4,250,000 Shares
AMERICAN GENERAL HOSPITALITY CORPORATION
Common Stock
UNDERWRITING AGREEMENT
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November 6, 1997
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, LLC
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
American General Hospitality Corporation, a Maryland corporation (the
"Company"), proposes to issue and sell an aggregate of 4,250,000 shares (the
"Firm Shares") of its common stock, $0.01 par value per share (the "Common
Stock"), to you (collectively, the "Underwriters"). The Company also proposes
to sell to the Underwriters, upon the terms and conditions set forth in Section
3 hereof, up to an additional 637,500 shares (the "Additional Shares") of Common
Stock. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "Shares," and the offering of the Shares pursuant to this
Agreement is referred to herein as the "Offering."
Upon consummation of the transactions contemplated hereby and application
of the net proceeds from the sale of the Firm Shares, the Company, through its
wholly-owned subsidiaries, AGH GP, Inc. ("AGH GP") and AGH LP, Inc. ("AGH LP")
will own an approximately 1.0% general partnership interest and an approximately
89.1% limited partnership interest in American General Hospitality Operating
Partnership, L.P., a Delaware limited partnership (together with its subsidiary
partnerships and limited liability companies, the "Operating Partnership"). The
Operating Partnership currently owns 26 hotels listed on Schedule II hereto
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which represent, as of the date hereof, all of the real property in which the
Company, either through the Operating Partnership or the Subsidiaries (as
defined herein), owns an interest (the "Current Hotels"). Thirteen of the
Current Hotels (the "Initial Hotels") were acquired in connection with the
Company's initial public offering of Common Stock in July 1996 (the "IPO"), and
the remaining 13 Current Hotels (the "Acquired Hotels") were acquired subsequent
to, and not in connection with, the IPO. The Operating Partnership leases 25 of
the Current Hotels to AGH Leasing, L.P., and one Subsidiary leases the Radisson
Twin Towers Orlando hotel to Twin Towers Leasing, L.P.
(AGH Leasing, L.P. and Twin Towers Leasing, L.P., being referred to herein
collectively as the "Lessee"), pursuant to separate participating leases (the
"Leases"). Twenty-five of the Current Hotels are operated by American General
Hospitality, Inc. ("▇▇▇▇"), pursuant to separate management agreements between
▇▇▇▇ and the Lessee (the "Management Agreements"). The Wyndham Garden-Marietta
hotel is operated by Wyndham Hotel Corporation ("Wyndham") pursuant to a
management agreement (the "Wyndham Management Agreement") between the Lessee and
Wyndham.
The Company and the Operating Partnership wish to confirm as follows their
agreements with the Underwriters in connection with the purchase of the Shares
by the Underwriters.
1. Registration Statement and Prospectus. The Company has prepared and
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filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 under the Act, Commission No. 333-
33007 (the "Initial Registration Statement"), including a prospectus relating to
the Shares, and such amendments to the Initial Registration Statement as may
have been required prior to the date hereof have been filed with the Commission,
and such amendments have been similarly prepared. The Initial Registration
Statement and any post-effective amendments thereto have become effective under
the Act. The Company also has filed, or proposes to file, with the Commission
pursuant to Rule 424(b) under the Act, a prospectus supplement relating to the
offering of the Shares pursuant to Rule 415 of the Act.
The term "Registration Statement" as used in this Agreement means the
Initial Registration Statement (including all financial schedules and exhibits),
as amended at the time it became effective and as may be supplemented or amended
prior to the execution of this Agreement together with any Incorporated Document
(as defined below). If it is contemplated, at the time this Agreement is
executed, that a post-effective amendment to the Initial Registration Statement
will be filed and must be declared effective before the offering of the Shares
may commence, the term "Registration Statement" as used in this Agreement means
the Initial Registration Statement as amended by said post-effective amendment.
The term "Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement at the time it was declared effective
(the "Base Prospectus") together with the prospectus supplement relating to the
offering of the Shares under Rule 415 of the Act dated the date hereof in the
form first filed with the Commission on or after the date hereof (the
"Prospectus Supplement"). The term "Prepricing Prospectus Supplement" as used in
this Agreement means the Base Prospectus together with any prospectus supplement
subject to completion included in the Initial Registration Statement as filed
with the Commission pursuant to Rule 424(b) under the Act; and as such
prospectus shall have been amended from time to time prior to the date of the
Prospectus. Any reference in this Agreement to the Initial Registration
Statement, the Registration Statement, the Base Prospectus, any Prepricing
Prospectus Supplement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of the Initial Registration Statement, the
Registration Statement, such Prepricing
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Prospectus Supplement or the Prospectus, as the case may be, and any reference
to any amendment or supplement to the Initial Registration Statement, the
Registration Statement, any Prepricing Prospectus Supplement or the Prospectus
shall be deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")
which, upon filing, are incorporated by reference therein, as required by
paragraph (b) of Item 12 of Form S-3. As used herein, the term "Incorporated
Documents" means the documents which at the time are incorporated by reference
in the Initial Registration Statement, the Registration Statement, any
Prepricing Prospectus Supplement, the Prospectus, or any amendment or supplement
thereto. Capitalized terms used but not otherwise defined herein have the
meanings given to them in the Prospectus.
2. Agreements to Sell and Purchase. The Company hereby agrees, subject
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to all the terms and conditions set forth herein, to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company, AGH GP, AGH LP and the Operating Partnership herein
contained and subject to all the terms and conditions set forth herein, each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
a purchase price of $26.06 per Share (the "purchase price per share"), the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto (or such number of Firm Shares increased as set forth in
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Section 10 hereof).
The Company also agrees, subject to all the terms and conditions set forth
herein, to sell to the Underwriters, and, upon the basis of the representations,
warranties and agreements of the Company, AGH GP, AGH LP and the Operating
Partnership herein contained and subject to all the terms and conditions set
forth herein, the Underwriters shall have the right to purchase from the
Company, at the purchase price per share, pursuant to an option (the "over-
allotment option"), which may be exercised at any time and from time to time
prior to 9:00 p.m., New York City time, on the 30th day after the date of the
Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday, on
the next business day thereafter when the New York Stock Exchange is open for
trading), up to an aggregate of 637,500 Additional Shares. Additional Shares
may be purchased only for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. Upon any exercise of the over-
allotment option, each Underwriter, severally and not jointly, agrees to
purchase from the Company the number of Additional Shares (subject to such
adjustments as you may determine in order to avoid fractional shares) which
bears the same proportion to the number of Additional Shares to be purchased by
the Underwriters as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto (or such number of Firm Shares increased
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as set forth in Section 10 hereof) bears to the aggregate number of Firm Shares.
3. Terms of Public Offering. The Company has been advised by you that the
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Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the Prospectus.
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4. Delivery of the Shares and Payment Therefor. Delivery to the
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Underwriters of and payment for the Firm Shares shall be made at the office of
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00
a.m., New York City time, on November 13, 1997 (the "Closing Date"). The place
of closing for the Firm Shares and the Closing Date may be varied by agreement
between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at the aforementioned office of
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. at such time on such date (the "Option Closing Date"), which
may be the same as the Closing Date but shall in no event be earlier than the
Closing Date nor earlier than two nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in a written
notice from you on behalf of the Underwriters to the Company of the
Underwriters' determination to purchase a number, specified in such notice, of
Additional Shares. The place of closing for any Additional Shares and the
Option Closing Date for such Shares may be varied by agreement between you and
the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 1:00 p.m., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 a.m., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of the purchase
price therefor by wire transfer of immediately available funds to the Company.
5. Agreements of the Company and the Operating Partnership. The Company and
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the Operating Partnership jointly and severally agree with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise you promptly
and, if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Initial Registration Statement, any
Prepricing Prospectus Supplement or the Prospectus or for additional
information; (ii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Initial Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any
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proceeding for such purpose; and (iii) within the period of time referred to in
paragraph (e) below, of any change in the Company's condition (financial or
other), business, prospects, properties, net worth or results of operations, or
of the happening of any event, which makes any statement of a material fact made
in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act or the
regulations thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented) to comply with the Act or any
other law. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(c) The Company will furnish to you, without charge, (i) as many copies
of the Initial Registration Statement and of each amendment thereto, including
financial statements and all exhibits thereto, as may be reasonably requested by
the Underwriters, (ii) such number of conformed copies of the Initial
Registration Statement and of each amendment thereto, but without exhibits, as
you may reasonably request, (iii) such number of copies of the Incorporated
Documents, without exhibits, as you may reasonably request, and (iv) two copies
of the exhibits to the Incorporated Documents.
(d) The Company will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus or, prior to the
end of the period of time referred to in the first sentence in paragraph (e)
below, file any document which, upon filing becomes an Incorporated Document, of
which you shall not previously have been advised or to which, within one
business day following your receipt of a copy of the document proposed to be
filed, you shall reasonably object after being so advised or (ii) so long as, in
the opinion of counsel for the Underwriters, a prospectus is required to be
delivered in connection with sales by the Underwriters or any dealer, file any
information, documents or reports pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), without delivering a copy of such
information, documents or reports to you prior to or concurrently with such
filing.
(e) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by the Act to be delivered
in connection with sales by any Underwriter or dealer, the Company will
expeditiously deliver to each Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
you may request. The Company consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky or real estate syndication laws of the
jurisdictions in the United States in which the Shares are offered by the
several Underwriters and by all dealers to whom Shares may be sold, both in
connection with the offering and sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or
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dealer. If during such period of time any event shall occur that in the judgment
of the Company or in the opinion of counsel for the Underwriters is required to
be set forth in the Prospectus (as then amended or supplemented) or should be
set forth therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus (or to file under the Exchange Act any
document which, upon filing, becomes an Incorporated Document) in order to
comply with the Act or any other law, the Company will forthwith prepare and,
subject to the provisions of paragraph (d) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and will
expeditiously furnish to the Underwriters and any dealers a reasonable number of
copies thereof. In the event that the Company and you agree that the Prospectus
should be amended or supplemented, the Company, if requested by you, will
promptly issue a press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement.
(f) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the Shares
for offering and sale by the several Underwriters and by dealers under the
securities or Blue Sky or real estate syndication laws of such jurisdictions as
you may designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject.
(g) The Company will make generally available to its security holders a
consolidated earnings statement, which need not be audited, covering a twelve-
month period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable after the
end of such period, which consolidated earnings statement shall satisfy the
provisions of Section 11(a) of the Act.
(h) During the period of five years hereafter, the Company will furnish
to you (i) concurrently with mailing or filing, a copy of each report of the
Company mailed to stockholders or filed with the Commission, and (ii) from time
to time such other information concerning the Company as you may reasonably
request, which information you will treat confidentially unless the Company has
publicly disclosed such information.
(i) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating this
Agreement pursuant to Sections 10 or 11 hereof) or if this Agreement shall be
terminated by the Underwriters because of any failure or refusal on the part of
the Company to comply with the terms or fulfill any of the conditions of this
Agreement, the Company agrees to reimburse you for all out-of-pocket expenses
(including reasonable fees and expenses of your counsel) incurred by you in
connection herewith.
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(j) The Company will apply the net proceeds from the sale of the Shares
in accordance with the description set forth under the caption "Use of Proceeds"
in the Prospectus.
(k) The Company will (i) prepare and timely file with the Commission a
Prospectus Supplement pursuant to Rule 424(b) under the Act containing
information previously omitted at the time of effectiveness of the Registration
Statement and will advise you of the time and manner of such filing, and (ii)
file on a timely basis all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission subsequent to
the date of the Prospectus Supplement and prior to the termination of the
offering of the Shares by the Underwriters.
(l) Except as provided in this Agreement, the Company will not sell,
offer to sell, solicit an offer to buy, contract to sell, or otherwise transfer
or dispose of shares of any Common Stock or any securities convertible into or
exercisable or exchangeable for shares of Common Stock (whether through the
issuance or granting of any options, warrants, commitments, subscriptions,
rights to purchase or otherwise) for a period of 90 days after the date of the
Prospectus Supplement, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.;
provided, however, that the foregoing shall not prohibit (i) the Company from
granting options or restricted shares of Common Stock to certain officers,
employees and directors of the Company and its affiliates under the Company's
1996 Incentive Plan, as amended, or its Non-Employee Directors' Incentive Plan
or the issuance of shares of Common Stock upon exercise of any options granted
under such plans; (ii) the Company or the Operating Partnership from issuing
Common Stock, OP Units or other securities exchangeable for Common Stock that
are issued in connection with the acquisition of a hotel property; (iii) the
Company from issuing any Shares in connection with those Common Stock Purchase
Agreements, each dated September 9, 1997, by and between (a) the Company and
ABKB/LaSalle Securities Limited Partnership ("ABKB") and (b) the Company and
ABKB and LaSalle Advisors Limited Partnership (together, the "ABKB Purchase
Agreements"); or (iv) the Company or the Operating Partnership from issuing
Common Stock or OP Units pursuant to the Master Alliance Agreement, dated as of
January 9, 1997, among the Company, the Operating Partnership, WHC Franchise
Corporation and WHC Development Corporation.
(m) The Company has furnished or will furnish to you "lock-up" letters,
in form and substance satisfactory to you, signed by each of its current
executive officers and directors designated by you.
(n) Except as stated in this Agreement and in the Prospectus, the
Company has not taken, nor will it take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common Stock to facilitate the
sale or resale of the Shares.
(o) The Company will cause the Shares to be listed, subject to notice of
issuance, on the New York Stock Exchange on or before the Closing Date.
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(p) The Company qualifies, and will use its best efforts to meet the
requirements to qualify, as a "real estate investment trust" under the Internal
Revenue Code of 1986, as amended (the "Code").
(q) The Company and the Operating Partnership in good faith will enforce
the terms of any agreements with the Lessee or any parties affiliated with the
Lessee.
6. Representations and Warranties of the Company, AGH GP, AGH LP and the
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Operating Partnership. The Company, AGH GP, AGH LP and the Operating
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Partnership, jointly and severally, represent and warrant to the Underwriters
that:
(a) The Company and the transactions contemplated by this Agreement meet
the requirements for using Form S-3 under the Act. 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 Company, threatened by the Commission or the securities authority of any
state or other jurisdiction. The Registration Statement in the form in which it
became effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the Prospectus and any supplement
or amendment thereto when filed with the Commission under Rule 424(b) under the
Act, complied or will comply in all material respects with the provisions of the
Act and did not or will not at any such times 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, except that this
representation and warranty does not apply to statements in or omissions from
the Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by or on behalf of any Underwriter through you expressly for use
therein.
(b) The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the requirements
of the Exchange Act and the rules and regulations thereunder, any further
Incorporated Documents so filed will, when they are filed, conform in all
material respects with the requirements of the Exchange Act and the rules and
regulations thereunder; no such document when it was filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and no such further document, when it is filed, will contain an
untrue statement of a material fact or will omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(c) All the outstanding shares of Common Stock of the Company have been
duly authorized and validly issued, are fully paid and nonassessable and are
free of any preemptive
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or similar rights; the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with the
terms hereof, will be validly issued, fully paid and nonassessable and free of
any preemptive or similar rights; and the capital stock of the Company conforms
to the description thereof in the Registration Statement and the Prospectus.
Except as disclosed in the Prospectus, there are no outstanding options,
warrants or other rights calling for the issuance of, or any commitment, plan or
arrangement to issue, any capital stock of the Company or any security
convertible into or exchangeable for capital stock of the Company, other than
the issuance of OP Units in connection with the acquisition of properties in the
usual course of business. As of the Closing Date, the Company will have reserved
a sufficient number of shares of Common Stock for issuance upon (i) the exchange
of OP Units held by certain continuing investors that acquired OP Units in
connection with the formation of the Company, and (ii) the exercise of options
for up to 614,600 shares of Common Stock to be issued under the Company's stock
option plans.
(d) Each of the Company, the Operating Partnership, the Subsidiaries (as
defined herein), the Lessee, and ▇▇▇▇ (each such entity, a "Relevant Party") is
a corporation, limited partnership, general partnership or limited liability
company duly organized or formed, as the case may be, validly existing and in
good standing under the laws of its jurisdiction of incorporation or formation.
Each such entity has or will have full corporate, partnership or limited
liability company power and authority to own, lease and operate its properties,
to conduct its business and to enter into this Agreement and each Operative
Document (as defined herein) to which it is a party. Each such entity is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification.
(e) (i) All of the outstanding OP Units of the Operating Partnership,
and shares of capital stock, partnership interests or membership interests in
each of the other Relevant Parties have been validly issued or created under the
agreements forming the Relevant Parties and are owned or held by the persons in
the percentage amounts set forth and in the manner described in the Prospectus
to the extent described therein, and (ii) the Amended and Restated Agreement of
Limited Partnership of the Operating Partnership, and the organizational or
formation documents of the other Relevant Parties are in full force and effect.
None of the Subsidiaries (other than the Operating Partnership) has issued any
ownership interests to any party other than a Relevant Party. AGH GP is the sole
general partner of the Operating Partnership and owns a 1% general partnership
interest in the Operating Partnership. Upon completion of the Offering, AGH LP
will own an approximate 89.1% limited partnership interest in the Operating
Partnership. AGHL GP, Inc. is the sole general partner of AGH Leasing, L.P.
Except as described in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), there are no outstanding options, warrants or
other rights calling for the issuance of, or any commitment, plan or arrangement
to issue, any equity interests in the Operating Partnership, or any membership
or equity interests in any other Relevant Party or any security convertible
into, or exchangeable or exercisable for, any such interests in the Operating
Partnership or any other Relevant Party.
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(f) The Company has no subsidiaries other than the entities listed on
Schedule 6(f) hereto (collectively, the "Subsidiaries" and individually, a
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"Subsidiary"). Other than its interests in the Subsidiaries, the Company does
not own, directly or indirectly, securities of any corporation, partnership,
joint venture, limited liability company, association or other business
association.
(g) There are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Relevant Parties
or any of their respective partners, directors or officers in their capacity as
such, or to which any of the Current Hotels is subject, that are required to be
described in the Registration Statement or the Prospectus but are not described
as required, and there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement or any
Incorporated Document that are not described or filed as required by the Act.
(h) No Relevant Party is in violation of its certificate or articles of
incorporation or by-laws, partnership agreement, or other organizational
documents, or of any law, ordinance, administrative or governmental rule or
regulation applicable to such entities or of any decree of any court or
governmental agency or body having jurisdiction over such entities, or in
default in any material respect in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other instrument
to which any such entity is a party or by which any of them or any of their
respective properties may be bound.
(i) Except as set forth in Schedule 6(i) hereto, neither the issuance
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and sale of the Shares, the execution, delivery or performance of this Agreement
and the Operative Documents, nor the consummation of the transactions
contemplated hereby or thereby by the Company, the Subsidiaries, the Lessee or
▇▇▇▇, as applicable, (i) requires any consent, approval, authorization or other
order of or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except
such as may be required for the registration of the Shares under the Act and the
Exchange Act and compliance with the securities or Blue Sky laws of various
jurisdictions, all of which have been or will be effected in accordance with
this Agreement) or conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate or articles of
incorporation or bylaws, partnership agreement or other organizational
documents, of any of such entities or (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, any material
agreement, indenture, lease or other instrument to which any of such entities is
a party or by which any of them or any of their respective properties may be
bound, or violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to any of such entities or any
of their respective properties, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of any of such
entities pursuant to the terms of any agreement or instrument to which any of
them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject.
10
(j) The offers and sales of OP Units prior to the date hereof were
exempt from the registration requirements of the Act and applicable state
securities and Blue Sky laws. All offers and sales by the Company of Common
Stock prior to the date hereof were either duly registered or exempt from the
registration requirements of the Act and applicable state securities and Blue
Sky laws.
(k) The accountants, Coopers & ▇▇▇▇▇▇▇ L.L.P., who have audited the
financial statements included or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), are
independent public accountants as required by the Act.
(l) The financial statements, together with related schedules and notes
included or incorporated by reference in the Registration Statement or the
Prospectus (and any amendment or supplement thereto), present fairly, in all
material respects, the financial position, results of operations and changes in
financial position of the entities to which they relate at the respective dates
or for the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; the other financial and statistical information and
data included or incorporated by reference in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) are accurately presented
and prepared on a basis consistent with such financial statements and the books
and records of the relevant entities; the pro forma financial statements of the
Company and the Lessee included or incorporated by reference in the Registration
Statement and the Prospectus comply in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X of the Commission, and the pro
forma adjustments have been made based upon management's reasonable good faith
estimates of the pro forma adjustments and have been properly applied to the
audited historical amounts in the compilation of such statements; no other
financial statements, data or schedules are required by Form S-11, Regulation S-
K, Regulation S-X or otherwise to be included or incorporated by reference in
the Registration Statement.
(m) The execution and delivery of, and the performance by the Company,
AGH GP, AGH LP and the Operating Partnership of their respective obligations
under, this Agreement have been duly and validly authorized by each of the
Company, AGH GP, AGH LP and the Operating Partnership, and this Agreement has
been duly executed and delivered by the Company, AGH GP, AGH LP and the
Operating Partnership, and, assuming due authorization, execution and delivery
by or on behalf of the Underwriters, constitutes the valid and legally binding
agreement of each of the Company, AGH GP, AGH LP and the Operating Partnership,
enforceable against the Company, AGH GP, AGH LP and the Operating Partnership in
accordance with its terms, except as the enforceability thereof may be limited
by applicable bankruptcy, insolvency, moratorium and other laws affecting the
enforceability of creditors' rights and general principles of equity.
11
(n) Each of the documents listed on Schedule 6(n) hereto (collectively,
-------------
the "Operative Documents") has been duly authorized and executed by the Company,
the Operating Partnership or any Subsidiary, as the case may be, and each
Operative Document, assuming the due authorization, execution and delivery by
the other party or parties thereto, constitutes a valid and binding agreement of
each such party thereto enforceable in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
moratorium and other laws affecting the enforceability of creditors' rights and
general principles of equity.
(o) Except as disclosed in the Prospectus, subsequent to the respective
dates as of which such information is given or incorporated by reference in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), neither the Company nor any of the Subsidiaries, nor to the Company's
knowledge, the Lessee or ▇▇▇▇, has incurred any liability or obligation, direct
or contingent, or entered into any transaction, not in the ordinary course of
business, that is material to the Company and the Subsidiaries taken as a whole,
and there has not been any change in the capital stock, or material increase in
the short-term debt or long-term debt, of the Company or any of the
Subsidiaries, or any material adverse change, or any development involving or
which may reasonably be expected to involve, a prospective material adverse
change, in the condition (financial or other), business, net worth or results of
operations of the Company and the Subsidiaries taken as a whole.
(p) The Company or the Operating Partnership (either directly or through
a Subsidiary) has good and marketable title in fee simple to each of the items
of real property and good and marketable title to each of the items of personal
property which are included in the Current Hotels, and valid and enforceable
leasehold interests in each of the items of real and personal property which are
included in the Current Hotels, in each case free and clear of all liens,
charges, encumbrances, claims, security interests, defects and restrictions,
other than those described or incorporated by reference in the Registration
Statement and the Prospectus and those which do not and will not have a material
adverse effect on the properties, business, financial condition or results of
operations of the Company and the Subsidiaries. All leases pursuant to which the
Operating Partnership leases any items of real or personal property included in
the Current Hotels are valid, binding and enforceable leases. To the extent
described or incorporated by reference in the Registration Statement, such
leases conform in all material respects to the description thereof set forth or
incorporated by reference in the Registration Statement and no notice has been
given or material claim asserted by anyone adverse to the rights of Company
under any of such leases or affecting the Operating Partnership's or the present
owner's rights to continued possession of any leased property.
(q) The Operating Partnership has title policies in effect naming the
Operating Partnership as named party with respect to each of the Current Hotels.
(r) The Company has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Shares, will
not distribute any offering material in connection with the offering and sale of
the Shares other than the Registration
12
Statement, any Prepricing Prospectus Supplement, the Prospectus or other
materials, if any, permitted by the Act.
(s) (i) Each of the Company, the Operating Partnership, the other
Subsidiaries, the Lessee and ▇▇▇▇ have all permits, licenses, franchises and
authorizations of governmental and regulatory authorities ("permits") as are
necessary to own its properties and to conduct its business in the manner
described in the Prospectus, (ii) each of the Company, the Operating
Partnership, the other Subsidiaries, the Lessee and ▇▇▇▇ has fulfilled and
performed all its material obligations with respect to such permits, and no
event has occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material impairment of
the rights of the holder of any such permit, subject in each case to such
qualification as may be set forth in the Prospectus, and (iii) except as
described in the Prospectus, none of such permits contains any restriction that
is materially burdensome to the Company, the Operating Partnership, any of the
other Subsidiaries, the Lessee or ▇▇▇▇.
(t) The Company, together with its Subsidiaries, maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(u) None of the Company, any of its Subsidiaries or any employee or
agent of any of them, has made any payment of funds of the Company or any
Subsidiary or received or retained any funds in violation of any law, rule or
regulation or of a character required to be disclosed in the Prospectus.
(v) The Company, each of the Subsidiaries, the Lessee and ▇▇▇▇ have
filed all tax returns required to be filed, which returns are complete and
correct in all material respects, and neither the Company, any Subsidiary, the
Lessee or ▇▇▇▇ is in default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto, other than any
taxes being contested in good faith by the applicable entity.
(w) Except as described or incorporated by reference in the Prospectus,
no person or entity has any right to require the registration of any shares of
Common Stock or any other securities of the Company because of the filing of the
registration statement or sale of the Shares contemplated by this Agreement.
(x) The Company and its Subsidiaries are organized and intend to operate
in the manner described in the Registration Statement so that the Company will
meet the requirements for qualification as a real estate investment trust under
Sections 856 through 860 of the Code and
13
the rules and regulations thereunder as currently in effect, commencing with the
year ended December 31, 1996. The Operating Partnership and each Subsidiary that
is a partnership or a limited liability company will be treated as a
partnership, and not as an association taxable as a corporation or a publicly
traded partnership, for federal income tax purposes.
(y) The Company, the Subsidiaries and the Lessee are not now and after
the sale of the Shares to be sold hereunder and application of the net proceeds
from such sale as described in the Prospectus Supplement under the caption "Use
of Proceeds," none of them will be, an "investment company", or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(z) The Company, the Subsidiaries, the Lessee and ▇▇▇▇ are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are customary in the businesses in which they are
engaged; and neither the Company, nor any Subsidiary has any reason to believe
that it will not be able to renew that coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not materially and adversely
affect the condition (financial or other), business, net worth or results of
operations of the Company and the Subsidiaries taken as a whole, the Lessee or
▇▇▇▇ except as described in or contemplated by the Prospectus.
(aa) Except with respect to economic terms, the Leases with respect to
the Acquired Hotels are substantially similar to the Leases with respect to the
Initial Hotels. Other than the Wyndham Management Agreement, the Management
Agreements with respect to the Acquired Hotels are substantially similar to the
Management Agreements with respect to the Initial Hotels.
(bb) To the knowledge of the Company, no lessee, licensee or
concessionaire of any portion of any of the Current Hotels is in default under
any of the leases or licenses governing such properties and there is no event
which, but for the passage of time or the giving of notice, or both, would
constitute a default under any of such leases or license, except such defaults
that would not singly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), business, properties, net worth, results of
operations or prospects of the Company or its Subsidiaries taken as a whole.
(cc) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action intended, or
which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares.
(dd) The Shares are duly authorized for listing, subject to official
notice of issuance, on the New York Stock Exchange.
14
(ee) Neither the Company, any of its Subsidiaries, the Lessee or ▇▇▇▇ is
involved in any material labor dispute nor, to the knowledge of the Company, is
any such dispute threatened. No general labor problem exists or, to the
knowledge of the Company, is imminent with the employees of any of the Current
Hotels, the Company, any of the Subsidiaries, the Lessee or ▇▇▇▇.
(ff) The Company, the Subsidiaries, the Lessee and ▇▇▇▇ have sufficient
trademarks, trade names, patent rights, copyrights, licenses, trade secrets,
approvals and governmental authorizations (the "Intangible Rights") necessary to
conduct the business of the Current Hotels as now conducted and as proposed to
be conducted as described in the Prospectus; the expiration of any Intangible
Rights, other than the use of the franchise names pursuant to the franchise
agreements and licenses to which the Current Hotels are subject, would not,
singly or in the aggregate, have a material adverse effect on the condition
(financial or otherwise), business, properties, net worth, results of operations
or prospects of such entity; and the Company does not have any knowledge of any
material infringement of any Intangible Right and there is no claim being made
against the Company, any of the Subsidiaries, the Lessee or ▇▇▇▇ regarding any
Intangible Right which could have a material adverse effect on the condition
(financial or otherwise), business, prospects, properties, net worth, results of
operations or prospects of any of the Company, any of the Subsidiaries, ▇▇▇▇,
the Lessee or any Current Hotel.
(gg) Except as described or incorporated by reference in the Prospectus,
the mortgages and deeds of trust encumbering the Current Hotels will not be
cross-defaulted or cross-collateralized with any other property not owned
directly or indirectly by the Company or the Subsidiaries.
(hh) Each of the Current Hotels, the Company, the Subsidiaries, the
Lessee and ▇▇▇▇, (i) is in compliance in all material respects with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
has received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective business and (iii) is
in material compliance with all terms and conditions of any such permit, license
or approval.
(ii) (i) Except as may be specifically disclosed in the "Phase I"
environmental assessment reports referred to in the Prospectus (the
"Environmental Reports"), the Company, the Subsidiaries, ▇▇▇▇, the Lessee and,
to the knowledge of the Company, the entities from which the Operating
Partnership acquired the Current Hotels (the "Selling Entities"), have not at
any time, and, to the knowledge of the Company, no other party has at any time,
handled, buried, stored, retained, refined, transported, processed,
manufactured, generated, produced, spilled, allowed to seep, leak, escape or
▇▇▇▇▇, or be pumped, poured, emitted, emptied, discharged, injected, dumped,
transferred or otherwise disposed of or dealt with, Hazardous Materials (as
hereinafter defined) on, to or from the Current Hotels. The Company, the
Subsidiaries, the Lessee and ▇▇▇▇ do not intend to use the Current Hotels or any
subsequently
15
acquired properties for the purpose of handling, burying, storing, retaining,
refining, transporting, processing, manufacturing, generating, producing,
spilling, seeping, leaking, escaping, leaching, pumping, pouring, emitting,
emptying, discharging, injecting, dumping, transferring or otherwise disposing
of or dealing with Hazardous Materials, except for such Hazardous Materials as
may be customarily required in hotel operations, stored and used in the
quantities customary for such uses and in compliance with applicable
Environmental Laws.
(ii) Except as disclosed in the Environmental Reports, to the
knowledge of the Company, there has been no seepage, leak, escape, ▇▇▇▇▇,
discharge, injection, release, emission, spill, pumping, pouring, emptying
or dumping of Hazardous Materials into waters on or adjacent to the Current
Hotels or onto lands from which such hazardous or toxic waste of substances
might seep, flow or drain into such waters.
(iii) Except as disclosed in the Environmental Reports, neither the
Company, any Subsidiary, the Lessee or ▇▇▇▇ has received notice of any
occurrence or circumstance which, with notice or passage of time or both,
would give rise to, any claim under or pursuant to any Environmental Law
pertaining to hazardous or toxic waste or substances on or originating from
the Current Hotels or arising out of the conduct of any such party,
including, without limitation, pursuant to any Environmental Law.
(iv) No environmental engineering firm which prepared the
Environmental Reports (or amendments thereto) or physical condition
(engineering) reports with respect to the Acquired Hotels was employed for
such purpose on a contingent basis or has any substantial interest in the
Company, the Subsidiaries, any of the Selling Entities, ▇▇▇▇ or the Lessee.
As used herein, "Hazardous Materials" shall include, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos or any material as defined by any Federal, state or
local environmental law, ordinance, rule, or regulation including, without
limitation, Environmental Laws, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section
9601, et seq.) ("CERCLA"), the Hazardous Materials Transportation Act, as--
amended (49 U.S.C. Section 1801, et seq.), the Resource Conservation and--
Recovery Act, as amended (42 U.S.C. Section 9601, et seq.) and in the-- ---
regulations adopted and publications promulgated pursuant to each of the
foregoing or by any Federal, state or local governmental authority having
or claiming jurisdiction over the Current Hotels as described in the
Prospectus.
(jj) To the knowledge of the Company, all physical condition
(engineering) reports obtained for the Acquired Hotels are materially true and
correct. The Operating Partnership will set aside annually, as a cash reserve
account for capital expenditures and replacement and refurbishment of furniture,
fixtures and equipment, an amount equal to 4.0% of total hotel revenues for each
of the Current Hotels. Other than as described in the Prospectus,
16
neither the Company, any of the Subsidiaries, the Lessee nor ▇▇▇▇ is aware of
any material capital expenditures (other than expenditures for maintenance in
the ordinary course of business) which will be required in connection with any
of the Current Hotels prior to the fifth anniversary of this Agreement.
(kk) The assets of the Company and the Subsidiaries do not constitute
"plan assets" as defined in Department of Labor Regulations Section ▇▇▇▇-▇-▇▇▇
promulgated under the Employee Retirement Income Security Act of 1974, as
amended ("ERISA").
(ll) The statements set forth in the Prospectus under the caption
"Federal Income Tax Considerations," insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate and
complete in all material respects.
(mm) The Company has complied with all provisions of Florida Statutes,
(S) 517.075 relating to issuers doing business with Cuba.
Any certificate signed by any officer of the Company, AGH GP, AGH LP,
the Operating Partnership, any Subsidiary, the Lessee or ▇▇▇▇ on behalf of any
of such entities and delivered to you or to counsel for the Underwriters shall
be deemed a representation and warranty by such entity to each Underwriter as to
the matters covered thereby.
7. Indemnification and Contribution. (a) The Company, AGH GP, AGH LP and
--------------------------------
the Operating Partnership, jointly and severally, agree to indemnify and hold
harmless each of you and each other Underwriter, the directors, officers,
employees and agents of each Underwriter and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation) arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Prepricing Prospectus Supplement or in the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
relating to such Underwriter furnished in writing to the Company by or on behalf
of any Underwriter through you expressly for use in connection therewith;
provided, however, that the indemnification contained in this paragraph (a) with
respect to any Prepricing Prospectus Supplement shall not inure to the benefit
of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by such Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such person within
the time required by the Act and the regulations thereunder, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Prepricing Prospectus Supplement was corrected
in
17
the Prospectus, provided that the Company has delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending within the time required by the Act. The foregoing
indemnity agreement shall be in addition to any liability which the Company may
otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, AGH GP, AGH LP or the Operating
Partnership, such Underwriter or such controlling person shall promptly notify
in writing the Company, AGH GP, AGH LP or the Operating Partnership, and the
Company, AGH GP, AGH LP or the Operating Partnership shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses. Such Underwriter or any such controlling person shall have the right
to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
(i) the Company, AGH GP, AGH LP and the Operating Partnership have agreed in
writing to pay such fees and expenses, (ii) the Company, AGH GP, AGH LP and the
Operating Partnership have failed to assume the defense and employ counsel, or
(iii) the named parties to any such action, suit or proceeding (including any
impleaded parties) include both such Underwriter or such controlling person and
the Company, AGH GP, AGH LP or the Operating Partnership and such Underwriter or
such controlling person shall have been advised in writing by its counsel that
representation of such indemnified party and the Company, AGH GP, AGH LP or the
Operating Partnership by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the Company, AGH GP, AGH LP and the
Operating Partnership shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). In any event, it is understood, however, that the Company, AGH GP, AGH
LP and the Operating Partnership shall, in connection with any one such action,
suit or proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time for all such Underwriters and controlling persons not having actual or
potential differing interests with you or among themselves, which firm shall be
designated in writing by ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., and that all such fees and expenses
shall be reimbursed as they are incurred. The Company, AGH GP, AGH LP or the
Operating Partnership shall not be liable for any settlement of any such action,
suit or proceeding effected without its written consent, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the Company, AGH GP, AGH LP and the Operating
Partnership agrees to indemnify and hold harmless any Underwriter, to the extent
provided in the preceding paragraph, and any such controlling person from and
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
18
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Operating Partnership, AGH GP and AGH LP and
their respective directors and officers who sign the Registration Statement, and
any person who controls the Company, the Operating Partnership, AGH GP or AGH LP
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company, AGH GP, AGH LP
and the Operating Partnership to each Underwriter, but only with respect to
losses, claims, damages,liabilities and expenses arising out of or based upon
any untrue statement or alleged untrue statement of a material fact set forth in
the information relating to such Underwriter furnished in writing by or on
behalf of such Underwriter through you expressly for use in the Registration
Statement, the Prospectus or any Prepricing Prospectus Supplement, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, AGH GP, AGH LP or the Operating Partnership, or any
of their respective directors, any such officer, or any such controlling person
based on the Registration Statement, the Prospectus or any Prepricing Prospectus
Supplement, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and duties given to the Company, AGH GP,
AGH LP and the Operating Partnership by paragraph (b) above (except that if the
Company, AGH GP, AGH LP or the Operating Partnership shall have assumed the
defense thereof such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at such Underwriter's expense), and the
Company, AGH GP, AGH LP and the Operating Partnership, their respective
directors, any such officer, and any such controlling person shall have the
rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, AGH
GP, AGH LP and the Operating Partnership on the one hand and the Underwriters on
the other hand from the offering of the Shares, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, AGH GP, AGH
LP and the Operating Partnership on the one hand and the Underwriters on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, AGH GP,
AGH LP and the Operating Partnership on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares (before deducting expenses) received by the
Company, AGH GP, AGH LP and the Operating Partnership bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The
19
relative fault of the Company, AGH GP, AGH LP and the Operating Partnership on
the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, AGH GP, AGH LP and the Operating
Partnership on the one hand or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company, AGH GP, AGH LP, the Operating Partnership and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by a pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities and expenses
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. 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 of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective numbers
of Firm Shares set forth opposite their names in Schedule I hereto (or such
----------
numbers of Firm Shares as set forth in Section 10 hereof) and not joint. For
purposes of this Section 7(e), each person, if any, who controls a party to this
Agreement within the meaning of the Act, shall have the same rights to
contribution as that party, and each officer of the Company who signed the
Registration Statement shall have the same rights to contributions as the
Company.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company, AGH GP, AGH LP and the Operating
20
Partnership set forth in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or the Company, AGH GP,
AGH LP and the Operating Partnership, their respective directors or officers, or
any person controlling the Company, AGH GP, AGH LP or the Operating Partnership
, (ii) acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to the Company, AGH GP, AGH LP and the Operating
Partnership, their respective directors or officers, or any person controlling
the Company, AGH GP, AGH LP and the Operating Partnership, shall be entitled to
the benefits of the indemnity, contribution, and reimbursement agreements
contained in this Section 7.
8. Conditions of Underwriters' Obligations. The several obligations of the
---------------------------------------
Underwriters to purchase the Firm Shares hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to be
declared effective before the offering of the Shares may commence, the Initial
Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 p.m., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effectiveness of this Agreement, there shall not
have occurred (i) any change, or any development involving a prospective change,
in or affecting the condition (financial or other), business, properties, net
worth, or results of operations of the Company and the Subsidiaries taken as a
whole not contemplated by the Prospectus, which in your reasonable opinion would
materially, adversely affect the market for the Shares, or (ii) any event or
development relating to or involving the Company or any officer or director of
the Company, which makes any statement made in the Prospectus untrue or which,
in the reasonable opinion of the Company and its counsel or the Underwriters and
their counsel, requires the making of any addition to or change in the
Prospectus in order to state a material fact required by the Act or any other
law to be stated therein or necessary in order to make the statements therein
not misleading, if amending or supplementing the Prospectus to reflect such
event or development would, in your reasonable opinion, materially adversely
affect the market for the Shares.
(c) You shall have received on the Closing Date, opinions of Battle
▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, counsel for the Company, the
Subsidiaries, the Lessee and ▇▇▇▇, dated the Closing Date and addressed to you,
in substantially the form set forth on Exhibit 8(c) attached hereto.
------------
21
In rendering their opinion as aforesaid, counsel may rely upon an opinion
or opinions, each dated the Closing Date, of other counsel retained by them or
the Company as to laws of any jurisdiction other than the United States or the
State of New York or the State of Maryland and such opinion may be subject to
the limitations and assumptions with respect to matters concerning the laws of
such jurisdiction contained in such other counsel's opinion, provided that (1)
each such local counsel is acceptable to the Underwriters, (2) such reliance is
expressly authorized by each opinion so relied upon, and a copy of each such
opinion is delivered to the Underwriters and is, in form and substance,
reasonably satisfactory to them and their counsel, and (3) counsel shall state
in their opinion that they believe that they and the Underwriters are justified
in relying thereon. In addition, in rendering the foregoing opinion, such
counsel may rely, as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company, the Operating Partnership,
the Lessee, AGH GP, AGH LP and ▇▇▇▇ and certificates or other written statements
of officers or departments of various jurisdictions having custody of documents
respecting the existence or good standing of the Company, the Operating
Partnership, the Lessee, AGH GP, AGH LP and ▇▇▇▇, provided that copies of all
such opinions, statements or certificates shall be delivered to Underwriters'
counsel.
(d) You shall have received on the Closing Date an opinion of Coopers &
▇▇▇▇▇▇▇ L.L.P., special tax advisor to the Company, dated the Closing Date and
addressed to you, satisfactory in form and substance to counsel for the
Underwriters, to the effect that the discussion contained in the Prospectus
under the caption "Federal Income Tax Considerations - Other Tax Considerations"
fairly summarizes the Texas state tax considerations that are material to a
holder of Shares.
(e) You shall have received on the Closing Date an opinion of Hunton &
▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing Date and addressed to
you, with respect to the Registration Statement, the Prospectus and this
Agreement and such other related matters as you may request.
(f) You shall have received letters addressed to you, and dated the date
hereof and the Closing Date, from Coopers & ▇▇▇▇▇▇▇ L.L.P., independent
certified public accountants, substantially in the forms heretofore approved by
you and a copy of the segmentation analysis of such accountants with respect to
the bases of the personal property and real property leased by the Operating
Partnership to the Lessee in connection with certain of the Hotels acquired
since February 3, 1997.
(g) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company or the Underwriters, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any change in the capital stock of the Company nor any material
increase in the short-term or long-term debt of the Company (other than in the
ordinary course of business) from that set forth or contemplated in the
Registration
22
Statement or the Prospectus (or any amendment or supplement thereto); (iii)
there shall not have been since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), except as may otherwise be stated in the Registration
Statement and Prospectus (or any amendment or supplement thereto), any material
adverse change in the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole; (iv) the Company and the Subsidiaries shall not
have any liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Company and the
Subsidiaries, taken as a whole, other than those reflected or contemplated in
the Registration Statement or the Prospectus (or any amendment or supplement
thereto); and (v) all the representations and warranties of the Company, the
Operating Partnership, AGH LP and AGH GP contained in this Agreement shall be
true and correct on and as of the date hereof and on and as of the Closing Date
as if made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief financial officer of the Company, AGH GP and AGH LP (or such other
officers as are acceptable to you), to the effect set forth in this Section 8(g)
and in Section 8(h).
(h) The Company shall not have failed at or prior to the Closing Date to
have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(i) The Shares shall have been listed or approved for listing, subject to
notice of issuance, on the New York Stock Exchange.
(j) The Company, AGH GP, AGH LP, the Operating Partnership, the Lessee and
▇▇▇▇ shall have furnished to the Underwriters such certificates, in addition to
those specifically mentioned herein, as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel in your reasonable discretion.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the satisfaction on and as of any Option Closing Date
of the conditions set forth in this Section 8, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (g) shall be dated the Option
Closing Date and the opinions and letters called for by paragraphs (c), (d), (e)
and (f) shall be revised to reflect the sale of Additional Shares.
9. Expenses. The Company agrees to pay the following costs and expenses
--------
and all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), the Prospectus and each
23
amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, the Prospectus, the
Incorporated Documents, and all amendments or supplements to any of them as may
be reasonably requested for use in connection with the offering and sale of the
Shares; (iii) the preparation, printing, authentication, issuance and delivery
of certificates for the Shares, including any stamp taxes in connection with the
original issuance and sale of the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, the Blue Sky Memorandum and all other agreements
or documents printed (or reproduced) and delivered in connection with the
offering of the Shares; (v) the listing of the Shares on the New York Stock
Exchange; (vi) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states as provided in
Section 5(g) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparation, printing or
reproduction, and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) the filing fees and
the fees and expenses of counsel for the Underwriters in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc.; (viii) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Shares; (ix) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company.
10. Effective Date of Agreement. This Agreement shall become effective: (i)
---------------------------
upon the execution and delivery hereof by the parties hereto; or (ii) if, at the
time this Agreement is executed and delivered, it is necessary for a post-
effective amendment to the Initial Registration Statement to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of such post-effective amendment has been released by the
Commission. Until such time as this Agreement shall have become effective, it
may be terminated by the Company, by notifying you, or by you, by notifying the
Company.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they are obligated to purchase hereunder on the Closing
Date, and the aggregate number of Firm Shares which such defaulting Underwriter
or Underwriters are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of Firm Shares which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule I hereto bears to the aggregate number of
----------
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., to purchase the Firm
Shares which such defaulting Underwriter or Underwriters are obligated, but fail
or refuse, to purchase, in each case upon the terms set forth in this Agreement.
If any one or more of the Underwriters shall fail or refuse to purchase Firm
Shares which it or they are obligated to purchase on the Closing Date and the
aggregate number of Firm Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Firm Shares which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to
24
you and the Company for the purchase of such Firm Shares by one or more non-
defaulting Underwriters or other party or parties approved by you and the
Company are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any such default of any such Underwriter under this Agreement. The term
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule I hereto who, with your approval and
----------
the approval of the Company, purchases Shares which a defaulting Underwriter is
obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed within 24 hours by letter.
11. Termination of Agreement. This Agreement shall be subject to
------------------------
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company, by notice to the Company, if prior to the Closing
Date or any Option Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, (i) trading in the Common
Stock shall have been suspended by the Commission or the New York Stock
Exchange, (ii) trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or The Nasdaq Stock Market shall have been suspended
or materially limited, (iii) a general moratorium on commercial banking
activities in New York or Texas shall have been declared by either federal or
state authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable or inadvisable to commence or continue the offering of
the Shares at the offering price to the public set forth on the cover page of
the Prospectus or to enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given to the Company by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The Company and the
-----------------------------------------
Operating Partnership acknowledge that the statements set forth in the last
paragraph on the cover page, the names of the Underwriters appearing on the
cover page and the back cover page of the Prospectus, the legend with respect to
stabilization and overallotments on the first page of the Prospectus Table of
Contents, the list of Underwriters and their respective allotments appearing
under the caption "Underwriting" in the Prospectus, and the statements in the
first and third paragraphs under the caption "Underwriting" in any Prepricing
Prospectus Supplement and the Prospectus, constitute the only information
furnished by or on behalf of the Underwriters through you as such information is
referred to in Sections 6(a) or 7 hereof.
25
13. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
-------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, AGH GP, AGH LP or the
Operating Partnership, at the office of the Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman, Chief
Executive Officer and President; or (ii) if to you, care of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company, the Operating Partnership, AGH GP and AGH LP and
their respective directors and officers, and the other controlling persons
referred to in Section 7 hereof and their respective successors and assigns, to
the extent provided herein, and no other person shall acquire or have any right
under or by virtue of this Agreement. Neither the term "successor" nor the term
"successors and assigns" as used in this Agreement shall include a purchaser
from any Underwriter of any of the Shares in his status as such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be governed by and
----------------------------
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
26
Please confirm that the foregoing correctly sets forth the agreement
between the Company, AGH GP, AGH LP and the Operating Partnership and the
Underwriters.
Very truly yours,
AMERICAN GENERAL HOSPITALITY CORPORATION
By
------------------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: President
--------------------------------------------
AMERICAN GENERAL HOSPITALITY
OPERATING PARTNERSHIP, L.P.
By AGH GP, INC.,
as general partner
By
------------------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: President
--------------------------------------------
AGH GP, INC.
By
------------------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: President
--------------------------------------------
AGH LP, INC.
By
------------------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: President
--------------------------------------------
27
Confirmed as of the date first
above mentioned on behalf of
themselves.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
By ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By
-----------------------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Director
-------------------------------------------
28
SCHEDULE I
Number of
Underwriter Firm Shares
----------- -----------
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ....................................... 1,416,668
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated..................... 1,416,666
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC....................... 1,416,666
---------
Total............................ 4,250,000
=========
SCHEDULE II
CURRENT HOTELS
Holiday Inn Dallas DFW Airport West
Courtyard by Marriott Meadowlands
Hampton Inn Richmond Airport
Hotel Maison de Ville
Hilton Hotel-Toledo Holiday Inn
Select Dallas DFW Airport South
Holiday Inn Select New Orleans Hampton
Inn Ocean City International Airport
Crowne Plaza Madison
Holiday Inn Park Center Plaza
Wyndham Albuquerque Airport Hotel
Wyndham Airport Hotel San ▇▇▇▇
Holiday Inn Select Mission Valley
Wyndham Hotel Lake Buena Vista
Holiday Inn Resort Monterey
Hilton Hotel Durham
Radisson Hotel Arlington Heights
Wyndham Garden Hotel-Marietta
Doubletree Guest Suites Hotel
Westin Resorts Key Largo
Holiday Inn Corporate Center Phoenix
Hilton Airport Hotel Grand Rapids
Holiday Inn Select Bucks County
Marriott Houston West Loop
Radisson Twin Towers ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Hotel Cocoa Beach
SCHEDULE 6(f)
SUBSIDIARIES
State or Other Jurisdiction
of Incorporation or
Subsidiary Organization/Type of Entity
---------- ---------------------------
AGH GP, Inc. Nevada/Corporation
AGH LP, Inc. Nevada/Corporation
American General Hospitality Operating Delaware/Limited Partnership
Partnership, L.P.
AGH UPREIT LLC Delaware/Limited Liability Company
AGH SECAUCUS LLC Delaware/Limited Liability Company
AGH DFW South LLC Delaware/Limited Liability Company
AGH 75 Arlington Heights LLC Delaware/Limited Liability Company
AGH 2780 Atlanta LLC Delaware/Limited Liability Company
2929 ▇▇▇▇▇▇▇▇ Limited Liability Company Delaware/Limited Liability Company
BCHI Acquisition, LLC Delaware/Limited Liability Company
3100 Glendale Joint Venture Ohio/General Partnership
MDV Limited Partnership Texas/Limited Partnership
Madison Motel Associates Wisconsin/General Partnership
183 Hotel Associates, Ltd. Texas/Limited Partnership
Richmond Williamsburg Associates, Ltd. Texas/Limited Partnership
455 Meadowlands Associates, Ltd. Texas/Limited Partnership
DFW South I Limited Partnership Texas/Limited Partnership
Lake Buena Vista Partners, Ltd. Florida/Limited Partnership
Cocoa Beach Hilton, Ltd. Florida/Limited Partnership
75 Arlington Heights Limited Partnership, Delaware/Limited Partnership
L.P.
2780 Atlanta Limited Partnership, L.P. Delaware/Limited Partnership
SIGNIFICANT SUBSIDIARIES
------------------------
American General Hospitality Operating Partnership, L.P.
AGH GP, Inc.
AGH LP, Inc.
AGH UPREIT LLC
AGH SECAUCUS LLC
AGH DFW South LLC
AGH 75 Arlington Heights LLC
AGH 2780 Atlanta LLC
SCHEDULE 6(i)
The consent of the Banks (as defined below) a party to the Amended and Restated
Credit Agreement by and between the Operating Partnership and Societe Generale,
a French banking corporation acting through its Southwest Agency, as Arranger,
Syndication Agent and Documentation Agent; Bank One, Texas, N.A., as
Administrative Agent; and The Bank of Nova Scotia and ▇▇▇▇▇ Fargo Bank, National
Association, as Co-Agents, and the banks and other financial institutions a
party thereto (collectively referred to as the "Banks").
SCHEDULE 6(n)
OPERATIVE DOCUMENTS
(1) Participating Lease between the Operating Partnership and AGH Leasing, L.P.
(Holiday Inn Corporate Center Phoenix)
(2) Participating Lease between the Operating Partnership and AGH Leasing, L.P.
(Hilton Airport Hotel Grand Rapids)
(3) Participating Lease between BCHI Acquisition, L.L.C. and AGH Leasing, L.P.
(Holiday Inn Select Bucks County)
(4) The Management Agreements between AGH Leasing, L.P. and American General
Hospitality, Inc. with respect to the Holiday Inn Corporate Center Phoenix,
Hilton Airport Hotel Grand Rapids and Holiday Inn Select Bucks County Hotel
(5) Common Stock Purchase Agreement for 1,982,868 shares of Common Stock by and
between American General Hospitality Corporation, ABKB/LaSalle Securities
Limited Partnership and LaSalle Advisors Limited Partnership, as agent for
and for the benefit of certain clients, dated September 9, 1997
EXHIBIT 8(c)
Form of Opinion of Counsel
1. The Company is a corporation duly incorporated and validly existing
under the laws of the State of Maryland and is in good standing with the State
Department of Assessments and Taxation of the State of Maryland, with full
corporate power to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus (and any
amendment or supplement thereto), and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or place where
the nature of its properties or the conduct of its business as described in the
Registration Statement and the Prospectus requires such registration or
qualification, except where the failure to so register or qualify would not have
a material adverse effect on the condition, financial or otherwise, business,
properties or results of operations of the Company.
2. Each of the Operating Partnership, the Significant Subsidiaries (as so
identified on Schedule 6(f)) and the Lessee is a corporation, limited
partnership, general partnership or limited liability company duly incorporated
or formed, as the case may be, validly existing and in good standing under the
laws of its jurisdiction of incorporation or formation, with full corporate,
partnership or limited liability company power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), and is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its properties
or the conduct of its business as described in the Registration Statement and
the Prospectus requires such registration or qualification, except where the
failure to so qualify would not have a material adverse effect on the condition,
financial or otherwise, business, properties or results of operations of the
Company, Operating Partnership, the Lessee, ▇▇▇▇ or any Significant Subsidiary,
respectively.
3. All the outstanding shares of Common Stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and are free of
any preemptive or similar rights under the Maryland General Corporation Law. The
Shares have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms of the
Underwriting Agreement, will be validly issued, fully paid and nonassessable and
free of any preemptive or similar statutory rights. The capital stock of the
Company conforms in all material respects to the description thereof in the
Registration Statement and the Prospectus; as of the date of such counsel's
opinion, there are _________ shares of Common Stock outstanding and no shares of
Preferred Stock are authorized, issued or outstanding; and the form of
certificates for the Shares conforms to the requirements of the Maryland General
Corporation Law.
4. To the best knowledge of such counsel, except as described in the
Prospectus or the Registration Statement (or any amendment or supplement
thereto) or any Incorporated Document, there are no outstanding options,
warrants or other written rights calling for the issuance of, or any written
commitment, plan or arrangement to issue, any capital stock of the Company or
any security convertible into, or exchangeable or exercisable for, the capital
stock of the Company.
5. All of the outstanding limited partnership interests of the Operating
Partnership and the Lessee were created under the agreements forming the
Operating Partnership and the Lessee, as the case may be, and have been duly
authorized and validly issued. All of the outstanding shares of capital stock of
the Significant Subsidiaries which are corporations and ▇▇▇▇ have been duly
authorized and validly issued. Based solely upon such counsel's review of the
Certificate of Limited Partnership and the Amended and Restated Agreement of
Limited Partnership of the Operating Partnership, after giving effect to the
Offering, AGH GP will be the record owner of a 1% interest, as sole general
partner in the Operating Partnership, and AGH LP will be the record owner of an
approximate ____% interest, as a limited partner in the Operating Partnership.
To the best knowledge of such counsel, except as described in the Registration
Statement and the Prospectus (or any amendment or supplement thereto) or any
Incorporated Document, there are no outstanding options, warrants or other
written rights calling for the issuance of, or any written commitment, plan or
arrangement to issue, any equity interest or any membership interest in the
Operating Partnership, the Significant Subsidiaries or the Lessee or any
security convertible into, or exchangeable or exercisable for, any such
interests in the Operating Partnership or the Significant Subsidiaries or the
Lessee.
6. Such counsel has been advised by the staff of the Commission that the
Registration Statement and all post-effective amendments, if any, have become
effective under the Act and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose are pending before or contemplated by the
Commission, and any required filing of the Prospectus pursuant to Rule 424(b)
under the Act has been made in accordance with Rule 424(b) under the Act.
7. Neither the issuance and sale of the Shares, the execution, delivery or
performance of the Underwriting Agreement, compliance by the Company, the
Operating Partnership, AGH GP or AGH LP with the provisions of the Underwriting
Agreement nor the consummation of the transactions contemplated thereby by the
Company, the Operating Partnership, AGH GP or AGH LP, as applicable, (i)
requires any consent, approval, authorization or other order of, or registration
or filing with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as has been obtained for the
registration of the Shares under the Act and the Securities Exchange Act of
1934, as amended, and state securities or Blue Sky laws of various jurisdictions
and clearance by the National Association of Securities Dealers ("NASD") in
connection with the purchase and sale of the Shares by the Underwriters as
contemplated by the Underwriting Agreement (as to which such counsel need
express no opinion and no opinion need be given with respect to liquor laws,
statutes, rules or regulations)), (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under the Charter or
the certificate or articles of incorporation, or bylaws, partnership agreement
or other organizational documents, of any of such entities or (iii) conflicts or
will conflict with or constitutes or will constitute a breach of, or a default
under, any agreement, indenture, lease or other instrument known to such counsel
to which any of such entities is a party or by which any of them or any of their
respective properties may be bound, which in each case has been filed or
incorporated by reference as an exhibit to the Registration Statement, or
violates or will violate any statute, law, regulation, ruling or filing or
judgment, injunction, order or decree applicable to any of such entities, any of
their respective
properties, or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any of such entities pursuant to the
terms of any agreement or instrument known to such counsel, which in each case
has been filed as an exhibit to the Registration Statement or any Incorporated
Document, to which any of them is a party or by which any of them may be bound
or to which any of the property or assets of any of them is subject, except that
no opinion need be given by such counsel with respect to the indemnification and
contribution provisions of the Underwriting Agreement or the requirements of
state securities or Blue Sky laws.
8. The offers and sales of units of limited partnership interests by the
Operating Partnership, and the offers and sales by the Company of shares of
Common Stock subsequent to February 3, 1997 and prior to the Closing Date as
described in the Registration Statement and the Prospectus or any Incorporated
Document were either duly registered or exempt from the registration
requirements of the Act and, to the extent applicable, New York Blue Sky laws.
9. The execution and delivery of, and the performance by the Company, the
Operating Partnership, AGH GP and AGH LP of their respective obligations under,
the Underwriting Agreement are within the corporate or partnership power and
authority of each such entities and have been duly and validly authorized by the
Company, the Operating Partnership, AGH GP and AGH LP, and the Underwriting
Agreement has been duly authorized, executed and delivered by the Company,
Operating Partnership, AGH GP and AGH LP.
10. Except as described in the Registration Statement and the Prospectus or
any Incorporated Document and to the best knowledge of such counsel, there are
no contracts, agreements or understandings between the Company and any person
granting such person or entity the right to require the registration of any
shares of Common Stock or any other securities of the Company because of the
filing of the Registration Statement or sale of the Shares as contemplated by
the Underwriting Agreement.
11. After giving effect to the Offering and the use of proceeds from sale of
the Shares as described in the Registration Statement and Prospectus, neither
the Company, the Operating Partnership nor any of the Subsidiaries is required
to be registered under the Investment Company Act of 1940, as amended.
12. Each Operative Document to which the Company, the Operating Partnership,
the Significant Subsidiaries and the Lessee is a party has been duly authorized
and executed by such entity. Each of the Operative Documents constitutes a valid
and binding obligation of the parties thereto, enforceable against each in
accordance with the terms thereof.
13. To the best knowledge of such counsel, there are no legal or
governmental actions, suits or court proceedings pending or threatened against
the Company, or any of the Significant Subsidiaries, the Lessee or ▇▇▇▇, or any
of their respective partners, directors or officers in their capacity as such,
or to which any of the Hotels (as defined in the Prospectus) is subject, that
are of a character which are required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) or in any
Incorporated Document but are not described as
required. To the best knowledge of such counsel, there are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or any Incorporated Document or to be filed as an exhibit to
the Registration Statement or to any Incorporated Document that are not
described or filed as required by the Act, as the case may be.
14. At the Closing Date, the Registration Statement and the Prospectus and
any supplements or amendments thereto (except for the financial statements and
the notes thereto and the schedules and other financial, accounting and
statistical data included therein or excluded therefrom or the exhibits to the
Registration Statement, as to which such counsel do not express any opinion)
comply as to form in all material respects with the requirements of the Act,
except that such counsel need not express an opinion as to the form of exhibits
to the Registration Statement, or to the accuracy, completeness or fairness of
the statements contained in the Registration Statement, except to the extent set
forth in this paragraph and in paragraphs 15 and 19 hereof; and each of the
Incorporated Documents (except for the financial statements and the notes
thereto and the schedules and other financial and statistical data included
therein, as to which counsel need not express any opinion) complies as to form
in all material respects with the Exchange Act and the rules and regulations of
the Commission thereunder.
15. The statements under the captions "Description of Common Stock," "Risk
Factors -- Tax Risks," "Risk Factors -- Potential Anti-Takeover Effect of
Certain Provisions of Maryland Law and the Company's Charter and Bylaws,"
"Operating Partnership Agreement" and "Federal Income Tax Considerations" (other
than statements regarding Texas tax considerations under the subcaption "- Other
Tax Considerations") contained in the Prospectus, to the extent they constitute
matters of law, descriptions of statutes, rules or regulations, or legal
conclusions, each, respectively, fairly presents in all material respects the
information disclosed therein.
16. Based on certain customary assumptions and representations (acceptable
to such counsel and to counsel for the Underwriter in their reasonable
discretion) relating to applicable asset composition, source of income,
stockholder diversification distribution, record keeping tests and other
requirements of the Code necessary for the Company to qualify as a REIT, the
Company was organized and has operated in conformity with the requirements for
qualification and taxation as a REIT under Sections 856 through 860 of the Code
for the taxable years ended December 31, 1996; the Company's current
organization and method of operations will enable the Company to continue to
qualify as a REIT under the Code.
17. Such counsel has been advised by the NYSE that the Shares are duly
authorized for listing, subject to official notice of issuance, on the NYSE.
18. In addition, such counsel has participated in certain conferences with
officers and other representatives of the Company, the Operating Partnership,
the Subsidiaries, the Lessee, representatives of the Company's independent
accountants and with the Underwriters and representatives and counsel of the
Underwriters in connection with the preparation of the
Registration Statement at which the contents of the Registration Statement, and
the Prospectus therein and related matters were discussed and, although such
counsel has not verified independently and, therefore, does not assume any
responsibility, explicitly or implicitly, for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, on the basis of the foregoing, nothing has come to such counsel's
attention during the course of the above-described process that has caused such
counsel to believe that the Registration Statement at the time the Registration
Statement became effective, or the Prospectus, as of its date and the date
hereof, contained or contains any untrue statement of a material fact or omitted
or omits 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, except that such counsel need express no opinion,
view or belief with respect to the financial statements and the notes thereto
and the schedules and the other financial, accounting or statistical data
included in or excluded from the Registration Statement or the Prospectus.