EXHIBIT 1.(i)
25,000,000 Shares
Host Marriott Corporation
Common Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
----------------------
1996
--------- --,
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
SALOMON BROTHERS INC
XXXXX XXXXXX INC.
XXXXXXXXXX SECURITIES
BT SECURITIES CORPORATION
XXXXXXXX WERTHEIM & CO. INCORPORATED
As representatives of the several
U.S. Underwriters named in
Schedule I hereto
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX SACHS INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
XXXXX XXXXXX INC.
XXXXXXXXXX SECURITIES
BANKERS TRUST INTERNATIONAL PLC
J. XXXXX XXXXXXXX & CO. LIMITED
As representatives of the several
international managers named in
Schedule II hereto
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Jupiter House
Trinton Court
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Ladies and Gentlemen:
Host Marriott Corporation, a Delaware corporation (the "Company"),
confirms its agreement with the several Underwriters (as defined below) as
follows:
1. The Shares. Subject to the terms and conditions herein set forth,
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the Company proposes to sell to the Underwriters an aggregate of 25,000,000
shares (the "Firm Shares") of common stock, $1.00 par value per share, of the
Company (the "Common Stock").
It is understood that, subject to the conditions hereinafter stated,
20,000,000 Firm Shares (the "U.S. Firm Shares") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. Underwriters") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. Underwriters and International Managers of even date
herewith), and 5,000,000 Firm Shares (the "International Shares") will be sold
to the several International Managers named in Schedule II hereto (the
"International Managers") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("DLJ"), Xxxxxxx, Sachs & Co., Salomon Brothers Inc, Xxxxx Xxxxxx
Inc., Xxxxxxxxxx Securities, BT Securities Corporation and Xxxxxxxx Wertheim &
Co. Incorporated shall act as representatives (the "U.S. Representatives") of
the several U.S. Underwriters, and DLJ, Xxxxxxx Xxxxx International, Salomon
Brothers International Limited, Xxxxx Xxxxxx Inc., Xxxxxxxxxx Securities,
Bankers Trust International PLC and J. Xxxxx Xxxxxxxx & Co. Limited shall act as
representatives (the "International Representatives" and, together with the U.S.
Representatives, the "Representatives") of the several International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively referred to as the "Underwriters."
The Company also proposes to sell to the several U.S. Underwriters an
aggregate of not more than 3,750,000 additional shares of Common Stock (the
"Additional Shares"), if requested by the U.S. Underwriters as provided in
Section 3 hereof. The Firm Shares and the Additional Shares are herein
collectively called the "Shares."
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2. Registration Statement and Prospectus. The Company has prepared
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and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (No. 333-00147), including a
preliminary prospectus, subject to completion, relating to the Shares. The
registration statement contains two prospectuses to be used in connection with
the offering and sale of the Shares: the U.S. prospectus, to be used in
connection with the offering and sale of Shares in the United States and Canada
to United States and Canadian Persons, and the international prospectus, to be
used in connection with the offering and sale of Shares outside the United
States and Canada to persons other than United States and Canadian Persons. The
international prospectus is identical to the U.S. prospectus except for the
outside front and back cover pages. The registration statement, as amended at
the time it becomes effective or, if a post-effective amendment is filed with
respect thereto, as amended by such post-effective amendment at the time of its
effectiveness, including in each case financial statements and exhibits, and the
information (if any) contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Act and deemed to be a part of the
registration statement at the time of its effectiveness pursuant to Rule 430A or
Rule 434 under the Act, and any additional registration statement relating to
the issuance of additional shares of Common Stock filed pursuant to Rule 462(b)
under the Act, is hereinafter referred to as the "Registration Statement;" and
the U.S. prospectus (including any prospectus subject to completion which meets
the requirements of Rule 434(a) under the Act provided by the Company with any
term sheet meeting the requirements of Rule 434(b), taken together with any
prospectus as provided above, which meet the requirements of Section 10(a)(3)
under the Act), and the international prospectus in the respective forms used to
confirm sales of the Shares, whether or not filed with the Commission pursuant
to Rule 424(b) under the Act, are hereinafter referred to as the "Prospectus."
3. Agreements to Sell and Purchase. On the basis of the
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representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell to each of the U.S.
Underwriters, and each of the U.S. Underwriters agrees, severally and not
jointly, to purchase from the Company, at a price per share of $_____ (the
"Purchase Price") the aggregate number of Firm Shares set forth opposite the
name of such U.S. Underwriter in Schedule I hereto.
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On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company hereby agrees to
issue and sell the International Shares to the International Managers, and each
of the International Managers agrees, severally and not jointly, to purchase
from the Company at the Purchase Price the aggregate number of Firm Shares set
forth opposite the name of such International Manager in Schedule II hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, the Company agrees to
issue and sell to the U.S. Underwriters up to 3,750,000 Additional Shares, and
the U.S. Underwriters shall have a right to purchase, severally and not jointly,
from time to time, up to an aggregate of 3,750,000 Additional Shares at the
Purchase Price. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each U.S. Underwriter, severally and not jointly, agrees to purchase
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as the U.S. Representatives may determine) which bears the
same proportion to the total number of Additional Shares to be purchased as the
number of U.S. Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto bears to the total number of U.S. Firm Shares.
The Company hereby agrees, and the Company shall, concurrently with
the execution of this Agreement, deliver an agreement executed by Xxxxxxx X.
Marriott and by X.X. Marriott, Jr. pursuant to which each such person will
agree, not to, without the prior written consent of DLJ, directly or indirectly,
offer, sell, contract to sell, grant any option to purchase or otherwise dispose
of any shares of Common Stock, or any securities convertible into or exercisable
or exchangeable for, or warrants, options or rights to purchase or acquire,
Common Stock owned by such person or with respect to which such person has the
power of disposition or enter into any agreement to do any of the foregoing for
a period of 90 days after the date of the Prospectus (provided that, such person
shall be permitted to deliver shares of Common Stock to the Company for the sole
purpose of exercising stock options pursuant to the Company's existing stock
option plans).
The Company is advised by you that the Underwriters propose (i) to
make a public offering of their respective portions of the Shares as soon after
the effective date of the Registration Statement as in your judgment is
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advisable and (ii) initially to offer the Shares upon the terms set forth in the
Prospectus.
Each U.S. Underwriter hereby makes to the Company the representations
and agreements of such U.S. Underwriter contained in the fifth paragraph of
Section 3 of the Agreement Between U.S. Underwriters and International Managers
of even date herewith. Each International Manager hereby makes to the Company
the representations and agreements of such International Underwriter contained
in the seventh, eighth, ninth and tenth paragraphs of Section 3 of such
Agreement.
4. Delivery and Payment. Delivery to you of and payment for the Firm
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Shares shall be made at 9:00 A.M., New York City time, on the third or fourth
business day, unless otherwise permitted by the Commission pursuant to Rule
15c6-1 under the Securities Exchange Act of 1934, as amended including the rules
and regulations thereunder (the "Exchange Act"), (such time and date being
referred to as the "Closing Date") following the date of the initial public
offering of the Firm Shares as advised by DLJ to the Company, at such place as
you shall reasonably designate. The Closing Date and the location of delivery
of the Firm Shares may be varied by agreement between DLJ and the Company.
Delivery to the U.S. Underwriters of and payment for any Additional
Shares to be purchased by the U.S. Underwriters shall be made at such place as
DLJ shall designate, at 9:00 A.M., New York City time, on such date or dates
(individually, an "Option Closing Date"), which may be the same as the Closing
Date but shall in no event be earlier than the Closing Date and shall in no
event be later than ten business days after the giving of the notice hereinafter
referred to, as shall be specified in a written notice from DLJ to the Company
of the U.S. Underwriters' determination to purchase a number, specified in said
notice, of Additional Shares. Any such notice may be given at any time not
later than 30 days after the date of this Agreement (provided that if such
notice is not delivered within such 30-day period the option to purchase
Additional Shares shall terminate). Any Option Closing Date and the location of
delivery of and payment for the Additional Shares may be varied by agreement
among DLJ and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or the applicable Option Closing
Date, as the case may be, and shall be made available to you at the offices of
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DLJ (or such other place as shall be acceptable to you) for inspection not later
than 9:30 A.M., New York City time, on the business day next preceding the
Closing Date or the applicable Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date or the applicable Option Closing Date, as the case may be,
with any transfer taxes payable upon initial issuance thereof duly paid by the
Company, for the respective accounts of the Underwriters against payment of the
Purchase Price by check or checks payable in New York Clearing House or similar
next day funds, to the order of the Company.
5. Agreements of the Company. The Company agrees with each
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Underwriter that:
(a) It will, if the Registration Statement has not heretofore become
effective under the Act, file an amendment to the Registration Statement
or, if necessary pursuant to Rule 430A under the Act, a post-effective
amendment to the Registration Statement, in each case as soon as
practicable after the execution and delivery of this Agreement, and will
use its reasonable best efforts to cause the Registration Statement or such
post-effective amendment to become effective at the earliest possible time.
The Company will comply fully and in a timely manner with the applicable
provisions of Rule 424 and Rule 430A, and if applicable, Rule 462, under
the Act.
(b) It will advise you promptly and, if requested by any of you,
confirm such advice in writing, (i) when the Registration Statement has
become effective, if and when the Prospectus is sent for filing pursuant to
Rule 424 under the Act and when any post-effective amendment to the
Registration Statement becomes effective, (ii) of the receipt of any
comments from the Commission or any state securities commission or
regulatory authority that relate to the Registration Statement or requests
by the Commission or any state securities commission or regulatory
authority for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purpose by the Commission or any state securities
commission or other regulatory authority, and (iv) of the happening of any
event during such period as in your reasonable judgment you are required to
deliver a
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prospectus in connection with sales of the Shares by you which makes any
statement of a material fact made in the Registration Statement untrue or
which requires the making of any additions to or changes in the
Registration Statement (as amended or supplemented from time to time) in
order to make the statements therein not misleading or that makes any
statement of a material fact made in the Prospectus (as amended or
supplemented from time to time) untrue or which requires the making of any
additions to or changes in the Prospectus (as amended or supplemented from
time to time) in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If at any time
the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption of the Shares under any state securities or Blue Sky laws, the
Company shall use its reasonable efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
(c) It will furnish to you without charge two (2) signed copies (plus
one (1) additional signed copy to your legal counsel) of the Registration
Statement as first filed with the Commission and of each amendment to it,
including all exhibits filed therewith, and will furnish to you such number
of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(d) It will not file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
make any amendment or supplement to the Prospectus, of which you shall not
previously have been advised and provided a copy within a reasonable period
of time prior to the filing thereof or to which you shall, after being so
advised, reasonably object in writing, unless, in the reasonable judgment
of the Company and its counsel, such amendment or supplement is necessary
to comply with law; and it will prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the Registration
Statement or supplement to the Prospectus which may be necessary or
advisable in connection with the distribution of the Shares by you, and
will use its reasonable best efforts to cause any amendment to the
Registration Statement to become effective as promptly as possible.
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(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period in your reasonable judgment as
a prospectus is required to be delivered in connection with sales of the
Shares by you, it will furnish to each Underwriter and dealer without
charge as many copies of the Prospectus (and of any amendment or supplement
to the Prospectus) as such Underwriters and dealers may reasonably request
for the purposes contemplated by the Act and the Exchange Act. The Company
consents to the use of the Prospectus and any amendment or supplement
thereto by any Underwriter or any dealer, both in connection with the
offering or sale of the Shares and for such period of time thereafter as
the Prospectus is required by the Act or the Exchange Act to be delivered
in connection therewith.
(f) If during such period as in your reasonable judgment you are
required to deliver a prospectus in connection with sales of the Shares by
you any event shall occur as a result of which it becomes necessary to
amend or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing as of the date the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with any law, it will as promptly as
practicable prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus so that the statements in the Prospectus,
as so amended or supplemented, will not, in the light of the circumstances
existing as of the date the Prospectus is so delivered, be misleading, and
will comply with applicable law, and will furnish to each Underwriter and
dealer without charge such number of copies thereof as such Underwriter or
dealer may reasonably request.
(g) Prior to any public offering of the Shares, it will cooperate
with you and your counsel in connection with the registration or
qualification of the Shares for offer and sale by you under the state
securities or Blue Sky laws of such jurisdictions as you may reasonably
request (provided, that the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or
to take any action that would subject it to general consent to service of
process in any jurisdiction in which it is not now so subject). The
Company will continue such qualification in effect so long as required by
law for distribution of the Shares.
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(h) It will make generally available to its security holders as soon
as reasonably practicable a consolidated earning statement covering a
period of at least twelve months beginning after the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(i) It will timely complete all required filings and otherwise fully
comply in a timely manner with all provisions of the Exchange Act in
connection with the public offering of the Shares.
(j) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the Commission, and (ii) from
time to time such other information concerning the Company as you may
reasonably request.
(k) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, it will pay and be responsible
for all costs, expenses, fees and taxes in connection with or incident to
(i) the printing, processing, filing, distribution and delivery under the
Act or the Exchange Act of the Registration Statement, each preliminary
prospectus, the Prospectus and all amendments or supplements thereto, (ii)
the printing, processing, execution, distribution and delivery of this
Agreement, any memoranda describing state securities or Blue Sky laws and
all other agreements, memoranda, correspondence and other documents
printed, distributed and delivered in connection with the offering of the
Shares, (iii) the registration with the Commission and the issuance and
delivery of the Shares, (iv) the registration or qualification of the
Shares for offer and sale under the securities or Blue Sky laws of the
jurisdictions referred to in paragraph (g) above (including, in each case,
the reasonable fees and disbursements of counsel relating to such
registration or qualification and memoranda relating thereto and any filing
fees in connection therewith), (v) furnishing such copies of the
Registration Statement, Prospectus and preliminary prospectus, and all
amendments and supplements to any of them, as may be reasonably requested
by you for use in connection with the offering or sale of the Shares by the
Underwriters or the dealers to whom the Shares may be sold, (vi) filing,
registration and clearance with the National Association of Securities
Dealers, Inc. (the "NASD") in connection with the offering of the Shares
(including any
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filing fees in connection therewith and the fees and disbursements of
counsel relating thereto), (vii) the listing of the Shares on the New York
Stock Exchange, (viii) any "qualified independent underwriter" if and as
required by Schedule E of the Bylaws of the NASD (including fees and
disbursements of counsel for such qualified independent underwriter) and
(ix) the performance by the Company of its other obligations under this
Agreement, the cost of its personnel and other internal costs, the cost of
printing and engraving the certificates representing the Shares, and all
expenses and taxes incident to the sale and delivery of the Shares to you
(provided that the Company shall not be obligated pursuant to this
paragraph to pay the fees and disbursements of your counsel, except to the
extent set forth in clauses (iv) and (vi) above).
(l) It will use the proceeds from the sale of the Shares in the
manner described in the Prospectus under the caption "Use of Proceeds."
(m) It will cause the Shares to be listed on the New York Stock
Exchange and will use its reasonable best efforts to maintain such listing
while any of the Shares are outstanding.
(n) It will use its reasonable best efforts to do and perform all
things required to be done and performed under this Agreement by it prior
to or after the Closing Date and to satisfy all conditions precedent on its
part to the delivery of the Shares.
6. Representations and Warranties. The Company represents and
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warrants to each Underwriter that:
(a) When the Registration Statement becomes effective, including at
the date of any post-effective amendment, at the date of the Prospectus (if
different) and at the Closing Date, the Registration Statement will comply
in all material respects with the provisions of the Act, and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any supplements or
amendments thereto will not at the date of the Prospectus, at the date of
any such supplements or amendments and at the Closing Date contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
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the representations and warranties contained in this paragraph (a) shall
not apply to statements in or omissions from the Registration Statement or
the Prospectus (or any supplement or amendment to them) made in reliance
upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by or on behalf of any Underwriter
through you expressly for use therein. The Company acknowledges for all
purposes under this Agreement that the statements with respect to price and
underwriting discount and the last paragraph all as set forth on the cover
page and the information under the caption "Underwriting" in the Prospectus
(or any amendment or supplement) constitute the only written information
furnished to the Company by any Underwriter expressly for use in the
Registration Statement or the Prospectus (or any amendment or supplement to
them) and that the Underwriters shall not be deemed to have provided any
other information (and therefore are not responsible for any such statement
or omission).
(b) Any term sheet and prospectus subject to completion provided by
the Company to the Underwriters for use in connection with the offering and
sale of the Shares pursuant to Rule 434 under the Act together are not
materially different from the prospectus included in the Registration
Statement (exclusive of any information deemed a part thereof by virtue of
Rule 434(d)).
(c) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, and each Registration Statement filed
pursuant to Rule 462(b) under the Act, if any, complied when so filed in
all material respects with the Act.
(d) The Company and each of its "significant subsidiaries" (as
defined under Regulation S-X promulgated by the Commission) (each, a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly
organized, is validly existing as a corporation in good standing under the
laws of its jurisdiction of organization and has the requisite corporate
power and authority to carry on its business as it is currently being
conducted, to own, lease and operate its properties; and the Company has
the requisite power and authority to authorize the offering of the Shares,
to execute, deliver and perform this Agreement, and to issue, sell and
deliver the Shares; and each of the Company and the Subsidiaries is duly
qualified and is in good standing as a foreign corporation authorized to do
business
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in each jurisdiction where the operation, ownership or leasing of property
or the conduct of its business requires such qualification, except where
the failure to be so qualified would not, singly or in the aggregate, have
a material adverse effect on the properties, business, results of
operations, condition (financial or otherwise), business affairs or
prospects of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect").
(e) All of the issued and outstanding shares of capital stock of, or
other ownership interests in, each Subsidiary have been duly and validly
authorized and issued, and all of the shares of capital stock of, or other
ownership interests in, each Subsidiary are owned, directly or through
Subsidiaries, by the Company. All such shares of capital stock are fully
paid and nonassessable, and are owned free and clear of any security
interest, mortgage, pledge, claim, lien or encumbrance (each, a "Lien"),
except for security interests relating to the Properties Notes (as defined
in the Prospectus) granted pursuant to the Properties Note Indenture (as
defined in the Prospectus). There are no outstanding subscriptions,
rights, warrants, options, calls, convertible securities, commitments of
sale or Liens related to or entitling any person to purchase or otherwise
to acquire any shares of the capital stock of, or other ownership interest
in, any Subsidiary.
(f) The authorized, issued and outstanding capital stock of the
Company was, as of the dates indicated in the Prospectus, as set forth in
the Prospectus under "Unaudited Pro Forma Condensed Consolidated Balance
Sheet" and "Description of Capital Stock;" all the shares of issued and
outstanding Common Stock have been duly authorized and validly issued and
are fully paid, nonassessable and not subject to any preemptive or similar
rights except for the Marriott International Purchase Right (as defined in
the Prospectus); the Shares have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
nonassessable; the capital stock of the Company, including the Common
Stock, conforms in all material respects to all statements relating thereto
in the Prospectus and the Registration Statement; and the issuance of the
Shares by the Company will not be subject to preemptive or other similar
rights.
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(g) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or bylaws or in default in the performance of any
bond, debenture, note or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which any of them is bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject except for such
violations or defaults which would not have a Material Adverse Effect.
(h) This Agreement has been duly authorized and validly executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms (assuming the due execution and delivery hereof by you).
(i) The execution and delivery of this Agreement by the Company, the
issuance and sale of the Shares, the performance of this Agreement and the
consummation of the transactions contemplated by this Agreement will not
(1) conflict with or result in a breach or violation of any of the
respective charters or bylaws of the Company or any of its subsidiaries or
any of the terms or provisions of, or (2) constitute a default or cause an
acceleration of any obligation under or result in the imposition or
creation of (or the obligation to create or impose) a Lien with respect to,
any material bond, note, debenture or other evidence of indebtedness or any
material indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which it or any of them is bound, or to which any properties of the Company
or any of the Subsidiaries is or may be subject, or (3) contravene any
order of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties, or
violate or conflict with any statute, rule or regulation or administrative
or court decree applicable to the Company or any of its subsidiaries, or
any of their respective properties, except in the case of clause (3) above,
for such conflicts or violations which would not have a Material Adverse
Effect.
(j) Except as set forth in the Prospectus, there is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, pending against or affecting the Company or any of the
subsidiaries, or any of their respective properties, which is required to
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be disclosed in the Registration Statement or the Prospectus, or which
would result, singly or in the aggregate, in a Material Adverse Effect or
which could reasonably be expected to materially and adversely affect the
consummation of this Agreement or the transactions contemplated hereby, and
to the best of the Company's knowledge, no such proceedings are
contemplated or threatened. No contract or document of a character
required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement is not so described
or filed.
(k) To the best knowledge of the Company, (A) no action has been
taken and no statute, rule or regulation or order has been enacted, adopted
or issued by any governmental agency or body which prevents the issuance of
the Shares, suspends the effectiveness of the Registration Statement,
prevents or suspends the use of any preliminary prospectus or suspends the
sale of the Shares in any jurisdiction referred to in Section 5(g) hereof
and (B) no injunction, restraining order or order of any nature by a
Federal or state court of competent jurisdiction has been issued with
respect to the Company or any of its subsidiaries which would prevent or
suspend the issuance or sale of the Shares, the effectiveness of the
Registration Statement, or the use of any preliminary prospectus in any
jurisdiction referred to in Section 5(g) hereof. Every request of the
Commission or any securities authority or agency of any jurisdiction for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) has been complied with in all material respects.
(l) Except as would not, singly or in the aggregate, have a Material
Adverse Effect, neither the Company nor any of its subsidiaries is in
violation of any environmental, safety or similar law or regulation
applicable to its business relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), lacks any permits,
licenses or other approvals required of them under applicable Environmental
Laws or is violating any terms and conditions of any such permit, license
or approval.
(m) No labor dispute with the employees of the Company or any of its
subsidiaries exists, or to the knowledge of the Company, is imminent that
would have a Material Adverse Effect; and the Company is not aware of any
existing or imminent labor disturbance by the employees of
14
any of its principal suppliers, manufacturers or contractors, or of
Marriott International, which would have a Material Adverse Effect.
(n) (i) The Company and each of its Subsidiaries has good and
marketable title, free and clear of all Liens, to all property and assets
described in the Registration Statement as being owned by it, except for
Liens described or reflected in the Prospectus (including all Liens
relating to mortgages reflected on the financial statements included in the
Prospectus and Liens imposed by the Properties Note Indenture) or Liens
that would not have a Material Adverse Effect and (ii) all liens, charges,
encumbrances, claims, or restrictions on or affecting the properties and
assets of the Company or any of its subsidiaries that are required to be
disclosed in the Prospectus are disclosed therein.
(o) The firm of accountants that has certified or shall certify the
applicable consolidated financial statements and supporting schedules of
the Company filed or to be filed with the Commission as part of the
Registration Statement and the Prospectus are independent public
accountants with respect to the Company and its subsidiaries, as required
by the Act. The consolidated historical and pro forma financial
--- -----
statements, together with related schedules and notes, set forth in the
Prospectus and the Registration Statement comply as to form in all material
respects with the requirements of the Act. Such historical financial
statements fairly present the consolidated financial position of the
Company and its subsidiaries at the respective dates indicated and the
results of their operations and their cash flows for the respective periods
indicated, in accordance with generally accepted accounting principles
("GAAP") consistently applied throughout such periods. Such pro forma
--- -----
financial statements have been prepared on a basis consistent with such
historical statements, except for the pro forma adjustments specified
--- -----
therein, and give effect to assumptions made on a reasonable basis and
present fairly the transactions reflected thereby as indicated in the
Prospectus. The other financial and statistical information and data
included in the Prospectus and in the Registration Statement, historical
and pro forma, are, in all material respects, accurately presented and
--- -----
prepared on a basis consistent with such financial statements and the books
and records of the Company.
(p) Except as disclosed in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus and up to the Closing Date, neither the
15
Company nor any of its subsidiaries has incurred any liabilities or
obligations, direct or contingent, which are material to the Company and
its subsidiaries taken as a whole, nor entered into any transaction not in
the ordinary course of business and there has not been, singly or in the
aggregate, any material adverse change, or any development which would
involve a material adverse change, in the properties, business, results of
operations, condition (financial or otherwise), business affairs or
prospects of the Company and its subsidiaries taken as a whole (a "Material
Adverse Change").
(q) No authorization, approval or consent or order of, or filing
with, any court or governmental body or agency is necessary in connection
with the transactions contemplated by this Agreement, except such as may be
required by the NASD or have been obtained and made under the Act, the
Exchange Act or state securities or Blue Sky laws or regulations. Neither
the Company nor any of its affiliates is presently doing business with the
government of Cuba or with any person or affiliate located in Cuba.
(r) (i) Each of the Company and its subsidiaries has all
certificates, consents, exemptions, orders, permits, licenses,
authorizations, or other approvals (each, an "Authorization") of and from,
and has made all declarations and filings with, all Federal, state, local
and other governmental authorities, all self-regulatory organizations and
all courts and other tribunals, necessary or required to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus, and all such Authorizations are in
full force and effect, except to the extent that the failure to obtain or
file or cause to remain in effect would not, singly or in the aggregate,
have a Material Adverse Effect and (ii) the Company and its subsidiaries
are in compliance in all material respects with the terms and conditions of
all such Authorizations and with the rules and regulations of the
regulatory authorities and governing bodies having jurisdiction with
respect thereto.
(s) Neither the Company nor any of the Subsidiaries is an "investment
company" or a company "controlled" by an investment company within the
meaning of the Investment Company Act of 1940, as amended.
16
(t) No holder of any security of the Company has or will have any
right to require the registration of such security by virtue of any
transaction contemplated by this Agreement.
(u) The Shares have been approved for listing on the New York Stock
Exchange, subject to notice of issuance.
(v) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters pursuant to
Section 8 shall be deemed to be a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
(w) The Company and each of its consolidated subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (3) access to
assets is permitted only in accordance with management's general or
specific authorization; and (4) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(x) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which could
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Shares.
(y) Neither the Company nor any of its subsidiaries is in violation
of any statute, law, ordinance, governmental rule or regulation or any
judgment, decree, rule or order of any court or governmental agency or
authority applicable to the Company or any of its subsidiaries or any of
their properties or assets, except such violations as would not, singly or
in the aggregate, have a Material Adverse Effect.
7. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless (i) each of the
Underwriters and (ii) each person, if any, who controls (within the
17
meaning of Section 15 of the Act or Section 20 of the Exchange Act) any of
the Underwriters (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"), and (iii) the
respective officers, directors, partners, employees, representatives and
agents of any of the Underwriters or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as
an "Indemnified Person") to the fullest extent lawful, from and against any
and all losses, claims, damages, liabilities, judgments, actions and
expenses (including, without limitation, and as incurred, reimbursement of
all reasonable costs of investigating, preparing, pursuing or defending any
claim or action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Person) directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including the
information deemed to be a part of the Registration Statement pursuant to
Rule 430A(b) promulgated under the Act, if applicable, or the Prospectus
(including any amendment or supplement thereto) or any preliminary
prospectus, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading; provided, however, that (i) this
-------- -------
indemnity agreement shall not apply to such losses, claims, damages,
liabilities, judgments, actions or expenses caused by an untrue statement
or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information relating to any of the
Underwriters furnished in writing to the Company by any of the Underwriters
expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus and (ii) the foregoing indemnity agreement with
respect to any untrue statement contained in or omission from a preliminary
prospectus shall not inure to the benefit of the Underwriter from whom the
person asserting any such losses, liabilities, claims, damages or expenses
purchased Shares, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented, if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by
or on behalf of the Underwriters to such person, if such is required by
law, at or prior to the written confirmation of the sale of such Shares to
such person and the untrue statement con-
18
tained in or omission from such preliminary prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented). The Company
shall notify you promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or litigation
in connection with the matters addressed by this Agreement which involves
the Company or an Indemnified Person.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the Indemnified
Persons with respect to which indemnity may be sought against the Company,
the applicable Underwriter with respect to such Indemnified Person shall
promptly notify the Company in writing (provided, that the failure to give
such notice shall not relieve the Company of its obligations pursuant to
this Agreement unless and only to the extent that such omission results in
the loss or compromise of any material rights or defenses by the Company,
as determined by a court of competent jurisdiction by final judgment) and
the Company shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to the Indemnified Persons and payment of
all fees and expenses in connection therewith. Such Indemnified Person
shall have the right to employ its own counsel in any such action and to
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
employment of such counsel has been specifically authorized in writing by
the Company, (ii) the Company failed promptly to assume the defense and
employ counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties to any such action (including any impleaded
parties) include both such Indemnified Person and the Company or an
affiliate of the Company, and such Indemnified Person shall have been
reasonably advised by counsel that either (x) there may be one or more
legal defenses available to it which are different from or additional to
those available to the Company or such affiliate or (y) a conflict may
exist between such Indemnified Person and the Company or such affiliate (in
which case the Company shall not have the right to assume the defense of
such action on behalf of such Indemnified Person, it being understood,
however, that the Company shall not, in connection with any one such action
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all such Indemnified
Persons, which firm shall be designated in writing by the
19
Representatives and that all such fees and expenses shall be reimbursed as
they are incurred). The Company shall not be liable for any settlement of
any such action or proceeding effected without the Company's prior written
consent, and the Company agrees to indemnify and hold harmless any
Indemnified Person from and against any loss, claim, damage, liability or
expense by reason of any settlement of any action effected with the written
consent of the Company. The Company shall not, without the prior written
consent of each Indemnified Person affected thereby (which consent will not
unreasonably be withheld), settle or compromise or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened
action, claim, litigation or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not any Indemnified
Person is a party thereto), unless such settlement, compromise, consent or
termination includes an unconditional release of each Indemnified Person
affected thereby from all liability arising out of such action, claim,
litigation or proceeding.
(c) Each of the Underwriters agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement, any person controlling (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) the Company,
and the officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity
from the Company to each of the Indemnified Persons, but only with respect
to claims and actions based on information relating to such Underwriter in
the Prospectus that is in conformity with information furnished in writing
by such Underwriter expressly for use in the Prospectus. In case any
action or proceeding (including any governmental investigation) shall be
brought or asserted against the Company, any of its directors, any such
officer, or any such controlling person based on the Registration
Statement, the Prospectus or any preliminary prospectus in respect of which
indemnity may be sought against any Underwriter pursuant to the foregoing
sentence, the Underwriter shall have the rights and duties given to the
Company by Section 7(b) above (except that if the Company shall have
assumed the defense thereof, such Underwriter shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense
of such Underwriter), and the Company, its directors, any such officers,
and each such controlling person shall have
20
the rights and duties given to the Indemnified Person by Section 7(b)
above.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to herein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities judgments, actions and expenses (i) in
such proportion as is appropriate to reflect the relative benefits received
by the indemnifying party on the one hand and the indemnified party on the
other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
indemnifying parties and the indemnified party, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and any of the Underwriters, on the other hand,
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriter, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
of the Company and the Underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
related to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The indemnity and
contribution obligations set forth herein shall be in addition to any
liability or obligation such party may otherwise have to any indemnified
party.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity
--- ----
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or expenses
21
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Xxxxxxx 0, xxxx of the Underwriters (and its related
Indemnified Persons) shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total underwriting discount
applicable to the Shares purchased by such Underwriter exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7(d) are
several in proportion to the respective number of Shares purchased by each
of the Underwriters hereunder and not joint.
8. Conditions of Underwriters' Obligations. The several obligations
---------------------------------------
of the Underwriters to purchase the Shares under this Agreement are subject to
the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date. The
Company shall have performed or complied with all of its obligations and
agreements herein contained and required to be performed or complied with
by it at or prior to the Closing Date.
(b) (i) The Registration Statement shall have become effective (or,
if a post-effective amendment is required to be filed pursuant to Rule 430A
promulgated under the Act, such post-effective amendment shall have become
effective) not later than 5:00 p.m. (and in the case of a Registration
Statement filed under Rule 462(b) of the Act, not later than 10:00 p.m.),
New York City time, on the date of this Agreement or at such later date and
time as you may approve in writing, (ii) at the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been commenced or
shall be pending before or contemplated by the Commission and every request
for additional information on the part of the Commission shall have been
complied with in all material respects,
22
and (iii) no stop order suspending the sale of the Shares in any
jurisdiction referred to in Section 5(g) shall have been issued and no
proceeding for that purpose shall have been commenced or shall be pending
or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Shares; no injunction, restraining order or order of any nature by a
Federal or state court of competent jurisdiction shall have been issued as
of the Closing Date which would prevent the issuance of the Shares and on
the Closing Date, no action, suit or proceeding shall be pending against,
or, to the knowledge of the Company threatened against the Company or any
of its subsidiaries before any court or arbitrator or any governmental
body, agency or official which, if adversely determined, would interfere
with or adversely affect the issuance of the Shares or would have a
Material Adverse Effect.
(d) (i) Since the date hereof, there shall not have been any Material
Adverse Change, and (ii) except as set forth in the Prospectus, since the
date of the latest balance sheet included in the Registration Statement and
the Prospectus, there shall not have been any material change in the
capital stock or long-term debt, or material increase in short-term debt,
of the Company or any of its consolidated subsidiaries taken as a whole.
(e) You shall have received a certificate of the Company, dated the
Closing Date, executed on behalf of the Company, by the President or any
Senior Vice President and a principal financial or accounting officer of
the Company confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 8.
(f) On the Closing Date, you shall have received:
(1) an opinion (satisfactory to you and your counsel), dated the
Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Company, to the effect
that:
(i) (A) based solely on certificates of public officials,
the Company and each of the Subsidiaries is a validly existing
corporation in good standing under the laws of its jurisdic-
23
tion of incorporation and (B) the Company has the requisite corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and
the Prospectus, and to execute, deliver and perform this Agreement;
(ii) the Company has full corporate power and authority to
execute, deliver and perform this Agreement and to issue, sell and
deliver the Shares as contemplated by this Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Shares have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when issued
and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued
and fully paid and nonassessable; and the issuance of the Shares is
not subject to any preemptive right under the Delaware General
Corporation Law or, to the best knowledge of such counsel, any other
similar rights that entitle or will entitle any person to acquire any
shares of Common Stock from the Company upon the issuance of the
Shares by the Company;
(v) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); and to the best
knowledge of such counsel no stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and
no proceedings therefor have been instituted or are pending or
contemplated under the Act; and
(vi) at the time it became effective and on the Closing
Date, the Registration Statement complied as to form in all material
respects with the requirements for registration on Form S-1 under the
Act (it being understood, however, that such counsel need not express
any opinion with respect to the financial statements, schedules and
other financial and statistical data includ-
24
ed in the Registration Statement or the Prospectus and in passing upon
the compliance as to form of the Registration Statement and the
Prospectus, such counsel may assume that the statements made therein
are correct and complete); and
(2) an opinion (satisfactory to you and your counsel), dated the
Closing Date, of Xxxxxxxxxxx X. Xxxxxxxx, Senior Vice President and Deputy
General Counsel of the Company, to the effect that:
(i) (A)the Company and each of the Subsidiaries is a duly
organized and validly existing corporation in good standing under the
laws of its jurisdiction of incorporation, has the requisite corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and
the Prospectus, and is duly qualified as a foreign corporation and in
good standing in each jurisdiction where the ownership, leasing or
operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not
have, singly or in the aggregate, a Material Adverse Effect; and (B)
the Company has the requisite corporate power and authority to
execute, deliver and perform this Agreement;
(ii) (A) the authorized, issued and outstanding capital
stock of the Company was, as of the dates indicated in the Prospectus,
as set forth in the Prospectus under "Unaudited Pro Forma Condensed
Consolidated Balance Sheet" and "Description of Capital Stock" and
conforms in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus; and (B)
the shares of issued and outstanding Common Stock have been duly
authorized and are validly issued and are fully paid and
nonassessable;
(iii) all of the issued and outstanding shares of capital
stock of, or other ownership interests in, each Subsidiary have been
duly and validly authorized and issued, and the shares of capital
stock of, or other ownership interests in, each Subsidiary are owned,
directly or through Subsidiaries, by the Company, are fully paid and
nonassessable, and, to the best knowledge of such counsel, are owned
free and clear of any Lien, except for Liens
25
relating to the Properties Notes or the New Credit Agreement or as
otherwise disclosed in the Prospectus;
(iv) to the best knowledge of such counsel, there are no
outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale or Liens related to or
entitling any person to purchase or otherwise to acquire any shares of
the capital stock of, or other ownership interest in, any Subsidiary;
(v) neither the Company nor any of the Subsidiaries is an
"investment company" or a company "controlled" by an investment
company within the meaning of the Investment Company Act of 1940, as
amended;
(vi) to the best knowledge of such counsel, no holder of
any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company;
(vii) to the best knowledge of such counsel, there is no
current, pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any Subsidiary or to which any of their
respective properties is subject of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus;
(viii) no authorization, approval, consent or order of, or
filing with, any court or governmental body or agency is required for
the issuance and sale of the Shares pursuant to this Agreement, except
such as have been obtained and made under the Act, the Exchange Act,
state securities or Blue Sky laws or regulations or such as may be
required by the NASD; the execution and delivery of this Agreement,
the issuance and sale of the Shares and the performance of this
Agreement will not result in a breach or violation of (A) any of the
respective charters or bylaws of the Company or any of the
Subsidiaries or (B) any of the terms or provisions of any agreement or
instrument which is filed as an exhibit to the Registration Statement
and to which the Company or any of
26
the Subsidiaries is a party or by which any of them is bound, or to
which any of the properties of the Company or any of the Subsidiaries
is subject, or (C) to the best knowledge of such counsel, constitute
a default under, any statute, rule or regulation to which the Company
or any Subsidiary is bound or to which any of the properties of the
Company or any Subsidiary is subject or (D) to the best knowledge of
such counsel any order of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries or any
of their properties which conflict, breach or default in each of the
cases described in clauses (B), (C) and (D) would have a Material
Adverse Effect;
(ix) to the best knowledge of such counsel, (A) there are
no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments to which the Company or any
Subsidiary is a party or by which any of them may be bound that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described therein or filed as exhibits thereto and
the descriptions thereof are accurate in all material respects and
present fairly the information required to be shown, (B) no default
exists in the due performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument so described
or filed in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement, or any agreement
identified on a schedule attached to the opinion except for defaults
which would not have a Material Adverse Effect and (C) the statements
in the Prospectus under the caption "Description of Capital Stock,"
"Purposes and Antitakeover Effects of Certain Provisions of the
Company Certificate and Bylaws and the Marriott International Purchase
Right," "Management's Discussion and Analysis of Results of Operations
and Financial Condition -Liquidity and Capital Resources - Capital
Transactions" and "Relationship Between the Company and Marriott
International" insofar as such statements constitute a summary of
legal matters, documents or proceedings referred to therein, are
accurate in all material respects.
27
In addition, Xxxxxx & Xxxxxxx and Xxxxxxxxxxx X. Xxxxxxxx shall state
that although such counsel has not undertaken to investigate or verify
independently, and is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus included therein (except to the extent
expressly referred to in clause (ix)(C) above), during the course of such
counsel's participation in conferences with officers and other representatives
of the Company, representatives of the independent public accountants for the
Company and you, at which the contents of the Registration Statement and the
Prospectus were discussed (relying as to materiality to a large extent upon the
statements of officers and other representatives of the Company), no facts have
come to the attention of such counsel which cause it to (1) believe that (except
for financial statements, financial and statistical data and schedules included
therein or omitted therefrom as to which such counsel need not express any
belief) the Registration Statement (as amended or supplemented, if applicable)
at the time the Registration Statement or any post-effective amendment became
effective contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or (2) believe that (except for financial
statements, financial and statistical data and schedules included therein or
omitted therefrom as to which such counsel need not express any belief) the
Prospectus (as amended or supplemented) as of its date or the Closing Date
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinions, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers and other representatives of the Company, certificates of public
officials, and certificates or other written statements of officers of
departments of various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and its Subsidiaries,
provided that copies of any such statements or certificates shall be delivered
or otherwise made available to your counsel.
(g) You shall have received an opinion as to certain of the matters set
forth above, dated the Closing Date, of Skadden, Arps, Slate, Xxxxxxx &
Xxxx ("Xxxxxxx Xxxx"), counsel for the Underwriters, in form and substance
reasonably satisfactory to you.
28
(h) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former), in form and
substance satisfactory to you, from Xxxxxx Xxxxxxxx LLP, independent public
accountants, with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(i) Xxxxxxx Xxxx shall have been furnished with such documents and
opinions, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 8 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(j) Prior to the Closing Date, the Company shall have furnished to you
such further information, certificates and documents as you may reasonably
request.
(k) At the Closing Date, the Shares shall have been approved for
listing on the New York Stock Exchange, subject to notice of issuance.
(l) If the Option Closing Date is after the Closing Date, each of the
foregoing conditions shall have been satisfied as of the Option Closing
Date as if the references to the "Closing Date" therein were references to
the "Option Closing Date."
(m) Anything herein to the contrary notwithstanding, the respective
closings under this Agreement of the issuance and sale of the U.S. Firm
Shares and the International Shares to the U.S. Underwriters and the
International Managers, respectively, are hereby expressly made conditional
on one another.
9. Defaults. If on the Closing Date or any Option Closing Date, as the
--------
case may be, any of the Underwriters shall fail or refuse to purchase Firm
Shares or Additional Shares, as the case may be, which it has agreed to purchase
hereunder on such date, and the aggregate amount of Firm Shares or Additional
Shares, as the case may be, that such defaulting Underwriter(s) agreed but
failed or refused to purchase does not exceed 10% of the total number of Shares
to be purchased on such date by all of the Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the number of
Firm
29
Shares set forth opposite its name in Schedules I and II hereto bears to the
total number of Firm Shares which all the non-defaulting Underwriters, as the
case may be, have agreed to purchase, or in such other proportion as you may
specify, to purchase the Firm Shares or Additional Shares, as the case may be,
that such defaulting Underwriter or Underwriters, as the case may be, agreed but
failed or refused to purchase on such date; provided that in no event shall the
--------
number of Firm Shares or Additional Shares, as the case may be, that any
Underwriter has agreed to purchase pursuant to Section 3 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Firm Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If, on the Closing Date or on the Option Closing
Date, as the case may be, any of the Underwriters shall fail or refuse to
purchase the Firm Shares or the Additional Shares, as the case may be, with
respect to which such default exceeds 10% of such total number of the Shares to
be purchased on such date by all Underwriter(s) and arrangements satisfactory to
the other Underwriter(s) and the Company for the purchase of such Shares are not
made within 48 hours after such default, this Agreement shall terminate without
liability on the part of the non-defaulting Underwriter(s) or the Company,
except as otherwise provided in Section 10. In any such case that does not
result in termination of this Agreement, the Underwriters or the Company may
postpone the Closing Date or the Option Closing Date, as the case may be, for
not longer than seven (7) days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve a defaulting Underwriter from liability in respect of any default by any
such Underwriter under this Agreement.
10. Effective Date of Agreement and Termination. This Agreement shall
-------------------------------------------
become effective upon the later of (i) the execution and delivery of this
Agreement by the parties hereto, (ii) the effectiveness of the Registration
Statement, and (iii) if a post-effective amendment is required to be filed
pursuant to Rule 430A under the Act, the effectiveness of such post-effective
amendment.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by notice to the Company if any of the following has occurred:
(i) subsequent to the date the Registration Statement is declared effective
or the date of this Agreement, any Material Adverse Change occurs which, in your
judgment, makes it impracticable or inadvisable to market the Shares or to
enforce contracts for the sale of the Shares, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or material
adverse change in the financial markets of the United States or else-
30
where, or any other substantial national or international calamity or emergency
if the effect of such outbreak, escalation, calamity, crisis or emergency would,
in your judgment, make it impracticable or inadvisable to market the Shares or
to enforce contracts for the sale of the Shares, (iii) any suspension or
limitation of trading generally in securities on the New York Stock Exchange,
the American Stock Exchange, the Nasdaq Stock Market or in the over-the-counter
markets or any setting of minimum prices for trading on such exchanges or
markets, (iv) any declaration of a general banking moratorium by Federal, New
York or Maryland authorities, (v) the taking of any action by any Federal, state
or local government or agency in respect of its monetary or fiscal affairs that
in your judgment has a material adverse effect on the financial markets in the
United States, and would, in your judgment, make it impracticable or inadvisable
to market the Shares or to enforce contracts for the sale of the Shares or (vi)
the enactment, publication, decree, or other promulgation of any Federal or
state statute, regulation, rule or order of any court or other governmental
authority which would, in your judgment, have a Material Adverse Effect.
The indemnities and contribution provisions and the other agreements,
representations and warranties of the Company, its officers and directors and of
the Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Shares, regardless of (i) any investigation, or statement as to the
results thereof, made by or on behalf of any of the Underwriters or by or on
behalf of the Company, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Shares and payment for
them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters pursuant to
clause (i) of the second paragraph of this Section 10 or because of the failure
or refusal on the part of the Company to comply with the terms or to fulfill any
of the conditions of this Agreement, the Company agrees to reimburse you for all
out-of-pocket expenses (including the reasonable fees and disbursements of
counsel) incurred by you. Notwithstanding any termination of this Agreement,
the Company shall be liable for all expenses which it has agreed to pay pursuant
to Section 5(k) hereof.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Underwriters, any
Indemnified Person referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and
31
no other person shall acquire or have any right under or by virtue of this
Agreement. The terms "successors and assigns" shall not include a purchaser of
any of the Shares from any of the Underwriters merely because of such purchase.
11. Notices. Notices given pursuant to any provision of this Agreement
-------
shall be addressed as follows: (a) if to the Company, to it at Host Marriott
Corporation, 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: General
Counsel, with a copy to Xxxxxx & Xxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx
0000, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxx X. Xxxxxxxxx, Esq., and (b) if
to any Underwriter, to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, and, in
each case, with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx at 000 Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxxx X.
Xxxxxxx Esq., or in any case to such other address as the person to be notified
may have requested in writing.
12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and other persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
32
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument. Please confirm that the foregoing
correctly sets forth the agreement among the Company and you.
Very truly yours,
HOST MARRIOTT CORPORATION
By:
---------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
SALOMON BROTHERS INC
XXXXX XXXXXX INC.
XXXXXXXXXX SECURITIES
BT SECURITIES CORPORATION
XXXXXXXX WERTHEIM & CO. INCORPORATED
Acting severally on behalf of themselves
and as representatives of the several U.S.
Underwriters named in Schedule I
hereto
By: XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
------------------------
Name:
Title:
33
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX SACHS INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
XXXXXXXXXX SECURITIES
XXXXX XXXXXX INC.
BANKERS TRUST INTERNATIONAL PLC
J. XXXXX XXXXXXXX & CO. LIMITED
Acting on behalf of themselves and
as representatives of the several
International Managers named in
Schedule II hereto
By:XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
-------------------------
Name:
Title:
34
SCHEDULE I
Number of
Firm Shares
to be Purchased
---------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation........................
Xxxxxxx, Sachs & Co............................
Salomon Brothers Inc...........................
Xxxxx Xxxxxx Inc...............................
Xxxxxxxxxx Securities..........................
BT Securities Corporation......................
Xxxxxxxx Xxxxxxxx & Co. Incorporated...........
-----------
Total ......................................... 20,000,000
===========
SCHEDULE II
Number of
Firm Shares
to be Purchased
---------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation........................
Xxxxxxx Sachs International....................
Salomon Brothers International Limited.........
Xxxxx Xxxxxx Inc...............................
Xxxxxxxxxx Securities..........................
Bankers Trust International PLC................
J. Xxxxx Xxxxxxxx & Co. Limited................
----------
Total.......................................... 5,000,000
==========
