
insofar as such opinions involve factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any Material Adverse Effect, and the Underwriters shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial officer or chief accounting officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no Material
Adverse Effect, (ii) the representations and warranties in Section 1(a) are true
and correct with the same force and effect as though expressly made at and as of
the Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted, are pending or, to the best of such officers' knowledge, are
threatened by the Commission.
(f) Certificate of the Company Regarding Financial Statements. At the
Closing Time the Underwriters shall have received a certificate of the Company
substantially in the form of Exhibit C hereto.
(g) Advisor's Certificate. At Closing Time, there shall not have been,
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Advisor, whether or not
arising in the ordinary course of business; and the Underwriters shall have
received, at Closing Time, a certificate of the President or a Vice President of
the Advisor evidencing compliance with this subsection (g).
(h) Accountants' Comfort Letter. At the time of the execution of this
Underwriting Agreement, the Underwriters shall have received from Ernst & Young
LLP a letter dated such date, in form and substance satisfactory to the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with
15
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(i) Bring-down Comfort Letter. At Closing Time, the Underwriters shall
have received from Ernst & Young LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (h) of this Section 5, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Time.
(j) No Objection. If the Registration Statement or the offering of the
Shares has been filed with the NASD for review, the NASD shall not have raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(k) Additional Documents. At Closing Time, counsel to the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Shares as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Shares as herein contemplated shall
be reasonably satisfactory in form and substance to the Underwriters and their
counsel.
(l) Date of Delivery Documentation. In the event the Underwriters
exercise the option described in Section 2 hereof to purchase all or any portion
of the Option Shares, the representations and warranties of the Company included
herein and the statements in any certificates furnished by the Company hereunder
shall be true and correct as of the Date of Delivery (except those which speak
as of a certain date, in which case as of such date), and the Underwriters shall
have received:
(i) A certificate of the President or a Vice President and of
the chief financial officer or chief accounting officer of the Company,
dated such Date of Delivery, confirming that their certificate
delivered at Closing Time pursuant to Section 5(e) hereof remains true
as of such Date of Delivery, except with respect to transactions as to
which the Underwriters shall have given their prior written consent.
(ii) A certificate of the Company, dated such Date of
Delivery, confirming that their certificate delivered at Closing Time
pursuant to Section 5(f) hereof remains true as of such Date of
Delivery.
(iii) Certificate of the President or Vice President of the
Advisor confirming that his certificate delivered at Closing Time
pursuant to Section 5(g) hereof remains true as of such Date of
Delivery.
(iv) The favorable opinion of Xxxxxxxx & Worcester LLP,
counsel for the Company, in form and substance satisfactory to counsel
to the Underwriters, dated such Date of Delivery, relating to the
Option Shares and otherwise to the same effect as the opinion required
by Section 5(b) hereof.
16
(v) The favorable opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP,
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Shares and otherwise to the same effect as the opinion
required by Section 5(d) hereof.
(vi) A letter from Ernst & Young LLP, dated such Date of
Delivery, substantially the same in scope and substance as the letter
furnished to the Underwriters pursuant to Section 5(i) hereof.
(m) Termination of this Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Underwriting Agreement may be terminated by the Underwriters by notice to
the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue
17
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by the Underwriters through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); and provided, further, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter, or the benefit of any person controlling any
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto and excluding
documents incorporated or deemed to be incorporated by reference therein) was
not sent or given by or on behalf of such Underwriter to such person asserting
any such losses, claims, damages or liabilities at or prior to the written
confirmation of the sale of such Shares to such person, if required by law so to
have been delivered, and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage or expense.
(b) Indemnification of Company, Trustees and Officers. Each Underwriter
agrees to indemnify and hold harmless the Company, its trustees, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Underwriters through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. The indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such indemnified parties
and payment of all fees and expenses. The indemnified parties shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified parties unless (i) the employment of such counsel
shall have been specifically authorized in writing by the indemnifying party,
(ii) the indemnifying party shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any impleaded
parties) include both the indemnified parties and the indemnifying party and the
indemnified parties shall have been advised by such counsel that there may be
one or more legal defenses available to them which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified parties, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out
18
of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for the indemnified parties, which firm shall be designed in writing by
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred). No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the Shares
pursuant hereto or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Shares
pursuant hereto shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Shares (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of such Shares as set forth on such
cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact
19
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriters
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by the Underwriters and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriters have otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls each
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each trustee of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or in certificates of officers of the Company or any of
its subsidiaries submitted pursuant hereto or thereto shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of the Underwriters or controlling persons, or by or on behalf of the Company,
and shall survive delivery of and payment for the Shares.
SECTION 9. Termination.
(a) The Representatives may terminate this Underwriting Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the respective dates as of which information is given in the
Registration Statement, any Material Adverse Effect to, or a material adverse
change in the business, operations, earnings, prospects, properties or condition
of, the Advisor, whether or not arising in the ordinary course of business,
which would make it, in the Representatives' judgment, impracticable or
inadvisable to market the Shares or enforce contracts for the sale of the
Shares, (ii) if there has occurred any material adverse change
20
in the financial markets in the United States or declaration by the United
States of a national emergency or war or any outbreak of hostilities or
escalation of existing hostilities or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it in the Representatives' judgment, impractical or inadvisable
to market the Shares or enforce contracts for the sale of the Shares, or (iii)
if trading in the Company's Common Shares has been suspended by the Commission,
or if trading generally on either the New York Stock Exchange or the American
Stock Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or any other governmental
authority, or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, (iv) if a
banking moratorium has been declared by Federal or New York authorities, or (v)
if the ratings assigned to preferred shares or unsecured debt securities of the
Company by any "nationally recognized statistical rating organization" as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933
Act, as of the date hereof shall have been lowered since such date or if any
such rating organization shall have publicly announced that it has placed any
preferred shares of the Company on what is commonly termed a "watch list" for
possible downgrading.
(b) If this Underwriting Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4, and provided further that Sections 6 and
7 hereof shall survive such termination.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Initial
Shares which it or they are obligated to purchase hereunder (the "Defaulted
Securities"), then Salomon shall have the right, within 24 hours thereafter, to
make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, Salomon shall not have completed such arrangements within
such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the Initial Shares to be purchased on such date pursuant hereto, the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Initial Shares to be purchased on such date pursuant hereto, this
Underwriting Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Underwriting Agreement, either Salomon or the Company shall have the
right to postpone the
21
Closing Time for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxx Xxxxxxxxxx; and
notices to the Company shall be directed to it at 000 Xxxxxx Xxxxxx, Xxxxxx, XX
00000, attention of Xxxx X. Xxxxxx.
SECTION 12. Parties. This Underwriting Agreement shall inure to the
benefit of and be binding upon the Company and the Underwriters and its and
their respective successors. Nothing expressed or mentioned in this Underwriting
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and its respective
successors and the controlling persons and officers and trustees referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Underwriting
Agreement or any provision herein contained. This Underwriting Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the parties hereto and their respective successors, and said
controlling persons and officers and trustees and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of the Shares from the Underwriters shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
HOSPITALITY PROPERTIES TRUST
By: /s/ Xxxxxx X. X'Xxxxx
Name: Xxxxxx X. X'Xxxxx
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
Xxxxxxx Xxxxx Barney Inc.
UBS Warburg LLC
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Director
For themselves and as Representatives of the several Underwriters named
in Schedule A hereto.
23
Schedule A
Number of
Name of Underwriter Initial Securities
Xxxxxxx Xxxxx Barney Inc. ..................................... 457,500
UBS Warburg LLC ............................................... 457,500
X.X. Xxxxxxx & Sons, Inc....................................... 445,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated........................... 445,000
RBC Xxxx Xxxxxxxx Inc.......................................... 445,000
Wachovia Securities, Inc. ..................................... 445,000
BMO Xxxxxxx Xxxxx Corp. ....................................... 30,000
Credit Lyonnais Securities (USA) Inc........................... 30,000
ING Bank N.V. ................................................. 30,000
Prudential Securities Incorporated ............................ 30,000
XX Xxxxx Securities Corporation................................ 30,000
Xxxxx Fargo Investment Services, LLC........................... 30,000
CIBC World Markets Corp........................................ 25,000
Credit Suisse First Boston Corporation......................... 25,000
X.X. Xxxxxxxx & Co............................................. 25,000
Xxxxxxxxxx & Co. Inc........................................... 25,000
U.S. Bancorp Xxxxx Xxxxxxx Inc................................. 25,000
------------
Total..................................................... 3,000,000
=========
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company is a real estate investment trust duly formed and
validly existing under and by virtue of the laws of the State of Maryland and is
in good standing with the State Department of Assessments and Taxation of
Maryland.
(2) The Company has trust power to own and lease its properties and to
conduct its business in all material respects as described in the Prospectus and
to enter into and perform its obligations under the Underwriting Agreement.
(3) The Company is duly qualified to transact business and is in good
standing in each jurisdiction other than the State of Maryland in which the
ownership or leasing of its properties requires such qualification, except where
the failure to so qualify or be in good standing would not result in a Material
Adverse Effect.
(4) Each Subsidiary (a) is a real estate investment trust duly formed
and validly existing under and by virtue of the laws of the State of Maryland
and is in good standing with the State Department of Assessments and Taxation of
Maryland, (b) has the trust power to own and lease its properties and to conduct
its business, in all material respects as described in the Prospectus, and (c)
is duly qualified to transact business and is in good standing in each
jurisdiction other than the State of Maryland in which the ownership or leasing
of its properties requires such qualification, except where the failure to so
qualify or be in good standing would not result in a Material Adverse Effect.
(5) Except as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital shares of each Subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable, and, to such counsel's knowledge, are owned by the Company,
directly or through subsidiaries, free and clear of any adverse claim. None of
such capital shares of any Subsidiary was issued in violation of preemptive or,
to such counsel's knowledge, other similar rights of any holder (other than the
Company) of capital shares of such Subsidiary.
(6) Except as otherwise set forth in the opinions expressed in
paragraph 4 of the opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, set forth
as Exhibit 1 to such counsel's opinion, all the authorized, issued and
outstanding capital shares of the Company have been duly authorized and validly
issued by the Company and are fully paid and non-assessable (except as otherwise
described in the Registration Statement), and none of such capital shares was
issued in violation of preemptive or, to such counsel's knowledge, other similar
rights of any holder of capital shares of the Company.
A-1
(7) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(8) The Shares have been duly authorized and, when issued and delivered
to the Underwriters against payment therefor in accordance with the terms of the
Underwriting Agreement, will be validly issued, fully paid and non-assessable
(except as otherwise described in the Registration Statement), and will be free
of any preemptive or, to such counsel's knowledge, other similar rights that
entitle any person (other than the Underwriters and their successors and
assigns) to acquire any Shares upon the issuance thereof by the Company.
(9) The Preferred Shares conform as to legal matters in all material
respects to the descriptions thereof in the Prospectus.
(10) (a) The statements under the captions (i) "The Company" and
"Description of the Series B Preferred Shares" in the Prospectus Supplement and
(ii) "Description of Preferred Shares" in the Prospectus, in each case as of the
date of the Prospectus, and (b) the statements under the captions (i) "Items 1
and 2. Business and Properties -- The Company --Principal Lease or Management
Features," and "Item 5. Market for The Registrant's Common Equity and Related
Shareholder Matters," and "Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations -- Overview" and "Item 7.
Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Liquidity and Capital Resources" in the Annual Report on Form
10-K, and (ii) "Other Information -- Certain Relationships and Related Party
Transactions" in the Company's Proxy Statement relating to the May 7, 2002
Annual Meeting of Shareholders (incorporated by reference in the Form 10-K), in
each case as of the date of filing of such Incorporated Document, insofar as
such statements constitute a summary of legal matters, documents or proceedings
referred to therein, fairly present in all material respects the information
called for with respect to such legal matters, documents and proceedings.
(11) The statements under the captions "Federal Income Tax and ERISA
Considerations" in the Prospectus Supplement, as of the date of the Prospectus,
and the statements under the captions "Federal Income Tax Considerations" and
"ERISA Plans, Xxxxx Plans and Individual Retirement Accounts" under the caption
"Items 1 and 2. Business and Properties" in the Annual Report on Form 10-K, as
of the date of filing of the Annual Report on Form 10-K, insofar as such
statements constitute a summary of legal matters or documents referred to
therein, fairly present in all material respects the information called for with
respect to such legal matters and documents.
(12) To such counsel's knowledge, except as disclosed in the Prospectus
neither the Company nor any Subsidiary is in violation of its declaration of
trust or by-laws and no default by the Company or any of the Subsidiaries exists
in the due performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement and to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound or to
which any of the assets, properties or operations of
A-2
the Company or any Subsidiary is subject, except for such violations or defaults
which would not result in a Material Adverse Effect.
(13) The execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions contemplated in the
Underwriting Agreement and in the Registration Statement and the Prospectus
(including the issuance and sale of the Shares and the use of the proceeds from
the sale of the Shares as described under the caption "Use of Proceeds" in the
Prospectus Supplement) and compliance by the Company with its obligations
thereunder do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the Company
or of any Subsidiary pursuant to, any material contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or any other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement and to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound or to which any of the assets,
properties or operations of the Company or any Subsidiary is subject, nor will
such action result in any violation of the provisions of the declaration of
trust or by-laws of the Company or any Subsidiary or in any material respect any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to such counsel, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations, in each case
except as disclosed in the Prospectus.
(14) To such counsel's knowledge, except as disclosed in the Prospectus
there is not pending or threatened any action, suit, proceeding, inquiry or
investigation to which the Company or any Subsidiary is a party or to which the
assets, properties or operations of the Company or any Subsidiary is subject,
before or by any court or government agency or body which would, if determined
adversely to the Company or such Subsidiary, result in a Material Adverse Effect
or materially and adversely affect the consummation of the transactions
contemplated under the Underwriting Agreement or the right or ability of the
Company to perform its obligations thereunder.
(15) To such counsel's knowledge, there is no contract or other
document which is required to be described in the Registration Statement or the
Prospectus that is not described therein or is required to be filed as an
exhibit to the Registration Statement which is not so filed.
(16) To such counsel's knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(17) The Registration Statement has been declared effective under the
1933 Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b). To such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been initiated or are pending or threatened by the Commission.
A-3
(18) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than financial statements and other financial data and schedules, as to which
such counsel need not express any opinion), complied as to form in all material
respects with the requirements of the 1933 Act.
(19) Each Incorporated Document (other than financial statements and
other financial data and schedules, as to which such counsel need not express
any opinion) complied as to form in all material respects with the 1934 Act when
filed with the Commission.
(20) The relative rights, preferences, interests and powers of the
Preferred Shares are set forth in the Declaration of Trust, including the
Articles Supplementary relating to the Preferred Shares, and all such provisions
relating to the Preferred Shares are valid under Title 8 of the Corporations and
Associations Article of the Annotated Code of Maryland.
(21) No authorization, approval, consent, license, order or decree of,
or filing, registration or qualification with, any federal, Massachusetts,
Delaware or Maryland court or governmental authority or agency is necessary or
required for the due authorization, execution or delivery by the Company of the
Underwriting Agreement or for the performance by the Company of the transactions
contemplated under the Prospectus or the Underwriting Agreement, other than
those which have already been made, obtained or rendered as applicable.
(22) The Company is not, and upon the issuance and sale of the Shares
as contemplated by the Underwriting Agreement and the application of the net
proceeds therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(23) The Company has qualified to be taxed as a real estate investment
trust pursuant to Sections 856-860 of the Code for each of the taxable years
ended December 31, 1995 through December 31, 2001 and the Company's current
anticipated investments and its current plan of operation will enable it to
continue to meet the requirements for qualification and taxation as a real
estate investment trust under the Code; actual qualification of the Company as a
real estate investment trust, however, will depend upon the Company's continued
ability to meet, and its meeting, through actual annual operating results and
distributions, the various qualification tests imposed under the Code.
(24) The Advisor is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the requisite limited liability company power and authority to conduct its
business as described in the Prospectus and to own and operate its material
properties.
(25) The Advisory Agreement has been duly authorized, executed and
delivered by the parties thereto and constitutes the valid agreement of the
parties thereto, enforceable in accordance with its terms.
(26) No facts have come to such counsel's attention that would lead
them to believe that (x) the Registration Statement, as of the time of filing of
the Company's Annual Report on
A-4
Form 10-K for the year ended December 31, 2001, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
(y) the Prospectus, as of the date of issuance thereof or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that
such counsel need not express any views as to the financial statements and other
financial data and schedules included in the Registration Statement or the
Prospectus.
Such counsel need not express any opinion as to compliance with, or
filings with or authorizations, approvals, consents, licenses, orders,
registrations, qualifications or decrees under, state securities or "Blue Sky"
laws. Such counsel's opinions with respect to the validity or enforceability of
agreements may be qualified to the extent that the obligations, rights and
remedies of parties may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting generally creditors'
rights and remedies, and (ii) general principles of equity (regardless of
whether considered in a proceeding at law or in equity), and otherwise in a
manner acceptable to the Underwriters.
A-5
Exhibit B
FORM OF OPINION OF SPECIAL MARYLAND COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(c)
1. The Company is a real estate investment trust duly formed and
validly existing under and by virtue of the laws of the State of Maryland and is
in good standing with the SDAT, with trust power to own and lease its properties
and to conduct its business, in all material respects as described in the
Prospectus, and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement.
2. Each of the Trust Subsidiaries is a real estate investment trust
duly formed and validly existing under and by virtue of the laws of the State of
Maryland and is in good standing with the SDAT, with trust power to own and
lease its properties and to conduct its business, in all material respects as
described in the Prospectus.
3. Except as otherwise stated in the Registration Statement and the
Prospectus, the common shares of beneficial interest of each of the Trust
Subsidiaries issued and outstanding as of the date hereof have been duly
authorized and validly issued and are fully paid and nonassessable and are not
subject to preemptive rights to purchase or subscribe for shares of beneficial
interest of such Trust Subsidiary arising under Title 8 of the Corporations and
Associations Article of the Annotated Code of Maryland ("Title 8") or such Trust
Subsidiary's declaration of trust or bylaws.
4. As of the date hereof, the issued and outstanding shares of
beneficial interest of the Company consist of ___________ Common Shares (the
"Outstanding Shares"). Except as otherwise set forth in the Registration
Statement and the Prospectus, the Outstanding Shares have been duly authorized
and validly issued and are fully paid and nonassessable and are not subject to
preemptive rights to purchase or subscribe for shares of beneficial interest of
the Company arising under Title 8, the Declaration of Trust or the Bylaws.
5. The execution and delivery of the Underwriting Agreement have been
duly authorized by the Board of Trustees of the Company. The Underwriting
Agreement has been executed and, so far as is known to us, delivered by the
Company.
6. The Preferred Shares have been duly authorized for issuance and sale
to the Underwriters pursuant to the Underwriting Agreement and, when issued and
delivered by the Company pursuant to the Resolutions and the Underwriting
Agreement against payment of the consideration set forth therein, will be
validly issued, fully paid and nonassessable (except as otherwise described in
the Registration Statement), and are not subject to preemptive rights to
purchase or subscribe for shares of beneficial interest of the Company arising
under Title 8, the Declaration of Trust or the Bylaws in connection with the
issuance of the Preferred Shares.
B-1
7. The Preferred Shares conform as to legal matters in all material
respects to the descriptions thereof contained in the Prospectus.
8. The information in the Prospectus Supplement under the caption
"Description of the Series B Preferred Shares" and the information in the Base
Prospectus under the captions "Description of Preferred Shares" and "Description
of Certain Provisions of Maryland Law and of our Declaration of Trust and
Bylaws" as of the date of the Prospectus, insofar as such information relates to
provisions of Maryland law, fairly summarizes such provisions of Maryland law in
all material respects.
9. So far as is known to us, except as disclosed in the Prospectus,
neither the Company nor any of the Trust Subsidiaries is in violation of its
respective declaration of trust or bylaws.
10. The execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions contemplated in the
Underwriting Agreement and in the Registration Statement and the Prospectus
(including the issuance and sale of the Preferred Shares and the use of the
proceeds from the sale of the Preferred Shares as described under the caption
"Use of Proceeds" in the Prospectus Supplement) and compliance by the Company
with its obligations thereunder do not and will not result in a violation of the
Declaration of Trust or the Bylaws or the declaration of trust or the bylaws of
any of the Trust Subsidiaries or in any material respect to Title 8.
11. The relative rights, preferences, interests and powers of the
Preferred Shares are set forth in the Declaration of Trust, including the
Articles Supplementary, and all such provisions relating to the Preferred Shares
are valid under Title 8.
12. No authorization, approval, consent, license, order or decree of,
or filing, registration of qualification with, any Maryland governmental
authority or agency (other than any Maryland governmental authority or agency
dealing with securities laws or laws relating to the ownership or operation of
the properties owned by the Company or the Trust Subsidiaries located in the
State of Maryland, as to both of which no opinion is hereby expressed) is
necessary or required for the due authorization, execution or delivery by the
Company of the Underwriting Agreement or for the performance by the Company of
the transactions contemplated under the Prospectus or the Underwriting
Agreement, other than those which have already been made, obtained or rendered,
as applicable.
B-2
Exhibit C
CERTIFICATE OF HOSPITALITY PROPERTIES TRUST
PURSUANT TO SECTION 5(f) OF THE UNDERWRITING AGREEMENT
Each of the undersigned hereby certifies, to the best of his knowledge:
I. the Annual Report on Form 10-K for the year ended December 31, 2001,
and Quarterly Reports on Form 10-Q for the fiscal quarters ended March
31, 2002, June 30, 2002 and September 30, 2002 (collectively, the
"Reports"), fully comply with the requirements of Section 13(a) or
15(d) of the Securities and Exchange Act of 1934; and
II. the information contained in each Report fairly presents, in all
material respects, the financial condition and results of operations of
Hospitality Properties Trust as of its date of filing with the
Securities and Exchange Commission.
December ____, 2002
______________________________________ ______________________________________
Xxxx X. Xxxxxx Xxxxx X. Xxxxxxx
President, Chief Operating Officer and Managing Trustee
Secretary
______________________________________
Xxxx Xxxxxxxx
Chief Financial Officer and Treasurer
(10-Q for fiscal quarter ended
September 30, 2002 only)
______________________________________
Xxxxxx X. X'Xxxxx
Chief Financial Officer and Treasurer
(excluding 10-Q for fiscal quarter ended
September 30, 2002)
C-1
