Exhibit 1.1
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LASALLE HOTEL PROPERTIES
(a Maryland real estate investment trust)
1,000,000 8.375% Series B Cumulative Redeemable Preferred Shares*
UNDERWRITING AGREEMENT
Dated: September 23, 2003
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*Plus an option to purchase from LaSalle Hotel Properties up to 100,000
additional shares to cover over-allotments.
TABLE OF CONTENTS
SECTION 1. Representations and Warranties.............................2
(a) Representations and Warranties by the Company and the Operating
Partnership.........................................................2
(i) Compliance with Registration Requirements..................2
(ii) Incorporated Documents.....................................3
(iii) Independent Accountants....................................4
(iv) Financial Statements.......................................4
(v) No Material Adverse Change in Business.....................4
(vi) Good Standing of the Company...............................5
(vii) Good Standing of the Operating Partnership.................5
(viii) Good Standing of Subsidiaries..............................5
(ix) Capitalization.............................................6
(x) Authorization of Units and Preferred Units.................6
(xi) Authorization and Description of Securities................6
(xii) Authorization of Agreement.................................7
(xiii) Absence of Defaults and Conflicts..........................7
(xiv) Absence of Labor Dispute...................................7
(xv) Absence of Proceedings.....................................8
(xvi) Accuracy of Exhibits.......................................8
(xvii) REIT Qualification.........................................8
(xviii) Investment Company Act.....................................8
(xix) Possession of Intellectual Property........................8
(xx) Absence of Further Requirements............................9
(xxi) Possession of Licenses and Permits.........................9
(xxii) Title to Property..........................................9
(xxiii) Title Insurance...........................................10
(xxiv) Mortgages and Deeds of Trust..............................10
(xxv) Real Property.............................................10
(xxvi) Transfer Taxes............................................11
(xxvii) Tax Returns...............................................11
(xxviii) Insurance.................................................11
(xxix) Internal Accounting Controls..............................11
(xxx) Environmental Laws........................................11
(xxxi) Registration Statement....................................12
(b) Officer's Certificates.............................................12
SECTION 2. Sale and Delivery to Underwriters; Closing................12
(a) Initial Securities.................................................12
(b) Option Securities..................................................12
(c) Payment............................................................12
(d) Denominations; Registration........................................13
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SECTION 3. Covenants of the Company..................................13
(a) Compliance with Securities Regulations and Commission Requests.....13
(b) Filing of Amendments...............................................13
(c) Delivery of Registration Statements................................14
(d) Delivery of Prospectuses...........................................14
(e) Continued Compliance with Securities Laws..........................14
(f) Blue Sky Qualifications............................................15
(g) Rule 158...........................................................15
(h) Reporting Requirements.............................................15
(i) Use of Proceeds....................................................15
(j) REIT Qualification.................................................15
(k) No Manipulation of Market for Securities...........................15
(l) Rule 462(b) Registration Statement.................................15
(m) NYSE Listing.......................................................16
(n) Lock-Up Agreement..................................................16
(n) Contribution of Net Proceeds.......................................16
SECTION 4. Payment of Expenses.......................................16
(a) Expenses...........................................................16
(b) Termination of Agreement...........................................16
SECTION 5. Conditions of Underwriters' Obligations...................16
(a) Effectiveness of Registration Statement............................17
(b) Opinion of Counsel for Company.....................................17
(c) Opinion of Counsel for Underwriters................................17
(d) Officers' Certificate..............................................17
(e) Accountant's Comfort Letter........................................18
(f) Bring-down Comfort Letter..........................................18
(h) NYSE Listing.......................................................18
(i) Conditions to Purchase of Option Securities........................18
(i) Officers' Certificate.....................................18
(ii) Opinion of Counsel for Company............................18
(iii) Opinion of Counsel for Underwriters.......................18
(iv) Bring-down Comfort Letter.................................18
(j) Additional Documents...............................................18
(k) Termination of Agreement...........................................19
SECTION 6. Indemnification...........................................19
(a) Indemnification of Underwriters....................................19
(b) Indemnification of Company, Trustees and Officers..................20
(c) Actions against Parties; Notification..............................20
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SECTION 7. Contribution..............................................21
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery..................................................22
SECTION 9. Termination of Agreement..................................22
(a) Termination; General...............................................22
(b) Liabilities........................................................23
SECTION 10. Notices...................................................23
SECTION 11. Parties...................................................23
SECTION 12. Governing Law and Time....................................23
SECTION 13. Effect of Headings........................................24
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LASALLE HOTEL PROPERTIES
(a Maryland real estate investment trust)
8.375% Series B Cumulative Redeemable Preferred Shares
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
September 23, 2003
Xxxxxxx Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
LaSalle Hotel Properties, a Maryland real estate investment trust (the
"Company"), confirms its agreement with Xxxxxxx Xxxxx & Associates, Inc. (the
"Underwriter") with respect to the issue and sale by the Company and the
purchase by the Underwriter of 1,000,000 of the Company's 8.375% series B
cumulative redeemable preferred shares of beneficial interest (liquidation
preference $25 per share), par value $.01 per share (the "Series B Shares"), and
with respect to the grant by the Company to the Underwriter of the option
described in Section 2(b) hereof to purchase all or any part of 100,000
additional Series B Shares to cover over-allotments, if any. The aforesaid
1,000,000 Series B Shares (the "Initial Securities") to be purchased by the
Underwriter and all or any part of the 100,000 Series B Shares subject to the
option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called, collectively, the "Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-104054, which also
constitutes a post-effective amendment to a previous registration statement No.
333-77371) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will prepare and file a prospectus in accordance with the
provisions of paragraph (b) of Rule 424 ("Rule 424(b)") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Each prospectus used before such registration statement became effective and any
prospectus that was used after such effectiveness and prior to the execution and
delivery of this Agreement, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto, schedules thereto, if
any, and the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the
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form first furnished to the Underwriter for use in connection with the offering
of the Securities is herein called the "Prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to either of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
The Company will contribute the net proceeds from the sale of the
Securities to the Operating Partnership, and in exchange therefor, at the
Closing Time (as defined in Section 2(c)) or Date of Delivery (as defined in
Section 2(b)), as applicable, the Operating Partnership will issue to the
Company series B preferred units of limited partnership interest in the
Operating Partnership having an aggregate liquidation preference equal to the
aggregate liquidation preference of such Securities and having terms
substantially equivalent to the economic terms of the Securities (the "Series B
Units").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
The term "Subsidiary" means a corporation, partnership, limited
liability company or other entity, a majority of the outstanding voting or
capital stock, partnership, membership or other voting or equity interests or
general partnership interests, as the case may be, of which is owned or
controlled, directly or indirectly, by the Company, LaSalle Hotel Operating
Partnership, L.P., a Delaware limited partnership (the "Operating Partnership"),
or by one or more other Subsidiaries of the Company or the Operating
Partnership.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating
Partnership Each of the Company and the Operating Partnership represents and
warrants to the Underwriter as of the date hereof, as of the Closing Time and as
of each Date of Delivery (if any), and agrees with the Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company
and the transactions contemplated by this Agreement meet the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the
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Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission) became effective, at the date of this
Agreement and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the
Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus, and any
amendments or supplements thereto, at the time the Prospectus or any
such amendment or supplement was issued and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery), complied
and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and did not and will not include
an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. No document has been or will be prepared in connection with
the offering of the Securities in reliance on Rule 434 of the 1933 Act.
The representations and warranties in this paragraph shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriter expressly for use
in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act and
the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriter for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at
the time the Prospectus was issued and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), did not and
will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
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(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements of the
Company and its consolidated subsidiaries included in the Registration
Statement and the Prospectus, together with the related schedules and
notes, present fairly the financial position, results of operations and
cash flows of the Company and its consolidated subsidiaries at the dates
and for the periods specified, and such financial statements have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved.
The supporting schedules, if any, included in the Registration Statement
and Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected historical operating and
financial data included in the Registration Statement and Prospectus
present fairly the information shown therein and have been compiled on a
basis consistent with the books and records of the Company and that of
the audited financial statements included in the Registration Statement
and Prospectus. In addition, any pro forma financial statements and the
related notes thereto included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial or
otherwise, or in the properties, earnings, business affairs or business
prospects of the Company, the Operating Partnership and the Subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company, the Operating Partnership or
any Subsidiary, other than those in the ordinary course of business,
which are material with respect to the Company, the Operating
Partnership and the Subsidiaries considered as one enterprise and (C)
except for regular monthly dividends on the Company's common shares of
beneficial interest, par value $.01 per share, in amounts per share that
are consistent with past practice, regular quarterly distributions on
the Company's 10-1/4% series A cumulative redeemable preferred shares of
beneficial interest (liquidation preference $25 per share), par value
$.01 per share, and regular monthly and quarterly distributions on the
common units of limited partnership in the Operating Partnership (the
"Units") and the series A preferred units of limited partnership in the
Operating Partnership (the "Series A Units"), there has been no dividend
or distribution of any kind declared, paid or made by the Company on any
class of its capital shares or any distribution by the Operating
Partnership with respect to any of its limited partnership interests.
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(vi) Good Standing of the Company. The Company is a real
estate investment trust duly formed and validly existing and in good
standing under the laws of the State of Maryland, with full trust power
and authority to own and lease its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
or registered as a foreign real estate investment trust and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect.
(vii) Good Standing of the Operating Partnership. The
Operating Partnership has been duly organized and is validly existing as
a limited partnership in good standing under the laws of the State of
Delaware and has the requisite power and authority to own, lease and
operate its properties and to conduct the business in which it is
engaged as described in the Operating Partnership Agreement (as defined
below) and the Prospectus and to enter into and perform its obligations
under this Agreement. The Operating Partnership is duly qualified or
registered as a foreign partnership and is in good standing in each
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify or register would
not result in a Material Adverse Effect. The Company is the sole general
partner of the Operating Partnership and holds such number and/or
percentage of Units and Series A Units as disclosed in the Prospectus as
of the dates set forth therein, free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances.
The Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, dated as of April 29, 1998, as amended by the
First Amendment thereto, dated as of March 6, 2002 (the "Operating
Partnership Agreement"), is in full force and effect.
(viii) Good Standing of Subsidiaries. The Operating Partnership
is the only Subsidiary that is a "significant subsidiary" of the Company
(as such term is defined in Rule 1-02 of Regulation S-X). The only
Subsidiaries of the Company are (A) the Subsidiaries listed on Exhibit
21 to the Company's most recent Annual Report on Form 10-K and (B)
certain other Subsidiaries which, considered in the aggregate as a
single Subsidiary, do not constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X. Each of the Subsidiaries of the
Company or the Operating Partnership has been duly incorporated or
organized and is validly existing as a corporation, limited partnership,
general partnership or limited liability company, as applicable, in good
standing under the laws of the jurisdiction in which it is chartered or
organized and has the requisite power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, and is duly qualified or registered as a foreign
corporation, limited partnership, general partnership or limited
liability company, as applicable, and is in good standing in the
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify or register would
not result in a Material Adverse Effect. All the outstanding shares of
capital stock, partnership interests, limited liability company
interests or other equivalent equity interest of each such Subsidiary
has been duly and validly authorized and issued and are fully paid and
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nonassessable, and, except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock, partnership interests, limited
liability company interests or other equivalent equity interest of the
Subsidiaries are owned by the Company or the Operating Partnership
either directly or through wholly-owned Subsidiaries free and clear of
any perfected security interest or any other security interests, claims,
liens or encumbrances.
(ix) Capitalization. If the Prospectus contains a
"Capitalization" section, the authorized, issued and outstanding capital
shares of the Company are as set forth in the column entitled "Actual"
under such section (except for subsequent issuances thereof, if any,
contemplated under this Agreement, pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectus or pursuant to
the exercise of convertible securities or options referred to in the
Prospectus). Such capital shares have been duly authorized and validly
issued by the Company and are fully paid and non-assessable, and none of
such capital shares was issued in violation of preemptive or other
similar rights of any securityholder of the Company.
(x) Authorization of Units and Preferred Units. All issued
and outstanding Units and Series A Units have been duly authorized and
are validly issued, fully paid and non-assessable and have been offered
and sold or exchanged by the Operating Partnership in compliance with
applicable laws. The Series B Units have been duly authorized and, when
issued and delivered by the Operating Partnership to the Company in
exchange for the net proceeds of the offering contemplated by this
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of the Series B Units will not be subject to the preemptive
or other similar rights of any securityholder or partner of the
Operating Partnership.
(xi) Authorization and Description of Securities. The
Securities to be purchased by the Underwriter from the Company have been
duly authorized for issuance and sale to the Underwriter pursuant to
this Agreement and, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth herein,
will be validly issued, fully paid and non-assessable. At or prior to
the Closing Time, the Company will have executed and filed articles
supplementary to the Company's Articles of Amendment and Restatement of
Declaration of Trust, dated as of April 24, 1998, as amended and
supplemented (the "Declaration of Trust"), with the Maryland State
Department of Assessments and Taxation establishing the terms of the
Securities (the "Articles Supplementary"). The Securities conform to all
statements relating thereto contained in the Prospectus and such
statements conform to the rights set forth in the Articles
Supplementary. No holder of the Securities will be subject to personal
liability by reason of being such a holder. The issuance of the
Securities is not subject to the preemptive or other similar rights of
any securityholder of the Company. The form of certificate used to
evidence the Securities will be in substantially the form to be filed or
incorporated by reference, as the case may be, as an exhibit to the
Registration Statement, and such form complies with all applicable
statutory requirements, requirements of the Declaration of Trust and the
Amended and Restated Bylaws of the Company (the "Bylaws") and
requirements of the New York Stock Exchange.
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(xii) Authorization of Agreement. This Agreement and the
transactions contemplated herein have been duly authorized by the
Company and the Operating Partnership, and this Agreement has been duly
executed and delivered by the Company and the Operating Partnership and
constitutes a valid and binding obligation of the Company and the
Operating Partnership enforceable in accordance with its terms except to
the extent that the indemnification provisions hereof may be limited by
federal or state securities laws and public policy considerations in
respect thereof and except as enforcement may be limited by bankruptcy,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(xiii) Absence of Defaults and Conflicts. None of the Company,
the Operating Partnership or any Subsidiary is (A) in violation of its
declaration of trust, partnership agreement, charter, by-laws or other
governing instrument ("Governing Instruments") or (B) in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument
to which the Company, the Operating Partnership or any Subsidiary is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Company, the Operating Partnership or any
Subsidiary is subject (collectively, "Agreements and Instruments") or
(C) in violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company, the Operating Partnership or any Subsidiary or any of their
assets, properties or operations ("Laws"), except for such violations or
defaults of any Agreements and Instruments or Laws that would not result
in a Material Adverse Effect. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
herein and in the Prospectus (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described in the Prospectus under the caption "Use of Proceeds") and
compliance by the Company and the Operating Partnership with their
respective obligations hereunder have been duly authorized by all
necessary action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute
a breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, the Operating Partnership or
any Subsidiary pursuant to, the Agreements and Instruments or Laws
(except for such conflicts, breaches, defaults or Repayment Events or
liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the Governing Instruments of the Company, the Operating
Partnership or any Subsidiary or of any Laws except for such violations
that would not have a Material Adverse Effect. As used herein, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a material portion of such
indebtedness by the Company, the Operating Partnership or any
Subsidiary.
(xiv) Absence of Labor Dispute. No labor dispute with the
employees of the Company, the Operating Partnership or any Subsidiary
exists or, to the knowledge of the
7
Company or the Operating Partnership, is imminent, and the Company and
the Operating Partnership are not aware of any existing or imminent
labor disturbance by the employees of any of its or any Subsidiary's
principal suppliers, manufacturers, customers or contractors, which, in
either case, may reasonably be expected to result in a Material Adverse
Effect.
(xv) Absence of Proceedings. There is no action, arbitration,
suit, proceeding, inquiry or investigation before or brought by any
arbitrator or court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company or the Operating
Partnership, threatened, against or affecting the Company, the Operating
Partnership or any Subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect or
materially adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Company or the
Operating Partnership of their respective obligations hereunder. The
aggregate of all pending legal or governmental proceedings to which the
Company, the Operating Partnership or any Subsidiary is a party or of
which any of their respective properties or assets is the subject which
are not described in the Prospectus, including ordinary routine
litigation, could not reasonably be expected to result in a Material
Adverse Effect.
(xvi) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xvii) REIT Qualification. Commencing with its taxable year
ended December 31, 1998, the Company has been, and upon the sale of the
Securities, the Company will continue to be organized and operated in
conformity with the requirements for qualification and taxation as a
real estate investment trust (a "REIT") under the Internal Revenue Code
of 1986, as amended (the "Code"), and the Company's present and proposed
method of operation as described in the Prospectus will enable it to
continue to meet the requirements for qualification and taxation as a
REIT under the Code, and no actions have been taken (or not taken which
are required to be taken) which would cause such qualification to be
lost. The Operating Partnership will be taxed as a partnership for
federal income tax purposes.
(xviii) Investment Company Act. None of the Company, the
Operating Partnership and any Subsidiary is, and upon the issuance and
sale of the Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xix) Possession of Intellectual Property. The Company, the
Operating Partnership and any Subsidiary own or possess, or can acquire
on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
8
information, systems or procedures), trademarks, service marks, trade
names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and
none of the Company, the Operating Partnership or any Subsidiary has
received any written notice or is otherwise aware of any infringement of
or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company, the Operating Partnership or any Subsidiary
therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(xx) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company or
the Operating Partnership of their respective obligations hereunder, in
connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, except such as has already been obtained or will be obtained
under the 1933 Act or as required under state securities laws or the
rules of the National Association of Securities Dealers, Inc.
(xxi) Possession of Licenses and Permits. Each of the Company,
the Operating Partnership and the Subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local
or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them except where failure to possess any such
Governmental Licenses would not result in a Material Adverse Effect; the
Company, the Operating Partnership and their Subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in
a Material Adverse Effect; and none of the Company, the Operating
Partnership or any of the Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xxii) Title to Property. The Company, the Operating
Partnership, the Subsidiaries or any joint ventures in which the
Company, the Operating Partnership or any Subsidiary owns an interest,
as the case may be, have good and marketable title to all real property
owned, as applicable, by the Company, the Operating Partnership, the
Subsidiaries or the applicable joint ventures, respectively, and good
title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind, except (A) as otherwise stated
in the Prospectus or (B) those which do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company,
the Operating Partnership, the
9
Subsidiaries or the applicable joint ventures. Each of the properties of
any of the Company, the Operating Partnership or the Subsidiaries
complies with all applicable codes and zoning laws and regulations
except in any case where such non-compliance would not have a material
adverse effect on the conditions, operations, prospects or earnings of
the non-compliant property; and none of the Company, the Operating
Partnership and the Subsidiaries has knowledge of any pending or
threatened condemnation, zoning change or other proceeding or action
that will in any manner affect the size of, use of, improvements on,
construction on, or access to the properties of any of the Company, the
Operating Partnership and the Subsidiaries except in any case where such
action or proceeding would not have a material adverse effect on the
conditions, operations, prospects or earnings of the property. All of
the leases and subleases material to the business of the Company, the
Operating Partnership and the Subsidiaries considered as one enterprise,
and under which the Company, the Operating Partnership or any Subsidiary
holds properties described in the Prospectus, are in full force and
effect, and none of the Company, the Operating Partnership or any
Subsidiary has received any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company,
the Operating Partnership or any Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the
Company, the Operating Partnership or any Subsidiary of the continued
possession of the leased or subleased premises under any such lease or
sublease. Except as described in the Prospectus or as would not result
in a Material Adverse Effect, no tenant under any lease to which the
Company, the Operating Partnership or any Subsidiary lease any portion
of its property is in default under such lease.
(xxiii) Title Insurance. Title insurance in favor of the
Company, the Operating Partnership and the Subsidiaries is maintained
with respect to each property owned by any such entity in an amount at
least equal to (A) the cost of acquisition of such property or (B) the
cost of construction of such property (measured at the time of such
construction), except where the failure to maintain such title insurance
would not have a Material Adverse Effect.
(xxiv) Mortgages and Deeds of Trust. The mortgages and deeds of
trust encumbering the properties and assets described in the Prospectus
(A) are not convertible (in the absence of foreclosure) into an equity
interest in the property or asset described therein or in the Company,
the Operating Partnership or any Subsidiary, nor does any of the
Company, the Operating Partnership or the Subsidiaries hold a
participating interest therein, (B) except as set forth in the
Prospectus are not cross-defaulted to any indebtedness other than
indebtedness of the Company or any of the Subsidiaries and (C) are not
cross-collateralized to any property not owned by the Company, the
Operating Partnership or any of the Subsidiaries.
(xxv) Real Property. The real property of the Company, the
Operating Partnership and their Subsidiaries is free of material
structural defects and all building systems contained therein are in
good working order in all material respects, subject to ordinary wear
and tear or, in each instance, the Company maintains adequate reserves
to effect reasonably required repairs, maintenance and capital
expenditures.
10
(xxvi) Transfer Taxes. There are no transfer taxes or other
similar fees or charges under federal law or the laws of any state, or
any political subdivision thereof, required to be paid in connection
with the execution and delivery of this Agreement or the issuance by the
Company or sale by the Company of the Securities.
(xxvii) Tax Returns. The Company has filed all foreign, federal,
state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so
to file would not have a Material Adverse Effect), whether or not
arising from transactions in the ordinary course of business, except as
described in the Prospectus and has paid all taxes required to be paid
by it and any other assessment, fine or penalty levied against it, to
the extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in
good faith or as would not have a Material Adverse Effect, whether or
not arising from transactions in the ordinary course of business, except
as described in the Prospectus.
(xxviii)Insurance. The Company, the Operating Partnership, the
Subsidiaries and each of their properties are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which
they are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company, the Operating Partnership or any of the
Subsidiaries or their respective properties, businesses, employees,
officers and directors are in full force and effect.
(xxix) Internal Accounting Controls. The Company, the Operating
Partnership and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general or
specific authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and
to maintain asset accountability; (C) access to assets is permitted only
in accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xxx) Environmental Laws. Except as described in the
Prospectus and except as would not, singly or in the aggregate, result
in a Material Adverse Effect, (A) none of the Company, the Operating
Partnership or any of the Subsidiaries is in violation of any federal,
state or local statute, law, rule, regulation, ordinance, code, policy
or rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company, the Operating Partnership and the Subsidiaries have all
permits, authorizations
11
and approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no pending or,
to the knowledge of the Company, the Operating Partnership and the
Subsidiaries, threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance
or violations, investigations or proceedings relating to any
Environmental Law against the Company, the Operating Partnership or any
of the Subsidiaries and (D) there are no events or circumstances that
might reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company, the
Operating Partnership or any of the Subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xxxi) Registration Statement. No holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement except for those that have been effectively
waived or are inapplicable to the offering hereby.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company, or any authorized representative of the Operating Partnership or
any of their Subsidiaries delivered to the Underwriter or to counsel for the
Underwriter shall be deemed a representation and warranty by such person or
entity, as the case may be, to the Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriter, and the Underwriter agrees
to purchase from the Company, at the price per share of $24.4085, the Initial
Securities.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriter to purchase up to an additional 100,000 Series B Shares in the
aggregate at the price per share of $24.4085, less an amount per share equal to
any dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities. The option hereby
granted will expire 30 days after the date hereof and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
that may be made in connection with the offering and distribution of the Initial
Securities upon notice by the Underwriter to the Company setting forth the
number of Option Securities as to which the Underwriter is then exercising the
option and the time and date of payment and delivery for such Option Securities.
Any such time and date of delivery (a "Date of Delivery") shall be determined by
the Underwriter, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the San Francisco
offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, or at such other place as shall be
agreed upon by the Underwriter and the Company,
12
9:00 A.M. (Eastern time) on September 29, 2003, or such other time not later
than ten business days after such date as shall be agreed upon by the
Underwriter and the Company (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriter, payment of the purchase price for, and delivery of
certificates for, such Option Securities shall be made on each Date of Delivery
as specified in the notice from the Underwriter to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Underwriter of certificates for the Securities to be purchased by the
Underwriter. The Initial Securities and, if any, the Option Securities will be
delivered to the Underwriter in book-entry form through the facilities of The
Depository Trust Company.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Underwriter may request in writing at least one
full business day before the Closing Time or the relevant Date of Delivery, as
the case may be. The Initial Securities and the Option Securities, if any, will
be made available for examination and packaging by the Underwriter at the office
of The Depository Trust Company not later than 10:00 A.M. (Eastern time) on the
business day prior to the Closing Time or the relevant Date of Delivery, as the
case may be.
SECTION 3. Covenants of the Company. Each of the Company and the
Operating Partnership covenants with the Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will notify the Underwriter immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. During the period a Prospectus is required
to be delivered under the 1933 Act, the Company will give the Underwriter notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment, supplement or
revision to either the prospectus included in the Registration
13
Statement at the time it became effective or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish the Underwriter with
copies of any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Underwriter and counsel for the Underwriter, without
charge, one signed copy of the Registration Statement as originally filed and of
each amendment thereto (including conformed copies of exhibits filed therewith
or incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Underwriter, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits). The copies of the Registration
Statement and each amendment thereto furnished to the Underwriter will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to the
Underwriter, without charge, as many copies of each preliminary prospectus as
the Underwriter reasonably requested, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will furnish
to the Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as the Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriter will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. Without
limiting the generality of the foregoing, the Company agrees, during the period
when the Prospectus is required to be delivered under the 1933 Act in connection
with the sale of the Securities, to file all documents required to be filed with
the Commission pursuant to the 1934 Act and the 1934 Act regulations within the
time periods prescribed thereby. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriter or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
14
furnish to the Underwriter such number of copies of such amendment or supplement
as the Underwriter may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Underwriter, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Underwriter may designate and to maintain such qualifications in effect
for a period of not less than one year from the date of this Agreement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date of
this Agreement.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(i) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(j) REIT Qualification. The Company will use its best efforts to
continue to meet the requirement to qualify as a REIT under the Code for each of
its taxable years for so long as the board of trustees deems it in the best
interests of the Company's shareholders to remain so qualified.
(k) No Manipulation of Market for Securities. Except for the
authorization of actions permitted to be taken by the Underwriter as
contemplated herein or in the Prospectus, neither the Company nor the Operating
Partnership will (i) take, directly or indirectly, any action designed to cause
or to result in, or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities, and (ii) until the Closing
Date, or the Date of Delivery, if any, (A) sell, bid for or purchase the
Securities or pay any person any compensation for soliciting purchases of the
Securities or (B) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(l) Rule 462(b) Registration Statement. If the Company elects to
rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, and the Company shall at
the time of filing either pay to the Commission the filing
15
fee for the Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the 1933 Act.
(m) NYSE Listing. The Company will use its best efforts to list the
Securities on the New York Stock Exchange.
(n) Lock-Up Agreement. For a period of 30 days after the date of the
Prospectus, the Company will not directly or indirectly, (i) offer, pledge,
sell, or contract to sell any Series B Shares, (ii) sell any option or contract
to sell any Series B Shares, (iii) purchase any option or contract to sell any
Series B Shares of capital stock, (iv) grant any option, right or warrant to
purchase any Series B Shares, (v) enter into any swap or other agreement that
transfers, in whole or in part, the economic consequence of ownership of any
Series B Shares whether any such swap or transaction is to be settled by
delivery of shares or other securities, in cash or otherwise, (vi) take any of
the foregoing actions with respect to any securities convertible into or
exchangeable or exercisable for or repayable with Series B Shares, (vii) file
with the Commission a registration statement under the 1933 Act relating to any
additional Series B Shares or securities convertible into or exchangeable or
exercisable for Series B Shares, or (viii) publicly disclose the intention to
take any of the foregoing actions, without the prior written consent of the
Underwriter.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and the Operating Partnership will pay or
cause to be paid all expenses incident to the performance of their obligations
under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation (exclusive
of fees and disbursements of counsel for the Underwriter), printing and delivery
to the Underwriter of this Agreement, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriter, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriter, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, (vi) the printing and delivery to the
Underwriter of copies of each of the preliminary prospectus, Prospectus and any
amendments or supplements thereto, (vii) the fees and expenses of any transfer
agent or registrar for the Securities and (viii) the fees and expenses incurred
in connection with the listing of the Securities on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i) or
(iii) (with respect to the first clause only), the Company shall reimburse the
Underwriter for all of its out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriter.
SECTION 5. Conditions of Underwriter' Obligations. The obligations
of the Underwriter hereunder are subject to the accuracy of the representations
and warranties of the Company and the Operating Partnership contained in Section
1 hereof or in certificates of any
16
officer or authorized representative of the Company or the Operating Partnership
delivered pursuant to the provisions hereof, to the performance by each of the
Company and the Operating Partnership of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriter. A prospectus shall
have been timely filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of Sidley
Xxxxxx Xxxxx & Xxxx LLP, counsel for the Company and the Operating Partnership
to the effect set forth in Exhibit A hereto and to such further effect as
counsel to the Underwriter may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriter shall have received the favorable opinion of Xxxxxx & Bird LLP,
counsel for the Underwriter, dated the Closing Date, with respect to the
Securities, the Registration Statement and the Prospectus, as amended or
supplemented, and such other related matters as the Underwriter may require, and
the Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters. Such counsel may
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company,
the Operating Partnership and the Subsidiaries and certificates of public
officials.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or of the most recent financial statements included
or incorporated by reference in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the properties, earnings, business
affairs or business prospects of the Company, the Operating Partnership, and the
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Underwriters shall have received a
certificate of the President or an Executive Vice President of the Company, on
behalf of the Company and as general partner of the Operating Partnership, and
of the chief financial or chief accounting officer of the Company, on behalf of
the Company and as general partner of the Operating Partnership, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) each of the Company and the Operating Partnership has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission. In addition, at Closing Time, the Underwriters
shall have received a certificate of the chief executive officer and chief
financial officer of the Company, on behalf of the Company
17
and as general partner of the Operating Partnership, to the effect as counsel to
the Underwriter may reasonably request.
(e) Accountant's Comfort Letter. At the time of execution of this
Agreement, the Underwriters shall have received from KPMG LLP, Ernst & Young LLP
and Xxxxxxxxxx, Melvoin and Xxxxxxx LLP letters dated such date, substantially
in the forms approved by the Underwriter before the execution of this Agreement.
(f) Bring-down Comfort Letter. At Closing Time, the Underwriter
shall have received from KPMG LLP a letter, dated as of Closing Time, to the
effect that they reaffirm statements made in their letter furnished pursuant to
subsection (e) of this Section 5, except that the "specified date" referred to
shall be a date not more than three days prior to the Closing Time.
(g) NYSE Listing. The Securities shall have been approved for
listing, and admitted and authorized for trading, on the New York Stock
Exchange, subject to notice of insurance.
(h) Conditions to Purchase of Option Securities. In the event that
the Underwriter exercise its option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company and the Operating Partnership contained herein and the statements
in any certificates furnished by the Company, the Operating Partnership and any
Subsidiary shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Underwriter shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or an Executive Vice President of the
Company, and of the chief financial or chief accounting officer of the
Company, confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of such Date
of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Company and the
Operating Partnership, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery to the same
effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriter. The favorable
opinion of Xxxxxx & Bird LLP, counsel for the Underwriter, dated such
Date of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. Letter from KPMG LLP, in form
and substance satisfactory to the Underwriter and dated such Date of
Delivery, substantially in the same form and substance as the letter
furnished to the Underwriter pursuant to Section 5(f) hereof, except
that the "specified date" in each letter furnished pursuant to this
paragraph shall be a date not more than three days prior to such Date of
Delivery.
(i) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the Underwriter shall have been furnished with such
documents and opinions as they may
18
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Underwriter and
counsel for the Underwriter.
(j) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of Option
Securities on a Date of Delivery that is after the Closing Time, the obligations
of the Underwriter to purchase the relevant Option Securities may be terminated
by the Underwriter by notice to the Company at any time at or prior to Closing
Time or such Date of Delivery, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7, 8 and 12 shall survive any such termination
and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriter. Each of the Company and the
Operating Partnership agrees, jointly and severally, to indemnify and hold
harmless the Underwriter and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
and any director, officer, employee or affiliate thereof as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
indemnity agreement with respect to any preliminary prospectus shall not
inure to the benefit of the Underwriter if it failed to deliver a
Prospectus (as then amended or supplemented, provided by the Company to
the Underwriter in accordance with Section 3(d)) to the person asserting
any losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such
material misstatement or omission or alleged material misstatement or
omission was cured, as determined by a court of competent jurisdiction
in a decision not subject to further appeal, in such Prospectus and such
Prospectus was required by law to be delivered at or prior to the
written confirmation of sale to such person.
19
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission; provided any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(b) Indemnification of Company, Trustees and Officers. The
Underwriter agrees to indemnify and hold harmless the Company and the Operating
Partnership, each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, and any officer,
director, trustee, employee or affiliate thereof, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto). The Company and the Operating Partnership acknowledge that
the sentences related to stabilization, syndicate covering transactions and
penalty bids set forth under the heading "Underwriting" in the Prospectus
constitute the only information furnished in writing by the Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability that it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by the Underwriter,
and, in the case of parties indemnified pursuant to Section 6(b)
20
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless (x) such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party and (y) the
indemnifying party confirms in writing its indemnification obligations hereunder
with respect to such settlement, compromise or judgment.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Operating Partnership on the one hand and the Underwriter on the
other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Operating Partnership on the one hand and of the Underwriter on
the other hand in connection with the statements or omissions that resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriter on the other hand in connection
with the offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting discount received
by the Underwriter, in each case as set forth on the cover of the Prospectus,
bear to the aggregate initial public offering price of the Securities as set
forth on such cover.
The relative fault of the Company and the Operating Partnership on the
one hand and the Underwriter on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Operating Partnership or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
21
The Company, the Operating Partnership and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall
not be required to contribute any amount in excess of the amount of the
underwriting discount or commission applicable to the Securities purchased by
the Underwriter hereunder.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each director, officer, employee or
affiliate of the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each trustee of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company, subject in each case to the
preceding two paragraphs. For purposes of this Section 7, the Company and the
Operating Partnership shall be deemed one party, jointly and severally liable
for any obligations hereunder.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or the Operating
Partnership submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company or the
Operating Partnership, and shall survive delivery of the Securities to the
Underwriter.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may, without liability,
terminate this Agreement, by notice to the Company, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the properties, earnings, business affairs or business
prospects of the Company, the Operating Partnership and the Subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, any outbreak of hostilities or
escalation thereof, any acts of terrorism involving the United States or other
calamity or crisis or any
22
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the sole judgment of the Underwriter,
impracticable to market the Securities or inadvisable to enforce contracts for
the sale of the Securities, or (iii) if trading in any securities of the Company
has been suspended or materially limited by the Commission or the New York Stock
Exchange, Inc., or if trading generally on the American Stock Exchange or the
New York Stock Exchange, Inc. or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, or (iv) if a banking
moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7, 8 and 12 shall survive such termination and remain in full force and
effect.
SECTION 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication and confirmed to the
receiving party. Notices to the Underwriter shall be directed to the Underwriter
at 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, attention of Vivek Seth;
notices to the Company and the Operating Partnership shall be directed to it at
0000 Xxxxxxxxxx Xxxx, Xxxxx X00, Xxxxxxxx, XX 00000, attention of Xxxx X. Xxxxx,
Executive Vice President.
SECTION 11. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriter, the Company and the Operating Partnership
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriter, the Company and the Operating
Partnership and their respective successors and the controlling persons and
officers, trustees and directors referred to in Sections 6 and 7 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriter and the Company and their
respective successors, and said controlling persons and officers, trustees and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. UNLESS OTHERWISE
EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
23
SECTION 13. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriter, the Company and the Operating Partnership in accordance
with its terms.
Very truly yours,
LASALLE HOTEL PROPERTIES
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
LASALLE HOTEL OPERATING PARTNERSHIP, L.P.
By: LaSalle Hotel Properties, its general
partner
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & ASSOCIATES, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Authorized Signatory
25
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company is a real estate investment trust duly formed and
validly existing and in good standing under the laws of the State of Maryland
with full trust power and authority to own and lease its properties and to
conduct its business as described in the Prospectus.
(ii) The issued and outstanding capital shares of the Company have
been duly authorized and validly issued by the Company and are fully paid and
non-assessable, and none of such capital shares was issued in violation of
preemptive or other similar rights to purchase or subscribe for shares of
beneficial interest of the Company arising under the laws of the State of
Maryland, the Declaration of Trust or the Bylaws or any contract to which the
Company is a party of which such counsel has knowledge.
(iii) All of the outstanding Units and Series A Units, have been duly
authorized by the Operating Partnership and, assuming that the holders of Units
and Series A Units, as limited partners of the Operating Partnership, do not
participate in the control of the business of the Operating Partnership, the
Units and the Series A Units represent valid and, subject to the qualifications
set forth herein, fully paid and nonassessable limited partner interests in the
Operating Partnership as to which the limited partners holding Units and/or
Series A Units, in their capacity as limited partners of the Operating
Partnership, have no liability in excess of their obligations to make
contributions to the Operating Partnership, their obligations to make other
payments provided for in the Operating Partnership Agreement and their share of
distributed assets and profits of the Operating Partnership to the extent that a
limited partner of the Operating Partnership may be required to repay any funds
wrongfully distributed to it. To such counsel's knowledge, except as described
in the Prospectus, no Units or Series A Units are reserved for issuance for any
purpose, there are no outstanding securities convertible into or exchangeable
for any Units, Series A Units or any other securities of the Operating
Partnership and there are no preemptive or other similar rights to purchase or
subscribe for Units, Series A Units, Series B Units or any other securities of
the Operating Partnership arising under the Delaware Revised Uniform Limited
Partnership Act ("DRULPA") or under the Operating Partnership Agreement or any
contracts to which the Operating Partnership is a party of which such counsel
has knowledge. The Series B Units have been duly authorized by the Operating
Partnership and, assuming that the Company, as a limited partner of the
Operating Partnership, does not participate in the control of the business of
the Operating Partnership, the Series B Units, when issued and delivered by the
Operating Partnership against the Company's contribution of the net proceeds
from the sale of the Securities, will represent valid and, subject to the
qualifications set forth herein, fully paid and nonassessable limited partner
interests in the Operating Partnership as to which the Company, in its capacity
as a limited partner of the Operating Partnership, will have no liability in
excess of its obligations to make contributions to the Operating Partnership,
its obligations to make other payments provided for in the Operating Partnership
Agreement and its share of distributed assets and profits of the Operating
Partnership to the extent that a limited partner of the Operating Partnership
may be required to repay any funds wrongfully distributed to it.
(iv) The Securities to be purchased by the Underwriter from the
Company have been duly authorized for issuance and sale to the Underwriter
pursuant to, and in accordance with the terms of, the Underwriting Agreement
and, when issued and delivered by the Company pursuant to the Underwriting
Agreement against payment of the consideration set forth in the Underwriting
Agreement, will be validly issued, fully paid and nonassessable; the issuance
and sale of the Securities by the Company is not subject to any preemptive or
other similar rights to purchase or subscribe for shares of beneficial interest
of the Company arising under the laws of the State of Maryland, the Declaration
of Trust or Bylaws or any contract to which the Company is a party of which such
counsel has knowledge.
(v) Each of the Operating Partnership and the Subsidiaries
identified on Exhibit B (the "Certain Subsidiaries") is validly existing as a
limited partnership, corporation or limited liability company, as applicable, in
good standing under the laws of its jurisdiction of organization, formation or
incorporation and has the requisite partnership, corporate or company power and
authority to own, lease and operate its properties and to conduct the business
in which it is engaged as described in the Operating Partnership Agreement, with
respect to the Operating Partnership, and the Prospectus and, based solely upon
the certificates of good standing or similar certificates received from the
Secretary of State or similar official of each of the respective states listed
on Schedule 2 to such counsel's opinion with respect to the applicable entity,
is duly qualified or registered as a foreign limited partnership, corporation or
limited liability company to transact business and is in good standing in the
respective states listed on Schedule 2 to such counsel's opinion. Based solely
on a review of the books and records of the Subsidiaries provided to such
counsel, all the outstanding shares of capital stock, partnership interests,
limited liability company interests or other equivalent equity interest of the
Certain Subsidiaries have been duly authorized and validly issued and are fully
paid and non-assessable, as applicable, and except as described in the
Prospectus, all outstanding shares of capital stock, partnership interests,
limited liability company interests or other equivalent equity interest of the
Operating Partnership and such Certain Subsidiaries are owned by the Company
either directly or through wholly-owned Subsidiaries.
(vi) The execution and delivery of the Underwriting Agreement have
been duly authorized by all necessary action of the Company and the Operating
Partnership, and the Underwriting Agreement has been duly executed and delivered
by the Company and the Operating Partnership.
(vii) At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements, financial data,
statistical data and supporting schedules included or incorporated by reference
therein or omitted therefrom, as to which no opinion is expressed) complied as
to form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations. As of the date hereof, the Prospectus (other than the
financial statements, financial data, statistical data and supporting schedules
included or incorporated by reference therein or omitted therefrom, as to which
no opinion is expressed) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
c
(viii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened.
(ix) The documents incorporated by reference in the Prospectus (other
than the financial statements, financial data, statistical data and supporting
schedules included or incorporated by reference therein or omitted therefrom, as
to which no opinion is rendered), when they became effective or were filed with
the Commission, as the case may be, complied as to form, in all material
respects, with the requirements of the 1934 Act and the 1934 Act Regulations.
(x) To such counsel's knowledge and except as described or
incorporated by reference in the Prospectus, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the Company,
the Operating Partnership or any Subsidiary is a party, or to which the property
of the Company, the Operating Partnership or any Subsidiary is subject, before
or brought by any court or governmental agency or body, domestic or foreign, or
any arbitrator that might reasonably be expected to result in a Material Adverse
Effect or to affect the consummation of the transactions contemplated in the
Underwriting Agreement or the performance by the Company or the Operating
Partnership of their respective obligations thereunder or is of a character
required to be described in the Prospectus which is not adequately disclosed.
(xi) The information in the Prospectus under "Description of Series B
Preferred Shares," "Description of Common Shares," "Description of Preferred
Shares," and "Federal Income Tax Considerations" to the extent that it
constitutes matters of law, summaries of legal matters, the Company's
Declaration of Trust (including the Articles Supplementary) and Bylaws or legal
proceedings or legal conclusions, has been reviewed by such counsel and is
correct in all material respects.
(xii) To such counsel's knowledge, there are no laws of the States of
Maryland or New York, any provisions of DRULPA or any federal laws of the United
States of America that are required to be described in the Prospectus that are
not described as required.
(xiii) Commencing with its taxable year ended December 31, 1998, the
Company was organized and has been operated in conformity with the requirements
for qualification as a real estate investment trust under the Internal Revenue
Code of 1986, as amended (the "Code") and the present and proposed method of
operation of the Company and the Operating Partnership, as described in the
Prospectus and as represented by the Company and the Operating Partnership, will
permit the Company to continue to so qualify.
(xiv) All descriptions contained or incorporated in the Registration
Statement of contracts and other documents which are filed as exhibits to the
Company's Annual Report on Form 10-K for the year ended December 31, 2002 (the
"Form 10-K") to which the Company, the Operating Partnership or any Subsidiary
is a party are correct in all material respects. To such counsel's knowledge,
there are no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments ("Agreements") required to be described or
referred to therein
d
or filed or incorporated by reference as exhibits thereto that were not so
filed, incorporated by reference or described as required.
(xv) No consent, approval, authorization or other order of any
federal regulatory body, federal administrative agency or other federal
governmental body of the United States of America or any state regulatory body,
state administrative agency or other state governmental body of the State of New
York is required under Applicable Laws for the issuance and sale of the
Securities to the Underwriter as contemplated by the Agreement or the public
offering of the Securities as contemplated by the Prospectus. As used in such
counsel's opinion letter, the term "Applicable Laws" means those state laws of
the State of New York, Maryland Corporation Law and federal laws of the United
States of America which, in such counsel's experience and without independent
investigation, are normally applicable to transactions of the type contemplated
by the Agreement (provided that the term "Applicable Laws" shall not include
federal or state securities or blue sky laws or any rules or regulations
thereunder including, without limitation, the 1933 Act, the 1934 Act and the
Investment Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations thereunder, or any antifraud or similar laws).
(xvi) The execution, delivery and performance of the Underwriting
Agreement by the Company and the Operating Partnership and the consummation of
the transactions contemplated in the Underwriting Agreement and in the
Prospectus (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds") and compliance by the Company and the Operating
Partnership with their respective obligations under the Underwriting Agreement
do not and will not (i) whether with or without the giving of notice or lapse of
time or both, conflict with or constitute a breach of, or default or Repayment
Event under, or result in the creation or imposition of any material lien,
charge or encumbrance upon any material property or assets of the Company or the
Operating Partnership pursuant to any contract listed as an exhibit to the Form
10-K to which the Company, the Operating Partnership or any of the Subsidiaries
is a party or by which any of them may be bound or to which any of the property
or assets of the Company, the Operating Partnership or any of the Subsidiaries
is subject, (ii) result in any violation of the provisions of the Governing
Instruments of the Company or the Operating Partnership, or (iii) result in any
violation of any Applicable Laws or any judgment, order, writ or decree, known
to such counsel, of any Maryland, Delaware, New York or U.S. federal government,
government instrumentality or court having jurisdiction over the Company or the
Operating Partnership or any of their respective assets or properties.
(xvii) Neither the Company nor the Operating Partnership is an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the 0000 Xxx.
(xviii) The form of certificate used to evidence the Series B Shares
complies, in all material respects, with the requirements of Applicable Laws,
the Declaration of Trust and the Bylaws and the New York Stock Exchange.
(xix) The articles supplementary relating to the Series B Shares have
been filed for record with the Maryland State Department of Assessment and
Taxation.
e
In acting as counsel to the Company in connection with the transactions
contemplated by the Underwriting Agreement, such counsel has participated in
conferences with officers and other representatives of the Company, including
its independent accountants, representatives of outside counsel for the
Underwriter and its representatives, at which conferences the contents of the
Registration Statement, the Prospectus and related matters were discussed.
Although such counsel is not passing upon or assuming responsibility for the
accuracy, completeness or fairness of the statements included in the
Registration Statement and the Prospectus and has made no independent check or
verification thereof (except as set forth in the first sentence of paragraph
(ii) and in paragraph (xi), nothing has come to such counsel's attention which
has caused counsel to believe that the Registration Statement or any of the
materials incorporated by reference therein (other than the financial
statements, financial data, statistical data and supporting schedules included
or incorporated by reference therein or omitted therefrom, as to which no belief
is expressed), at the time it became effective or as of the date of the
Agreement, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (other than the
financial statements, financial data, statistical data and supporting schedules
included or incorporated by reference therein or omitted therefrom, as to which
no belief is expressed), as of the date of the Agreement or as of the Closing
Date, included any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
f
EXHIBIT B
1. LaSalle Hotel Operating Partnership, L.P.
2. LHO Hollywood Financing, Inc.
3. LHO Hollywood LM, L.P.
4. LHO New Orleans Financing, Inc.
5. LHO New Orleans LM, L.P.
6. LHO Washington Six, L.L.C.
7. LHO Financing, Inc.
8. LHO Financing Partnership I, L.P.
g
