Exhibit 10.1
HOST MARRIOTT FINANCIAL TRUST
9,000,000
6 3/4% Convertible Quarterly Income Preferred Securities ("QUIPS/SM//*/")
(Liquidation Amount $50 Per Preferred Security)
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December 2, 1996
Registration Rights Agreement
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Xxxxxxx, Xxxxx & Co.,
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
BT Securities Corporation
Xxxxxxxxxx Securities
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Host Marriott Financial Trust, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), and Host Marriott Corporation, a
Delaware corporation, as depositor of the Trust and as guarantor (the
"Company"), proposes to issue and sell to the Purchasers (as defined herein),
upon the terms set forth in the Purchase Agreement (as defined herein) an
aggregate of 9,000,000 and, at the election of the Purchasers, up to an
additional 2,000,000 of 6 3/4% Convertible Quarterly Income Preferred Securities
(liquidation amount $50 per preferred security) (the "Preferred Securities") of
the Trust. The Preferred Securities are guaranteed on a subordinated basis by
the Company as to the payment of distributions, and as to payments on
liquidation or redemption, to the extent set forth in a guarantee agreement (the
"Guarantee") between the Company and IBJ Xxxxxxxx Bank & Trust Company, as
trustee, and may be converted or exchanged under certain circumstances into the
6 3/4% Convertible Subordinated Debentures due 2026 of the Company (the
"Debentures") held by the Trust and then into common stock, $1.00 par value per
share ("Common Stock"), of the Company. The Preferred Securities, the
Debentures, the Guarantee and the Common Stock issuable upon conversion or
exchange of the Preferred Securities and/or the Debentures are referred to
collectively as the "Securities." As an inducement to the Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the
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/*/QUIPS is a servicemark of Xxxxxxx, Xxxxx & Co.
Trust and the Company each agree with the Purchasers for the benefit of Holders
(as defined herein) from time to time of the Registrable Securities (as defined
herein) as follows:
1. Definitions. (a) Capitalized terms used herein without definition shall
have the meanings ascribed thereto in the Purchase Agreement. As used in this
Registration Rights Agreement, the following defined terms shall have the
following meanings:
"Act" or "Securities Act" means the Securities Act of 1933, as amended.
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"Affiliate" of any specified person means any other person which, directly or
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indirectly, is in control of, is controlled by, or is under common control with
such specified person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Commission" means the Securities and Exchange Commission.
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"DTC" means The Depository Trust Company.
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"Effectiveness Period" has the meaning assigned thereto in Section 2(b)(i)
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hereof.
"Effective Time" means the date on which the Commission declares the Shelf
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Registration Statement effective or on which the Shelf Registration Statement
otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(3) hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Holder" means, when used with respect to any Security, the holder of such
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Security. For all purposes of this Agreement, the Company shall be entitled to
treat the record owner of a Security as the beneficial owner of such Security
unless the Company has been given written notice of the existence and identity
of a different beneficial owner.
"Indenture" means the Convertible Subordinated Indenture, dated as of December
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2, 1996, between the Company and IBJ Xxxxxxxx Bank & Trust Company, as indenture
trustee, as amended and supplemented from time to time in accordance with its
terms.
"Managing Underwriters" means the investment banker or investment bankers and
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manager or managers that shall administer an underwritten offering, if any,
conducted pursuant to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of Securities
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Dealers, Inc., as amended.
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"Notice and Questionnaire" means a Notice of Registration Statement and
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Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"Person" means an individual, partnership, corporation, trust or
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unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus (including, without limitation, any
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preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act) included in the
Shelf Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"Purchase Agreement" means the purchase agreement dated November 25, 1996
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among the Purchasers, the Trust and the Company.
"Purchasers" means the Purchasers named in Schedule I to the Purchase
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Agreement.
"Registrable Securities" means all or any portion of the Securities issued
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from time to time; provided, however, that a security ceases to be a Registrable
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Security when it is no longer a Restricted Security.
"Restricted Security" means any Security except any such Security which (i)
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has been effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto), (iii) has been sold in compliance with Regulation
S under the Securities Act (or any successor thereto) and does not constitute
the unsold allotment of a distributor within the meaning of Regulation S under
the Securities Act, or (iv) has otherwise been transferred and a new Security
not subject to transfer restrictions under the Securities Act has been delivered
by or on behalf of the Company in accordance with the terms of the Trust
Agreement or the Indenture, as the case may be.
"Rules and Regulations" means the published rules and regulations of the
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Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"Securities" means the Preferred Securities, the Debentures, the Guarantee and
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the Common Stock issuable upon conversion or exchange of the Preferred
Securities and/or the Debentures.
"Shelf Registration" means a registration effected pursuant to Section 2
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hereof.
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"Shelf Registration Statement" means a "shelf" registration statement filed
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under the Securities Act providing for the registration of, and the sale on a
continuous or delayed basis by the Holders of, all of the Registrable Securities
pursuant to Rule 415 under the Securities Act and/or any similar rule that may
be adopted by the Commission, filed by the Company and the Trust pursuant to the
provisions of Section 2 hereof, including the Prospectus contained therein, any
amendments and supplements to such registration statement, including
posteffective amendments, and all exhibits and all material incorporated by
reference in such registration statement.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated as of
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December 2, 1996, among Host Marriott Corporation, as Depositor, IBJ Xxxxxxxx
Bank & Trust Company, as Property Trustee, Delaware Trust Capital Management,
Inc., as Delaware Trustee and the Administrative Trustees named therein,
relating, among other things, to the Preferred Securities, as amended and
supplemented from time to time in accordance with its terms.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any successor
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thereto, and the rules, regulations and forms promulgated thereunder, as the
same shall be amended.
"Underwriter" means any underwriter of Registrable Securities in connection
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with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of the
"principal amount" of Registrable Securities or to a percentage of Registrable
Securities, the Preferred Securities and the Debentures issuable upon conversion
or exchange or the Preferred Securities will be treated as the same class of
Securities and Common Stock shall be treated as representing the liquidation
amount of Preferred Securities or the principal amount of Debentures which was
surrendered for conversion or exchange in order to receive such number of shares
of Common Stock.
2. Shelf Registration. (a) The Company and the Trust shall, within 120
calendar days following the first Time of Delivery (as defined in the Purchase
Agreement), file with the Commission a Shelf Registration Statement relating to
the offer and sale of the Registrable Securities and, thereafter, shall use
their reasonable best efforts to cause such Shelf Registration Statement to be
declared effective under the Act within 180 calendar days after the Time of
Delivery; provided, however, that no Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to use the
Prospectus forming a part thereof for resales of Registrable Securities unless
such Holder is an Electing Holder.
(b) The Company and the Trust shall each use its best efforts:
(i) To keep the Shelf Registration Statement continuously effective
(subject to any Suspension Period (as defined below)) in order to permit the
Prospectus forming part thereof to be usable by Electing Holders for resales
of Registrable Securities for a period of three years from the Time of
Delivery (as defined in the Purchase Agreement), or
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such shorter period that will terminate upon the earliest of the following:
(A) when all the Preferred Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement; (B)
when all Debentures issued to Holders in respect of Preferred Securities that
had not been sold pursuant to the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement; (C) when all shares of Common
Stock issued upon conversion of any such Preferred Securities or any such
Debentures that have not been sold pursuant to the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement; and (D)
when, in written opinion of counsel to the Trust and the Company, all
outstanding Registrable Securities held by persons which are not affiliates of
the Trust or the Company may be resold without registration under the Act
pursuant to Rule 144(k) under the Act or any successor provision thereto (in
any such case, such period being called the "Effectiveness Period").
(ii) After the Effective Time of the Shelf Registration Statement,
reasonably promptly upon the request of any Holder that is not then an
Electing Holder identified as a selling securityholder in the Prospectus at
the Effective Time, to take any action reasonably necessary to enable such
Holder to use the Prospectus forming a part thereof for resales of Registrable
Securities, including, without limitation, any action necessary to identify
such Holder as a selling securityholder in the Shelf Registration Statement;
provided, however, that nothing in this subparagraph shall relieve such Holder
of the obligation to return a completed and signed Notice and Questionnaire to
the Trust in accordance with Section 3(a)(2) hereof and to provide to the
Trust and the Company, in writing, any information with respect to such Holder
or the Registrable Securities held by such Holder as is, in the reasonable
opinion of counsel to the Trust or the Company, required under applicable law
to enable such Holder to use such Prospectus for resales of such Registrable
Securities; and
(iii) If at any time prior to the end of the Effectiveness Period, the
Preferred Securities are convertible into securities other than Common Stock,
the Company and the Trust shall, or shall cause any successor under the Trust
Agreement to, cause such securities to be included in the Shelf Registration
Statement no later than the date on which the Preferred Securities may then be
convertible into such securities.
(c) If (i) on or prior to the date 120 days after the Time of Delivery a Shelf
Registration Statement has not been filed with the Commission or (ii) on or
prior to the date 180 days after the last Time of Delivery such Shelf
Registration Statement has not been declared effective (each such event, a
"Registration Default"), additional interest ("Liquidated Damages") will accrue
on the Debentures, and, accordingly, additional distributions will accrue on the
Preferred Securities, from and including the day following such Registration
Default until such date as the Shelf Registration Statement is filed or declared
effective, as the case may be. Liquidated Damages will be paid quarterly in
arrears (subject to the Company's right to defer the payment of Liquidated
Damages during any Extension Period (as defined in the Indenture)), with the
first quarterly payment due on the first interest or distribution payment date,
as applicable, following the date on which such Liquidated Damages begin to
accrue, and will
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accrue at a rate per annum equal to an additional one-quarter of one percent
(0.25%) of the principal amount or liquidation amount, as applicable, to and
including the 90th day following such Registration Default and one-half of one
percent (0.50%) thereof from and after the 91st day following such Registration
Default. In the event that the Shelf Registration Statement ceases to be
effective during the Effectiveness Period for more than 90 days, whether or not
consecutive, during any 12-month period, then the interest rate borne by the
Debentures and the distribution rate borne by the Preferred Securities will each
increase by an additional one-half of one percent (0.50%) per annum from the
91st day of the applicable 12-month period such Shelf Registration Statement
ceases to be effective until such time as the earlier to occur of the Shelf
Registration Statement again becoming effective and the end of the Effectiveness
Period.
(d) The Company and the Trust shall each be deemed not to have used its
best efforts to keep the Shelf Registration Statement effective during the
Effectiveness Period if either the Trust or the Company voluntarily takes any
action that would result in Electing Holders not being able to offer and sell
any of their Registrable Securities during such period, unless (i) such action
is required by applicable law, (ii) upon the occurrence of any event
contemplated by paragraph 3(d)(2)(iii) below, and such action is taken by the
Trust or the Company in good faith and for valid business reasons or (iii) the
continued effectiveness of the Shelf Registration Statement would require the
Trust to disclose a material financing, acquisition or other corporate
development, and the proper officers of the Company shall have determined in
good faith that such disclosure is not in the best interest of the Company and
its stockholders and, in the case of clause (ii) above, the Company and the
Trust thereafter promptly comply with the requirements of paragraph 3(j) below.
Any such period during which the Company and the Trust are permitted to suspend
the effectiveness of the Shelf Registration Statement is referred to herein as
the "Suspension Period."
3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) (1) The Company shall not be required to take any action to name
such Holder as a selling securityholder in the Shelf Registration Statement
or to enable such Holder to use the Prospectus forming a part thereof for
resales of Registrable Securities until such Holder has returned a
completed and signed Notice and Questionnaire to the Company and the Trust
and provided to the Trust and the Company such information with respect to
such Holder or the Registrable Securities held by such Holder as is, in the
reasonable opinion of counsel to the Trust or the Company, required to
enable such Holder to use the Prospectus for resales of Registrable
Securities.
(2) Not less than 40 calendar days prior to the Effective Time of the
Shelf Registration Statement, the Company or the Trust shall mail the
Notice and Questionnaire to each Holder. No Holder shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement as of
the Effective Time, and no Holder shall be entitled to use the Prospectus
forming a part thereof for resales of Registrable Securities at any time,
unless such Holder has returned a completed and signed Notice and
Questionnaire
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to the Company and the Trust and provided to the Trust and the Company such
information with respect to such Holder of the Registrable Securities held
by such Holder as is, in the reasonable opinion of counsel to the Trust or
the Company, required to enable such Holder to use the Prospectus for
resales of Registrable Securities provided, however, only Holders who have
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completed and returned the Notice and Questionnaire and any such additional
information requested of such Holder to the Company on or before the day
that is ten days prior to the Effective Time shall be entitled to be named
as a selling securityholder in the Shelf Registration Statement as of the
Effective Time.
(3) The term "Electing Holder" shall mean any Holder that has returned
a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(1) or 3(a)(2) hereof and provided to the Trust
and the Company such information with respect to such Holder or the
Registrable Securities held by such Holder as is, in the reasonable opinion
of counsel to the Trust or the Company, required to enable such Holder to
use the Prospectus for resales of Registrable Securities.
(b) The Company and the Trust shall furnish to each Electing Holder,
prior to the Effective Time, a copy of the Shelf Registration Statement
initially filed with the Commission, and shall reasonably promptly furnish
to such Holders, copies of each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein, and shall consider
in good faith for inclusion in each such document, at the Effective Time
such comments as such Holders or their counsel reasonably may propose,
provided, however, that the Company's obligations set forth in this Section
3(b) shall not require the Company to delay or postpone the Effective Time
or prevent the Company from otherwise requesting the acceleration of the
effectiveness of the Shelf Registration Statement.
(c) The Company and the Trust shall promptly take such action as may
be necessary so that (i) each of the Shelf Registration Statement and any
amendment thereto and the Prospectus forming part thereof and any amendment
or supplement thereto (and each report or other document incorporated
therein by reference in each case) complies in all material respects with
the Securities Act and the rules and regulations thereunder, (ii) each of
the Shelf Registration Statement and any amendment thereto does not, when
it becomes effective, 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 and (iii) each of the Prospectus
forming part of the Shelf Registration Statement, and any amendment or
supplement to such Prospectus, does not at any time during the
Effectiveness Period 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.
(d) (1) The Company shall promptly advise the Purchasers and, in the
case of clause (i), the Electing Holders and, if requested by the
Purchasers or any such Electing Holder, confirm such advice in writing:
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(i) when the Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company shall promptly advise each Electing Holder of:
(i) the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for such purpose;
(ii) the receipt by the Company or the Trust of any notification
with respect to the suspension of the qualification of the securities
included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(iii) the happening of any event that requires the making of any
changes in the Shelf Registration Statement or the Prospectus included
therein so that, as of such date, such Shelf Registration Statement
and Prospectus do not contain an untrue statement of a material fact
and do not omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading (which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have
been made).
(e) The Company and the Trust shall each use its best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of the Shelf Registration Statement at the
earliest possible time.
(f) The Company and the Trust shall furnish to each Electing Holder,
without charge, at least one copy of the Shelf Registration Statement and
all post-effective amendments thereto, including financial statements and
schedules, and, if such Holder so requests in writing, all reports, other
documents and exhibits that are filed with or incorporated by reference in
the Shelf Registration Statement.
(g) The Company and the Trust shall, during the Effectiveness Period,
deliver to each Electing Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such
Electing Holder may reasonably request; and the Company and the Trust each
consents (except during the continuance of any event described in Section
3(d)(2)(iii) above or during any Suspension Period) to the use of
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the Prospectus and any amendment or supplement thereto by each of the
Electing Holders in connection with the offering and sale of the
Registrable Securities covered by the Prospectus and any amendment or
supplement thereto during the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to the
Shelf Registration Statement, the Company and the Trust shall (1) register
or qualify or cooperate with the Electing Holders and their respective
counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or "blue
sky" laws of such jurisdictions within the United States as any Electing
Holder may reasonably request, (2) keep such registrations or
qualifications in effect (subject to any Suspension Period) and comply with
such laws so as to permit the continuance of offers and sales in such
jurisdictions for so long as may be necessary to enable any Electing Holder
or underwriter, if any, to complete its distribution of Registrable
Securities pursuant to the Shelf Registration Statement, and (3) take any
and all other actions necessary or advisable to enable the disposition in
such jurisdictions of such Registrable Securities; provided, however, that
in no event shall the Company or the Trust be obligated to (i) qualify
generally to do business or as a foreign corporation or as a dealer in
securities in any jurisdiction where each would not otherwise be required
to so qualify but for this Section 3(h), (ii) file any general consent to
service of process in any jurisdiction where it is not as of the date
hereof so subject or (iii) subject itself to taxation in any jurisdiction
where it is not otherwise so subject.
(i) Unless any Registrable Securities shall be in book-entry only
form, the Company and the Trust shall cooperate with the Electing Holders
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to the Shelf
Registration Statement free of any restrictive legends and in such
permitted denominations and registered in such names as Electing Holders
may request in connection with the sale of Registrable Securities pursuant
to the Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph
3(d)(2)(iii) above, the Company and the Trust shall promptly prepare a
post-effective amendment or supplement to the Shelf Registration Statement
or the Prospectus, or any document incorporated therein by reference, or
file any other required document so that, as thereafter delivered to
purchasers of the Registrable Securities included therein, the Prospectus
will not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (except, in
each case, for an untrue statement of a material fact or omission of a
material fact made in reliance on and in conformity with written
information furnished to the Trust or the Company by or on behalf of any
Electing Holders); provided, however, if the proper officers of the Company
determine in good faith that disclosure in the Shelf Registration
Statement of a material financing, acquisition or other corporate
transaction would not be in the best interests of the Company and its
stockholders, the Company and the Trust shall not be
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required to prepare and file such amendment, supplement or document for
such period as such officers shall have determined in good faith is in the
best interests of the Company. Upon receipt of written notice from the
Company or the Trust of the occurrence of any event contemplated by
paragraph 3(d)(2)(iii) above or of any Suspension Period, each Holder shall
forthwith discontinue disposition of Registrable Securities until such
Holder has received copies of the supplemental or amended Prospectus
required by this paragraph 3(j), or until such Holder is advised by the
Company or the Trust that the use of the Prospectus may be resumed and, if
so directed by the Company, such Holder shall deliver to the Company (at
the Company's expense) all copies then in such Holder's possession of the
Prospectus covering such Registrable Securities current at the time of such
notice.
(k) Not later than the effective date of any Shelf Registration
Statement hereunder, the Company and the Trust shall each provide a CUSIP
number for the Preferred Securities registered under such Shelf
Registration Statement; in the event of and at the time of any distribution
of the Debentures to Holders, the Company and the Trust shall provide a
CUSIP number for the Debentures and provide the applicable trustee with
certificates for such Registrable Securities, in a form eligible for
deposit with DTC.
(l) The Company and the Trust shall each use its best efforts to
comply with all applicable Rules and Regulations, and to make generally
available to its securityholders as soon as practicable, but in any event
not later than 18 months after (i) the effective date (as defined in Rule
158(c) under the Securities Act) of the Shelf Registration Statement, (ii)
the effective date of each post effective amendment to the Shelf
Registration Statement, and (iii) the date of each filing by the Company
with the Commission of an Annual Report on Form 10-K that is incorporated
by reference in the Shelf Registration Statement, an earnings statement
of the Company and its subsidiaries complying with Section 11 (a) of the
Securities Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158).
(m) The Company and the Trust shall each use its reasonable best
efforts to cause the Indenture, the Declaration and the Guarantee to be
qualified under the Trust Indenture Act in a timely manner.
(n) In the event of an underwritten offering conducted pursuant to
Section 6 hereof, the Company and the Trust shall, if requested, promptly
include or incorporate in a Prospectus supplement or post-effective
amendment to the Shelf Registration Statement such information as the
Managing Underwriters reasonably agree should be included therein and to
which the Company does not reasonably object and shall make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after it is notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective amendment.
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(o) The Company and the Trust shall enter into such customary
agreements (including an underwriting agreement in customary form in the
event of an underwritten offering conducted pursuant to Section 6 hereof)
and take all other appropriate action in order to expedite and facilitate
the registration and disposition of the Registrable Securities, and in
connection therewith, if an underwriting agreement is entered into, cause
the same to contain indemnification provisions and procedures reasonably
similar to those set forth in Section 5 hereof with respect to all parties
to be indemnified pursuant to Section 5 hereof.
(p) The Company and the Trust shall:
(i) (A) make reasonably available for inspection by Electing
Holders, any underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and any attorney, accountant or
other agent retained by such holders or any such underwriter all
relevant financial and other records, pertinent corporate or other
documents and properties of the Company, its subsidiaries and the
Trust, and (B) cause the officers, directors, employees, trustees and
agents of the Company and the Trust to supply all information
reasonably requested by such Holders or any such underwriter,
attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as is customary for similar due
diligence examinations; provided, however, that each Electing Holder
and its representatives and agents shall execute an agreement (in form
reasonably acceptable to the Company) providing that all records,
information and documents that are designated in writing by the
Company and the Trust, in good faith, as confidential shall be kept
confidential by such Holders and any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law, or such records, information or
documents become available to the public generally or through a third
party without an accompanying obligation of confidentiality; and
provided further that, if the foregoing inspection and information
gathering would, in the Company's reasonable judgment, disrupt the
Company's conduct of its business, such inspection and information
gathering shall be coordinated on behalf of the Electing Holders and
the other parties entitled thereto by one counsel designated by and on
behalf of Electing Holders and other parties (the fees and expenses of
such counsel to be borne by such Electing Holders except to the extent
set forth in Section 4);
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and warranties
to the Holders participating in such underwritten offering and to the
Managing Underwriters, in form, substance and scope as are customarily
made by the Company and the Trust to underwriters in primary
underwritten offerings of equity and convertible preferred and debt
securities and covering matters including, but not limited to, those
set forth in the Purchase Agreement;
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(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel (which
counsel may be an employee of the Company) to the Company and the
Trust (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the Managing Underwriters) addressed to
each Holder participating in such underwritten offering and the
underwriters, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by such Holders and underwriters (it being
agreed that the matters to be covered by such opinions shall include,
without limitation, as of the date of the opinion and as of the
Effective Time of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence
from the Shelf Registration Statement and the Prospectus, including
the documents incorporated by reference therein, of an untrue
statement of a material fact or the omission of a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and
updates thereof from the independent public accountants of the Company
and the Trust, addressed to each Holder participating in such
underwritten offering (if such Holder has provided such letter,
representations or documentation, if any, required for such "cold
comfort" letter to be so addressed) and the underwriters, in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings;
(v) deliver such documents and certificates as may be
reasonably requested by any Holders participating in such underwritten
offering and the Managing Underwriters, if any, including, without
limitation, certificates to evidence compliance with Section 3(j)
hereof and with any conditions contained in the underwriting agreement
or other agreements entered into by the Company and the Trust.
(q) The Company and the Trust will each use its best efforts to cause
the Common Stock issuable upon conversion of the Preferred Securities to be
listed for quotation on the New York Stock Exchange, the Chicago Stock
Exchange, the Pacific Stock Exchange, the Philadelphia Stock Exchange or
other stock exchange or trading system on which the Common Stock primarily
trades on or prior to the Effective Time of the Shelf Registration
Statement hereunder.
(r) The Company and the Trust shall each use reasonable best efforts
to take all other steps necessary to effect the registration, offering and
sale of the Registrable Securities covered by the Shelf Registration
Statement contemplated hereby.
12
(s) Upon receipt of written notice from the Company that a Suspension
Period is in effect, each Holder shall forthwith discontinue disposition of
Registrable Securities until such Holder has received copies of the
supplemental or amended Prospectus required by Section 3(j) hereof, or
until such Holder is advised in writing by the Company that the use of the
Prospectus may be resumed, and, if so directed by the Company, such Holder
shall deliver to the Company (at the Company's expense) all copies then in
such Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice.
4. Registration Expenses. The Company and the Trust shall each bear
all reasonable fees and expenses customarily borne by issuers in a non-
underwritten secondary offering by selling securityholders or in an underwritten
offering, as the case may be, incurred in connection with the performance of its
obligations under Sections 2, 3 and 6 hereof. In addition, in the event of an
underwritten offering of Registrable Securities conducted pursuant to Section 6
hereof, or if in any other event the Company requires that inspection and
information gathering be coordinated by counsel for the Electing Holders as
provided in Section 3(p)(i) hereof, the Company shall pay the fees and expenses
of a single counsel selected by the Electing Holders of not less than 25% of the
Registrable Securities to be included in such underwritten offering (or, in any
such other event, included in the Shelf Registration Statement) to represent
them. The Electing Holders participating in such offering (or, in any such
other event, participating in such inspection and information gathering) shall
be responsible, on a pro rata basis based on the respective amount of their
Registrable Securities included in such offering for all fees and expenses of
such counsel in excess of $75,000; provided, however, that the maximum aggregate
amount that the Company shall be required to pay for fees and expenses of
counsel of Electing Holders pursuant to this Section 4 shall be $75,000.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
------------------------------
Registrable Securities pursuant to Section 2 hereof, and in consideration of the
agreements of the Electing Holders and any underwriters, selling agents or other
securities professionals contained in Section 5(b) hereof, the Company and the
Trust jointly and severally shall, and each hereby agrees to, indemnify and hold
harmless each Electing Holder and each underwriter, selling agent or other
securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state
13
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company and the Trust hereby agree to
reimburse such Indemnified Person for any reasonable legal or other out-of-
pocket expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
--------
however, that the Company or the Trust shall not be liable to any such
-------
Indemnified Person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such Shelf
Registration Statement or Prospectus, or amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company or the
Trust by such Indemnified Person expressly for use therein.
The foregoing notwithstanding, the Trust and the Company shall not be
liable to the extent that such losses, claims, damages or liabilities arise out
of or are based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Prospectus that is a preliminary prospectus if
(i) such Indemnified Person failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale of Registrable
Securities giving rise to such losses, claims, damages or liabilities and (ii)
the Prospectus would have corrected such untrue statement or omission.
In addition, the Trust and the Company shall not be liable to the extent
that any such losses, claims, damages or liabilities arise out of or are based
upon an untrue statement or alleged untrue statement or omission or alleged
omission in a Prospectus (x) if such untrue statement or omission or alleged
untrue statement or omission is corrected in an amendment or supplement to such
Prospectus and (y) having previously been furnished by or on behalf of the Trust
or the Company with copies of the Prospectus as amended or supplemented, such
Indemnified Person thereafter fails to deliver such Prospectus as so amended or
supplemented prior to or concurrently with the sale to the person who purchased
a Registrable Security from such Indemnified Person and who is asserting such
losses, claims, damages or liabilities.
(b) Indemnification by the Holders and any Agents and Underwriters. Each
--------------------------------------------------------------
Electing Holder agrees, as a consequence of the inclusion of any of such
Holder's Registrable Securities in such Shelf Registration Statement, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company and
the Trust, its directors, trustees, agents and officers who sign any Shelf
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (collectively referred to as the "Indemnified Party"), against any
losses, claims, damages or liabilities to which the Company or such other
persons may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such Shelf Registration Statement or Prospectus,
or any amendment or supplement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements
14
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company or the Trust by such Holder, underwriter, selling agent
or other securities professional expressly for use therein, and (ii) reimburse
the Company and the Trust for any reasonable legal or other out-of-pocket
expenses reasonably incurred by the Company and the Trust in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Notices of Claims, Etc. If any action or proceeding (including any
----------------------
governmental investigation or inquiry) shall be brought or asserted against a
Indemnified Person under subsection (a) or an Indemnified Party under subsection
(b) (collectively referred to as the "Indemnified Holder") in respect of which
indemnity may be sought, such Indemnified Holder shall promptly notify the
indemnifying Company and Trust under subsection (a) and the indemnifying
Electing Holders under subsection (b) (collectively the "Indemnifying Party") in
writing (provided that the failure to give such notice shall not relieve the
Indemnifying Party of its obligations pursuant to this Agreement unless and
only to the extent that such omission results in the loss or compromise of any
material rights or defenses by the Indemnifying Party, as determined by a court
of competent jurisdiction by final judgment), and the Indemnifying Party shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and the payment of all expenses in
connection therewith; but the omission so to notify the Indemnifying Party shall
not relieve it from any liability which it may have to any Indemnified Holder
otherwise than under this Section 5. Such Indemnified Holder shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such separate counsel shall be the
expense of such Indemnified Holder unless (i) the Indemnifying Party has agreed
to pay such fees and expenses, (ii) the Indemnifying Party shall have failed to
promptly assume the defense of such action or proceeding or has failed to employ
counsel reasonably satisfactory to such Indemnified Holder in any such action or
proceeding or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Holder and the
Indemnifying Party, and such Indemnified Holder shall have been advised by
counsel that there may be one or more legal defenses available to such
Indemnified Holder that are different from or additional to those available to
the Indemnifying Party or that a conflict may exist between the Indemnified
Holder and the Indemnifying Party. If such Indemnified Holder notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party as permitted by the provisions of the
preceding sentence, the Indemnifying Party shall not have the right to assume
the defense of such action or proceeding on behalf of such Indemnified Holder.
The foregoing notwithstanding, the Indemnifying Party shall not be liable for
the reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for such Indemnified Holder and any
other Indemnified Holders (which firm shall be designated in writing by such
Indemnified Holders) in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances. The
Indemnifying Party shall not be liable for any settlement of any such action or
proceeding effected without the Indemnifying Party's prior written consent, and
the
15
Indemnifying Party agrees to indemnify and hold harmless any Indemnified Holder
from and against any loss, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Indemnifying
Party. No Indemnifying Party shall, without the written consent of the
Indemnified Holder (which consent shall not be unreasonably withheld), effect
the settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Holder is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment includes an unconditional release
of the Indemnified Holder from all liability arising out of such action or
claim.
(d) Contribution. If the indemnification provided for in this Section 5 is
------------
unavailable to an Indemnified Holder under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each Indemnifying Party shall contribute to
the amount paid or payable by such Indemnified Holder as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and the Indemnified Holder in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party and Indemnified Holder shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such Indemnifying Party or by
such Indemnified Holder, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation (even if
the Electing Holders or any underwriters, selling agents or other securities
professionals or all of them were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to in this Section 5(d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim. The
obligations of the Electing Holders and any underwriters, selling agents or
other securities professionals in this Section 5(d) to contribute shall be
several in proportion to the percentage of principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and not
joint. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) Notwithstanding any other provision of this Section 5, in no event will
any (i) Electing Holder be required to undertake liability to any person under
this Section 5 for any amounts in excess of the dollar amount of the proceeds to
be received by such Holder from the sale of such holder's Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to any Shelf Registration Statement under which such Registrable
16
Securities are to be registered under the Securities Act and (ii) underwriter,
selling agent or other securities professional be required to undertake
liability to any person hereunder for any amounts in excess of the discount,
commission or other compensation payable to such underwriter, selling agent or
other securities professional with respect to the Registrable Securities
underwritten by it and distributed to the public.
(f) The obligations of the Company and the Trust under this Section 5 shall
be in addition to any liability which the Company and the Trust may otherwise
have to any Indemnified Person and the obligations of any Indemnified Person
under this Section 5 shall be in addition to any liability which such
Indemnified Person may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company, each Administrative
Trustee of the Trust and to each person, if any, who controls the Trust and the
Company within the meaning of the Act. The remedies provided in this Section 5
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to an indemnified party at law or in equity.
6. Underwritten Offering. Any Electing Holder of Registrable Securities
who desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided that (i) the Holders of at least a majority in
-------------
aggregate principal amount of the outstanding Registrable Securities shall
request such an offering and (ii) at least such aggregate principal amount of
such Registrable Securities shall be included in such offering; and provided
---------
further that the Company shall not be obligated to cooperate with more than one
-------
underwritten offering during the Effectiveness Period. Upon receipt of such a
request, the Company and the Trust shall provide all Holders of Registrable
Securities written notice of the request, which notice shall inform such Holders
that they have the opportunity to participate in the offering. In any such
underwritten offering, the investment banker or bankers and manager or managers
that will administer the offering will be selected by, and the underwriting
arrangements with respect thereto (including, subject to clause (ii) above, the
size of the offering) will be approved by the Holders of a majority of the
Registrable Securities to be included in such offering; provided, however, that
such investment bankers and managers and underwriting arrangements must be
reasonably satisfactory to the Company and the Trust. No Holder may participate
in any underwritten offering contemplated hereby unless (a) such Holder agrees
to sell such Holder's Registrable Securities to be included in the underwritten
offering in accordance with any approved underwriting arrangements, (b) such
Holder completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements, and (c) if
such Holder is not then an Electing Holder, such Holder returns a completed and
signed Notice and Questionnaire to the Company and the Trust in accordance with
Section 3(a)(2) hereof (but in no event later than 10 days prior to commencement
of the underwritten offering) and provides to the Trust and the Company, in
writing, any information with respect to such Holder or the Registrable
Securities held by such Holder as is, in the reasonable opinion of counsel to
the Trust or the Company, required under applicable law to enable such Holder to
use such Prospectus for resales of such Registrable Securities, each within a
reasonable amount of time before such underwritten offering. The Holders
participating in any underwritten
17
offering shall be responsible for any underwriting discounts and commissions and
fees and, subject to Section 4 hereof, expenses of their own counsel. The
Company and the Trust shall pay all expenses customarily borne by issuers,
including but not limited to filing fees, the fees and disbursements of its
counsel and independent public accountants and any printing expenses incurred in
connection with such underwritten offering. Notwithstanding the foregoing or
the provisions of Section 3(n) hereof, upon receipt of a request from the
Managing Underwriter or a representative of Holders of a majority of the
Registrable Securities to be included in an underwritten offering to prepare and
file an amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the Company and the
Trust may delay the filing of any such amendment or supplement for up to 90 days
if the Board of Directors of the Company shall have determined in good faith
that the Company has a bona fide business reason for such delay.
7. Miscellaneous.
(a) Other Registration Rights. The Company may grant registration rights
that would permit any Person that is a third party the right to piggyback on any
Shelf Registration Statement, provided that if the Managing Underwriter of any
underwritten offering conducted pursuant to Section 6 hereof notifies the
Company and the Electing Holders that the total amount of securities which the
Electing Holders and the holders of such piggyback rights intend to include in
any Shelf Registration Statement is so large as to materially threaten the
success of such offering (including the price at which such securities can be
sold), then the amount, number or kind of securities to be offered for the
account of holders of such piggyback rights will be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number and kind recommended by the Managing Underwriter
prior to any reduction in the amount of Registrable Securities to be included in
such Shelf Registration Statement.
(b) Amendments and Waivers. This Agreement, including this Section 7(b),
may be amended, and waivers or consents to departures from the provisions hereof
may be given, only by a written instrument duly executed by the Company and the
Holders of a majority in aggregate principal amount of Registrable Securities
then outstanding. Each Holder of Registrable Securities outstanding at the time
of any such amendment, waiver or consent or thereafter shall be bound by any
amendment, waiver or consent effected pursuant to this Section 7(b), whether or
not any notice, writing or marking indicating such amendment, waiver or consent
appears on the Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at such address set forth on the record books of
the Company or the Trust, as the case may be;
18
(ii) if to the Purchasers, initially at the address set forth in the
Purchase Agreement; and
(iii) if to the Company or the Trust, initially at its address set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have duly given when
received.
The Purchasers or the Company and the Trust by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) Parties in Interest. The parties to this Registration Rights Agreement
intend that all Holders of Registrable Securities shall be entitled to receive
the benefits of this Registration Rights Agreement and that any Electing Holder
shall be bound by the terms and provisions of this Registration Rights Agreement
by reason of such election with respect to the Registrable Securities which are
included in a Shelf Registration Statement. All the terms and provisions of
this Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective successors and assigns of
the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be entitled
to receive the benefits of and, if an Electing Holder, be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Registration Rights Agreement to the aforesaid extent.
(e) Counterparts. This Registration Rights Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Registration Rights Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Registration Rights Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
19
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Trust and you.
Very truly yours,
Host Marriott Financial Trust
By:
-----------------------------------
Name:
Title:
Host Marriott Corporation
By:
-----------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
Xxxxxxx, Xxxxx & Co.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
BT Securities Corporation
Xxxxxxxxxx Securities
By:
--------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Purchasers
20
Exhibit A
HOST MARRIOTT CORPORATION
HOST MARRIOTT FINANCIAL TRUST
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
------------------------------
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in 6 3/4% Convertible Quarterly
Income Preferred Securities (liquidation amount $50 per preferred security) of
Host Marriott Financial Trust (the "Trust") are held. The Preferred Securities
are guaranteed on a subordinated basis by Host Marriott Corporation (the
"Company") as to the payment of distributions, and as to payments on liquidation
or redemption, to the extent set forth in a guarantee agreement between the
Company and IBJ Xxxxxxxx Bank & Trust Company, as trustee (the "Guarantee") and
may be converted or exchanged under certain circumstances into 6 3/4%
Convertible Subordinated Debentures due 2026 of the Company (the "Debentures")
held by the Trust and then into common stock, $1.00 par value per share ("Common
Stock"), of the Company. The Preferred Securities, the Debentures, the
Guarantee and the Common Stock are referred to collectively as the "Registrable
Securities."
The Company and the Trust are in the process of registering the
Registrable Securities under the Securities Act of 1933 for resale by the
beneficial owners thereof. In order to have their Registrable Securities
included in the registration statement, beneficial owners must complete and
return the enclosed Notice of Registration Statement and Selling Securityholder
Questionnaire.
It is important that beneficial owners of the Registrable Securities
--------------------------------------------------------------------
receive a copy of the enclosed materials as soon as possible as their rights to
------------------------------------------------------------
have the Registrable Securities included in the registration statement depend
upon their returning the Notice and Questionnaire by [DEADLINE FOR RESPONSE].
---------------------
Please forward a copy of the enclosed documents to each beneficial owner that
holds interests in the Registrable Securities through you. If you require more
copies of the enclosed materials or have any questions pertaining to this
matter, please contact:
A-1
Host Marriott Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: General Counsel
A-2
HOST MARRIOTT CORPORATION
HOST MARRIOTT FINANCIAL TRUST
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
(Date)
Host Marriott Corporation (the "Company") and Host Marriott Financial
Trust (the "Trust") have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Trust's 6 3/4% Convertible
Quarterly Income Preferred Securities (liquidation amount $50 per preferred
security) (the "Preferred Securities"). The Preferred Securities are guaranteed
on a subordinated basis by Host Marriott Corporation (the "Company") as to the
payment of distributions, and as to payments on liquidation or redemption, to
the extent set forth in a guarantee agreement (the "Guarantee") between the
Company and IBJ Xxxxxxxx Bank & Trust Company, as trustee and may be converted
or exchanged under certain circumstances into 6 3/4% Convertible Subordinated
Debentures due 2016 (the "Debentures") of the Company held by the Trust and then
into common stock, $1.00 par value per share ("Common Stock"), of the Company,
(collectively, the "Registrable Securities"). A copy of the Registration Rights
Agreement is attached hereto. All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Registration Rights
Agreement.
Each beneficial owner of Registrable Securities is entitled to have
the Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company's counsel at the address set forth herein
for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Unless the Company otherwise
------------------------------------
consents, beneficial owners of Registrable Securities who do not complete,
execute and return this Notice and Questionnaire by such date (i) will not be
named as selling securityholders in the Shelf Registration Statement and related
Prospectus and (ii) may not sell their Registrable Securities pursuant thereto,
unless the Company in its discretion, consents to include such owner's
securities in the Registration Statement.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding
A-3
the consequences of being named or not being named as a selling securityholder
in the Shelf Registration Statement and related Prospectus.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 5 of the Registration Rights
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company, the Trust and Trustee the Notice of Transfer set forth in
Appendix A to the Prospectus. This Notice of Transfer is set forth as Exhibit A
to the Prospectus.
The Selling Securityholder hereby provides the following information
to the Company and the Trust and represents and warrants that such information
is accurate and complete:
A-4
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
---------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in (3) below:
---------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
(3) Below Are Held:
---------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
Telephone:
--------------------
Fax:
--------------------
Contact Person:
--------------------
(3) Beneficial Ownership of Securities and Shares of Common Stock Issued
upon Conversion of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities or shares of Common Stock issued upon conversion
of any Securities.
(a) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned:
-----------------
CUSIP No(s). of such Registrable Securities:
----------------------
A-5
Number of shares of Common Stock (if any) issued upon conversion
of such Registrable Securities:
------------------------------------
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
-------------------------------------------------------------------
CUSIP No(s). of such other Securities:
-----------------------------
Number of shares of Common Stock (if any) issued upon conversion
of such other Securities:
------------------------------------------
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:
--------------------------------------
Number of shares of Common Stock (if any) issued upon conversion
of Registrable Securities which are to be included in the Shelf
Registration Statement:
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of Common
Stock or any other securities of the Company, other than the Securities and
shares of Common Stock listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
A-6
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may
involve crosses or block transactions) (i) on any national securities exchange
or quotation service on which the Registered Securities may be listed or quoted
at the time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the counter market,
or (iv) through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the prior
agreement of the Company and the Trust.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Rule 10b-6.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company and the Trust, the Selling
Securityholder agrees to notify the
A-7
transferee(s) at the time of the transfer of its rights and obligations under
this Notice and Questionnaire and the Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Company and the
Trust in connection with the preparation of the Shelf Registration Statement and
related Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(a) of the Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company and the Trust of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Trust:
Host Marriott Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: General Counsel
(ii) With a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company, the Trust and the Selling Securityholder (with respect to the
Registrable Securities beneficially owned by such Selling Securityholder and
listed in Item (3) above. This Agreement shall be governed in all respects by
the laws of the State of New York.
A-8
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
----------------
-----------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
Host Marriott Financial Trust
By:
--------------------------------------
Name:
Title:
Host Marriott Corporation
By:
--------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
A-9
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
IBJ Xxxxxxxx Bank & Trust Company
Attention: Corporate Trust & Agency Department
Xxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Host Marriott Financial Trust (the "Trust)
6 3/4 % Convertible Quarterly Income Preferred
Securities (the "Preferred Securities")
----------------------------------------------
Dear Sirs:
Please be advised that ______________________ has transferred ____
Preferred Securities, or $____________aggregate principal amount of the Host
Marriott Corporation (the "Company") 6 3/4 % Convertible Subordinated Debentures
(the "Debentures") or ___ shares of the Company's common stock, $1.00 par value,
issued on conversion of the Preferred Securities and./or the Debentures (the
"Common Stock") pursuant to an effective Registration Statement on Form S-3
(File No. 333- ) filed by the Company and the Trust.
We hereby certify that the prospectus delivery requirements, if any,
of the Securities Act of 1 933, as amended, have been satisfied with respect to
the transfer described above and that the above-named beneficial owner of the
and that the above-named beneficial owner of the Preferred Securities, the
Debentures or the Common Stock is named as a "Selling Holder" in the Prospectus
dated ________, 1997 or in amendments or supplements thereto, and that the
aggregate number of Preferred Securities, principal amount of Debentures or
shares of Common Stock transferred are [a portion of] the Preferred Securities,
Debentures or Common Stock listed in such Prospectus opposite such owner's
name.
Dated:
Very truly yours,
------------------------------------
(Name)
By:
---------------------------------
(Authorized Signature)
