Exhibit 1.1
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LASALLE HOTEL PROPERTIES
(a Maryland real estate investment trust)
3,000,000 Common Shares
UNDERWRITING AGREEMENT
Dated: November 10, 2003
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Table of Contents
SECTION 1. Representations and Warranties............................2
(a) Representations and Warranties by the Company and the
Operating Partnership..............................................2
(i) Compliance with Registration Requirements.................2
(ii) Incorporated Documents....................................3
(iii) Independent Accountants...................................3
(iv) Financial Statements......................................3
(v) No Material Adverse Change in Business....................4
(vi) Good Standing of the Company..............................4
(vii) Good Standing of the Operating Partnership................5
(viii) Good Standing of Subsidiaries.............................5
(ix) Capitalization............................................5
(x) Authorization of Units and Preferred Units................6
(xi) Authorization and Description of Securities...............6
(xii) Authorization of Agreement................................6
(xiii) Absence of Defaults and Conflicts.........................7
(xiv) Absence of Labor Dispute..................................7
(xv) Absence of Proceedings....................................7
(xvi) Accuracy of Exhibits......................................8
(xvii) REIT Qualification........................................8
(xviii) Investment Company Act....................................8
(xix) Possession of Intellectual Property.......................8
(xx) Absence of Further Requirements...........................9
(xxi) Possession of Licenses and Permits........................9
(xxii) Title to Property.........................................9
(xxiii) Title Insurance..........................................10
(xxiv) Mortgages and Deeds of Trust.............................10
(xxv) Real Property............................................10
(xxvi) Transfer Taxes...........................................10
(xxvii) Tax Returns..............................................10
(xxviii) Insurance................................................11
(xxix) Internal Accounting Controls.............................11
(xxx) Environmental Laws.......................................11
(xxxi) Registration Statement...................................12
(b) Officer's Certificates............................................12
SECTION 2. Sale and Delivery to the Underwriter; Closing............12
(a) Securities........................................................12
(b) [Intentionally deleted.]..........................................12
(c) Payment...........................................................12
(d) Denominations; Registration.......................................12
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SECTION 3. Covenants of the Company.................................13
(a) Compliance with Securities Regulations and Commission Requests....13
(b) Filing of Amendments..............................................13
(c) Delivery of Registration Statements...............................13
(d) Delivery of Prospectuses..........................................13
(e) Continued Compliance with Securities Laws.........................14
(f) Blue Sky Qualifications...........................................14
(g) Rule 158..........................................................14
(i) Use of Proceeds...................................................14
(j) REIT Qualification................................................15
(k) No Manipulation of Market for Securities..........................15
(l) Rule 462(b) Registration Statement................................15
(m) NYSE Listing......................................................15
(n) Lock-Up Agreement.................................................15
SECTION 4. Payment of Expenses......................................16
(a) Expenses..........................................................16
(b) Termination of Agreement..........................................16
SECTION 5. Conditions of Underwriter's Obligations..................16
(a) Effectiveness of Registration Statement...........................16
(b) Opinion of Counsel for Company....................................16
(c) Opinion of Counsel for the Underwriter............................16
(d) Officers' Certificate.............................................17
(e) Accountants' Comfort Letters......................................17
(f) Bring-down Comfort Letter.........................................17
(g) Lock-up Agreements................................................17
(h) NYSE Listing......................................................17
(i) [Intentionally deleted.]..........................................17
(j) Additional Documents..............................................18
(k) Termination of Agreement..........................................18
SECTION 6. Indemnification..........................................18
(a) Indemnification of the Underwriter................................18
(b) Indemnification of Company, Trustees and Officers.................19
(c) Actions against Parties; Notification.............................19
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SECTION 7. Contribution.............................................20
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery.........................................21
SECTION 9. Termination of Agreement.................................21
(a) Termination; General..............................................21
(b) Liabilities.......................................................22
SECTION 10. Notices..................................................22
SECTION 11. Parties..................................................22
SECTION 12. Governing Law and Time...................................22
SECTION 13. Effect of Headings.......................................23
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LASALLE HOTEL PROPERTIES
(a Maryland real estate investment trust)
Common Shares
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
November 10, 2003
Wachovia Capital Markets, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
LaSalle Hotel Properties, a Maryland real estate investment trust (the
"Company"), confirms its agreement with Wachovia Capital Markets, LLC (the
"Underwriter") with respect to the issue and sale by the Company and the
purchase by the Underwriter of 3,000,000 of the Company's common shares of
beneficial interest, par value $.01 per share ("Common Shares"). The aforesaid
3,000,000 Common Shares to be purchased by the Underwriter are hereinafter
called the "Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-104054, which also
constitutes a post-effective amendment to a previous registration statement, No.
333-77371) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus in accordance with the
provisions of paragraph (b) of Rule 424 ("Rule 424(b)") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Each prospectus used before such registration statement became effective and any
prospectus that was used after such effectiveness and prior to the execution and
delivery of this Agreement, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto, schedules thereto, if
any, and the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriter for use in connection with
the offering of the Securities is herein called the "Prospectus." For purposes
of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to either
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of the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
The Company will contribute the net proceeds from the sale of the
Securities to the Operating Partnership, and in exchange therefor, at the
Closing Time (as defined in Section 2(c)), the Operating Partnership will issue
to the Company common units of limited partnership interest in the Operating
Partnership ("Units").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) 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, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
The term "Subsidiary" means a corporation, partnership, limited liability
company or other entity, a majority of the outstanding voting or capital stock,
partnership, membership or other voting or equity interests or general
partnership interests, as the case may be, of which is owned or controlled,
directly or indirectly, by the Company, LaSalle Hotel Operating Partnership,
L.P., a Delaware limited partnership (the "Operating Partnership"), or by one or
more other Subsidiaries of the Company or the Operating Partnership.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating
Partnership. Each of the Company and the Operating Partnership represents and
warrants to the Underwriter as of the date hereof and as of the Closing Time,
and agrees with the Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company and
the transactions contemplated by this Agreement meet 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 any 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, 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) became effective, at the date of this Agreement and at the
Closing Time, the Registration Statement, any Rule 462(b) Registration
Statement and any amendments and
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supplements 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. The Prospectus, and any amendments
or supplements thereto, at the time the Prospectus or any such amendment or
supplement was issued and at the Closing Time, 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 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. No document has been or will be prepared in
connection with the offering of the Securities in reliance on Rule 434 of
the 1933 Act. The representations and warranties in this paragraph 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 Underwriter expressly for use in
the Registration Statement or Prospectus.
Each preliminary prospectus and the 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 and the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered to
the Underwriter for use in connection with this offering were identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) 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
time the Registration Statement became effective, at the time the
Prospectus was issued and at the Closing Time, 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,
in light of the circumstances under which they were made, not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements of the Company
and its consolidated subsidiaries included in the Registration Statement
and the Prospectus, together with the related schedules and notes, present
fairly the financial position, results of operations and cash flows of the
Company and its consolidated subsidiaries at the dates and for the periods
specified, and such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
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consistent basis throughout the periods involved. The supporting schedules,
if any, included in the Registration Statement and Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. The selected historical operating and financial data included in
the Registration Statement and Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with the books
and records of the Company and that of the audited financial statements
included in the Registration Statement and Prospectus. In addition, any pro
forma financial statements 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.
(v) 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
properties, earnings, business affairs or business prospects of the
Company, the Operating Partnership and the 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, the Operating Partnership or any Subsidiary, other
than those in the ordinary course of business, which are material with
respect to the Company, the Operating Partnership and the Subsidiaries
considered as one enterprise and (C) except for regular monthly dividends
on the Common Shares, in amounts per share that are consistent with past
practice, regular quarterly distributions on the Company's 10-1/4% series A
cumulative redeemable preferred shares of beneficial interest (liquidation
preference $25 per share), par value $.01 per share, regular quarterly
distributions on the Company's 8.375% series B cumulative redeemable
preferred shares of beneficial interest (liquidation preference $25 per
share), par value $.01 per share, and regular monthly and quarterly
distributions on the Units, the series A preferred units of limited
partnership in the Operating Partnership (the "Series A Units") and the
series B preferred units of limited partnership in the Operating
Partnership (the "Series B Units"), there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital shares or any distribution by the Operating Partnership with
respect to any of its limited partnership interests.
(vi) Good Standing of the Company. The Company is a real estate
investment trust duly formed and validly existing and in good standing
under the laws of the State of Maryland, with full trust power and
authority to own and lease its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified or registered as a
foreign real estate investment trust and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect.
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(vii) Good Standing of the Operating Partnership. The Operating
Partnership has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware and
has the requisite power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged as described
in the Operating Partnership Agreement (as defined below) and the
Prospectus and to enter into and perform its obligations under this
Agreement. The Operating Partnership is duly qualified or registered as a
foreign partnership and is in good standing in each jurisdiction in which
such qualification or registration 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 register would not result in a Material
Adverse Effect. The Company is the sole general partner of the Operating
Partnership and holds such number and/or percentage of Units, Series A
Units and Series B Units as disclosed in the Prospectus as of the dates set
forth therein, free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances. The Amended and
Restated Agreement of Limited Partnership of the Operating Partnership,
dated as of April 29, 1998, as amended by the First Amendment thereto,
dated as of March 6, 2002 (the "Operating Partnership Agreement"), is in
full force and effect.
(viii) Good Standing of Subsidiaries. The Operating Partnership is
the only Subsidiary that is a "significant subsidiary" of the Company (as
such term is defined in Rule 1-02 of Regulation S-X). The only Subsidiaries
of the Company are (A) the Subsidiaries listed on Exhibit 21 to the
Company's most recent Annual Report on Form 10-K and (B) certain other
Subsidiaries which, considered in the aggregate as a single Subsidiary, do
not constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X. Each of the Subsidiaries of the Company or the Operating
Partnership has been duly incorporated or organized and is validly existing
as a corporation, limited partnership, general partnership or limited
liability company, as applicable, in good standing under the laws of the
jurisdiction in which it is chartered or organized and has the requisite
power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus, and is duly qualified or
registered as a foreign corporation, limited partnership, general
partnership or limited liability company, as applicable, and is in good
standing in the jurisdiction in which such qualification or registration 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 register
would not result in a Material Adverse Effect. All the outstanding shares
of capital stock, partnership interests, limited liability company
interests or other equivalent equity interests of each such Subsidiary have
been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock, partnership interests, limited
liability company interests or other equivalent equity interest of the
Subsidiaries are owned by the Company or the Operating Partnership either
directly or through wholly-owned Subsidiaries free and clear of any
perfected security interest or any other security interests, claims, liens
or encumbrances.
(ix) Capitalization. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding capital shares of the
Company are as set forth in the column entitled "Actual" under such section
(except for subsequent issuances thereof, if
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any, contemplated under this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options referred to
in the Prospectus). Such capital shares have been duly authorized and
validly issued by the Company and are fully paid and non-assessable, and
none of such capital shares was issued in violation of preemptive or other
similar rights of any securityholder of the Company.
(x) Authorization of Units and Preferred Units. All issued and
outstanding Units, Series A Units and Series B Units have been duly
authorized and are validly issued, fully paid and non-assessable and have
been offered and sold or exchanged by the Operating Partnership in
compliance with applicable laws. The Units to be issued to the Company in
connection with the offering contemplated by this Agreement have been duly
authorized and, when issued and delivered by the Operating Partnership to
the Company in exchange for the net proceeds of the offering, will be
validly issued, fully paid and non-assessable, and the issuance of such
Units will not be subject to the preemptive or other similar rights of any
securityholder or partner of the Operating Partnership.
(xi) Authorization and Description of Securities. The Securities
to be purchased by the Underwriter from the Company have been duly
authorized for issuance and sale to the Underwriter pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued, fully paid and non-assessable. The Securities conform to
all statements relating thereto contained in the Prospectus. No holder of
the Securities will be subject to personal liability by reason of being
such a holder. The issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the Company.
The form of certificate used to evidence the Securities will be in
substantially the form to be filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement, and such form
complies with all applicable statutory requirements, requirements of the
Company's Articles of Amendment and Restatement of Declaration of Trust,
dated as of April 24, 1998, as amended and supplemented (the "Declaration
of Trust"), and the Amended and Restated Bylaws of the Company (the
"Bylaws") and requirements of the New York Stock Exchange.
(xii) Authorization of Agreement. This Agreement and the
transactions contemplated herein have been duly authorized by the Company
and the Operating Partnership, and this Agreement has been duly executed
and delivered by the Company and the Operating Partnership and constitutes
a valid and binding obligation of the Company and the Operating Partnership
enforceable in accordance with its terms except to the extent that the
indemnification provisions hereof may be limited by federal or state
securities laws and public policy considerations in respect thereof and
except as enforcement may be limited by bankruptcy, reorganization,
moratorium or similar laws affecting creditors' rights generally and
general principles of equity.
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(xiii) Absence of Defaults and Conflicts. None of the Company, the
Operating Partnership or any Subsidiary is (A) in violation of its
declaration of trust, partnership agreement, charter, by-laws or other
governing instrument ("Governing Instruments") or (B) 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, the Operating Partnership or any Subsidiary is a party
or by which it or any of them may be bound, or to which any of the property
or assets of the Company, the Operating Partnership or any Subsidiary is
subject (collectively, "Agreements and Instruments") or (C) in violation of
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, the Operating Partnership or
any Subsidiary or any of their assets, properties or operations ("Laws"),
except for such violations or defaults of any Agreements and Instruments or
Laws that would not result in a Material Adverse Effect. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the Prospectus (including the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company and the Operating
Partnership with their respective obligations hereunder have been duly
authorized by all necessary 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 property or assets of the Company, the Operating
Partnership or any Subsidiary pursuant to, the Agreements and Instruments
or Laws (except for such conflicts, breaches, defaults or Repayment Events
or liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the Governing Instruments of the Company, the Operating
Partnership or any Subsidiary or of any Laws except for such violations
that would not have a Material Adverse Effect. 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 material portion of such indebtedness by the Company,
the Operating Partnership or any Subsidiary.
(xiv) Absence of Labor Dispute. No labor dispute with the employees
of the Company, the Operating Partnership or any Subsidiary exists or, to
the knowledge of the Company or the Operating Partnership, is imminent, and
the Company and the Operating Partnership are not aware of any existing or
imminent labor disturbance by the employees of any of their or any
Subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(xv) Absence of Proceedings. There is no action, arbitration,
suit, proceeding, inquiry or investigation before or brought by any
arbitrator or court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company
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or the Operating Partnership, threatened, against or affecting the Company,
the Operating Partnership or any Subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed therein),
or which might reasonably be expected to result in a Material Adverse
Effect or materially adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Company or the
Operating Partnership of their respective obligations hereunder. The
aggregate of all pending legal or governmental proceedings to which the
Company, the Operating Partnership or any Subsidiary is a party or of which
any of their respective properties or assets is the subject which are not
described in the Prospectus, including ordinary routine litigation, could
not reasonably be expected to result in a Material Adverse Effect.
(xvi) 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.
(xvii) REIT Qualification. Commencing with its taxable year ended
December 31, 1998, the Company has been, and upon the sale of the
Securities, the Company will continue to be organized and operated in
conformity with the requirements for qualification and taxation as a real
estate investment trust (a "REIT") under the Internal Revenue Code of 1986,
as amended (the "Code"), and the Company's present and proposed method of
operation as described in the Prospectus will enable it to continue to meet
the requirements for qualification and taxation as a REIT under the Code,
and no actions have been taken (or not taken which are required to be
taken) which would cause such qualification to be lost. The Operating
Partnership will be taxed as a partnership for federal income tax purposes.
(xviii) Investment Company Act. None of the Company, the Operating
Partnership and any Subsidiary is, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will be, an "investment company"
or an entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940 Act").
(xix) Possession of Intellectual Property. The Company, the
Operating Partnership and the Subsidiaries own or possess, or can acquire
on reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and none of the Company, the Operating
Partnership or any Subsidiary has received any written notice or is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company, the Operating
Partnership or any Subsidiary therein, and which infringement or conflict
(if the subject of any unfavorable
8
decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xx) 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
is necessary or required for the performance by the Company or the
Operating Partnership of their respective obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder
or the consummation of the transactions contemplated by this Agreement,
except such as has already been obtained or will be obtained under the 1933
Act or as required under state securities laws or the rules of the National
Association of Securities Dealers, Inc.
(xxi) Possession of Licenses and Permits. Each of the Company, the
Operating Partnership and the Subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them except where failure to possess any such Governmental
Licenses would not result in a Material Adverse Effect; the Company, the
Operating Partnership and their Subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not result in a Material Adverse Effect; and none of the
Company, the Operating Partnership or any of the Subsidiaries has received
any notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xxii) Title to Property. The Company, the Operating Partnership,
the Subsidiaries or any joint ventures in which the Company, the Operating
Partnership or any Subsidiary owns an interest, as the case may be, have
good and marketable title to all real property owned, as applicable, by the
Company, the Operating Partnership, the Subsidiaries or the applicable
joint ventures, respectively, 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 Prospectus or (B) 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, the Operating Partnership, the Subsidiaries or the
applicable joint ventures. Each of the properties of any of the Company,
the Operating Partnership or the Subsidiaries complies with all applicable
codes and zoning laws and regulations except in any case where such
non-compliance would not have a material adverse effect on the conditions,
operations, prospects or earnings of the non-compliant property; and none
of the Company, the Operating Partnership and the Subsidiaries has
knowledge of any pending or threatened condemnation, zoning change or other
proceeding or action that will in any manner affect
9
the size of, use of, improvements on, construction on, or access to the
properties of any of the Company, the Operating Partnership and the
Subsidiaries except in any case where such action or proceeding would not
have a material adverse effect on the conditions, operations, prospects or
earnings of the property. All of the leases and subleases material to the
business of the Company, the Operating Partnership and the Subsidiaries
considered as one enterprise, and under which the Company, the Operating
Partnership or any Subsidiary holds properties described in the Prospectus,
are in full force and effect, and none of the Company, the Operating
Partnership or any Subsidiary has received any notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of the
Company, the Operating Partnership or any Subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the rights
of the Company, the Operating Partnership or any Subsidiary of the
continued possession of the leased or subleased premises under any such
lease or sublease. Except as described in the Prospectus or as would not
result in a Material Adverse Effect, no tenant under any lease to which the
Company, the Operating Partnership or any Subsidiary leases any portion of
its property is in default under such lease.
(xxiii) Title Insurance. Title insurance in favor of the Company, the
Operating Partnership and the Subsidiaries is maintained with respect to
each property owned by any such entity in an amount at least equal to (A)
the cost of acquisition of such property or (B) the cost of construction of
such property (measured at the time of such construction), except where the
failure to maintain such title insurance would not have a Material Adverse
Effect.
(xxiv) Mortgages and Deeds of Trust. The mortgages and deeds of
trust encumbering the properties and assets described in the Prospectus (A)
are not convertible (in the absence of foreclosure) into an equity interest
in the property or asset described therein or in the Company, the Operating
Partnership or any Subsidiary, nor does any of the Company, the Operating
Partnership or the Subsidiaries hold a participating interest therein, (B)
except as set forth in the Prospectus are not cross-defaulted to any
indebtedness other than indebtedness of the Company or any of the
Subsidiaries and (C) are not cross-collateralized to any property not owned
by the Company, the Operating Partnership or any of the Subsidiaries.
(xxv) Real Property. The real property of the Company, the
Operating Partnership and their Subsidiaries is free of material structural
defects and all building systems contained therein are in good working
order in all material respects, subject to ordinary wear and tear or, in
each instance, the Company maintains adequate reserves to effect reasonably
required repairs, maintenance and capital expenditures.
(xxvi) Transfer Taxes. There are no transfer taxes or other similar
fees or charges under federal law or the laws of any state, or any
political subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Company or
sale by the Company of the Securities.
(xxvii) Tax Returns. The Company has filed all foreign, federal,
state and local tax returns that are required to be filed or has requested
extensions thereof (except in any
10
case in which the failure so to file would not have a Material Adverse
Effect), whether or not arising from transactions in the ordinary course of
business, except as described in the Prospectus and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a Material Adverse Effect,
whether or not arising from transactions in the ordinary course of
business, except as described in the Prospectus.
(xxviii) Insurance. The Company, the Operating Partnership, the
Subsidiaries and each of their properties are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company, the Operating Partnership or any of the Subsidiaries
or their respective properties, businesses, employees, officers and
directors are in full force and effect.
(xxix) Internal Accounting Controls. The Company, the Operating
Partnership and the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions
are executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (C) access to assets is permitted only in accordance
with management's general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxx) Environmental Laws. Except as described in the Prospectus and
except as would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) none of the Company, the Operating Partnership or any
of the Subsidiaries is in violation of any federal, state or local statute,
law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial
or administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company, the Operating Partnership and the
Subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of the Company,
the Operating Partnership and the Subsidiaries, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violations, investigations or
proceedings relating to any Environmental Law against the Company, the
Operating Partnership or any of the Subsidiaries and (D)
11
there are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency, against
or affecting the Company, the Operating Partnership or any of the
Subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxxi) Registration Statement. No holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement except for those that have been effectively waived
or are inapplicable to the offering hereby.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company, or any authorized representative of the Operating Partnership or any of
their Subsidiaries delivered to the Underwriter or to counsel for the
Underwriter shall be deemed a representation and warranty by such person or
entity, as the case may be, to the Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, at the price per share of $16.65, the Securities.
(b) [Intentionally deleted.]
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the San Francisco offices of
Sidley Xxxxxx Xxxxx & Xxxx llp, or at such other place as shall be agreed upon
by the Underwriter and the Company, 10:00 A.M. (Eastern time) on November 14,
2003, or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriter and the Company (such time and date of
payment and delivery being herein called "Closing Time").
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 Underwriter of certificates for the Securities to be purchased by the
Underwriter. The Securities will be delivered to the Underwriter in book-entry
form through the facilities of The Depository Trust Company.
(d) Denominations; Registration. Certificates for the Securities shall be
in such denominations and registered in such names as the Underwriter may
request in writing at least one full business day before the Closing Time. The
Securities will be made available for examination and packaging by the
Underwriter at the office of The Depository Trust Company not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time.
12
SECTION 3. Covenants of the Company. Each of the Company and the Operating
Partnership covenants with the Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will notify the Underwriter immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. During the period a Prospectus is required to be
delivered under the 1933 Act, the Company will give the Underwriter notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Underwriter with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the
Underwriter or counsel for the Underwriter shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Underwriter and counsel for the Underwriter, without charge, one
signed copy of the Registration Statement as originally filed and of each
amendment thereto (including conformed copies of exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Underwriter, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits). The copies of the Registration
Statement and each amendment thereto furnished to the Underwriter will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to the
Underwriter, without charge, as many copies of each preliminary prospectus as
the Underwriter reasonably requested, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will furnish
to the Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number
13
of copies of the Prospectus (as amended or supplemented) as the Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriter will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. Without limiting the
generality of the foregoing, the Company agrees, during the period when the
Prospectus is required to be delivered under the 1933 Act in connection with the
sale of the Securities, to file all documents required to be filed with the
Commission pursuant to the 1934 Act and the 1934 Act regulations within the time
periods prescribed thereby. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities, any event
shall occur or condition shall exist as a result of which it is necessary, in
the opinion of counsel for the Underwriter or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriter such number of copies of such amendment or supplement
as the Underwriter may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Underwriter may designate and to maintain such qualifications in effect
for a period of not less than one year from the date of this Agreement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Securities 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 a period of not less than one year from the date of
this Agreement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds."
14
(i) REIT Qualification. The Company will use its best efforts to continue
to meet the requirement to qualify as a REIT under the Code for each of its
taxable years for so long as the board of trustees deems it in the best
interests of the Company's shareholders to remain so qualified.
(j) No Manipulation of Market for Securities. Except for the authorization
of actions permitted to be taken by the Underwriter as contemplated herein or in
the Prospectus, neither the Company nor the Operating Partnership will (i) take,
directly or indirectly, any action designed to cause or to result in, or that
might reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities, and (ii) until the Closing Date, (A) sell, bid for or purchase the
Securities or pay any person any compensation for soliciting purchases of the
Securities or (B) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(k) Rule 462(b) Registration Statement. If the Company elects to rely upon
Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C.
time, on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the 1933 Act.
(l) NYSE Listing. The Company will use its best efforts to list the
Securities on the New York Stock Exchange.
(m) Lock-Up Agreement. For a period of 30 days after the date of the
Prospectus, the Company will not directly or indirectly, (i) offer, pledge,
sell, or contract to sell any shares of capital stock, (ii) sell any option or
contract to sell any shares of capital stock, (iii) purchase any option or
contract to sell any shares of capital stock, (iv) grant any option, right or
warrant to purchase any Common Shares, (v) enter into any swap or other
agreement that transfers, in whole or in part, the economic consequence of
ownership of any shares of capital stock whether any such swap or transaction is
to be settled by delivery of shares or other securities, in cash or otherwise,
(vi) take any of the foregoing actions with respect to any securities
convertible into or exchangeable or exercisable for or repayable with shares of
capital stock, (vii) file with the Commission a registration statement under the
1933 Act relating to any additional shares of capital stock or securities
convertible into or exchangeable or exercisable for shares of capital stock, or
(viii) publicly disclose the intention to take any of the foregoing actions,
without the prior written consent of the Underwriter; provided, however, that
the Company shall not be restricted from issuing shares of capital stock or
options, warrants, partnership units or other securities convertible into shares
of capital stock (A) upon the exercise of outstanding employee share options and
options pursuant to employee benefit plans, (B) pursuant to non-employee trustee
share plans, (C) pursuant to any dividend reinvestment plan of the Company, (D)
pursuant to employee option plans in the ordinary course of business, or (E)
upon conversion of any currently outstanding convertible securities.
1
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and the Operating Partnership will pay or cause
to be paid all expenses incident to the performance of their obligations under
this 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 (exclusive
of fees and disbursements of counsel for the Underwriter), printing and delivery
to the Underwriter of this Agreement, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriter, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriter, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, (vi) the printing and delivery to the
Underwriter of copies of each of the preliminary prospectus, Prospectus and any
amendments or supplements thereto, (vii) the fees and expenses of any transfer
agent or registrar for the Securities and (viii) the fees and expenses incurred
in connection with the listing of the Securities on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i) or
(iii) (with respect to the first clause only), the Company shall reimburse the
Underwriter for all of its out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriter.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company and the Operating Partnership contained in Section 1
hereof or in certificates of any officer or authorized representative of the
Company or the Operating Partnership delivered pursuant to the provisions
hereof, to the performance by each of the Company and the Operating Partnership
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, shall have become effective
and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated 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 Underwriter. A prospectus shall
have been timely filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Underwriter shall
have received the favorable opinion, dated as of Closing Time, of Sidley Xxxxxx
Xxxxx & Xxxx llp, counsel for the Company and the Operating Partnership to the
effect set forth in Exhibit A hereto and to such further effect as counsel to
the Underwriter may reasonably request.
(c) Opinion of Counsel for the Underwriter. At Closing Time, the
Underwriter shall have received the favorable opinion of Xxxxxx & Bird LLP,
counsel for the Underwriter, dated the Closing Date, with respect to the
Securities, the Registration Statement and the Prospectus, as
16
amended or supplemented, and such other related matters as the Underwriter may
require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters. Such
counsel may 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, the Operating Partnership and the Subsidiaries and certificates of
public officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or of the most recent financial statements included or
incorporated by reference in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the properties, earnings, business
affairs or business prospects of the Company, the Operating Partnership, and the
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriter shall have received a
certificate of the president or an executive vice president of the Company, on
behalf of the Company and as general partner of the Operating Partnership, and
of the chief financial or chief accounting officer of the Company, on behalf of
the Company and as general partner of the Operating Partnership, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) each of the Company and the Operating Partnership has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to 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 or are pending or are
contemplated by the Commission. In addition, at Closing Time, the Underwriter
shall have received a certificate of the chief executive officer and chief
financial officer of the Company, on behalf of the Company and as general
partner of the Operating Partnership, to the effect as counsel to the
Underwriter may reasonably request.
(e) Accountants' Comfort Letters. At the time of execution of this
Agreement, the Underwriter shall have received from KPMG LLP, Ernst & Young LLP
and Xxxxxxxxxx, Melvoin and Xxxxxxx LLP letters dated such date, substantially
in the forms approved by the Underwriter before the execution of this Agreement.
(f) Bring-down Comfort Letter. At Closing Time, the Underwriter shall have
received from KPMG LLP a letter, dated as of Closing Time, to the effect that
they reaffirm statements made in their letter furnished pursuant to subsection
(e) of this Section 5, except that the "specified date" referred to shall be a
date not more than three days prior to the Closing Time.
(g) Lock-up Agreements. At the time of execution of this Agreement,
Messrs. Xxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxx shall have executed
and delivered to the Underwriter a lock-up agreement substantially in the form
provided by the Underwriter to the Company.
(h) NYSE Listing. The Securities shall have been approved for listing, and
admitted and authorized for trading, on the New York Stock Exchange, subject to
notice of issuance.
(i) [Intentionally deleted.]
17
(j) Additional Documents. At Closing Time counsel for the Underwriter
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 Securities 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 Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Underwriter and
counsel for the Underwriter.
(k) Termination of Agreement. If any condition specified in this Section 5
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriter by notice to the Company at any
time at or prior to 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, 8 and 12 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of the Underwriter. The Company and the Operating
Partnership agree, jointly and severally, to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and any
director, officer, employee or affiliate thereof 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
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the foregoing indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of the
Underwriter if it failed to deliver a Prospectus (as then amended or
supplemented, provided by the Company to the Underwriter in accordance with
Section 3(d)) to the person asserting any losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, if such material misstatement or omission or alleged material
misstatement or omission was cured, as determined by a court of competent
jurisdiction in a decision not subject to further appeal, in such
Prospectus and such Prospectus was required by law to be delivered at or
prior to the written confirmation of sale to such person;
(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
18
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided 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
Underwriter), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(b) Indemnification of Company, Trustees and Officers. The Underwriter
agrees to indemnify and hold harmless the Company and the Operating Partnership,
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, and any officer, director,
trustee, employee or affiliate thereof, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto). The Company and the Operating Partnership acknowledge that the
sentences related to concessions, reallowances, stabilization and syndicate
covering transactions set forth under the heading "Underwriting" in the
Prospectus constitute the only information furnished in writing by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability that it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriter, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however,
19
that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. 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
(x) 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 and (y) the indemnifying party confirms in writing its
indemnification obligations hereunder with respect to such settlement,
compromise or judgment.
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 and the
Operating Partnership on the one hand and the Underwriter on the other hand from
the offering of the Securities pursuant to this Agreement 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 and the
Operating Partnership on the one hand and of the Underwriter on the other hand
in connection with the statements or omissions that resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Operating Partnership
on the one hand and the Underwriter on the other hand in connection with the
offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received
by the Company and the total underwriting discount received by the Underwriter,
in each case as set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company and the Operating Partnership on the one
hand and the Underwriter on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Operating Partnership or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
20
The Company, the Operating Partnership and the Underwriter 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 Underwriter shall not
be required to contribute any amount in excess of the amount of the underwriting
discount or commission applicable to the Securities purchased by the Underwriter
hereunder.
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 director, officer, employee or
affiliate of the Underwriter and each person, if any, who controls the
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 the 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, subject in each case to the
preceding two paragraphs. For purposes of this Section 7, the Company and the
Operating Partnership shall be deemed one party, jointly and severally liable
for any obligations hereunder.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or the Operating Partnership submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or any controlling
person, or by or on behalf of the Company or the Operating Partnership, and
shall survive delivery of the Securities to the Underwriter.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may, without liability,
terminate this Agreement, by notice to the Company, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the properties, earnings, business affairs or business
prospects of the Company, the Operating Partnership and the Subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, any outbreak of hostilities or
escalation thereof, any acts of terrorism involving the United States or other
calamity or crisis or any
21
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 sole judgment of the Underwriter,
impracticable to market the Securities or inadvisable to enforce contracts for
the sale of the Securities, or (iii) if trading in any securities of the Company
has been suspended or materially limited by the Commission or the New York Stock
Exchange, Inc., or if trading generally on the American Stock Exchange or the
New York Stock Exchange, Inc. or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, or (iv) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7, 8 and 12 shall survive such termination and remain in full force and effect.
SECTION 10. 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 and confirmed to the
receiving party. Notices to the Underwriter shall be directed to the Underwriter
at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000, attention of Xxxxx Xxxxxxxxx;
notices to the Company and the Operating Partnership shall be directed to it at
0000 Xxxxxxxxxx Xxxx, Xxxxx X00, Xxxxxxxx, XX 00000, attention of Xxxx X. Xxxxx,
Executive Vice President.
SECTION 11. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriter, the Company and the Operating Partnership and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter, the Company and the Operating Partnership and their
respective successors and the controlling persons and officers, trustees and
directors 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 Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter and the Company and their respective
successors, and said controlling persons and officers, trustees and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from the Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. UNLESS OTHERWISE EXPLICITLY
PROVIDED, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
22
SECTION 13. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
23
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriter, the Company and the Operating Partnership in accordance with
its terms.
Very truly yours,
LASALLE HOTEL PROPERTIES
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: CFO
LASALLE HOTEL OPERATING PARTNERSHIP,
L.P.
By: LaSalle Hotel Properties, its
general partner
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: CFO
CONFIRMED AND ACCEPTED,
as of the date first above written:
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Authorized Signatory
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company is a real estate investment trust duly formed and
validly existing and in good standing under the laws of the State of Maryland
with full trust power and authority to own and lease its properties and to
conduct its business as described in the Prospectus.
(ii) The 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, and none of such capital shares was issued in violation of
preemptive or other similar rights to purchase or subscribe for shares of
beneficial interest of the Company arising under the Maryland General
Corporation Law, the Maryland REIT Law, the Declaration of Trust or the Bylaws
or any contract to which the Company is a party of which such counsel has
knowledge.
(iii) All of the outstanding Units, Series A Units and Series B, have
been duly authorized by the Operating Partnership and, assuming that the holders
of Units, Series A Units and Series B Units, as limited partners of the
Operating Partnership, do not participate in the control of the business of the
Operating Partnership, the Units, the Series A Units and the Series B Units
represent valid and, subject to the qualifications set forth herein, fully paid
and nonassessable limited partner interests in the Operating Partnership as to
which the limited partners holding Units, Series A Units and/or Series B Units,
in their capacity as limited partners of the Operating Partnership, have no
liability in excess of their obligations to make contributions to the Operating
Partnership, their obligations to make other payments provided for in the
Operating Partnership Agreement and their share of distributed assets and
profits of the Operating Partnership to the extent that a limited partner of the
Operating Partnership may be required to repay any funds wrongfully distributed
to it. To such counsel's knowledge, except as described in the Prospectus, no
Units, Series A Units or Series B Units are reserved for issuance for any
purpose, there are no outstanding securities convertible into or exchangeable
for any Units, Series A Units, Series B Units or any other securities of the
Operating Partnership and there are no preemptive or other similar rights to
purchase or subscribe for Units, Series A Units, Series B Units or any other
securities of the Operating Partnership arising under the Delaware Revised
Uniform Limited Partnership Act ("DRULPA") or under the Operating Partnership
Agreement or any contracts to which the Operating Partnership is a party of
which such counsel has knowledge. The Units to be issued to the Company in
connection with the Company's sale of the Securities have been duly authorized
by the Operating Partnership and, assuming that the Company, as a limited
partner of the Operating Partnership, does not participate in the control of the
business of the Operating Partnership, such Units, when issued and delivered by
the Operating Partnership against the Company's contribution of the net proceeds
from the sale of the Securities, will represent valid and, subject to the
qualifications set forth herein, fully paid and nonassessable limited partner
interests in the Operating Partnership as to which the Company, in its capacity
as a limited partner of the Operating Partnership, will have no liability in
excess of its obligations to make contributions to the Operating Partnership,
its obligations to make other payments provided for in the Operating Partnership
Agreement and its share of
A-1
distributed assets and profits of the Operating Partnership to the extent that a
limited partner of the Operating Partnership may be required to repay any funds
wrongfully distributed to it.
(iv) The Securities to be purchased by the Underwriter from the Company
have been duly authorized for issuance and sale to the Underwriter pursuant to,
and in accordance with the terms of, the Underwriting Agreement and, when issued
and delivered by the Company pursuant to the Underwriting Agreement against
payment of the consideration set forth in the Underwriting Agreement, will be
validly issued, fully paid and nonassessable; the issuance and sale of the
Securities by the Company is not subject to any preemptive or other similar
rights to purchase or subscribe for shares of beneficial interest of the Company
arising under the Maryland General Corporation Law, the Maryland REIT Law, the
Declaration of Trust or Bylaws or any contract to which the Company is a party
of which such counsel has knowledge.
(v) Each of the Operating Partnership and the Subsidiaries identified
on Exhibit B is validly existing as a limited partnership, corporation or
limited liability company, as applicable, in good standing under the laws of its
jurisdiction of organization, formation or incorporation and has the requisite
partnership, corporate or company power and authority to own, lease and operate
its properties and to conduct the business in which it is engaged as described
in the Operating Partnership Agreement, with respect to the Operating
Partnership, and the Prospectus and, based solely upon the certificates of good
standing or similar certificates received from the Secretary of State or similar
official of each of the respective states listed on a schedule to such counsel's
opinion with respect to the applicable entity, is duly qualified or registered
as a foreign limited partnership, corporation or limited liability company to
transact business and is in good standing in the respective states listed on a
schedule to such counsel's opinion. Based solely on a review of the books and
records of the Subsidiaries provided to such counsel, all the outstanding shares
of capital stock, partnership interests, limited liability company interests or
other equivalent equity interests of the Subsidiaries identified on Exhibit C
(the "Certain Subsidiaries") have been duly authorized and validly issued and
are fully paid and non-assessable, as applicable, and except as described in the
Prospectus, all outstanding shares of capital stock, partnership interests,
limited liability company interests or other equivalent equity interests of the
Operating Partnership and such Certain Subsidiaries are owned by the Company
either directly or through wholly-owned Subsidiaries.
(vi) The execution and delivery of the Underwriting Agreement have been
duly authorized by all necessary action of the Company and the Operating
Partnership, and the Underwriting Agreement has been duly executed and delivered
by the Company and the Operating Partnership.
(vii) At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements, financial data,
statistical data and supporting schedules included or incorporated by reference
therein or omitted therefrom, as to which no opinion is expressed) complied as
to form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations. As of the date hereof, the Prospectus (other than the
financial statements, financial data, statistical data and supporting schedules
included or incorporated by reference therein or omitted therefrom, as to which
no opinion is expressed)
A-2
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(viii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened.
(ix) The documents incorporated by reference in the Prospectus (other
than the financial statements, financial data, statistical data and supporting
schedules included or incorporated by reference therein or omitted therefrom, as
to which no opinion is rendered), when they became effective or were filed with
the Commission, as the case may be, complied as to form, in all material
respects, with the requirements of the 1934 Act and the 1934 Act Regulations.
(x) To such counsel's knowledge and except as described or incorporated
by reference in the Prospectus, there is not pending or threatened any action,
suit, proceeding, inquiry or investigation, to which the Company, the Operating
Partnership or any Subsidiary is a party, or to which the property of the
Company, the Operating Partnership or any Subsidiary is subject, before or
brought by any court or governmental agency or body, domestic or foreign, or any
arbitrator that might reasonably be expected to result in a Material Adverse
Effect or to affect the consummation of the transactions contemplated in the
Underwriting Agreement or the performance by the Company or the Operating
Partnership of their respective obligations thereunder or is of a character
required to be described in the Prospectus which is not adequately disclosed.
(xi) The information in the Prospectus under "Description of Common
Shares" and "Federal Income Tax Considerations," to the extent that it
constitutes matters of law, summaries of legal matters, the Company's
Declaration of Trust and Bylaws or legal proceedings or legal conclusions, has
been reviewed by such counsel and is correct in all material respects.
(xii) To such counsel's knowledge, there are not any laws of the State of
New York, any provisions of DRULPA, the Maryland General Corporation Law or the
Maryland REIT Law or any federal laws of the United States of America that are
required to be described in the Prospectus that are not described as required.
(xiii) Commencing with its taxable year ended December 31, 1998, the
Company was organized and has been operated in conformity with the requirements
for qualification as a real estate investment trust under the Internal Revenue
Code of 1986, as amended (the "Code") and the present and proposed method of
operation of the Company and the Operating Partnership, as described in the
Prospectus and as represented by the Company and the Operating Partnership, will
permit the Company to continue to so qualify.
(xiv) All descriptions contained or incorporated in the Registration
Statement of contracts and other documents which are filed as exhibits to the
Company's Annual Report on Form 10-K for the year ended December 31, 2002 (the
"Form 10-K") to which the Company, the Operating Partnership or any Subsidiary
is a party are correct in all material respects. To such counsel's knowledge,
there are no franchises, contracts, indentures, mortgages, loan agreements,
A-3
notes, leases or other instruments ("Agreements") required to be described or
referred to therein or filed or incorporated by reference as exhibits thereto
that were not so filed, incorporated by reference or described as required.
(xv) No consent, approval, authorization or other order of any federal
regulatory body, federal administrative agency or other federal governmental
body of the United States of America or any state regulatory body, state
administrative agency or other state governmental body of the State of New York
or the State of Maryland is required under Applicable Laws for the issuance and
sale of the Securities to the Underwriter as contemplated by the Agreement or
the public offering of the Securities as contemplated by the Prospectus. As used
in such counsel's opinion letter, the term "Applicable Laws" means those
provisions of the state laws of the State of New York, DRULPA, Maryland General
Corporation Law, Maryland REIT Law and federal laws of the United States of
America which, in such counsel's experience and without independent
investigation, are normally applicable to transactions of the type contemplated
by the Agreement (provided that the term "Applicable Laws" shall not include
federal or state securities or blue sky laws or any rules or regulations
thereunder including, without limitation, the 1933 Act, the 1934 Act and the
Investment Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations thereunder, or any antifraud or similar laws).
(xvi) The execution, delivery and performance of the Underwriting
Agreement by the Company and the Operating Partnership and the consummation of
the transactions contemplated in the Underwriting Agreement and in the
Prospectus (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds") and compliance by the Company and the Operating
Partnership with their respective obligations under the Underwriting Agreement
do not and will not (i) whether with or without the giving of notice or lapse 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 material lien,
charge or encumbrance upon any material property or assets of the Company or the
Operating Partnership pursuant to any contract listed as an exhibit to the Form
10-K to which the Company, the Operating Partnership or any of the Subsidiaries
is a party or by which any of them may be bound or to which any of the property
or assets of the Company, the Operating Partnership or any of the Subsidiaries
are subject, (ii) result in any violation of the provisions of the Governing
Instruments of the Company or the Operating Partnership, or (iii) result in any
violation of any Applicable Laws or any judgment, order, writ or decree, known
to such counsel, of any Maryland, Delaware, New York or U.S. federal government,
government instrumentality or court having jurisdiction over the Company or the
Operating Partnership or any of their respective assets or properties.
(xvii) Neither the Company nor the Operating Partnership is an "investment
company" or an entity "controlled" by an "investment company," as such terms are
defined in the 0000 Xxx.
(xviii) The form of certificate used to evidence the Common Shares
complies, in all material respects, with the requirements of Applicable Laws,
the Declaration of Trust and the Bylaws and the New York Stock Exchange.
In acting as counsel to the Company in connection with the transactions
contemplated by the Underwriting Agreement, such counsel has participated in
conferences with officers and
A-4
other representatives of the Company, including its independent accountants,
representatives of outside counsel for the Underwriter and its representatives,
at which conferences the contents of the Registration Statement, the Prospectus
and related matters were discussed. Although such counsel is not passing upon or
assuming responsibility for the accuracy, completeness or fairness of the
statements included in the Registration Statement and the Prospectus and has
made no independent check or verification thereof (except as set forth in
paragraph (xi), nothing has come to such counsel's attention which has caused
counsel to believe that the Registration Statement or any of the materials
incorporated by reference therein (other than the financial statements,
financial data, statistical data and supporting schedules included or
incorporated by reference therein or omitted therefrom, as to which no belief is
expressed), at the time it became effective or as of the date of the Agreement,
contained any 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 (other than the financial statements,
financial data, statistical data and supporting schedules included or
incorporated by reference therein or omitted therefrom, as to which no belief is
expressed), as of the date of the Agreement or as of the Closing Date, included
any untrue statement of a material fact or omitted 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.
A-5
EXHIBIT B
1. LaSalle Hotel Operating Partnership, L.P.
2. LaSalle Hotel Lessee, Inc.
3. LHO Financing Partnership I, L.P.
4. LHO Financing, Inc.
5. LHO Carlyle 540, L.L.C.
6. 540 Leaseco, L.L.C.
7. Chicago 540 Hotel, L.L.C.
8. Chicago 540 Lessee, Inc.
9. LHO Harborside Hotel, L.L.C.
10. LHO Mission Bay Hotel, L.P.
11. LHO Viking Hotel, L.L.C.
12. LHO Hollywood Financing, Inc.
13. LHO Hollywood LM, L.P.
14. LHO New Orleans Financing, Inc.
15. LHO New Orleans LM, L.P.
16. LHO Washington Hotel One, L.L.C.
17. LHO Washington Hotel Two, L.L.C.
18. LHO Washington Hotel Three, L.L.C.
19. LHO Washington Hotel Four, L.L.C.
20. LHO Washington Hotel Six, L.L.C.
21. I & G Capitol, L.L.C.
22. LaSalle Washington One Lessee, Inc.
23. LaSalle Washington Two Lessee, Inc.
24. LaSalle Washington Three Lessee, Inc.
25. LaSalle Washington Four Lessee, Inc.
B-1
26. LaSalle Washington Five Lessee, Inc.
27. LHO Washington Six Lessee, Inc.
28. LHO New Orleans One Lessee, L.L.C
29. LHO Dallas One Lessee, L.L.C.
30. LHO Bloomington One Lessee, LLC
31. LHO Leesburg One Lessee, Inc.
B-2
EXHIBIT C
1. LaSalle Hotel Operating Partnership, L.P.
2. LHO Hollywood Financing, Inc.
3. LHO Hollywood LM, L.P.
4. LHO New Orleans Financing, Inc.
5. LHO New Orleans LM, L.P.
6. LHO Washington Hotel Six, L.L.C.
7. LHO Financing, Inc.
8. LHO Financing Partnership I, L.P.
C-1
