Exhibit 1.1
Host Marriott Corporation
(a Maryland corporation)
12,500,000 Shares
Common Stock
($.01 par value)
Underwriting Agreement
New York, New York
February 1, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The persons named in Schedule II hereto (the "Selling Stockholders")
propose to sell to Xxxxxxx Xxxxx Barney Inc. (the "Underwriter") 12,500,000
shares of Common Stock, $.01 par value ("Common Stock") of Host Marriott
Corporation, a corporation organized under the laws of Maryland (the "Company")
(said shares to be sold by the Selling Stockholders being hereinafter called the
"Securities"). To the extent that there is not more than one Selling
Stockholder named in Schedule II, the term Selling Stockholder shall mean either
the singular or plural. The use of the neuter in this Agreement shall include
the feminine and masculine wherever appropriate. Any reference herein to the
Registration Statement, a Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of
such Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement, or the
issue date of any Preliminary Prospectus or the Prospectus, as the case may be,
deemed to be incorporated therein by reference. All references to any
subsidiary or subsidiaries of the Company shall be deemed to include, without
limitation, Host Marriott, L.P., a Delaware limited partnership (the "Operating
Partnership") and the Non-Controlled Subsidiaries. Certain terms used herein
are defined in Section 16 hereof.
1. Representations and Warranties.
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(a) The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, the Underwriter and each of the
Selling Stockholders as set forth below in this Section 1.
(i) The Company has prepared and filed with the Commission a
registration statement (333-78091) on Form S-3, including a related
preliminary prospectus, for registration under the Act of the offering and
sale of the Securities. The Company may have filed one or more amendments
thereto, including a related preliminary prospectus, if any, each of which
has previously been furnished to you. The Company will next file with the
Commission one of the following: either (1) prior to the Effective Date of
such registration statement, a further amendment to such registration
statement, (including the form of final prospectus) or (2) after the
Effective Date of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b). In the case of clause (2), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the rules thereunder to be included in such registration
statement and the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and, except
to the extent the Underwriter shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus, if any) as the
Company has advised you, prior to the Execution Time, will be included or
made therein.
(ii) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein), the Prospectus
(and any supplements thereto) will, comply in all material respects with
the applicable requirements of the Act and the rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; and, on the Effective Date,
the Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not, include any
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; provided,
however, that the Company and the Operating Partnership make no
representations or warranties as to the information contained in or omitted
from the Registration Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
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(iii) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Maryland, has
the corporate power and authority to own and lease its property and to
conduct its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(iv) Each subsidiary of the Company has been duly organized, is
validly existing as a corporation, limited or general partnership or
limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its organization, has power and authority to
own and lease its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole; all of the issued and outstanding capital stock, partnership
interests, limited liability company interests or other ownership
interests, as the case may be (collectively, "Ownership Interests"), of
each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and (except for general partnership interests) non-
assessable; approximately 78% (before giving effect to the transactions
contemplated hereby) of the outstanding partnership interests in the
Operating Partnership are owned directly by the Company and all of the
Company's Ownership Interests in each of the Company's other subsidiaries
are owned directly or indirectly by the Company, in each case free and
clear of all liens, encumbrances, claims or equities except for liens
created by the Pledge Agreement dated as of August 5, 1998, as amended (the
"Pledge Agreement") entered into by the Company and certain of its
subsidiaries in favor of Bankers Trust Company, as collateral agent; the
Company is the sole general partner of the Operating Partnership and owns,
directly, all of the outstanding general partnership interests in the
Operating Partnership.
(v) This Agreement has been duly authorized, executed and delivered
by the Company and the Operating Partnership.
(vi) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus; and
the outstanding shares of the Company's capital stock, have been duly
authorized and validly issued and are fully paid and non-assessable and
none of such shares was issued in violation of any preemptive or similar
rights.
(vii) The Securities have been duly authorized and, when issued and
delivered to the Selling Stockholders at or prior to the Closing Date, will
be validly issued, fully paid and non-assessable, and the issuance of the
Securities will not be subject to any preemptive or similar rights.
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(viii) The execution and delivery by the Company and the Operating
Partnership of, and the performance by the Company and the Operating
Partnership of their respective obligations under, this Agreement will not
(A) result in a violation of any provision of the charter or bylaws of the
Company or the limited partnership agreement or certificate of limited
partnership of the Operating Partnership, (B) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, (C) result in a violation of any law,
statute, rule or regulation which is applicable to the Company or any of
its subsidiaries or (D) result in a violation of any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any of its subsidiaries; and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company or the Operating
Partnership of their respective obligations under this Agreement, except
(x) such as may be required by the securities or Blue Sky laws of the
various states and any foreign jurisdictions in connection with the offer
and sale of the Securities, (y) such as have been obtained under the
Securities Act and are in full force and effect and (z) such as are
required under the Exchange Act in connection with the listing of the
Securities on the NYSE.
(ix) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(x) There are no legal or governmental proceedings pending or, to
the knowledge of the Company and the Operating Partnership, threatened to
which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(xi) Each preliminary prospectus, if any, filed pursuant to Rule 424
under the Securities Act complied when so filed in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder.
(xii) Neither the Company nor the Operating Partnership is and, after
giving effect to the issuance of the Securities, neither the Company nor
the Operating Partnership will be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(xiii) The Company and its subsidiaries and, to the knowledge of the
Company and the Operating Partnership in the case of properties leased by
the Company or any of its subsidiaries as lessors, the lessees of such
properties (i) are in compliance with any
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and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(xiv) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(xv) There are no contracts, agreements or understandings between
the Company or any of its subsidiaries, on the one hand, and any person, on
the other hand, granting such person the right (i) to require the Company
or any of its subsidiaries to file a registration statement under the
Securities Act with respect to any securities of the Company or any of its
subsidiaries, except for the Registration Rights Agreement dated as of
December 30, 1998 among the Company and those entities specified on
Schedule 1 to the Contribution Agreement dated as of April 16, 1999 or (ii)
to require the Company or any of its subsidiaries to include such
securities with the Securities registered pursuant to the Registration
Statement or in the offering contemplated by the Prospectus.
(xvi) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
(xvii) The Company and its subsidiaries have good and marketable title
in fee simple to all land underlying the Company's hotel properties
described in the Prospectus as owned by them and good and marketable title
to all improvements thereon and to all personal property owned by them, in
each case which is material to the business of the Company and its
subsidiaries and in each case free and clear of all liens, encumbrances,
claims, equities, mortgages, security interests or pledges (each, a
"Lien"), except such as are described in the Prospectus or such as do not
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 and its
subsidiaries; any real property, buildings and other improvements held
under a lease by the Company or any of its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries, in each
case except as described in the Prospectus; all of the leases pursuant to
which the Company or any of its subsidiaries, as lessor, leases to a
subsidiary of HMT Lessee or a third party (each, a "Lessee") any hotels
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or other real or personal property, buildings or other improvements are in
full force and effect; all of the management agreements and similar
agreements pursuant to which the Company, any of its subsidiaries or, to
the best knowledge of the Company and the Operating Partnership, any of the
Lessees has contracted with a third party to manage or operate any of the
hotels or other properties owned or leased, as lessee, by the Company or
any of its subsidiaries are in full force and effect; all franchise
agreements between the Company or any of its subsidiaries or , to the best
knowledge of the Company and the Operating Partnership, any of the Lessees,
on the one hand, and Marriott International, Inc., a Delaware corporation
("Marriott International"), or any other hotel operating or management
company (each, a "Manager"), on the other hand, are in full force and
effect; and the Company and its subsidiaries have complied with all of
their respective obligations and agreements under the leases, management
agreements and franchise agreements referred to above and , to the best
knowledge of the Company and the Operating Partnership, no default by any
other party to any of such leases, management agreements or franchise
agreements has occurred and is continuing which, individually or in the
aggregate, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(xviii) The merger (the "Merger") of Host Marriott Corporation, a
Delaware corporation ("Host Delaware"), with and into the Company, with the
Company as the surviving corporation, qualified as a reorganization under
Section 368 of the Internal Revenue Code of 1986, as amended (the "Code").
(xix) The Company is organized in conformity with the requirements
for qualification and taxation as a "real estate investment trust" under
the Code and the Company's intended method of operation will enable it to
meet the requirements for qualification and taxation as a "real estate
investment trust" under the Code for its 2000 tax year and thereafter.
(xx) From and after December 28, 1998, the first date that the
Operating Partnership had two or more partners for federal income tax
purposes, the Operating Partnership at all times has been and will be
qualified as a partnership for federal income tax purposes and the
Operating Partnership has not and will not be treated as a publicly traded
partnership taxable as a corporation.
(xxi) During its taxable years ended December 31, 1999 and December
31, 2000, the Company has not been treated as owning voting securities of
the Non-Controlled Subsidiaries within the meaning of Section 856(c)(4)(B)
of the Code. Effective January 1, 2001, each Non-Controlled Subsidiary will
qualify and, together with the Company, will elect, to be treated as a
"taxable REIT subsidiary" as described in Section 856(l) of the Code.
(xxii) All real estate leases which the Operating Partnership owns, or
in which the Operating Partnership has an interest, as a lessor or
sub-lessor, including the Harbor Beach Resort Lease, will be treated as
true leases for federal income tax purposes.
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(xxiii) The Company is eligible to use Form S-3 under the Securities
Act, and also meets the requirements for use of Form S-3 as in effect
immediately prior to October 21, 1992.
(xxiv) The Securities do not constitute 20% or more of the total
voting power of the outstanding shares of the Company's "Voting Stock" as
defined in the Distribution Agreement dated as of September 15, 1993, as
amended (the "Distribution Agreement"), between the Company, as successor
to Marriott Corporation, a Delaware corporation, and Marriott
International. Marriott International does not and will not have any right
to acquire any Common Stock pursuant to the Distribution Agreement or
otherwise, and no notice to or consent, approval or waiver of Marriott
International is required for the issuance and the sale of the Securities
as contemplated hereby.
Any certificate signed by any officer of the Company or the Operating
Partnership and delivered to the Underwriter or counsel for the Underwriter
in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company and the Operating Partnership,
as to matters covered thereby, to the Underwriter.
(b) Each Selling Stockholder represents and warrants to, and agrees with,
the Underwriter and the Company that:
(i) On the Closing Date, such Selling Stockholder will be the
record and a beneficial owner of the Securities to be sold by it hereunder
free and clear of all liens, encumbrances, equities and claims, such
Selling Stockholder has full partnership or corporate power, right and
authority to sell such Securities and, assuming that the Underwriter
acquires its interest in the Securities it has purchased from such Selling
Stockholder without notice of any adverse claim within the meaning of
Section 8-105 of the UCC and, assuming further that the transfer agent for
the Company's Common Stock properly performs the instructions provided by
the Selling Stockholders and delivers the Securities by book-entry transfer
to the Underwriter, the Underwriter, upon payment for and delivery of such
Securities in accordance with this Agreement, will acquire all of the
rights of such Selling Stockholder in the Securities and will also acquire
their interest in such Securities free of any adverse claim, and will
acquire a security entitlement (within the meaning of Section 8-102(a)(17)
of the UCC) with respect to such Securities, and no action based on an
adverse claim (within the meaning of Section 8-105 of the UCC) may be
asserted against the Underwriter with respect to such Securities.
(ii) Such Selling Stockholder has not taken, directly or indirectly,
any action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(iii) No consent, approval, authorization or order of any court or
governmental agency or body ("Approval") is required for the consummation
by such Selling Stockholder of the transactions contemplated herein, except
for registration of the Securities under the Act and such Approvals as may
be required under the blue sky laws
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of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals as have been
obtained.
(iv) Neither the sale of the Securities being sold by such Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by such Selling Stockholder or the fulfillment of the terms
hereof by such Selling Stockholder will conflict with, result in a breach
or violation of, or constitute a default under (A) any law or the
constituting documents of such Selling Stockholder or (B) the terms of any
indenture or other agreement or instrument to which such Selling
Stockholder or any of its subsidiaries is a party or bound, or (C) any
judgment, order or decree applicable to such Selling Stockholder or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over such Selling
Stockholder or any of its subsidiaries which, with respect to (B) or (C)
above, would have a material adverse effect on such Selling Stockholder or
any of its subsidiaries.
(v) Solely in respect of any statements in or omissions from the
Registration Statement or the Prospectus or any supplements thereto made in
reliance upon and in conformity with information furnished in writing to
the Company by any Selling Stockholder specifically for use in connection
with the preparation thereof, such Selling Stockholder hereby makes the
same representations and warranties to the Underwriter as the Company makes
to the Underwriter under paragraph (a)(ii) of this Section.
Any certificate signed by any officer of any Selling Stockholder and
delivered to the Underwriter in connection with the offering of the Securities
shall be deemed a representation and warranty by such Selling Stockholder, as to
matters covered thereby, to the Underwriter.
2. Purchase and Sale.
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Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholders agree,
severally and not jointly, to sell to the Underwriter, and the Underwriter
agrees to purchase from the Selling Stockholders, at a purchase price of $12.30
per share, the amount of the Securities set forth opposite the Underwriter's
name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
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be made at 10:00 AM, New York City time, on February 7, 2001, or at such time on
such later date not more than three Business Days after the foregoing date as
the Underwriter shall designate, which date and time may be postponed only by
written agreement among the Underwriter, the Company and the Selling
Stockholders or as provided in Section 9 hereof (such date and time of delivery
and payment for the Securities being herein called the "Closing Date").
Delivery of the Securities shall be made to the Underwriter against payment by
the Underwriter of the respective aggregate purchase prices of the Securities
being sold by each of the Selling Stockholders to or upon the order of the
Selling Stockholders by wire transfer payable in same-day funds to the accounts
specified by the Selling Stockholders. Delivery of the Securities shall be made
through the facilities of The Depository Trust Company unless the Underwriter
shall otherwise instruct.
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Each Selling Stockholder will pay all applicable state transfer taxes, if
any, involved in the transfer to the Underwriter of the Securities to be
purchased by them from such Selling Stockholder and the Underwriter will pay any
additional stock transfer taxes involved in further transfers.
4. Offering by the Underwriter. It is understood that the Underwriter
---------------------------
proposes to offer the Securities for sale to the public as set forth in the
Prospectus.
5. Agreements.
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(a) The Company agrees with the Underwriter that:
(i) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b),
the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Underwriter of such timely
filing. The Company will promptly advise the Underwriter (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act or the
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Exchange Act or the respective rules thereunder, the Company promptly will
(1) notify the Underwriter of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a)(i) of this
Section 5, an amendment or supplement which will correct such statement or
omission or effect such compliance and (3) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriter an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(iv) The Company will furnish to the Underwriter and counsel for the
Underwriter, without charge, signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by
the Underwriter or any dealer may be required by the Act, as many copies of
each Preliminary Prospectus, if any, and the Prospectus and any supplement
thereto as the Underwriter may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to the
offering.
(v) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Underwriter may designate, will maintain such qualifications in effect so
long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the
Company be obligated to qualify to do business or subject itself to
taxation in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(vi) The Company will not, without the prior written consent of
Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge or
otherwise dispose of (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or any affiliate of the Company or any person
in privity with the Company or any affiliate of the Company), directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any other shares of Common Stock or any securities convertible into, or
exercisable or exchangeable for, shares of Common Stock, or publicly
announce an intention to effect any such transaction, for a period of 30
days after the date of the Underwriting Agreement; provided, however, that
(A) the Company may (I) issue Common Stock pursuant to any employee stock
option plan, stock ownership plan, dividend reinvestment plan or other
employee benefit plan of the Company in effect at the Execution Time, (II)
issue Common Stock issuable upon the conversion of convertible securities
or the exercise of warrants outstanding at the Execution Time, (III) issue
Common Stock in satisfaction of a redemption right of any holder of
preferred or
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common Units of the Operating Partnership (or a conversion or exchange
right of any holder of any equity interest in any entity in which the
Company or an affiliate of the Company also holds an equity interest), (IV)
issue Common Stock, or any securities convertible into, or exercisable or
exchangeable for, shares of Common Stock, in transactions exempt from
registration under the Act (or publicly announce an intention to effect any
such transaction), or (V) issue Common Stock, or any securities convertible
into, or exercisable or exchangeable for, shares of Common Stock, in
connection with mergers, asset acquisitions or other business combination
transactions (or publicly announce an intention to effect any such
transaction), (B) the Operating Partnership may issue preferred or common
Units of the Operating Partnership, and (C) any officer or director of the
Company, or any of their respective affiliates (other than the Company and
its subsidiaries), may offer, sell, contract to sell, pledge or otherwise
dispose of Common Stock, or any securities convertible into, or exercisable
or exchangeable for, shares of Common Stock.
(vii) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(b) Each Selling Stockholder agrees with the Underwriter and, with respect
only to (ii) and (iii) below, the Company that:
(i) Such Selling Stockholder will not, without the prior written
consent of Xxxxxxx Xxxxx Barney Inc., offer, sell, contract to sell, pledge
or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether
by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Selling Stockholder or any affiliate of the
Selling Stockholder or any person in privity with the Selling Stockholder
or any affiliate of the Selling Stockholder) directly or indirectly, or
file (or participate in the filing of) a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act with respect to, any shares of
capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 30 days after the
date of this Agreement, provided that nothing contained herein shall
prohibit the Selling Stockholders and their direct and indirect partners
from distributing Units of the Operating Partnership redeemable for Common
Stock to their direct and indirect partners who agree to be bound by the
terms of this Section 5(b)(i).
(ii) Such Selling Stockholder will not take, directly or indirectly,
any action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(iii) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as delivery
of a prospectus relating to
11
the Securities by the Underwriter or any dealer may be required under the
Act, of any change in information in the Registration Statement or the
Prospectus relating to such Selling Stockholder.
6. Conditions to the Obligations of the Underwriter. The obligations of
------------------------------------------------
the Underwriter to purchase the Securities, shall be subject to the accuracy of
the representations and warranties on the part of the Company, the Operating
Partnership and the Selling Stockholders contained herein as of the Execution
Time and the Closing Date, to the accuracy of the statements of the Company, the
Operating Partnership and the Selling Stockholders made in any certificates
pursuant to the provisions hereof, to the performance by the Company, the
Operating Partnership and the Selling Stockholders of their respective
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Underwriter agrees in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have requested and caused Xxxxxxxxxxx X.
Xxxxxxxx, Senior Vice President and General Counsel of the Company, to have
furnished to the Underwriter his opinion, dated the Closing Date and
addressed to the Underwriter, to the effect that:
(i) the Company is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly organized, is
validly existing as a corporation, limited or general partnership or
limited liability company, as the case may be, in good standing under
the laws of the jurisdiction of its organization, has the power and
authority to own and lease its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
12
(iii) the outstanding shares of Common Stock (including the
Securities), Class A Preferred Stock and Class B Preferred Stock have
been duly authorized and validly issued and are fully paid and
non-assessable and none of such shares was issued in violation of any
preemptive or similar rights;
(iv) the outstanding Ownership Interests in each subsidiary
have been duly authorized and validly issued, are fully paid and
(except for general partnership interests) non-assessable; all of the
outstanding limited partnership interests in the Operating Partnership
are owned (except as otherwise set forth in the Prospectus) directly by
the Company, all of the outstanding general partnership interests in
the Operating Partnership are owned directly by the Company, and all of
the Company's Ownership Interests in each of the other subsidiaries are
owned directly or indirectly by the Company, in each case free and
clear of all liens, encumbrances, equities or claims, except for liens
created by the Pledge Agreement;
(v) this Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership;
(vi) the execution and delivery by the Company and the Operating
Partnership of, and the performance by the Company and the Operating
Partnership of their respective obligations under, this Agreement will
not (A) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, the Credit
Agreement, any Senior Note Document or, to the best of such counsel's
knowledge, any other agreement or instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or (B) result in a breach or violation
of or default under any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any of
its subsidiaries; and no consent, approval, authorization or order of,
or qualification with, any Maryland or Delaware governmental body or
agency having jurisdiction over the Company or the Operating
Partnership is required under the laws of the State of Maryland or the
Delaware Revised Uniform Limited Partnership Act (the "Partnership
Act") for the offering, issuance or sale of the Securities as
contemplated by this Agreement, except such as may be required by
Maryland securities laws;
(vii) the statements (A) in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1999 (the "1999 10-K")
under the captions "Business and Properties--Environmental and
Regulatory Matters," "Business and Properties--The Leases," "Business
and Properties--The Management Agreements" and "Business and
Properties--Non-Competition Agreements," (B) in the 1999 10-K under the
caption "Legal Proceedings," as supplemented by the information in note
(14) to the financial statements included in the Company's Quarterly
Report on Form 10-Q for the quarter ended September 8, 2000 and (C) in
the Company's Proxy Statement dated April 17, 2000 under the caption
"Certain Relationships and Related Transactions," in each case insofar
as such
13
statements constitute summaries of legal matters, documents or
proceedings, are accurate in all material respects;
(viii) to the best of such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties
of the Company or any of its subsidiaries is subject that are required
to be described in the Registration Statement or the Prospectus and are
not so described or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(ix) the Company and its subsidiaries (A) are in compliance with
any and all applicable Environmental Laws, (B) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (C) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; and
(x) each document filed pursuant to the Exchange Act and
incorporated or deemed to be incorporated by reference in the
Registration Statement or the Prospectus pursuant to Item 12 of Form
S-3 under the Securities Act (except for financial statements and
schedules and other financial and statistical data, as to which such
counsel need not express any opinion) complied when so filed as to form
in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder. In passing upon
compliance as to form of such documents, such counsel may assume that
the statements made and incorporated by reference therein are correct
and complete.
(c) The Company shall have requested and caused Xxxxx & Xxxxxxx
L.L.P., counsel for the Company and the Operating Partnership, to have
furnished to the Underwriter their opinion, dated the Closing Date and
addressed to the Underwriter, to the effect as set forth in Schedule III.
(d) In addition to the opinions set forth above in Sections 6(b) and
6(c), respectively, Xxxxxxxxxxx X. Xxxxxxxx and Xxxxx & Xxxxxxx L.L.P.,
will each also state that such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and representatives of the
Underwriter, at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such counsel
may state that such counsel is not passing upon, and does not assume any
responsibility for the accuracy, completeness or fairness of, the
statements contained or incorporated by reference in the Registration
Statement and the Prospectus and such counsel has not made any independent
check or verification thereof (except as set forth in
14
Section 6(b)(vii) and (c) and (g) of Schedule III, respectively), during
the course of such participation, no facts came to such counsel's attention
that have caused such counsel to believe that the Registration Statement,
at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus, as of its date or as of the date of such opinion, contained
or contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that such counsel may state that they express no belief with
respect to the financial statements, schedules and other financial and
statistical data included or incorporated by reference in or omitted from
the Registration Statement or the Prospectus.
The opinions of Xxxxxxxxxxx X. Xxxxxxxx and Xxxxx & Xxxxxxx L.L.P.
described in Sections 6(b) and 6(c) above shall state, solely in the case
of those opinions of counsel which refer to subsidiaries of the Company,
that all references in such opinions to "subsidiaries" of the Company
include, without limitation, the Operating Partnership and the Non-
Controlled Subsidiaries. In addition, the opinion of Xxxxxxxxxxx X.
Xxxxxxxx shall state that it covers matters arising under the laws of the
State of Maryland, the general corporation law of the State of Delaware
(the "DGCL"), the Partnership Act, the Delaware Limited Liability Company
Act and the federal laws of the United States, and shall further state
that, to the extent that the opinion set forth in Section 6(b)(vi) relates
to any instrument or agreement which is governed by the laws of any
jurisdiction other than the State of Maryland, such counsel has assumed
that the laws of such other jurisdiction are in all relevant respects
identical to the laws of the State of Maryland; the opinion of Xxxxx &
Xxxxxxx L.L.P. shall state that it covers matters arising under the laws of
the State of New York, the State of Maryland, the Partnership Act and the
federal laws of the United States.
(e) The Selling Stockholders shall have requested and caused Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Selling Stockholders, to have furnished
to the Underwriter their opinion, dated the Closing Date and addressed to
the Underwriter, to the effect that:
(i) Each Selling Stockholder is the sole registered owner of the
Securities to be sold by such Selling Stockholder; each Selling Stockholder
has full partnership or corporate power, right and authority to sell such
Securities and upon payment for and delivery of the Securities in
accordance with this Agreement, the Underwriter will acquire a security
entitlement (within the meaning of the UCC) with respect to the Securities
and will also acquire their interest in the Securities free of any adverse
claim (within the meaning of the UCC), assuming that the Underwriter does
not have notice of any adverse claim (within the meaning of the UCC) to the
Securities and assuming further that the transfer agent for the Company's
Common Stock properly performs the instructions provided by the Selling
Stockholders and delivers the Securities by book-entry transfer to the
Underwriter.
15
(ii) This Agreement has been duly authorized, executed and delivered
by or on behalf of each Selling Stockholder.
(iii) The sale of the Securities by the Selling Stockholders and the
compliance by the Selling Stockholders with all of the provisions of this
Agreement will not breach or result in a default under any indenture or
other agreement or instrument identified on a schedule annexed to such
opinion furnished to such counsel by the Selling Stockholders and which
each Selling Stockholder has represented lists all material instruments to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or assets of such
Selling Stockholder is subject, nor will such action violate the
constituting documents of any Selling Stockholder or any Federal or New
York statute or the Delaware General Corporation Law or the Delaware
Revised Uniform Limited Partnership Act or any rule or regulation issued
pursuant to any Federal or New York statute or the Delaware General
Corporation Law or the Delaware Revised Uniform Limited Partnership Act or
any order known to such counsel issued pursuant to any Federal or New York
statute or the Delaware General Corporation Law or the Delaware Revised
Uniform Limited Partnership Act by any court or governmental agency or body
or court having jurisdiction over any Selling Stockholder or any of its
properties.
(iv) No consent, approval, authorization, order, registration or
qualification of or with any Federal or New York governmental agency or
body or any Delaware governmental agency or body acting pursuant to the
Delaware General Corporation Law or the Delaware Revised Uniform Limited
Partnership Act or, to our knowledge, any Federal or New York court or any
Delaware court acting pursuant to the Delaware General Corporation Law or
the Delaware Revised Uniform Limited Partnership Act is required for the
sale of the Securities by the Selling Stockholders and the compliance by
the Selling Stockholders with all of the provisions of this Agreement,
except for the registration under the Act of the Securities, and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriter.
(f) The Underwriter shall have received from Xxxxx & Wood LLP,
counsel for the Underwriter, such opinion or opinions, dated the Closing
Date and addressed to the Underwriter, with respect to the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Underwriter may reasonably require, and the Company
and each Selling Stockholder shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(g) The Company shall have furnished to the Underwriter and to the
Selling Stockholders a certificate of the Company, signed by an executive
officer and the principal financial or accounting officer of the Company,
in their capacity as executive officers of the Company and in their
capacity as executive officers of the general partner of the Operating
Partnership, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and that:
16
(i) the representations and warranties of the Company and the
Operating Partnership in this Agreement are true and correct on and as
of the Closing Date with the same effect as if made on the Closing Date
and the Company and the Operating Partnership have complied with all
the agreements and satisfied all the conditions on their part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any supplement thereto subsequent to the date hereof), no material
adverse change has occurred, nor has any development involving a
prospective material adverse change occurred, in the condition
(financial or otherwise), or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto subsequent to the date hereof).
(h) Each Selling Stockholder shall have furnished to the Underwriter
and the Company a certificate, signed by an executive officer or general
partner of such Selling Stockholder, dated the Closing Date, to the effect
that the representations and warranties of such Selling Stockholder in this
Agreement are true and correct on and as of the Closing Date to the same
effect as if made on the Closing Date.
(i) The Company shall have requested and caused Xxxxxx Xxxxxxxx LLP
to have furnished to the Underwriter, at the Closing Date a letter, dated
as of the Closing Date, in form and substance satisfactory to the
Underwriter, confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective applicable rules
and regulations adopted by the Commission thereunder and containing
statements and information of the type ordinarily included in an
accountant's "comfort letter" to underwriters with respect to the financial
statements of the Company, CCHP I Corporation, CCHP II Corporation, CCHP
III Corporation and CCHP IV Corporation and certain financial information
contained or incorporated by reference in the Registration Statement and
the Prospectus.
(j) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof subsequent to the date hereof) and the Prospectus
(exclusive of any supplement thereto subsequent to the date hereof), there
shall not have been any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto subsequent to the date hereof) the
effect of which, in any case referred to in clause (i) or
17
(ii) above, is, in the sole judgment of the Underwriter, so material and
adverse as to make it impractical to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof subsequent to the date hereof) and the Prospectus
(exclusive of any supplement thereto subsequent to the date hereof).
(k) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may reasonably
request.
(l) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(m) The Securities shall have been listed and admitted and authorized
for trading on the NYSE, and satisfactory evidence of such actions shall
have been provided to the Underwriter.
(n) At the Execution Time, the Selling Stockholders shall have
furnished to the Underwriter a letter substantially in the form of Exhibit
A hereto from Xxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxxxx, Xxxxx X. Xxxxxxx,
Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxx, Xxxx X. Xxxxxx,
Xxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx, RTZ Management Corp., CRE/RE L.L.C. and
BRE/Ceriale L.L.C. addressed to the Underwriter.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter and counsel for the Underwriter, this Agreement
and all obligations of the Underwriter hereunder may be canceled at, or at any
time prior to, the Closing Date by the Underwriter. Notice of such cancellation
shall be given to the Company and each Selling Stockholder in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Xxxxx & Xxxx LLP, counsel for the Underwriter, at
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000-0000, on the Closing
Date or such other location or date as the Company, the Selling Stockholders and
the Underwriter may agree.
7. Reimbursement of Underwriter's Expenses. If the sale of the Securities
---------------------------------------
provided for herein is not consummated because any condition to the obligations
of the Underwriter set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company or any Selling Stockholder to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by the Underwriter, the Company or the Selling Stockholders,
as the case may
18
be, will reimburse the Underwriter on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities. If the Company is required to make any payments to the Underwriter
under this Section 7 because of any Selling Stockholder's refusal, inability or
failure to satisfy any condition to the obligations of the Underwriter set forth
in Section 6, the Selling Stockholders pro rata in proportion to the percentage
of Securities to be sold by each shall reimburse the Company on demand for all
amounts so paid.
8. Indemnification and Contribution.
--------------------------------
(a) The Company and the Operating Partnership jointly and severally agree
to indemnify and hold harmless the Underwriter, the directors, officers,
employees and agents of the Underwriter and each person who controls the
Underwriter within the meaning of either the Act or the Exchange Act and each of
the Selling Stockholders, the directors, officers, employees and agents of each
Selling Stockholder and each person who controls each Selling Stockholder within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company and the Operating Partnership will not be liable to the Underwriter or
the Selling Stockholders, the directors, officers, employees and agents of the
Underwriter or the Selling Stockholders and each person who controls the
Underwriter or the Selling Stockholders within the meaning of either the Act or
the Exchange Act in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriter specifically for inclusion therein;
provided, further, however, that the Company and the Operating Partnership will
not be liable to the Selling Stockholders, the directors, officers, employees
and agents of the Selling Stockholders and each person who controls the Selling
Stockholders within the meaning of either the Act or the Exchange Act in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the Selling
Stockholders specifically for inclusion therein. This indemnity agreement will
be in addition to any liability which the Company or the Operating Partnership
may otherwise have.
(b) Each Selling Stockholder severally agrees to indemnify and hold
harmless the Company, the Operating Partnership, each of their directors, each
of their officers who signs the
19
Registration Statement, the Underwriter, the directors, officers, employees and
agents of the Underwriter and each person who controls the Company or the
Underwriter within the meaning of either the Act or the Exchange Act and each
other Selling Stockholder, if any, to the same extent as the foregoing indemnity
from the Company to the Underwriter, but only with respect to written
information furnished to the Company by or on behalf of such Selling Stockholder
specifically for inclusion in the documents referred to in paragraph (a) of this
section. This indemnity agreement will be in addition to any liability which any
Selling Stockholder may otherwise have. The Company, the Operating Partnership
and the Underwriter acknowledge that the information concerning each of the
Selling Stockholders included in the table under the heading "Selling
Shareholders" constitutes the only information furnished in writing by or on
behalf of each such Selling Stockholder for inclusion in the Prospectus.
(c) The Underwriter agrees to indemnify and hold harmless the Company, each
of its directors, each of its officers who signs the Registration Statement, the
Operating Partnership and each person who controls the Company or the Operating
Partnership within the meaning of either the Act or the Exchange Act and each
Selling Stockholder, the directors, officers, employees and agents of each
Selling Stockholder and each person who controls each Selling Stockholder within
the meaning of either the Act or the Exchange Act to the same extent as the
foregoing indemnity to the Underwriter, but only with reference to written
information relating to the Underwriter furnished to the Company by the
Underwriter specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which the Underwriter may otherwise have. The Company, the Operating
Partnership and each Selling Stockholder acknowledge that the statements set
forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting" or "Plan of Distribution," (i)
the sentences related to concessions and reallowances and (ii) the paragraphs
related to stabilization, syndicate covering transactions and penalty bids in
any Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriter for inclusion in any
Preliminary Prospectus or the Prospectus.
(d) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a), (b) or (c) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a), (b) or (c) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
-------- -------
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ one separate counsel (and local counsel, if necessary), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if
20
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a), (b) or (c)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Operating Partnership,
jointly and severally, the Selling Stockholders and the Underwriter agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company, the Operating
Partnership, one or more of the Selling Stockholders and the Underwriter may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company, and the Operating Partnership, by the Selling
Stockholders and the Underwriter from the offering of the Securities; provided,
however, that in no case shall the Underwriter be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by the Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Operating Partnership, jointly and severally, the Selling Stockholders and
the Underwriter shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company, and
the Operating Partnership, of the Selling Stockholders and of the Underwriter in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company and the Operating Partnership and by the Selling Stockholders, on the
one hand, shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses), and benefits received by the Underwriter,
on the other hand, shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of the
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company or the Operating Partnership, or the Selling
Stockholders on the one hand or the Underwriter on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company, the Operating
Partnership, the Selling Stockholders and the Underwriter agree that it would
not be just and equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (e), no person guilty of
21
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls the Underwriter within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of the Underwriter shall have
the same rights to contribution as the Underwriter, and each person who controls
the Company or the Operating Partnership within the meaning of either the Act or
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company and each partner of the
Operating Partnership shall have the same rights to contribution as the Company
and the Operating Partnership, subject in each case to the applicable terms and
conditions of this paragraph (e).
9. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Underwriter, by notice given to the Company prior to
delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the NYSE or trading in securities generally on the NYSE shall have
been suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Underwriter,
impractical to proceed with the offering or delivery of the Securities as
contemplated by the Prospectus (exclusive of any supplement thereto subsequent
to the date hereof).
10. Representations and Indemnities to Survive. The respective agreements,
------------------------------------------
representations, warranties, indemnities and other statements of the Company,
the Operating Partnership or any of their officers, of each Selling Stockholder
and of the Underwriter set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of the Underwriter, any Selling Stockholder, the Company or the Operating
Partnership or any of the officers, directors, partners, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
-------
only on receipt, and, if sent to the Underwriter, will be mailed, delivered or
telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax no.:
(000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney Inc.,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel;
or, if sent to the Company, will be mailed, delivered or telefaxed to Host
Marriott Corporation (fax no.: (000) 000 0000) and confirmed to it at
00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000-0000, attention of the Legal
Department; or if sent to any Selling Stockholder, will be mailed, delivered
or telefaxed and confirmed to it at the address set forth in Schedule II hereto
with a copy mailed, delivered or telefaxed and confirmed to Messrs. Xxxx
Xxxxxxx and Xxxx Xxxxx at Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, facsimile number (000) 000-0000, confirmation
(000) 000-0000.
22
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the
officers, directors, partners, employees, agents and controlling persons
referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
14. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. Headings. The section headings used herein are for convenience only
--------
and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this Agreement,
-----------
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Credit Agreement" shall mean the Amended and Restated Credit
Agreement dated as of August 5, 1998 among the Company, as successor by
merger to Host Marriott Corporation, a Delaware corporation, the Operating
Partnership, the lenders party thereto, Xxxxx Fargo Bank, National
Association, The Bank of Nova Scotia and Credit Lyonnais New York Branch,
as co-arrangers, and Bankers Trust Company, as arranger and administrative
agent, as amended, together with all promissory notes, guarantees, guaranty
agreements and pledge or other security agreements entered into by the
Company, the Operating Partnership or any of their respective subsidiaries
in connection with any of the foregoing, in each case as the same may have
been or may be amended or supplemented from time to time.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
23
"Harbor Beach Resort Lease" shall mean the lease of the Marriott
Harbor Beach Resort from Lauderdale Beach Association to Marriott Hotel
Services, Inc.
"HMT Lessee" shall mean HMT Lessee LLC, a Delaware Limited Liability
Company.
"Non-Controlled Subsidiaries" shall mean Rockledge Hotel Properties,
Inc. and Fernwood Hotel Assets, Inc.
"NYSE" shall mean the New York Stock Exchange.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a)(i) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the base prospectus, dated July 2, 1999, and
the prospectus supplement dated February 1, 2001 relating to the Securities
that is filed pursuant to Rule 424(b).
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424," "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Senior Note Documents" shall mean, collectively, the 7 7/8% Series A
Senior Notes due 2005, the 7 7/8% Series B Senior Notes due 2008, the 8.45%
Series C Senior Notes due 2008 and the 8 3/8% Series E Senior Notes due
2006 of the Operating Partnership, the Amended and Restated Indenture dated
as of August 5, 1998 among the Operating Partnership, as successor by
merger to HMH Properties, Inc., a Delaware corporation, the guarantors and
subsidiary guarantors named therein, and Marine Midland Bank, as trustee,
pursuant to which the foregoing notes were issued, and all guarantees,
guaranty agreements and pledge or other security agreements entered into by
the Company, the Operating Partnership or any of their respective
subsidiaries in connection
24
with any of the foregoing, in each case as the same may have been or may be
amended or supplemented from time to time.
"UCC" shall mean the New York Uniform Commercial Code.
[SIGNATURE PAGE FOLLOWS]
25
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholders and the Underwriter.
Very truly yours,
HOST MARRIOTT CORPORATION
By: /S/ W. Xxxxxx Xxxxxx
--------------------
Name: W. Xxxxxx Xxxxxx
Title: Exec. Vice President
HOST MARRIOTT, L.P.
By: Host Marriott Corporation,
its General Partner
By: /S/ W. Xxxxxx Xxxxxx
--------------------
Name: W. Xxxxxx Xxxxxx
Title: Exec. Vice President
BLACKSTONE REAL ESTATE PARTNERS I L.P., a
Delaware limited partnership
By: Blackstone Real Estate Associates
L.P., a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general
partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE REAL ESTATE PARTNERS TWO L.P., a
Delaware limited partnership
By: Blackstone Real Estate Associates
L.P., a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general
partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE REAL ESTATE PARTNERS THREE L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates
L.P., a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general
partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE REAL ESTATE PARTNERS IV L.P., a
Delaware limited partnership
By: Blackstone Real Estate Associates
L.P., a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general
partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE RE CAPITAL PARTNERS L.P., a
Delaware limited partnership
By: Blackstone Real Estate Associates
L.P., a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general
partner
By: /S/Xxxxxxxx X. Xxxx
-------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE RE CAPITAL PARTNERS II L.P., a
Delaware limited partnership
By: Blackstone Real Estate Associates
L.P., a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general
partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE RE OFFSHORE CAPITAL PARTNERS
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates
L.P., a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general
partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE REAL ESTATE HOLDINGS L.P., a
Delaware limited partnership
By: BREA L.L.C., a Delaware limited
liability company, its general
partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE REAL ESTATE PARTNERS II L.P., a
Delaware limited partnership, its general
partner
By: Blackstone Real Estate Associates II
L.P., a Delaware limited partnership,
its general partner
By: Blackstone Real Estate
Management Associates II L.P.,
its general partner
By: BREA II L.L.C., a Delaware
limited liability company,
its general partner
By: /S/ Xxxxxxxx X. Xxxx
--- ----------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE REAL ESTATE HOLDINGS II L.P., a
Delaware limited partnership
By: Blackstone Real Estate Associates II
L.P., a Delaware limited partnership,
its general partner
By: BREA II L.L.C., a Delaware
limited liability company, its
general partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE REAL ESTATE PARTNERS II.TE.1
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates II
L.P., a Delaware limited partnership,
its general partner
By: Blackstone Real Estate
Management Associates II L.P., a
Delaware limited partnership,
its general partner
By: BREA II L.L.C., a Delaware limited
liability company, its general
partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE REAL ESTATE PARTNERS II.TE.2
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates II
L.P., a Delaware limited partnership,
its general partner
By: Blackstone Real Estate
Management Associates II L.P., a
Delaware limited partnership,
its general partner
By: BREA II L.L.C., a Delaware
limited liability company,
its general partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE REAL ESTATE PARTNERS II.TE.3
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates II
L.P., a Delaware limited partnership,
its general partner
By: Blackstone Real Estate
Management Associates II L.P., a
Delaware limited partnership,
its general partner
By: BREA II L.L.C., a Delaware
limited liability company,
its general partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE REAL ESTATE PARTNERS II.TE.4
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates II
L.P., a Delaware limited partnership,
its general partner
By: Blackstone Real Estate
Management Associates II L.P., a
Delaware limited partnership,
its general partner
By: BREA II L.L.C., a Delaware
limited liability company, its
general partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
BLACKSTONE REAL ESTATE PARTNERS II.TE.5
L.P., a Delaware limited partnership
By: Blackstone Real Estate Associates II
L.P., a Delaware limited partnership,
its general partner
By: Blackstone Real Estate
Management Associates II L.P., a
Delaware limited partnership,
its general partner
By: BREA II L.L.C., a Delaware
limited liability company, its
general partner
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
XXX XXXXX HOTEL, INC., a Delaware
corporation
By: /S/ Xxxxxxxx X. Xxxx
--------------------
Name: Xxxxxxxx X. Xxxx
Title: Managing Director
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
By: Xxxxxxx Xxxxx Barney Inc.
By: /S/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
SCHEDULE I
----------
Underwriter Number of Securities to be Purchased
----------- ------------------------------------
Xxxxxxx Xxxxx Xxxxxx Inc. 12,500,000
SCHEDULE II
-----------
Number of
Securities to be
Selling Stockholders: Sold Tax ID
--------------------- ---------------- ------
Blackstone Real Estate Partners I L.P. 1,342,827 00-0000000
Blackstone Real Estate Partners Two L.P. 88,049 00-0000000
Blackstone Real Estate Partners Three L.P. 854,189 00-0000000
Blackstone Real Estate Partners IV L.P. 26,856 00-0000000
Blackstone RE Capital Partners L.P. 140,033 00-0000000
Blackstone RE Capital Partners II L.P. 15,369 00-0000000
Blackstone RE Offshore Capital Partners L.P. 27,032 00-0000000
Blackstone Real Estate Holdings L.P. 592,741 00-0000000
Blackstone Real Estate Partners II L.P. 3,703,717 00-0000000
Blackstone Real Estate Holdings II L.P. 949,571 00-0000000
Blackstone Real Estate Partners II.TE.1 L.P. 3,444,625 00-0000000
Blackstone Real Estate Partners II.TE.2 L.P. 150,079 00-0000000
Blackstone Real Estate Partners II.TE.3 L.P. 708,142 00-0000000
Blackstone Real Estate Partners II.TE.4 L.P. 144,044 00-0000000
Blackstone Real Estate Partners II.TE.5 L.P. 302,973 00-0000000
XXX Xxxxx Hotel, Inc. 9,753 00-0000000
Total 12,500,000
==========
The address of each of the above Selling Stockholders is:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxx
SCHEDULE III
------------
Form of Xxxxx & Xxxxxxx Opinion
February 7, 2001
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This firm has acted as counsel to Host Marriott Corporation, a
Maryland corporation (the "Company"), and Host Marriott, L.P., a Delaware
limited partnership (the "Partnership"), in connection with the sale of
12,500,000 shares of the Company's common stock, par value $.01 per share (the
"Shares"), by the Selling Stockholders identified on Schedule II to the
Underwriting Agreement (the "Selling Stockholders") dated February 1, 2001
among the Company, the Partnership, the Selling Stockholders and you (the
"Agreement"), pursuant to the terms of the Agreement. This opinion letter is
furnished to you pursuant to the requirements set forth in Section 6(c) of the
Agreement in connection with the Closing thereunder on the date hereof.
Capitalized terms used herein which are defined in the Agreement shall have the
meanings set forth in the Agreement, unless otherwise defined herein.
For purposes of the opinions expressed in this letter, which are set
forth in paragraphs (a) through (i) below (the "Opinions"), we have examined
copies of the following documents (the "Documents"):
1. Executed copy of the Agreement.
2. The Registration Statement on Form S-3 (No. 333-78091), as
amended by Amendment No. 1 thereto (the "Registration Statement").
3. The base Prospectus dated July 2, 1999 and the Prospectus
Supplement dated February 1, 2001 relating to the Shares
(collectively, the "Prospectus"), as filed pursuant to Rule 424(b)
Xxxxxxx Xxxxx Xxxxxx Inc.
February 7, 2001
Page 2
under the Securities Act of 1933, as amended (the "Securities
Act").
4. Memorandum to the file regarding telephonic confirmation from the
staff of the Securities and Exchange Commission (the "Commission")
of the effectiveness of the Registration Statement.
5. The Registration Statement on Form 8-A filed with the Commission
on November 18, 1998, as amended on December 28, 1998
(the "Form 8-A").
6. The Registration Statement on Form S-4 (No. 333-55807), as amended
by Amendment Nos. 1, 2, 3 and 4 thereto (the "Form S-4").
7. The Company's Annual Report on Form 10-K for the year ended
December 31, 1999 (the "Form 10-K").
8. The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2000, June 30, 2000 and September 30, 2000.
9. The Company's Current Reports on Form 8-K filed February 25, 2000
November 28, 2000, as amended on December 14, 2000, and February
7, 2001.
10. The Articles of Amendment and Restatement of Articles of
Incorporation of the Company (the "Charter"), as certified by the
Maryland State Department of Assessments and Taxation ("SDAT") on
February 2, 2001 and the Secretary of the Company on the date
hereof as being complete, accurate and in effect.
11. The Certificate of Limited Partnership of the Partnership, as
amended (the "Partnership Certificate"), as certified by the
Secretary of State of the State of Delaware on February 1, 2001
and the Secretary of the Company, as general partner of the
Partnership, on the date hereof, as being complete, accurate and
in effect.
12. The Bylaws of the Company, as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in
effect.
Xxxxxxx Xxxxx Barney Inc.
February 7, 2001
Page 3
13. The Second Amended and Restated Agreement of Limited Partnership
of the Partnership dated as of December 30, 1998, as amended (the
"Partnership Agreement"), as certified by the Secretary of the
Company, as general partner of the Partnership, on the date
hereof, as being complete, accurate and in effect.
14. Contribution Agreement by and among the Company, the Partnership
and certain contributors listed on Schedule 1 thereto, dated as of
April 16, 1998, as amended by the First Amendment to the
Contribution Agreement, dated as of May 8, 1998, the Second
Amendment to the Contribution Agreement dated as of May 18, 1998,
and the Third Amendment to the Contribution Agreement, dated as of
June 30, 1999 (collectively, the "Contribution Agreement").
15. A certificate of good standing of the Company issued by the SDAT
dated February 2, 2001.
16. A certificate of good standing of the Partnership issued by the
Secretary of State of the State of Delaware dated February 1,
2001.
17. Certain resolutions of the Board of Directors of the predecessor
to the Company adopted on April 16, 1998, as certified by the
Secretary of the Company on the date hereof as being complete,
accurate and in effect, relating to the Contribution Agreement and
the transactions in connection therewith.
18. Certain resolutions of the Board of Directors of the Company
adopted on November 23, 1998, as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in
effect relating to the approval of, among other things, the
issuance of the Units to the Selling Stockholders.
19. Certain resolutions of the Board of Directors of the predecessor
to the Company adopted on December 29, 1998, as certified by the
Secretary of the Company on the date hereof as being complete,
accurate and in effect relating to the ratification and approval
of the Contribution Agreement, the filing of the Registration
Statement and the approval of all such other actions as may be
necessary in connection therewith.
Xxxxxxx Xxxxx Xxxxxx Inc.
February 7, 2001
Page 4
20. Certain resolutions of the Board of Directors of the Company
adopted on February 25, 2000, as certified by the Secretary of the
Company on the date hereof as being complete, accurate and in
effect relating to the authorization of the issuance of the
Shares.
21. A copy of the specimen certificate for the Shares to be issued
pursuant to the Agreement.
22. A certificate of certain officers of the Company, dated February
7, 2001, as to certain facts relating to the Company and the
Partnership.
23. A certificate of the Secretary of the Company, dated February 7,
2001, as to the incumbency and signatures of certain officers of
the Company.
In our examination of the Agreement and the other Documents, we have
assumed the genuineness of all signatures, the legal capacity of all natural
persons, the accuracy and completeness of the all of the Documents, the
authenticity of all originals of the Documents and the conformity to authentic
originals of all of the Documents submitted to us as copies (including
telecopies). We have also assumed that the Company has met and meets all of the
requirements for use of a registration statement on Form S-3 of the Commission
in offerings of its securities pursuant to the Agreement. As to matters of
fact relevant to the Opinions expressed herein, we have relied on the
representations and statements of fact made in the Documents. We have not
independently established the facts so relied on. The Opinions are given in the
context of the foregoing.
As used in this opinion letter, the phrase "to our knowledge" means,
and statements concerning matters which have come to our attention reflect the
actual knowledge (that is, the conscious awareness of facts or other
information) of lawyers currently in the firm who have given substantive legal
attention to representation of the Company in connection with the Agreement.
For purposes of the opinions set forth in paragraph (e) below, we have
assumed that all agreements and contracts would be enforced as written.
Nothing herein shall be construed to cause us to be considered
"experts" within the meaning of Section 11 of the Securities Act.
The Opinions are based as to matters of law solely on applicable
provisions of the following, as currently in effect: (i) the Securities Act and
the regulations promulgated thereunder, (ii) the Securities Exchange Act of
1934, as
Xxxxxxx Xxxxx Barney Inc.
February 7, 2001
Page 5
amended, and the regulations promulgated thereunder, (iii) the Investment
Company Act of 1940, as amended (the "Investment Company Act"), (iv) the
Maryland General Corporation Law, as amended (the "Maryland Corporation Law"),
(v) the Delaware Revised Uniform Limited Partnership Act, as amended, (the
"Partnership Act"), and (vi) as to the Opinions given in paragraphs (e) and (f),
except to the extent excluded below, federal statutes and regulations and
Maryland law (but not including any statutes, ordinances, administrative
decisions, rules or regulations of any subdivision of the State of Maryland),
except that we express no opinion as to any state securities or "blue sky" laws
or regulations or federal or state antitrust, unfair competition, banking, or
tax laws or regulations and we express no opinion as to any other laws,
statutes, rules or regulations not specifically identified above; it being
understood that, with respect to clause (vi) above, the opinions expressed
herein are based upon a review of those laws, statutes and regulations that, in
our experience, are generally recognized as applicable to the transactions
contemplated in the Agreement.
Based upon, subject to and limited by the foregoing, we are of the
opinion that:
(a) The Company has been duly incorporated and is validly existing as
a corporation and in good standing as of the date of the certificate specified
in paragraph 15 above, under the laws of the State of Maryland. The Company has
the corporate power and corporate authority to own, lease and operate its
current properties, to conduct its business as described in the Prospectus and
to enter into and perform its obligations under the Agreement.
(b) The Partnership is validly existing as a limited partnership and
in good standing as of the date of the certificate specified in paragraph 16
above under the laws of the State of Delaware. The Partnership has the
partnership power and partnership authority to own, lease and operate its
current properties and conduct its business as described in the Prospectus.
(c) The Company's Common Stock conforms in all material respects to
the description thereof set forth under the caption "Description of Host REIT
Capital Stock" contained in the Form S-4, as incorporated by reference into Item
1 of the Form 8-A.
(d) The Shares have been duly authorized by the Company. When issued
in accordance with the provisions of the Partnership Agreement and the
Contribution Agreement, the Shares will be validly issued, fully paid and
non-assessable. The form of certificate evidencing the Shares complies in all
material respects with the applicable requirements of the Maryland Corporation
Law and the Charter and Bylaws. The issuance of the Shares is not subject to any
statutory preemptive rights under the Maryland Corporation Law or under the
Charter or
Xxxxxxx Xxxxx Xxxxxx Inc.
February 7, 2001
Page 6
Bylaws in favor of any holder of outstanding shares of the Company's Common
Stock.
(e) The execution, delivery and performance on the date hereof by the
Company and the Partnership of the Agreement do not (i) violate, with respect to
the Company, the Charter or Bylaws, or, to our knowledge, any applicable
provision of any Maryland statute or regulation covered by this opinion letter
or any Maryland administrative or court decree that names the Company and is
specifically directed to it or any of its property, (ii) violate, with respect
to the Partnership, the Partnership Certificate or the Partnership Agreement,
(iii) to our knowledge, violate any applicable provision of any federal statute
or regulation covered by this opinion letter (other than with respect to federal
securities statutes and regulations, certain matters with respect to which are
addressed elsewhere herein).
(f) No approval or consent of, or registration or filing with, any
federal government agency or any Maryland or Delaware state government agency is
required to be obtained or made by the Company in connection with the execution,
delivery and performance on the date hereof by the Company and the Partnership
of the Agreement, except such as may be required under federal securities laws
(certain matters with respect to which are addressed elsewhere herein) and state
securities or "blue sky" laws (as to which we express no opinion).
(g) The information in the Prospectus under the caption "Risk
Factors--Risks of Ownership of our Common Stock," to the extent that such
information constitutes matters of law or legal conclusions, has been reviewed
by us and is correct in all material respects.
(h) The Registration Statement and the Prospectus (except for the
documents incorporated or deemed to be incorporated by reference therein,
including financial statements and supporting schedules and other financial and
statistical data included or incorporated by reference therein, as to which we
express no opinion) as of their respective effective or issue dates comply as to
form in all material respects with the requirements of the Securities Act and
the applicable rules and regulations thereunder.
(i) Neither the Company nor the Partnership is an "investment company"
as such term is defined in the Investment Company Act.
* * * * *
Xxxxxxx Xxxxx Barney Inc.
February 7, 2001
Page 7
During the course of the preparation of the Registration Statement and
the Prospectus, we participated in conferences with officers and other
representatives of the Company, with representatives of the independent public
accountants of the Company and with you and your representatives. The Company
has prepared and filed the documents incorporated by reference into the
Registration Statement and the Prospectus without our involvement. While we
have not undertaken to determine independently, and we do not assume any
responsibility for, the accuracy, completeness, or fairness of the statements in
the Registration Statement or Prospectus, we may state on the basis of these
conferences and our activities as counsel to the Company in connection with the
Registration Statement that no facts have come to our attention which cause us
to believe that the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as of its date or as of the date hereof,
contains an untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that in
-------- ----
making the foregoing statements (which shall not constitute an opinion), we are
not expressing any views as to the financial statements and supporting schedules
and other financial and statistical information and data included or
incorporated by reference in or omitted from the Registration Statement or the
Prospectus.
* * * * *
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the Closing under the Agreement
on the date hereof, and should not be quoted in whole or in part or otherwise be
referred to, nor be filed with or furnished to any governmental agency or other
person or entity, without the prior written consent of this firm.
Very truly yours,
XXXXX & XXXXXXX L.L.P
EXHIBIT A
[Letterhead of signer]
Host Marriott Corporation
Public Offering of Common Stock
February 1, 2001
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Host Marriott
Corporation, a Maryland corporation (the "Company"), Host Marriott, L.P., the
Selling Stockholders named therein and you, relating to an underwritten public
offering of Common Stock, $.01 par value (the "Common Stock"), of the Company.
In order to induce you to enter into the Underwriting Agreement, the
undersigned will not, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx
Inc., offer, sell, contract to sell, pledge or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the undersigned or any
affiliate of the undersigned or any person in privity with the undersigned or
any affiliate of the undersigned), directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the Securities
and Exchange Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of capital stock of the Company or any securities
convertible into, or exercisable or exchangeable for such capital stock, or
publicly announce an intention to effect any such transaction, for a period of
30 days after the date of the Underwriting Agreement, other than shares of
Common Stock disposed of as bona fide gifts approved by Xxxxxxx Xxxxx Barney
Inc.
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
[Signature]
[Name and address of signer]
