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EXHIBIT 1.1
STARWOOD LODGING TRUST STARWOOD LODGING CORPORATION
(A MARYLAND REAL ESTATE INVESTMENT TRUST) (A MARYLAND CORPORATION)
Paired Shares, Convertible Notes, Warrants,
Preferred Shares and Debt Securities
UNDERWRITING AGREEMENT
March __, 1997
Ladies and Gentlemen:
Starwood Lodging Trust, a Maryland real estate investment trust (the
"Trust"), and Starwood Lodging Corporation, a Maryland corporation (the
"Corporation" and, with the Trust, the "Company"), may from time to time offer
in one or more series: (i) shares of beneficial interest, $.01 par value, of the
Trust (the "Trust Shares") and shares of common stock, $.01 par value, of the
Corporation (the "Corporation Shares") which are "paired" and traded as units
consisting of one Trust Share and one Corporation Share (the "Paired Shares");
(ii) convertible notes of the Trust and the Corporation (the "Convertible
Notes"); (iii) (A) warrants to purchase Trust Shares and warrants to purchase
Corporation Shares which are "paired" and traded as units consisting of one
warrant to purchase Trust Shares and one warrant to purchase a like number of
Corporation Shares, (B) warrants to purchase shares of preferred stock of the
Trust or the Corporation, or (C) warrants to purchase debt securities of the
Trust or the Corporation (collectively, the "Warrants"); (iv) shares of
preferred stock of the Trust (the "Trust Preferred Shares") and/or shares of
preferred stock of the Corporation (the "Corporation Preferred Shares" and, with
the Trust Preferred Shares, the "Preferred Shares") which may, but are not
required to, be "paired" with preferred stock of the other entity; and (v)
unsecured debt securities of the Trust or the Corporation (the "Debt
Securities") with an aggregate public offering price of up to $600,000,000 (or
its equivalent in another currency based on the exchange rate at the time of
sale) in amounts, at prices and on terms to be determined at the time of
offering. The Trust or the Corporation may from time to time offer in one or
more series unsecured Debt Securities which may, but are not required to, be
paired with Debt Securities of the other entity. The Paired Shares, Convertible
Notes, Warrants, Preferred Shares and Debt Securities (collectively, the
"Securities"), may be offered, separately or together, in separate series in
amounts, at prices and on terms to be set forth in one or more Prospectus
Supplements as hereinafter defined. The Convertible Notes and the Debt
Securities will be issued under one or more indentures, as amended or
supplemented (each, an "Indenture"), between the Trust and/or the Corporation,
as applicable, and a trustee (a "Trustee"). Each series of Debt Securities may
vary, as applicable, as to aggregate principal amount, maturity date, interest
rate or formula and timing of payments thereof, redemption or repayment
provisions, and any other variable terms which the Indenture contemplates may be
set forth in the Debt Securities as issued from time to time. As used herein,
"the Representatives," unless the context otherwise requires, shall mean the
party to
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whom this Agreement is addressed together with the other parties, if any,
identified in the applicable Pricing Agreement (as hereinafter defined) as
additional co-managers with respect to Underwritten Securities (as hereinafter
defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities
through the Representatives or through an underwriting syndicate managed by the
Representatives, the Company will enter into an agreement (the "Pricing
Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, the Representatives
and such other underwriters, if any, selected by the Representatives as have
authorized the Representatives to enter into such Pricing Agreement on their
behalf (the "Underwriters," which term shall include the Representatives whether
acting alone in the sale of the Underwritten Securities or as a member of an
underwriting syndicate and any Underwriter substituted pursuant to Section
hereof). The Pricing Agreement relating to the offering of Underwritten
Securities shall specify the amount of Underwritten Securities to be initially
issued (the "Initial Underwritten Securities"), the names of the Underwriters
participating in such offering (subject to substitution as provided in Section
hereof), the amount of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, the names of such of the
Representatives or such other Underwriters acting as co-managers, if any, in
connection with such offering, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, if any, of the Initial Underwritten Securities, the time
and place of delivery and payment, any delayed delivery arrangements and any
other variable terms of the Initial Underwritten Securities (including, but not
limited to, current ratings, designations, liquidation preferences, voting and
other rights, denominations, interest rates or formulas, interest payment dates,
maturity dates and redemption or repayment provisions applicable to the Initial
Underwritten Securities). In addition, each Pricing Agreement shall specify
whether the Underwriters will be granted an option to purchase additional
Underwritten Securities to cover over-allotments, if any, and the aggregate
amount of Underwritten Securities subject to such option (the "Option
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of the Option
Securities agreed to be purchased by the Underwriters as provided herein, if
any. The Pricing Agreement, which shall be substantially in the form of Exhibit
A hereto, may take the form of an exchange of any standard form of written
telecommunication between the Representatives and the Company. Each offering of
Underwritten Securities through the Representatives or through an underwriting
syndicate managed by the Representatives will be governed by this Agreement, as
supplemented by the applicable Pricing Agreement.
The Trust and the Corporation have filed with the Securities and
Exchange Commission (the "Commission") registration statements on Form S-3 (Nos.
33-64335 and 00-00000-00 and 333-13411 and 333-13411-01) for the registration of
the Securities under the Securities Act of 1933, as amended (the "1933 Act"),
and the offering thereof from time to time in accordance with Rule 430A or Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and the Trust and the Corporation have filed such amendments
thereto as may have been required prior to the execution of the applicable
Pricing Agreement. Such registration statements (as amended, if applicable) have
been declared effective by the Commission. Such registration statements and the
prospectus constituting a part thereof (including in each case the information,
if any, deemed to be part thereof pursuant to Rule 430A(b) of the 1933 Act
Regulations), and each prospectus supplement relating to the offering of
Underwritten Securities pursuant to Rule 415 of the 1933 Act Regulations (the
"Prospectus Supplement"), including all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the 1933
Act, the Securities Exchange Act of 1934, as amended (the "1934 Act") or
otherwise, are collectively referred to herein as the "Registration Statement"
and the "Prospectus," respectively; provided, that if any revised prospectus
shall be provided to the Representatives by the Trust and the Corporation for
use in connection with the offering of Underwritten Securities which differs
from the Prospectus on file at the Commission at the time the Registration
Statement becomes effective (whether or not such revised prospectus is required
to be filed by the Trust and the Corporation pursuant to Rule 424(b) of the 1933
Act Regulations), the term "Prospectus" shall refer to each such revised
prospectus from and after the time it is first provided to the Representatives
for such use; provided, further, that a Prospectus Supplement shall be deemed to
have supplemented the Prospectus only with respect to the offering of
Underwritten Securities to which it relates. Any registration statement
(including any supplement thereto or information which is deemed part thereof)
filed by the Trust and the Corporation under Rule 462(b) of the 1933 Act
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Regulations (a "Rule 462(b) Registration Statement") shall be deemed to be part
of the Registration Statement. Any prospectus (including any amendment or
supplement thereto or information which is deemed part thereof) included in the
Rule 462(b) Registration Statement and any term sheet as contemplated by Rule
434 of the 1933 Act Regulations (a "Term Sheet") shall be deemed to be part of
the Prospectus. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
SECTION 1. Representations and Warranties of the Transaction Entities
a. Each of the Trust, the Corporation, SLT Realty Limited
Partnership, a Delaware limited partnership (the "Realty Partnership"), and SLC
Operating Limited Partnership, a Delaware limited partnership (the "Operating
Partnership" and collectively with the Trust, the Corporation, the Realty
Partnership, the Operating Partnership being sometimes hereinafter collectively
referred to as the "Transaction Entities" and individually as a "Transaction
Entity"), represent and warrant, jointly and severally, to the Representatives,
as of the date hereof, and to the Representatives and each other Underwriter
named in the applicable Pricing Agreement, as of the date thereof (in each case,
a "Representation Date"), as follows:
i. The Registration Statement and the Prospectus, at the time
the Registration Statement became effective, complied, and as of each
Representation Date will comply, in all material respects with the
requirements of the 1933 Act and the rules and regulation thereunder
(the "1933 Act Regulations") and the 1939 Act and the rules and
regulations thereunder (the "1939 Act Regulations"). The Registration
Statement, at the time the Registration Statement became effective, did
not, and as of each Representation Date, 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, as of the date hereof does not, and as of
each Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to you by the Trust and the
Corporation for use in connection with an offering of Underwritten
Securities which differs from the Prospectus on file at the Commission
at the time the Registration Statement becomes effective, in which case
at the time it is first provided to you for such use) and Closing Time
(as such term is defined in Section below) will comply in all material
respects with the requirements of the 1933 Act and the 1933 Regulations
and will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the Trust
or the Corporation in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement or the
Prospectus. If a Rule 462(b) Registration Statement is required in
connection with the offering and sale of the Securities, the Trust and
the Corporation have complied or will comply with the requirements of
Rule 111 under the 1933 Act Regulations relating to the payment of
filing fees therefor.
ii. Each preliminary prospectus, Prospectus, preliminary
prospectus supplement and Prospectus Supplement 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 or
will comply when so filed in all material respects with the 1933 Act
and the 1933 Act Regulations thereunder.
iii. The documents incorporated or deemed to be incorporated
by reference in the Prospectus pursuant to Item 12 of Form S-3 under
the 1933 Act, at the time they were or hereafter are filed
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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 under the 1934 Act (the "1934 Act Regulations"), and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective and as of the
applicable Representation Date or Closing Time or during the period
specified in Section below, did not and will not include 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
the light of the circumstances under which they were made, not
misleading.
iv. Coopers & Xxxxxxx L.L.P. and Deloitte & Touche LLP,
the accounting firms that audited the financial statements and
supporting schedules included in, or incorporated by reference into,
the Registration Statement and Prospectus, are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
v. All financial statements (including the notes thereto)
required to be included or incorporated by reference in the
Registration Statement and the Prospectus by the 1933 Act and the 1933
Act Regulations are contained or incorporated by reference therein, and
such financial statements present fairly the financial position of the
respective entity or entities presented therein at the respective dates
indicated and the results of their operations for the respective
periods specified; except as otherwise stated in the Registration
Statement, said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein;
and the Company's ratios of earnings to fixed charges (actual and, if
any, proforma) included in the Prospectus under the caption "Ratios of
Earnings to Fixed Charges" and in Exhibit 12.1 to the Registration
Statement have been calculated in compliance with Item 503(d) of
Regulation S-K of the Commission. The financial information and data
included in the Registration Statement and the Prospectus present
fairly the information included therein and have been prepared on a
basis consistent, except as may be noted therein, with that of the
financial statements included in or incorporated by reference in the
Registration Statement and the Prospectus and the books and records of
the respective entities or group presented therein. The pro forma
financial information included in or incorporated by reference in the
Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the 1933 Act, the 1933
Act Regulations (including, without limitation, Rule 11-02 of
Regulation S-X of the Commission) and guidelines of the American
Institute of Certified Public Accountants with respect to pro forma
financial information and includes all adjustments necessary to present
fairly the pro forma financial position of the Trust and the
Corporation at the respective dates indicated and the results of
operations for the respective periods specified.
vi. No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Trust and the Corporation, threatened by the Commission or by the
state securities authority of any jurisdiction. No order preventing or
suspending the use of the Prospectus has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the Trust
or the Corporation, threatened by the Commission or by the state
securities authority of any jurisdiction.
vii. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated or contemplated therein, (A) there has been no adverse
change in the condition, financial or otherwise, or in the earnings,
assets, business affairs or business prospects of the Transaction
Entities and their respective subsidiaries, considered as one
enterprise, or in the fee, ground lease and mortgage interests, in
hotel properties which the Transaction Entities and their respective
subsidiaries will own and/or operate as of the Closing Time (the "Hotel
Assets"), whether or not arising in the ordinary course of business,
which would be material to the Transaction Entities and their
respective subsidiaries, considered as one enterprise (anything which
would be material to the Transaction Entities and their respective
subsidiaries, considered as one enterprise, being hereinafter
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referred to as "Material"), (B) there have been no transactions or
acquisitions entered into by the Transaction Entities or any of their
respective subsidiaries, other than those in the ordinary course of
business, which would reasonably be expected to be Material, (C) there
has been no dividend or distribution of any kind declared, paid or made
by the Trust or the Corporation on any class of its respective capital
stock and (D) there has been no change in the capital stock of the
Trust or the Corporation (except for issuances, if any, pursuant to
outstanding options or warrants of the Trust or the Corporation
described in the Prospectus), or the partnership interests of the
Operating Partnership or the Realty Partnership or any increase in the
indebtedness of the Transaction Entities, or any of their respective
subsidiaries or in the indebtedness encumbering the Hotel Assets which
would reasonably be expected to be Material.
viii. The Trust has been duly formed and is validly existing
as a real estate investment trust in good standing under the laws of
the State of Maryland, with trust power and authority to own, lease and
operate its properties and to conduct the business in which it is
engaged or proposes to engage as described in the Prospectus and to
enter into and perform its obligations under this Agreement and the
Pricing Agreement and the other Operative Documents (as defined in
subsection xvi below) to which it is a party; and the Trust is duly
qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have an adverse effect
on the condition, financial or otherwise, or the earnings, assets or
business affairs or business prospects of the Transaction Entities and
their respective subsidiaries, considered as one enterprise, or the
Hotel Assets which would reasonably be expected to be Material (a
"Material Adverse Effect"). The Trust has no significant subsidiaries
(other than the Realty Partnership and SLT Realty LLC, a Delaware
limited liability company (the "LLC")) within the meaning of Regulation
S-X under the 1933 Act.
ix. Each of the Corporation and its subsidiaries has each been
duly incorporated and is validly existing as a corporation in good
standing under the laws of their respective jurisdictions of
incorporation (except with respect to those subsidiaries which are not
significant subsidiaries, where such failure to be duly incorporated or
to be in good standing would reasonably be expected not have a Material
Adverse Effect), with corporate power and authority to own, lease and
operate its properties and to conduct the business in which it is
engaged or proposes to engage as described in the Prospectus and to
enter into and perform its obligations under this Agreement and the
Pricing Agreement and the other Operative Documents to which it is a
party; and each of the Corporation and its subsidiaries duly qualified
as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not reasonably
be expected to have a Material Adverse Effect. The Corporation has no
significant subsidiaries (other than the Operating Partnership and
Hotel Investors Corporation of Nevada, a Nevada corporation) within the
meaning of Regulation S-X under the 0000 Xxx.
x. Each of the Realty Partnership and the LLC, has been duly
formed and is validly existing as a limited partnership or limited
liability company, as the case may be, in good standing under the laws
of the State of Delaware, with requisite power and authority to own,
lease and operate its properties, to conduct the business in which it
is engaged and proposes to engage as described in the Prospectus and to
enter into and perform its obligations under this Agreement and the
other Operative Documents, in each case, to which it is a party. The
Realty Partnership and the LLC are duly qualified or registered as a
foreign entity and are 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 reasonably be
expected to have a Material Adverse Effect. The Trust is the sole
general partner and Starwood Capital Group, L.P., Berl Holdings L.P.,
Starwood Apollo Hotel Partners I, L.P., Starwood Apollo Hotel Partners
VIII, L.P., Starwood Apollo Hotel Partners IX, LP and Starwood Nomura
Hotel Investors, L.P. (collectively, "Starwood Capital") and [ ]
are the limited partners of the Realty Partnership. The agreement of
limited
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partnership of the Realty Partnership, as amended, and the limited
liability company agreement of the LLC, as amended, are in full force
and effect, and the percentage interests of the partners or members, as
the case may be, in the Realty Partnership and the LLC will be (at
Closing) as set forth in the Prospectus. To the extent any portion of
the over-allotment option described in Section hereof is exercised at
the Closing Time, the percentage interests of the partners in the
Realty Partnership will be adjusted accordingly. Additionally, to the
extent any portion of such over-allotment option is exercised
subsequent to Closing Time, the Trust will contribute the proceeds from
the sale of the Option Securities to the Realty Partnership in exchange
for a number of units of partnership interest in the Realty Partnership
("Realty Units") equal to the number of Option Securities issued. The
Realty Partnership has no significant subsidiaries (other than the LLC)
within the meaning of Regulation S-X under the 1933 Act.
xi. The Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under the
laws of the State of Delaware, with partnership power and authority to
own, lease and operate its properties, to conduct the business in which
it is engaged and proposes to engage as described in the Prospectus and
to enter into and perform its obligations under this Agreement and the
other Operative Documents to which it is a party. 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 reasonably be
expected to have a Material Adverse Effect. The Corporation and certain
of its wholly-owned subsidiaries are the general partners and Starwood
Capital are the sole limited partners of the Operating Partnership. The
agreement of limited partnership of the Operating Partnership, as
amended through the date hereof, is in full force and effect, and the
percentage interests of the partners in the Operating Partnership will
be (at Closing) as set forth in the Prospectus. To the extent any
portion of the over-allotment option described in Section hereof is
exercised at the Closing Time, the percentage interests of the partners
in the Operating Partnership will be adjusted accordingly.
Additionally, to the extent any portion of such over-allotment option
is exercised subsequent to Closing Time, the Corporation will
contribute the proceeds from the sale of the Option Securities to the
Operating Partnership in exchange for a number of units of partnership
interest in the Operating Partnership ("Operating Units," and
collectively with Realty Units, "Units") equal to the number of Option
Securities issued. The Operating Partnership has no significant
subsidiaries within the meaning of Regulation S-X under the 1933 Act.
xii. All the issued and outstanding Trust Shares and
Corporation Shares have been duly authorized and are validly issued,
fully paid and non-assessable. No shares of the capital stock of either
the Trust or the Corporation are reserved for any purpose except as
disclosed in the Prospectus. Except as described in the Prospectus,
there are no outstanding securities convertible into or exchangeable
for any capital stock of the Trust or the Corporation and there are no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of the capital stock or any other
securities of the Trust or the Corporation. The Paired Shares issuable
upon conversion of the units of partnership interest in the Realty
Partnership and the Operating Partnership (the "Units") have been duly
and validly authorized by all necessary corporate action and such
Paired Shares, when issued upon such conversion or exercise, will be
duly and validly issued, fully paid and non-assessable.
xiii. The Securities (and the securities, if any, into which
they may be convertible) have been duly authorized for issuance and
sale to the Underwriters pursuant to the Indenture, if applicable, and
this Agreement, and, when issued and delivered by the Trust and the
Corporation pursuant to the Indenture, if applicable, and this
Agreement against payment of the consideration set forth in the Pricing
Agreement, will be validly issued, fully paid and non-assessable. Upon
payment of the purchase price and delivery of the Securities in
accordance herewith, each of the Underwriters will receive good, valid
and marketable title to the Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims or equities,
and immediately upon conversion of the Convertible Notes, if any, into
Paired Shares pursuant to the terms of the Indenture, each holder
thereof will receive marketable title to
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the Paired Shares, in each case, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims or equities.
The terms of the Securities conform in all material respects to all
statements and descriptions related thereto contained in the
Prospectus. The issuance of the Securities is not subject to any
preemptive or other similar rights.
xiv. All the issued and outstanding Realty Units and the
Operating Units have been duly authorized and are validly issued, fully
paid and non-assessable and have been offered and sold or exchanged in
compliance with all applicable laws (including, without limitation,
federal and state securities laws). There are no outstanding securities
convertible into or exchangeable for any Units and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for Units.
xv. None of the Transaction Entities or any of their
respective subsidiaries is in violation of its declaration of trust,
trustee's regulation of the trust, charter, by-laws, certificate of
limited partnership, agreement of limited partnership or other
governance documents, as the case may be, and none of the Transaction
Entities or any of their respective subsidiaries is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which such entity is a
party or by which such entity may be bound, or to which any of its or
its subsidiaries' property or assets is subject, except for such
violations and defaults that would not reasonably be expected to have a
Material Adverse Effect.
xvi. (A) This Agreement has been duly and validly authorized,
executed and delivered by each Transaction Entity and assuming due
authorization, execution and delivery by the Representatives, is a
valid and binding agreement of each of the Transaction Entities,
enforceable against the Transaction Entities in accordance with its
terms; (B) at the Representation Date, the Pricing Agreement will have
been duly and validly authorized, executed and delivered by the Trust
and the Corporation, and assuming due authorization, execution and
delivery by the Representatives, will be a valid and binding agreement
of the Trust and the Corporation, enforceable against the Trust and the
Corporation in accordance with its terms; and (C) the Indenture, if
any, at the Closing Time, will have been duly and validly authorized,
executed and delivered by the Trust and the Corporation and, assuming
due authorization, execution and delivery by the Trustee thereto, will
be a valid and binding agreement, enforceable against the Trust and the
Corporation in accordance with its terms. This Agreement, the Pricing
Agreement and the Indenture, if any, are sometimes hereinafter
collectively referred to as "Operative Documents."
xvii. The execution and delivery of each of the Operative
Documents, the performance of the obligations set forth herein or
therein, and the consummation of the transactions contemplated hereby
or thereby or in the Prospectus by the Transaction Entities will not
conflict with or constitute a breach or violation by such parties of,
or default under, (A) any contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement or other
instrument or agreement to which such Transaction Entity is a party or
by which they or, any of them, or any of their respective properties or
other assets or any Hotel Asset may be bound or subject, (B) the
declaration of trust, trustee's regulations of the trust, charter,
by-laws, certificate of limited partnership or partnership agreement,
as the case may be, of any Transaction Entity or (C) any applicable
law, rule, order, administrative regulation or administrative or court
decree, in each case except for conflicts, breaches, violations or
defaults that, individually or in the aggregate would not reasonably be
expected to have a Material Adverse Effect.
xviii. The Indenture, if any, shall be duly qualified under
the Trust Indenture Act. The Convertible Notes and/or the Debt
Securities, if any, shall represent debt obligations of the Trust and
the Corporation, which, to their knowledge and information, are not
subject to any subordination agreement (except to the extent provided
in the Indenture), and do not entitle any holder thereof to any rights
as a shareholder of either the Trust or the Corporation. Such
Convertible Notes and/or Debt Securities, if any, and the Indenture
will not contain any provision which conditions the obligation of
payment by the Trust and the Corporation thereunder or which
subordinates the indebtedness evidenced thereby in right of
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payment to any other indebtedness of the Trust or the Corporation,
except to the extent the Indenture provides for a priority for
compensation and expenses of the Trustee over payments to holders of
such Convertible Notes and/or Debt Securities.
xix. (A) No labor dispute with the employees of any
Transaction Entity or any of their respective subsidiaries exists or,
to the knowledge of the Transaction Entities is imminent, and (B) none
of the Transaction Entities is aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors, which, in the case of either (A) or (B),
would reasonably be expected to have a Material Adverse Effect.
xx. There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Transaction Entities, threatened against or
affecting any Transaction Entity or any of their respective
subsidiaries, any Hotel Asset or any officer or director of the Trust
or the Corporation or any of their respective subsidiaries, which is
required to be disclosed in the Registration Statement or the
Prospectus (other than as disclosed therein), or that, if determined
adversely to any Transaction Entity, any Hotel Asset, or any such
officer or director, will or would reasonably be expected to (A) have a
Material Adverse Effect, or (B) materially and adversely affect the
consummation of the transactions contemplated by this Agreement. There
are no pending legal or governmental proceedings to which any
Transaction Entity or any of their respective subsidiaries is a party
or of which they or any of their respective properties or assets or any
Hotel Asset is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, that, considered in the aggregate, could reasonably be
expected to have a Material Adverse Effect. There are no contracts or
documents of any Transaction Entity or any of their respective
subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
xxi. Commencing with their taxable years ending December 31,
1995, the Transaction Entities and their respective subsidiaries, are
and will be organized and operated in conformity with the requirements
for qualification of the Trust as a real estate investment trust under
the Internal Revenue Code of 1986, as amended (the "Code"), and the
proposed method of operation of the Transaction Entities and their
respective subsidiaries will enable the Trust to meet the requirements
for taxation as a real estate investment trust under the Code. Section
269B(a)(3) of the Code does not and will continue not to apply to the
Trust and the Corporation.
xxii. None of the Transaction Entities or any of their
respective subsidiaries is, or at Closing Time will be, required to be
registered under the Investment Company Act of 1940, as amended (the
"1940 Act").
xxiii. The Transaction Entities and their respective
subsidiaries own or possess, or can acquire on reasonable terms, the
licenses, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, "proprietary rights") presently employed by each of them
in connection with the business now operated by them, and none of the
Transaction Entities nor any of their respective subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any proprietary
rights, or of any facts which would render any proprietary rights
invalid or inadequate to protect the interest of such Transaction
Entity or its subsidiaries 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 reasonably
be expected to have a Material Adverse Effect.
xxiv. No authorization, approval, consent or order of any
court or governmental authority or agency or other entity or person is
necessary in connection with the offering, issuance or sale
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of the Securities (or the securities, if any, into which the Securities
are convertible) hereunder, except as may be required under the 1933
Act or the 1933 Act Regulations, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), state securities or real estate
syndication laws or the by-laws and rules of the National Association
of Securities Dealers, Inc. (the "NASD"), all of which have been
obtained or will have been obtain prior to Closing Time or such as have
been received prior to the date of this Agreement, and except for
approval by the Nevada Gaming Commission of certain contributions by
the Corporation to the Operating Partnership.
xxv. Each of the Transaction Entities possesses such
certificates, authorizations or permits issued by the appropriate
local, state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by it, or proposed to be
conducted by it, and none of the Transaction Entities has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to have a Material Adverse
Effect.
xxvi. Except as disclosed in the Prospectus, there are no
persons with registration or other similar rights to have any
securities registered pursuant to the Registration Statement or
otherwise registered by the Trust and the Corporation under the 1933
Act.
xxvii. At the Closing Time, the Securities (and the
securities, if any, into which the Securities may be convertible) will
have been approved for listing on the New York Stock Exchange upon
notice of issuance.
xxviii. (A) The Transaction Entities or their respective
subsidiaries have good and marketable title to their respective Hotel
Assets free and clear of all liens, encumbrances, claims, security
interests and defects, except such as are (i) described in the
Prospectus, (ii) serving as security for loans described in the
Prospectus, or (iii) not Material; (B) all liens, charges,
encumbrances, claims or restrictions on or affecting any of the Hotel
Assets and the assets of any Transaction Entity and their respective
subsidiaries which are required to be disclosed in the Prospectus are
disclosed therein; (C) none of the Transaction Entities or any of their
respective subsidiaries is in default under any of the ground leases
(as lessee), relating to, or any of the mortgages or other security
documents or other agreements encumbering or otherwise recorded
against, the Hotel Assets, and none of the Transaction Entities knows
of any event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such documents
or agreements, other than such defaults that would not reasonably be
expected to have a Material Adverse Effect; (D) each of the Hotel
Assets complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and
regulations and laws relating to access to the Hotel Assets), except
for such failures to comply that would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect; and (E) none
of the Transaction Entities has knowledge of any pending or threatened
condemnation proceeding, 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 Hotel Assets, except such proceedings
or actions that individually or in the aggregate would not reasonably
have a Material Adverse Effect.
xxix. Each of the Transaction Entities and their respective
subsidiaries has obtained title insurance on such Transaction Entity's
or subsidiary's fee and/or leasehold interests, as applicable, in each
of the Hotel Assets, except for such failures to obtain title insurance
that would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
xxx. Except as disclosed in the Prospectus, and, except for
activities, conditions, circumstances or matters that would not have a
Material Adverse Effect; (A) to the knowledge of the Transaction
Entities, the operations of the Transaction Entities are in compliance
with all Environmental Laws and all requirements of applicable permits,
licenses, approvals and other authorizations issued
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pursuant to Environmental Laws; (B) none of the Transaction Entities or
any of their respective subsidiaries has caused or to the knowledge of
the Transaction Entities suffered to occur any Release (as defined
below) of any Hazardous Substance (as defined below) into the
Environment (as defined below) on, in, under or from any Hotel Asset,
and no condition exists on, in, under or, to the knowledge of the
Transaction Entities, adjacent to any Hotel Asset that could result in
the incurrence of liabilities or any violations of any Environmental
Law (as defined below) in either case which would be Material or give
rise to the imposition of any Lien (as defined below) under any
Environmental Law; (C) none of the Transaction Entities or any of their
respective subsidiaries has received any notice of a claim under or
pursuant to any Environmental Law or under common law pertaining to
Hazardous Substances on, in, under or originating from any Hotel Asset;
(D) none of the Transaction Entities or any of their respective
subsidiaries has received any notice from any Governmental Authority
(as defined below) or other Person claiming any violation of any
Environmental Law or evidencing the intent to undertake and/or
requesting the investigation, remediation, clean-up or removal of any
Hazardous Substance released into the Environment on, in, under or from
any Hotel Asset; and (E) no Hotel Asset is included or, to the
knowledge of the Transaction Entities, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as defined below)
by the United States Environmental Protection Agency (the "EPA") or on
the Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA, and, to the
knowledge of the Transaction Entities, has not otherwise been
identified by the EPA as a potential CERCLA removal, remedial or
response site or included or, to the knowledge of the Transaction
Entities, proposed for inclusion on, any similar list of potentially
contaminated sites pursuant to any other Environmental Law.
As used herein, "Hazardous Substance" shall include any
hazardous substance, hazardous waste, toxic substance, pollutant,
hazardous material or similarly designated materials, including,
without limitation, oil, petroleum or any petroleum-derived substance
or waste, asbestos or asbestos-containing materials, PCBs, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant or waste
which is identified, regulated, prohibited or limited under any
Environmental Law (including, without limitation, materials listed in
the United States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. Section 172.101, as the same may now or
hereafter be amended, or in the EPA's List of Hazardous Substances and
Reportable Quantities, 40 C.F.R. Part 302, as the same may now or
hereafter be amended); "Environment" shall mean any surface water,
drinking water, ground water, land surface, subsurface strata, river
sediment, buildings, structures, and ambient, workplace and indoor and
outdoor air; "Environmental Law" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended (42 C. Section 9601 et seq.) ("CERCLA"), the Resource
Conservation and Recovery Act of 1976, as amended (42 C. Section 6901,
et seq.), the Clean Air Act, as amended (42 C. Section 7401, et seq.),
the Clean Water Act, as amended (33 C. Section 1251, et seq.), the
Toxic Substances Control Act, as amended (15 C. Section 2601, et seq.),
the Occupational Safety and Health Act of 1970, as amended (29 C.
Section 651, et seq.), the Hazardous Materials Transportation Act, as
amended (49 C. Section 1801, et seq.), and all other federal, state and
local laws, ordinances, regulations, rules and orders relating to the
protection of the environments or of human health from environmental
effects; "Governmental Authority" shall mean any federal, state or
local governmental office, agency or authority having the duty or
authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Hotel Asset, any mortgage, deed
of trust, pledge, security interest, lien, encumbrance, penalty, fine,
charge, assessment, judgment or other liability in, on or affecting
such Hotel Asset; and "Release" shall mean any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, emanating or disposing of any Hazardous Substance
into the Environment, including, without limitation, the abandonment or
discard of barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release, emission,
discharge or similar term, as those terms are defined or used in any
Environmental Law.
xxxi. Each of the Transaction Entities has filed all federal,
state, local and foreign income tax returns which have been required to
be filed (except in any case in which the failure to so file
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would not reasonably be expected to have a Material Adverse Effect), and has
paid all taxes required to be paid and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and payable,
except, in all cases, for any such tax, assessment, fine or penalty that is
being contested in good faith.
b. Any certificate delivered hereunder or under any Operative
Document and signed by any officer or authorized representative of any
Transaction Entity and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by such entity or
person, as the case may be, to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
a. The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Pricing Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Pricing Agreement.
b. In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust and/or the Corporation, as applicable, may grant, if so
provided in the applicable Pricing Agreement relating to the Initial
Underwritten Securities, an option to the Underwriters named in such Pricing
Agreement, severally and not jointly, to purchase up to the number of Option
Securities set forth therein at the same price per Option Security as is
applicable to the Initial Underwritten Securities. Such option, if granted, will
expire 30 days (or such lesser number of days as may be specified in the
applicable Pricing Agreement) after the Representation Date relating to the
Initial Underwritten Securities, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Underwritten
Securities upon notice by the Representatives to the Trust and/or the
Corporation, as applicable, setting forth the number of Option Securities as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time, date and
place of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days nor
earlier than two full business days after the exercise of said option, nor in
any event prior to the Closing Time, unless otherwise agreed upon by the
Representatives and the Trust and/or the Corporation, as applicable. If the
option is exercised as to all or any portion of the Option Securities, each of
the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Initial Underwritten Securities each such Underwriter has
severally agreed to purchase as set forth in the applicable Pricing Agreement
bears to the total number of Initial Underwritten Securities (except as
otherwise provided in the applicable Pricing Agreement), subject to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional Underwritten Securities.
c. Payment of the purchase price for, and delivery of
certificates for, the Underwritten Securities to be purchased by the
Underwriters shall be made at the offices of Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the
Representatives and the Trust and/or the Corporation, as applicable, at 10:00
A.M. on the fourth business day (or the third business day if required under
Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the
provisions of Section ) following the date of the applicable Pricing Agreement
or at such other time as shall be agreed upon by the Representatives and the
Trust and the Corporation (each referred to herein as the "Closing Time"). In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriters, payment of the purchase price for, and delivery of
certificates for, such Option Securities shall be made at the above-mentioned
offices of Xxxxxx & Xxxxx, or at such other place as shall be agreed upon by the
Representatives and the Trust and/or the Corporation, as applicable, on each
Date of Delivery as specified in the notice from the Representatives to the
Trust and/or the Corporation, as applicable. Payment shall be made to the Trust
and/or the Corporation, as applicable, by certified or official bank check or
checks drawn in New York Clearing House funds or similar next day funds payable
to the
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order of the Trust and the Corporation, against delivery to the Representatives
for the respective accounts of the Underwriters of certificates for the
Underwritten Securities to be purchased by them. Certificates for the
Underwritten Securities and the Option Securities, if any, shall be in such
denominations and registered in such names as the Representatives may request in
writing at least two business days before the Closing Time or the relevant Date
of Delivery, as the case may be. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Underwritten Securities and
the Option Securities, if any, which it has agreed to purchase. The
Representatives, individually and not as representatives of the Underwriters,
may (but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities or the Option Securities, if any, to be purchased by any
Underwriter whose check has not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but any such payment shall not
relieve such Underwriter from its obligations hereunder. The certificates for
the Initial Underwritten Securities and the Option Securities, if any, will be
made available for examination and packaging by the Representatives not later
than 10:00 A.M. on the last business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be, in New York, New York.
SECTION 3. Covenants of the Trust and the Corporation. Each of the
Trust and the Corporation covenants with the Representatives, and with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
a. In respect to each offering of Underwritten Securities, the
Company will prepare a Prospectus Supplement setting forth the number
of Underwritten Securities covered thereby and their terms not
otherwise specified in the Prospectus pursuant to which the
Underwritten Securities are being issued, the names of the Underwriters
participating in the offering and the number of Underwritten Securities
which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the offering, the
price at which the Underwritten Securities are to be purchased by the
Underwriters from the Company the initial public offering price, if
any, the selling concession and reallowance, if any, and such other
information as the Representatives and the Company deem appropriate in
connection with the offering of the Underwritten Securities; and the
Company will promptly transmit copies of the Prospectus Supplement to
the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus (including such Prospectus Supplement) as the
Representatives shall reasonably request.
b. If, at the time the Prospectus Supplement was filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any
information shall have been omitted therefrom in reliance upon Rule
430A of the 1933 Act Regulations, then immediately following the
execution of the Pricing Agreement, the Trust and the Corporation will
prepare, and file or transmit for filing with the Commission in
accordance with such Rule 430A and Rule 424(b) of the 1933 Act
Regulations, a copy of an amended Prospectus, or, if required by such
Rule 430A, a post-effective amendment to the Registration Statement
(including amended Prospectuses), containing all information so
omitted. If required, the Trust and the Corporation will prepare and
file or transmit for filing a Rule 462(b) Registration Statement not
later than the date of execution of the Pricing Agreement. If a Rule
462(b) Registration Statement is filed, the Trust and the Corporation
shall make payment of, or arrange for payment of, the additional
registration fee owing to the Commission required by Rule 111 of the
1933 Act Regulations.
c. The Trust and the Corporation will notify the
Representatives immediately, and confirm such notice in writing, of (i)
the effectiveness of any amendment to the Registration Statement, (ii)
the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus to be
filed pursuant to the 1933 Act, (iii) the receipt of any comments from
the Commission, (iv) 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 (v) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose; and the Trust and the Corporation will make every reasonable
effort
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to prevent the issuance of any such stop order and, if any stop order
is issued, to obtain the lifting thereof at the earliest possible
moment.
d. At any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, the Trust and the Corporation will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, will furnish the Representatives with copies of any such
amendment or supplement a reasonable amount of time prior to such
proposed filing and, unless required by law, will not file or use any
such amendment or supplement or other documents in a form to which the
Representatives or counsel for the Underwriters shall reasonably
object.
e. The Trust and the Corporation will deliver to the
Representatives as soon as possible as many signed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference therein) as
the Representatives may reasonably request and will also deliver to the
Representatives as many conformed copies of the Registration Statement
as originally filed and of each amendment thereto (including documents
incorporated by reference into the Prospectus) as the Representatives
may reasonably request.
f. The Trust and the Corporation will furnish to each
Underwriter, from time to time 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 such
Underwriter may reasonably request for the purposes contemplated by the
1933 Act or the 1934 Act or the respective applicable rules and
regulations of the Commission thereunder.
g. If any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriters,
to amend or supplement the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, the Trust and the Corporation will
forthwith amend or supplement the Prospectus (in form and substance
reasonably satisfactory to counsel for the Underwriters) so that, as so
amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Trust and the Corporation will furnish to the
Underwriters a reasonable number of copies of such amendment or
supplement.
h. The Trust and the Corporation will endeavor, in cooperation
with the Underwriters, to qualify the Underwritten Securities for
offering and sale under the applicable securities laws and real estate
syndication laws of such states and other jurisdictions as the
Representatives may designate. In each jurisdiction in which the
Underwritten Securities have been so qualified, the Trust and the
Corporation will file such statements and reports as may be required by
the laws of such jurisdiction to continue such qualification in effect
for so long as may be required for the distribution of the Underwritten
Securities.
i. With respect to each sale of Underwritten Securities, the
Trust and the Corporation will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve-month period beginning not later than the first day
of the Trust and the Corporation's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration
Statement.
j. Each of the Trust and the Corporation will use the net
proceeds received by it from the sale of the Underwritten Securities in
the manner specified in the Prospectus under "Use of Proceeds."
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k. The Trust and the Corporation, if applicable, 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 Sections 13, 14 or 15 of the 1934 Act within
the time periods required by the 1934 Act and the 1934 Act Regulations.
l. The Trust and the Corporation will file with the New York
Stock Exchange all documents and notices required by the New York Stock
Exchange of companies that have securities listed on such exchange and,
unless otherwise agreed upon with respect to Preferred Shares and Debt
Securities, will use its best efforts to secure and maintain the
listing of any Underwritten Securities (or the securities, if any, into
which an Underwritten Security may be convertible) listed on the New
York Stock Exchange.
m. In respect to each offering of Debt Securities, the Trust
and the Corporation will qualify an Indenture under the 1939 Act and
will endeavor to have a Statement of Eligibility submitted on behalf of
the Trustee.
n. The Trust and the Corporation will take all reasonable
action necessary to enable Standard & Poor's Corporation ("S&P"),
Xxxxx'x Investors Service, Inc. ("Xxxxx'x") or any other nationally
recognized statistical rating organization to provide their respective
credit ratings of any Underwritten Securities, if applicable.
o. During a period of 90 days from the date of any Prospectus
Supplement, the Trust and the Corporation will not, without the prior
written consent of the Representatives, directly or indirectly, sell,
offer to sell, grant any option for the sale of, enter into any
agreement to sell, or otherwise dispose of any Paired Shares or any
security convertible into or exchangeable or exercisable for Paired
Shares (except for (i) the issuance of Paired Shares pursuant to
outstanding options and warrants, (ii) the grant of options under the
Trust's and the Corporation's 1995 Long Term Incentive Plan and (iii)
in connection with acquisitions by the Trust and the Corporation).
p. The Trust and the Corporation will each use its best
efforts to continue to meet the requirements for the Trust to qualify
as a "real estate investment trust" under the Code.
q. During the period from the Closing Time until five years
after the Closing Time, the Trust and the Corporation will deliver to
the Representatives, (i) promptly upon their becoming available, copies
of all current, regular and periodic reports of the Trust and the
Corporation mailed to its stockholders or filed with any securities
exchange or with the Commission or any governmental authority
succeeding to any of the Commission's functions, and (ii) such other
information concerning the Trust and the Corporation as the
Representatives may reasonably request.
SECTION 4. Payment of Expenses. The Trust and the Corporation will pay
all expenses incident to the performance of their respective obligations under
this Agreement, including (i) the preparation, printing and filing of the
Registration Statement as originally filed and of each amendment thereto
(including, without limitation, all reasonable expenses and disbursements of
Xxxxxx & Xxxxx, counsel to the Underwriters, in connection with the preparation,
printing and filing of the Registration Statement), (ii) the printing, or
reproducing, and distributing to the Underwriters copies of this Agreement and
the Pricing Agreement, (iii) the fees and disbursements of the Trust's and the
Corporation's counsel and accountants, (iv) the qualification of the Securities
under securities laws in accordance with the provisions of Section hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey, (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto, (vi) the cost of printing, or reproducing,
and delivering to the Underwriters copies of the Blue Sky Survey, (vii) the fee
of the NASD, (viii) the fees and expenses incurred in connection with the
listing of the Paired Shares on the New York Stock Exchange (ix) any fees
charged by nationally recognized statistical rating
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organizations for the rating of the Debt Securities, if any, (x) the printing
and delivery to the Underwriters of copies of the Indenture, if any, (xi) the
fees and expenses of the Trustee, if any, including the reasonable fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Underwritten Securities, and (xii) any transfer taxes imposed on the sale of
the Securities to the several Underwriters. If this Agreement is cancelled or
terminated by the Representatives in accordance with the provisions of Section
or Section (i) hereof, the Trust and the Corporation shall reimburse the
Underwriters for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy, as of the date hereof
and at Closing Time, of the representations and warranties of the Trust and the
Corporation herein contained, to the performance by the Trust and the
Corporation of their respective obligations hereunder, and to the following
further conditions:
a. At Closing Time, (i) 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, (ii) if the Company has elected to rely upon Rule 430A
of the 1933 Act Regulations, the public offering price of and the
interest rate on the Underwritten Securities, as the case may be, and
any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to
the applicable Closing Time, the Company shall have provided evidence
satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the
requirements of Rule 430A of the 1933 Act Regulations, (iii) the rating
assigned by any nationally recognized statistical rating organization
to any long-term debt securities of the Company as of the date of the
applicable Pricing Agreement shall not have been lowered since such
date nor shall any such rating organization have publicly announced
that it has placed any long-term debt securities of the Company on what
is commonly termed a "watch list" for possible downgrading, and (iv)
there shall not have come to the attention of the Representatives any
facts that would cause the Representatives to believe that the
Prospectus, together with the applicable Prospectus Supplement, at the
time it was required to be delivered to purchasers of the Underwritten
Securities, included an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not
misleading. If a Rule 462(b) Registration Statement is required, such
Rule 462(b) Registration Statement shall have been transmitted to the
Commission for filing and have become effective within the prescribed
time period, and, prior to Closing Time, the Trust and the Corporation
shall have provided to the Underwriters evidence of such filing and
effectiveness in accordance with Rule 462(b) of the 1933 Act
Regulations.
b. At Closing Time the Representatives shall have received:
(1) The favorable opinions, each in form and substance
reasonably satisfactory to counsel or the Underwriters, dated as of
Closing Time of (A) Sidley & Austin, counsel for Transaction Entities,
with respect to the matters set forth in items (v), (vi), (vii) (only
with respect to the second sentence thereof), and (viii) - (xx) below
and (B) Piper & Marbury, Maryland counsel to the Transaction Entities,
with respect to the matters set forth in items (i) - (iv), (vii) (only
with respect to the first and last sentences thereof) and (xvii) (with
respect to Maryland law):
(i) The Trust has been duly formed and is validly
existing as a real estate investment trust in good standing
under the laws of the State of Maryland.
(ii) The Corporation and its subsidiaries have each
been duly incorporated and is validly existing as a
corporation in good standing under the laws of its respective
jurisdiction of incorporation (except, with respect to those
subsidiaries
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which are not significant subsidiaries, where the
failure to be so validly existing as a corporation in
good standing would not be reasonably expected to
have a Material Adverse Effect).
(iii) The Trust has the power and authority
to own, lease and operate its properties, to conduct
the business in which it is engaged or proposes to
engage as described in the Prospectus and to enter
into and perform its obligations under this Agreement
and the other Operative Documents to which it is a
party. The Trust is duly qualified to transact
business and is in good standing in each jurisdiction
that is shown in the Prospectus as a jurisdiction in
which the Trust or the Realty Partnership manages,
owns or leases real property, except where the
failure to so qualify would not reasonably be
expected to have a Material Adverse Effect.
(iv) Each of the Corporation and its
subsidiaries have the corporate power and authority
to own, lease and operate its properties, to conduct
the business in which it is engaged or proposes to
engage as described in the Prospectus and to enter
into and perform its obligations under this Agreement
and the other Operative Documents to which it is a
party. Each of the Corporation and its subsidiaries
is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction that is shown in Prospectus as a
jurisdiction in which such party or the Operating
Partnership manages, owns or leases real property,
except where the failure to so qualify would not
reasonably be expected to have a Material Adverse
Effect.
(v) Each of the Realty Partnership, the LLC
and the Operating Partnership has been duly formed
and is validly existing as a limited partnership or
limited liability company, as the case may be, in
good standing under the laws of the State of
Delaware. Each of the Realty Partnership, the LLC and
the Operating Partnership has all requisite power and
authority to own, lease and operate its properties,
to conduct the business in which it is engaged and
proposes to engage as described in the Prospectus and
to enter into and perform its obligations under this
Agreement and the other Operative Documents, in each
case, to which it is a party. Each of the Realty
Partnership, the LLC and the Operating Partnership is
duly qualified or registered as a foreign entity and
is in good standing in each jurisdiction that is
shown in the Prospectus as a jurisdiction in which it
manages, owns or leases real property, except where
the failure to so qualify would not reasonably be
expected to have a Material Adverse Effect.
(vi) To the knowledge of such counsel, no
shares of capital stock of the Trust or the
Corporation are reserved for any purpose except as
disclosed in the Prospectus. To the knowledge of such
counsel, except as described in the Prospectus, there
are no outstanding securities convertible into or
exchangeable for any capital stock of the Trust or
the Corporation and there are no outstanding options,
rights (preemptive or otherwise) or warrants to
purchase or subscribe for shares of the capital stock
or any other securities of the Trust or the
Corporation, in each case from the Transaction
Entities or any of their respective subsidiaries.
(vii) The Securities have been duly and
validly authorized by all necessary trust and
corporate action for issuance and sale to the
Underwriters pursuant to this Agreement and, when
issued and delivered by the Trust and the Corporation
pursuant to the Indenture, if any, and this Agreement
against payment of the consideration set forth in the
Pricing Agreement, will be validly issued, fully-paid
and non-assessable. Each of the Underwriters is
receiving marketable title to the Securities, free
and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims or equities. The
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Paired Shares to be issued upon conversion
of the Convertible Notes, if any, have been duly
authorized for issuance by all necessary trust and
corporate action, and when issued and delivered by
the Trust and the Corporation upon conversion of the
Convertible Notes, will be validly issued, fully paid
and non-assessable. The issuance of the Securities is
not subject to any preemptive or other similar rights
arising under the laws of the State of Maryland, the
Declaration of Trust or Trustee's Regulation of
Trust, the Articles of Incorporation or by-laws of
the Corporation, any Operative Document or agreement
filed as an exhibit to the Registration Statement.
(viii) The Realty Units and Operating Units
issued through the Closing Time, including, without
limitation, the Realty Units and Operating Units
issued to the Trust and the Corporation,
respectively, were duly authorized for issuance by
the Realty Partnership or the Operating Partnership,
as the case may be, to the holders thereof, and are
validly issued, fully paid and non-assessable. All
such Units have been offered and sold at or prior to
Closing Time in compliance in all material respects
with applicable laws of the United States and the
State of Delaware. The terms of the Units conform in
all material respects to the statements and
descriptions related thereto contained in the
Prospectus.
(ix) To the knowledge of such counsel, none
of the Transaction Entities is in violation of its
declaration of trust, charter, trustee's regulation
of trust charter, by-laws, certificate of limited
partnership or partnership agreement, as the case may
be, and none of the Transaction Entities is in
default in the performance or observance of any
obligation, agreement, covenant or condition
contained in any Operative Document or agreement or
other instrument filed as an exhibit to the
Registration Statement, except for violations or
defaults which in the aggregate would not reasonably
be expected to have a Material Adverse Effect.
(x) The Indenture, if any, shall be duly
qualified under the Trust Indenture Act. The
Convertible Notes and/or the Debt Securities, if any,
shall represent obligations of the Trust and the
Corporation, which, to the knowledge of such counsel,
are not subject to any subordination agreement
(except to the extent provided in the Indenture), and
do not entitle any holder thereof to any rights as a
shareholder of either the Trust or the Corporation.
Such Convertible Notes and/or Debt Securities, if
any, and the Indenture do not contain any provision
which conditions the obligation of payment by the
Trust and the Corporation thereunder or which
subordinates the indebtedness evidenced thereby in
right of payment to any other indebtedness of the
Trust or the Corporation, except to the extent the
Indenture provides for a priority for compensation
and expenses of the Trustee over payments to holders
of such Convertible Notes and/or Debt Securities, if
any.
(xi) This Agreement and the Pricing
Agreement were each duly and validly authorized,
executed and delivered by the Transaction Entities,
as applicable.
(xii) The Indenture, if any, shall be duly
and validly authorized, executed and delivered by the
Transaction Entities, as applicable, and, assuming
due authorization, execution and delivery by any
party thereto which is not a Transaction Entity,
shall be a valid and binding agreement of the
Transaction Entities that are parties thereto,
enforceable against the Transaction Entities that are
parties thereto in accordance with its terms, except
as such enforceability may be subject to (1)
bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer or similar laws
affecting
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creditors rights and (2) general principles
of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(xiii) The execution and delivery of each of
the Operative Documents, the performance of the
obligations set forth herein or therein, and the
consummation of the transactions contemplated hereby
or thereby or in the Prospectus by the Transaction
Entities did not, do not and will not constitute a
breach or violation by such parties of, or default
under: (1) any other Operative Documents; (2) any
agreement or other instrument filed as an exhibit to
the Registration Statement which would reasonably be
expected to have a Material Adverse Effect, and of
which such counsel is aware; (3) the declaration of
trust, trustee's regulation of trust, charter,
by-laws, certificate of limited partnership or
partnership agreement, as the case may be, of any
Transaction Entity; or (4) any applicable law, rule
or administrative regulation of the United States or
the jurisdiction of its incorporation or formation;
or (5) any order or administrative or court decree of
which such counsel is aware, except in each case for
breaches, violations or defaults that in the
aggregate would not reasonably be expected to have a
Material Adverse Effect.
(xiv) There is no action, suit or proceeding
before or by any court or governmental agency or
body, domestic or foreign, now pending, or, to the
knowledge of the Transaction Entities, threatened
against or affecting any Transaction Entity or any of
their respective subsidiaries, any Hotel Asset or any
officer or director of the Trust or the Corporation
or any of their respective subsidiaries, which is
required to be disclosed in the Registration
Statement or the Prospectus (other than as disclosed
therein), or that, if determined adversely to any
Transaction Entity, any Hotel Asset, or any such
officer or director, will or would reasonably be
expected to (A) have a Material Adverse Effect, or
(B) materially and adversely affect the consummation
of the transactions contemplated by this Agreement.
There are no pending legal or governmental
proceedings to which any Transaction Entity or any of
their respective subsidiaries is a party or of which
they or any of their respective properties or assets
or any Hotel Asset is the subject which are not
described in the Registration Statement, including
ordinary routine litigation incidental to the
business, that, considered in the aggregate, could
reasonably be expected to have a Material Adverse
Effect. There are no contracts or documents of any
Transaction Entity or any of their respective
subsidiaries which are required to be filed as
exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not
been so filed.
(xv) Commencing with their taxable years
ending December 31, 1995, the Transaction Entities
and their respective subsidiaries are and will be
organized in conformity with the requirements for
qualification of the Trust as a real estate
investment trust under the Code, and the proposed
method of operation of the Transaction Entities and
their respective subsidiaries will enable the Trust
to meet the requirements for taxation as a real
estate investment trust under the Code. The
provisions of Section 269B(a)(3) of the Code does not
and will continue not to apply to the Trust.
(xvi) None of the Transaction Entities or
any of their respective subsidiaries is required to
be registered under the 0000 Xxx.
(xvii) No authorization, approval, consent
or order of any court or governmental authority or
agency or, to the knowledge of such counsel, any
other entity or person is necessary in connection
with the offering, issuance or sale of the Securities
hereunder or the issuance of the Paired Shares
issuable upon conversion of the
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Convertible Notes, if any, except as may be
required under the 1933 Act, the 1933 Act Regulations
or the Trust Indenture Act or the by-laws and rules
of the NASD, or state securities laws, real estate
syndication laws or such as have been received prior
to the date of this Agreement.
(xviii) To such counsel's knowledge, there
is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or
foreign, now pending, or, threatened against or
affecting any Transaction Entity, any Hotel Asset or
any officer or director of the Trust or the
Corporation, which is required to be disclosed in the
Registration Statement, other than those disclosed
therein, and there is no pending legal or
governmental proceedings that, if determined
adversely to any Transaction Entity, any Hotel Asset,
or any such officer or director, will or would
reasonably be expected to materially and adversely
affect the consummation of the transactions
contemplated by this Agreement.
(xix) At the time the Registration Statement
became effective and at the Representation Date, the
Registration Statement (other than the financial
statements and supporting schedules and other
financial and statistical data included therein, as
to which no opinion need be rendered) complied as to
form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations.
(xx) The information in the Prospectus under
"Risk Factors," "Structure of the Company" and
"Federal Income Tax Considerations," in each case to
the extent that it constitutes statements of law,
descriptions of statutes, rules or regulations,
summaries of documents, or legal conclusions, has
been reviewed by them and is correct in all material
respects and presents fairly the information required
to be disclosed therein.
(xxi) To such counsel's knowledge, there are
no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be
described or referred to in the Registration
Statement or to be filed as exhibits thereto by the
1933 Act Regulations other than those described or
referred to therein or filed as exhibits thereto, and
the descriptions thereof or references thereto are
accurate in all material respects.
(xxii) To such counsel's knowledge except as
disclosed in the Prospectus, there are no persons
with registration or other similar rights to have any
securities registered pursuant to the Registration
Statement.
(xxiii) The Registration Statement is
effective under the 1933 Act and, to the knowledge of
such counsel, no stop order suspending the
effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
In giving its opinion, such counsel may rely, (A) as
to all matters of fact, upon certificates and written
statements of officers, directors, partners and employees of
and accountants for each of the Transaction Entities, (B) as
to matters of Maryland law, on the opinion of Piper & Marbury,
Baltimore, Maryland, which opinion shall be in form and
substance reasonably satisfactory to counsel for the
Underwriters, and (C) as to the good standing and
qualification of the Transaction Entities to do business in
any state or jurisdiction, upon certificates of appropriate
government officials or opinions of counsel in such
jurisdictions. Counsel need express no opinion with respect to
the requirements of, or compliance with, any state securities
or "Blue Sky" laws.
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In addition, Sidley & Austin shall state that in
connection with the preparation of the Registration Statement
and the Prospectus, Sidley & Austin has participated in
conferences with officers and other representatives of the
Trust and the Corporation and the independent public
accountants for the Trust and the Corporation at which the
contents of the Registration Statement and the Prospectus and
related matters were discussed and has considered as to
materiality, the judgment of officers and other
representatives of the Trust and the Corporation. On the basis
of such participation and review, but without independent
verification by such counsel of, and without assuming any
responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus or any amendments or supplements thereto, no facts
have come to its attention that lead it to believe that (i)
the Registration Statement, at the time such Registration
Statement became effective and at the Representation Date,
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading or (ii) the Prospectus, as of its date or at
Closing Time, contained or contains any untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading (it being
understood that Sidley & Austin need express no opinion with
respect to the financial statements, schedules and other
financial and statistical data included in the Registration
Statement or the Prospectus).
(2) The favorable opinion, dated as of the Closing
Time, of Xxxxxx & Xxxxx, counsel for the Underwriters, with
respect to the matters set forth in (vii) (with respect to the
first sentence only) and (x) of subsection b.(1) of this
Section 5.
In giving its opinion, Xxxxxx & Xxxxx may rely, (A)
as to all matters of fact, upon certificates and written
statements of officers and employees of and accountants for
the Transaction Entities, (B) as to the good standing and
qualification of the Company to do business in any state or
jurisdiction, upon certificates of appropriate government
officials or opinions of counsel in such jurisdictions, which
opinions shall be in form and substance satisfactory to
counsel for the Underwriters, and (C) as to certain matters of
law, upon the opinions given pursuant to Section 5.b.(1)
above.
In addition, Xxxxxx & Xxxxx shall state that in
connection with the preparation of the Registration Statement
and the Prospectus, Xxxxxx & Xxxxx has participated in
conferences with officers and other representatives of the
Trust and the Corporation and the independent public
accountants for the Trust and the Corporation at which the
contents of the Registration Statement and the Prospectus and
related matters were discussed. On the basis of such
participation and review, but without independent verification
by such counsel of, and without assuming any responsibility
for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus or
any amendments or supplements thereto, no facts have come to
its attention that lead it to believe that (i) the
Registration Statement, at the time such Registration
Statement became effective and at the Representation Date,
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading or (ii) the Prospectus, as of its date or at
Closing Time, contained or contains any untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading (it being
understood that Xxxxxx & Xxxxx need express no opinion with
respect to the financial statements, schedules and other
financial and statistical data included in the Registration
Statement or the Prospectus).
c. At Closing Time, (i) the Registration Statement and the
Prospectus shall contain all statements that are required to be stated
therein in accordance with the 1933 Act and the 1933 Act Regulations
and in all material respects shall conform to the requirements of the
1933 Act and the 1933 Act
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Regulations, and neither the Registration Statement nor the Prospectus shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, and
no action, suit or proceeding at law or in equity shall be pending or, to the
knowledge of any Transaction Entity, threatened against such entity, any Hotel
Asset which would be required to be set forth in the Prospectus other than as
set forth therein, (ii) there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or business prospects
of the Transaction Entities whether or not arising in the ordinary course of
business which would be Material, (iii) no proceedings shall be pending or to
the knowledge of the Transaction Entities, threatened against any Transaction
Entity, or any Hotel Asset before or by any federal, state or other commission,
board or administrative agency wherein an unfavorable decision, ruling or
finding might result in any adverse change in the condition, financial or
otherwise, or in the earnings, assets, or business affairs of the Transaction
Entities, and the Hotel Assets which would be Material, other than as set forth
in the Prospectus, (iv) no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and, to the
knowledge of the Transaction Entities, no proceedings for that purpose shall
have been instituted or threatened by the Commission or by the state securities
authority of any jurisdiction, and (v) the Representatives shall have received
a certificate of the President or a Vice President of the Trust and the
Corporation and of the chief financial or chief accounting officer of each such
entity, dated as of the Closing Time, evidencing compliance with the provisions
of this subsection c. and stating that the representations and warranties in
Section 1 hereof are true and correct, with the same force and effect as though
expressly made at and as of Closing Time.
d. At the time of the execution of this Agreement, the Representatives
shall have received from Coopers & Xxxxxxx L.L.P., a letter dated such date, in
form and substance satisfactory to the Representatives, to the effect that: (i)
they are independent public accountants with respect to the Trust and the
Corporation as required by the 1933 Act and the 1933 Act Regulations; (ii) it
is their opinion that the financial statements and supporting schedules
included in the Registration Statement and covered by their opinions therein
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations; (iii) based upon
limited procedures set forth in detail in such letter, including a reading of
the latest available interim financial statements of the Trust and the
Corporation, a reading of the minute books of each of the Trust and the
Corporation, inquiries of officials of the Trust and the Corporation
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing has come to their
attention which causes them to believe that (A) the unaudited financial
statements and supporting schedules of the Trust and the Corporation included
in the Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations or are not in conformity with generally accepted accounting
principles applied on a basis consistent with that of the audited financial
statements included in the Registration Statement, (B) the operating data and
balance sheet data set forth in the Prospectus under the captions "Prospectus
Summary - Summary Combined Selected Financial Data" and "Selected Combined
Financial Data" were not determined on a basis consistent with that used in
determining the corresponding amounts in the audited financial statements
included in the Registration Statement, (C) the pro forma financial information
included in the Registration Statement was not prepared in accordance with the
applicable requirements of the 1933 Act, the 1933 Act Regulations with respect
to pro forma financial information or was not determined on a basis consistent
with that of the audited financial statements included in the Registration
Statement or (D) at a specified date not more than five days prior to the date
of this Agreement, there has been any change in the capital stock of the Trust
or the Corporation, or any increase in the debt of the Trust or the Corporation
or any decrease in the net assets of the Trust or the Corporation, as compared
with the amounts shown in the March 31, 1995 balance sheets of the Trust and
the Corporation, included in the Registration Statement or, during the period
from March 31, 1995 to a specified date not more than five days prior to the
date of
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this Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in revenues, net income or
funds from operations of the Trust and the Corporation, except in all
instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and
(iv) in addition to the examination referred to in their opinions and
the limited procedures referred to in clause (iii) above, they have
carried out certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information
which are included in the Registration Statement and Prospectus and
which are specified by the Representatives, and have found such
amounts, percentages and financial information to be in agreement with
the relevant accounting, financial and other records of the Trust and
the Corporation identified in such letter.
e. At Closing Time the Representatives shall have received
from Coopers & Xxxxxxx L.L.P. a letter, dated the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection d. of this Section, except that the "specified
date" referred to shall be a date not more than five days prior to
Closing Time and, if the Trust and the Corporation has elected to rely
on Rule 430A of the 1933 Act Regulations, to the further effect that
they have carried out procedures as specified in clause (iv) of
subsection d. of this Section with respect to certain amounts,
percentages and financial information specified by the Representatives
and deemed to be a part of the Registration Statement pursuant to Rule
430A(b) and have found such amounts, percentages and financial
information to be in agreement with the records specified in such
clause (iv).
f. At Closing Time the Underwritten Securities (or any
securities into which an Underwritten Security may be convertible)
shall have been approved for listing on the New York Stock Exchange
upon notice of issuance.
g. At Closing Time and at each Date of Delivery, if any,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Securities
as herein contemplated and related proceedings, 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 Trust and the Corporation in connection with
the issuance and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters.
h. In the event that the Underwriters exercise their option
provided in Section hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Transaction
Entities contained herein and the statements in any certificates
furnished by the Transaction Entities hereunder shall be true and
correct in all material respects as of each Date of Delivery and, at
the relevant Date of Delivery, the Representatives shall have received:
(1) A certificate, dated such Date of Delivery, of
the President or a Vice President of each of the Trust and the
Corporation and of the chief financial or chief accounting
officer of each of such entity confirming that their
respective certificates delivered at Closing Time pursuant to
Section hereof remain true and correct as of such Date of
Delivery.
(2) The favorable opinions of Sidley & Austin and
Piper & Marbury, in form and substance reasonably satisfactory
to counsel for the Underwriters, 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.b.(1) hereof.
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(3) The favorable opinion of Xxxxxx & Xxxxx, counsel
for the Underwriters, 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.b.(2) hereof.
*(4) Letter from Coopers & Xxxxxxx L.L.P., in form
in form and substance satisfactory to the Representatives and
dated such Date of Delivery, substantially the same in form
and substance as the letter furnished to the Representatives
pursuant to Section 5.e. hereof, except that the "specified
date" in the letter furnished pursuant to this Section 5.g.(4)
shall be a date not more than five days prior to such Date of
Delivery. If any condition specified in this Section shall not
have been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company, at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof.
SECTION 6. Indemnification.
a. Each of the Transaction Entities agrees, jointly and
severally, to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act 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), including the
information deemed to be part of the Registration Statement pursuant to
Rule 430A(b) of the 1933 Act Regulations, if applicable, 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 contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that 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 any Transaction
Entity by any 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); and provided,
further, that this indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, liabilities, claims, damages or
expenses purchased Securities (or any securities into which a Security
may be convertible), or any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if any
Transaction Entity shall have furnished any such amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if such is required by law, at or prior to
the written confirmation of the sale of such Securities to such person
and if the Prospectus (as so amended or supplemented) would have
corrected the defect giving rise to such loss, liability, claim, damage
or expense.
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 of any claim whatsoever for which
indemnification is provided under subsection (i) above if such
settlement is effected with the prior written consent of the
indemnifying party; and
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iii. against any and all expense whatsoever, as
incurred (including, subject to Section 6.c. hereof, the reasonable
fees and disbursements of counsel chosen by the Representatives),
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 for
which indemnification is provided under subsection (i) above, to the
extent that any such expense is not paid under (i) or (ii) above;
b. Each Underwriter severally agrees to indemnify and hold harmless the
Transaction Entities, the Trust's and the Corporation's trustees and directors,
as the case may be, and each of the Trust's and the Corporation's officers who
signs the Registration Statement or any amendment thereto and each person, if
any, who controls the Trust or the Corporation within the meaning of Section 15
of the 1933 Act, 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 any Transaction Entity by such Underwriter through the
Representatives 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. Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any claims asserted against or 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 which it may have otherwise than on
account of this indemnity agreement except to the extent the indemnifying party
has been prejudiced in any material respect by such failure. An indemnifying
party may participate at its own expense in the defense of any such action. If
it so elects within a reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying parties receiving such
notice, may assume the defense of such action with counsel chosen by it and
reasonably approved by the indemnified parties defendant in such action, unless
such indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying parties shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. 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 substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. Anything in this Section 6 to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or action effected without its prior written consent; provided, that
such consent was not unreasonably withheld.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Transaction
Entities and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Transaction Entities and the Underwriters
(a) in such proportion as is appropriate to reflect the relative benefits
received by the Transaction Entities and the Underwriters from the offering of
the Securities, or (b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (a) above but also the relative
fault (as determined by a court of competent jurisdiction or a panel of
arbitration) of the Transaction Entities and the Underwriters in connection with
the statements or omissions that resulted in such losses, liabilities, claims,
damages, and expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Transaction Entities and the Underwriters
shall be deemed to be in the same proportions as the total gross proceeds from
the offering (before deducting expenses) received by the Trust and the
Corporation bear to the total underwriting discount received by the
Underwriters. The relative fault of the Transaction Entities and the
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Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the Transaction
Entities or by the Underwriters and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such statement or
omission.
The parties agree that it would not be just or 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 into account the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. 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.
The Underwriters' obligations to contribute pursuant to this Section 7
are several in proportion to their respective underwriting commitments and not
joint. For purposes of this Section 7, the Transaction Entities shall be deemed
one party and jointly and severally liable for any obligations hereunder. For
purposes of this Section 7, each person, if any, who controls a Underwriter
within the meaning of Section 15 of the 1933 Act, and any director, officer,
employee or affiliate of a Underwriter or such controlling person, shall have
the same rights to contribution as such Underwriter, and each person, if any,
who controls the Transaction Entities within the meaning of Section 15 of the
1933 Act, or any director, officer, employee or affiliate of any Transaction
Entity or such controlling person, shall have the same rights to contribution as
the Transaction Entities.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers or
authorized representatives of the Transaction Entities 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 Transaction Entities and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
a. The Representatives may terminate this Agreement, by notice to the
Trust and the Corporation, at any time at or prior to Closing Time (i) if there
has been, since the date of this Agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition, financial or otherwise, or in the earnings, assets,
business affairs or business prospects of the Transaction Entities and their
respective subsidiaries, considered as one enterprise, or Hotel Assets, 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 or any
outbreak of hostilities or escalation of existing hostilities or other calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the judgment of the Representatives, impracticable to
market the Securities or to enforce contracts for the sale of such Securities or
(iii) if trading in the Securities has been suspended by the Commission or if
trading generally on either the New York Stock Exchange or the American Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by either
of said Exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by any Federal, New York
or Maryland authorities.
b. 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 Sections and 10 hereof. Notwithstanding any such termination, the
provisions of Sections 4, 6 and 7 shall remain in effect.
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SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Initial
Securities which it or they are obligated to purchase under this Agreement and
the Pricing Agreement (the "Defaulted Securities"), the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
a. if the number of Defaulted Securities does not exceed 10%
of the Securities, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
b. if the number of Defaulted Securities exceeds 10% of the
Securities, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives, on the one hand, or the Trust and
the Corporation, on the other hand, shall have the right to postpone Closing
Time for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements.
SECTION 11. 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. Notices to the
Underwriters shall be directed to the Representatives at _____________________
___________________________________, attention of ____________________________
_________________________________; notices to the Trust or the Realty
Partnership shall be directed to either of them at c/o Starwood Lodging Trust,
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, attention of Xx.
Xxxxxx X. Xxxxx, Senior Vice President, with a copy to Sidley & Austin, 000 Xxxx
Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of Xxxxxxx X. Xxxxxxx,
Esq.; notices to the Corporation or the Operating Partnership shall be directed
to either of them c/o Starwood Lodging Corporation, 0000 Xxxx Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, attention of Xx. Xxxx X. Xxxxxxxx, President,
with a copy to Sidley & Austin at the above address.
SECTION 12. Parties. This Agreement and the Pricing Agreement shall
each inure to the benefit of and be binding upon the parties hereto and their
respective successors. Nothing expressed or mentioned in this Agreement or the
Pricing Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Transaction Entities, the Underwriters and their
respective successor and the persons 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 the Pricing Agreement or any provision
herein or therein contained. This Agreement and the Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the parties hereto and thereto and their respective
successors, and said controlling persons and officers 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 13. The Trust. Each of the parties hereto acknowledge and agree
that the name "Starwood Lodging Trust" is a designation of the Trust and its
Trustees (as Trustees but not personally) under a Declaration of Trust dated
August 25, 1969, as amended and restated, and all persons dealing with the Trust
shall look solely to the Trust's assets for the enforcement of any claims
against the Trust, and the Trustees, officers, agents and
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security holders of the Trust assume no personal liability for obligations
entered into on behalf of the Trust, and their respective individual assets
shall not be subject to the claims of any person relating to such obligations.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE PRICING
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. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Trust and the Corporation a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters and the Transaction Entities in
accordance with its terms.
Very truly yours,
STARWOOD LODGING TRUST
By:
-----------------------------------
Name:
STARWOOD LODGING CORPORATION
By:
-----------------------------------
Name:
SLT REALTY LIMITED PARTNERSHIP
By: Starwood Lodging Trust
its General Partner
By:
-----------------------------------
Name:
SLC OPERATING LIMITED PARTNERSHIP
By: Starwood Lodging Corporation
its General Partner
By:
-----------------------------------
Name:
29
CONFIRMED AND ACCEPTED,
as of the date first above written:
By:
--------------------------------------------------
Authorized Signatory
For themselves and as Representatives of the other
Underwriters named in Schedule A hereto.
30
SCHEDULE A
Number of
Name of Underwriter Initial Securities
------------------- ------------------
Total...............................................
Sch. A-1
31
EXHIBIT A
STARWOOD LODGING TRUST STARWOOD LODGING CORPORATION
(A MARYLAND REAL ESTATE INVESTMENT TRUST) (A MARYLAND CORPORATION)
Common Stock, Warrants, Preferred Shares,
Convertible Notes and Debt Securities
PRICING AGREEMENT
Dated: [________], 199[__]
To: Starwood Lodging Trust
Starwood Lodging Corporation
c/o Starwood Lodging [_________]
[________________]
[________________]
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Representatives") understand that Starwood Lodging Trust, a
Maryland real estate investment trust (the "Trust"), and Starwood Lodging
Corporation, a Maryland corporation (the "Corporation" and, with the Trust, the
"Company") proposes to issue and sell [__________] of its [shares of beneficial
interest, $.01 par value, of the Trust (the "Trust Shares") and shares of common
stock, $.01 par value, of the Corporation (the "Corporation Shares") which are
"paired" and traded as units consisting of one Trust Share and one Corporation
Share (the "Paired Shares")][convertible notes of the Trust and the Corporation
(the "Convertible Notes")][(A) warrants to purchase Trust Shares and warrants to
purchase Corporation Shares which are "paired" and traded as units consisting of
one warrant to purchase Trust Shares and one warrant to purchase a like number
of Corporation Shares, (B) warrants to purchase shares of preferred stock of the
Trust or the Corporation, or (C) warrants to purchase debt securities of the
Trust or the Corporation (collectively, the "Warrants")] [shares of preferred
stock of the Trust (the "Trust Preferred Shares") and shares of preferred stock
of the Corporation (the "Corporation Preferred Shares" and, with the Trust
Preferred Shares, the "Preferred Shares") which may, but are not required to, be
"paired" with preferred stock of the other entity] [unsecured debt securities of
the Trust or the Corporation with an aggregate public offering price of up to
$500,000,000 (the "Debt Securities")(such [Common Shares], [Convertible Notes],
[Warrants], [Preferred Shares] and [Debt Securities] being collectively
hereinafter referred to as the "Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, the underwriters
named below (the "Underwriters") offer to purchase, severally and not jointly,
the respective numbers of Initial Underwritten Securities (as defined in the
Underwriting Agreement referred to below) set forth below opposite their
respective names, and a proportionate share of Option Securities (as defined in
the Underwriting Agreement referred to below) to the extent any are purchased,
at the purchase price set forth below.
A-1
32
[Number of Shares]
[Principal Amount]
Of Initial
Underwriter Underwritten Securities
----------- -----------------------
--------------
Total $
--------------
The Underwritten Securities shall have the following terms:
[COMMON STOCK] [WARRANTS] [CONVERTIBLE NOTES] [PREFERRED SHARES]
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if any,
from , 199 .]
Purchase price per share: $ [, plus accumulated dividends, if any,
from , 199 .]
[Conversion provisions:] [Voting and other rights:] Number of Option
Securities, if any, that may be purchased by the Underwriters:
Additional co-managers, if any: Other terms: Closing time, date and location:
The Underwritten Securities shall have the following terms:
[DEBT SECURITIES]
Title of Securities:
Currency:
Principal amount to be issued:
Current ratings: Xxxxx'x Investors Service, Inc. ______;
Standard & Poor's Corporation ______; [other rating agencies];
Interest rate or formula:
Interest payment dates:
Interest reset dates:
Interest determination date:
Stated maturity date:
Redemption or repayment provisions:
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: ___%]
[Initial public offering price: ___%, plus accrued interest,
if any, or amortized original issue discount, if any, from
19__.]
X-0
00
Xxxxxxxx price: ___%, plus accrued interest, if any, or
amortized original issue discount, if any, from
____________, 19__ (payable in [same] [next] day funds).
Other terms:
Closing date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "Starwood Lodging Trust and Starwood Lodging Corporation -- Common
Stock, Warrants, Preferred Shares, Convertible Notes and Debt Securities
Underwriting Agreement" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Pricing Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
A-3
34
Please accept this offer no later than [_____] o'clock P.M. (New York City time)
on [_____] by signing a copy of this Pricing Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
[REPRESENTATIVES]
By:
------------------------------------
For themselves and as Representatives
of the other named Underwriters.
Accepted:
STARWOOD LODGING TRUST
By:
---------------------------------------
Name:
Title:
STARWOOD LODGING CORPORATION
By:
---------------------------------------
Name:
Title:
B-1
