------------------------------------------------------------------------------
Exhibit 1.1
------------------------------------------------------------------------------
LASALLE HOTEL PROPERTIES
(a Maryland real estate investment trust)
2,041,000 Common Shares*
UNDERWRITING AGREEMENT
Dated: June 25, 2003
------------------------------------------------------------------------------
------------------------------------------------------------------------------
*Plus an option to purchase from LaSalle Hotel Properties up to 204,000
additional shares to cover over-allotments.
Table of Contents
SECTION 1. Representations and Warranties..................................2
(a) Representations and Warranties by the Company and the Operating
Partnership...........................................................2
(i) Compliance with Registration Requirements..................2
(ii) Incorporated Documents.....................................3
(iii) Independent Accountants....................................3
(iv) Financial Statements.......................................3
(v) No Material Adverse Change in Business.....................4
(vi) Good Standing of the Company...............................4
(vii) Good Standing of the Operating Partnership.................4
(viii) Good Standing of Subsidiaries..............................5
(ix) Capitalization.............................................5
(x) Authorization of Units and Preferred Units.................6
(xi) Authorization and Description of Securities................6
(xii) Authorization of Agreement.................................6
(xiii) Absence of Defaults and Conflicts. ........................6
(xiv) Absence of Labor Dispute...................................7
(xv) Absence of Proceedings.....................................7
(xvi) Accuracy of Exhibits.......................................7
(xvii) REIT Qualification.........................................7
(xviii) Investment Company Act. ...................................8
(xix) Possession of Intellectual Property........................8
(xx) Absence of Further Requirements............................8
(xxi) Possession of Licenses and Permits.........................8
(xxii) Title to Property..........................................9
(xxiii) Title Insurance............................................9
(xxiv) Mortgages and Deeds of Trust..............................10
(xxv) Real Property.............................................10
(xxvi) Transfer Taxes............................................10
(xxvii) Tax Returns...............................................10
(xxviii) Insurance.................................................10
(xxix) Internal Accounting Controls..............................10
(xxx) Environmental Laws........................................11
(xxxi) Registration Statement....................................11
(b) Officer's Certificates...............................................11
SECTION 2. Sale and Delivery to Underwriters; Closing.....................11
(a) Initial Securities...................................................11
(b) Option Securities....................................................12
(c) Payment..............................................................12
(d) Denominations; Registration..........................................12
i
SECTION 3. Covenants of the Company.......................................13
(a) Compliance with Securities Regulations and Commission Requests.......13
(b) Filing of Amendments.................................................13
(c) Delivery of Registration Statements..................................13
(d) Delivery of Prospectuses.............................................13
(e) Continued Compliance with Securities Laws............................14
(f) Blue Sky Qualifications..............................................14
(g) Rule 158.............................................................14
(h) Reporting Requirements...............................................14
(i) Use of Proceeds......................................................15
(j) REIT Qualification...................................................15
(k) No Manipulation of Market for Securities.............................15
(l) Rule 462(b) Registration Statement...................................15
(m) NYSE Listing.........................................................15
(n) Lock-Up Agreement....................................................15
SECTION 4. Payment of Expenses............................................16
(a) Expenses.............................................................16
(b) Termination of Agreement.............................................16
SECTION 5. Conditions of Underwriters' Obligations........................16
(a) Effectiveness of Registration Statement..............................16
(b) Opinion of Counsel for Company.......................................16
(c) Opinion of Counsel for Underwriters..................................16
(d) Officers' Certificate................................................17
(e) Accountant's Comfort Letter..........................................17
(f) Bring-down Comfort Letter............................................17
(g) Lock-up Agreements..................................................17
(h) NYSE Listing.........................................................17
(i) Conditions to Purchase of Option Securities..........................17
(i) Officers' Certificate.....................................18
(ii) Opinion of Counsel for Company............................18
(iii) Opinion of Counsel for Underwriters.......................18
(iv) Bring-down Comfort Letter.................................18
(j) Additional Documents.................................................18
(k) Termination of Agreement.............................................18
SECTION 6. Indemnification................................................19
(a) Indemnification of Underwriters......................................19
(b) Indemnification of Company, Trustees and Officers....................20
(c) Actions against Parties; Notification................................20
ii
SECTION 7. Contribution...................................................21
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery ......................................................22
SECTION 9. Termination of Agreement.......................................22
(a) Termination; General.................................................22
(b) Liabilities..........................................................23
SECTION 10. Notices........................................................23
SECTION 11. Parties........................................................23
SECTION 12. Governing Law and Time.........................................23
SECTION 13. Effect of Headings.............................................23
iii
LASALLE HOTEL PROPERTIES
(a Maryland real estate investment trust)
Common Shares
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
June 25, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
LaSalle Hotel Properties, a Maryland real estate investment trust (the
"Company"), confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. (the
"Underwriter") with respect to the issue and sale by the Company and the
purchase by the Underwriter of 2,041,000 of the Company's common shares of
beneficial interest, par value $.01 per share (the "Common Shares"), and with
respect to the grant by the Company to the Underwriter of the option described
in Section 2(b) hereof to purchase all or any part of 204,000 additional
Common Shares to cover over-allotments, if any. The aforesaid 2,041,000 Common
Shares (the "Initial Securities") to be purchased by the Underwriter and all
or any part of the 204,000 Common Shares subject to the option described in
Section 2(b) hereof (the "Option Securities") are hereinafter called,
collectively, the "Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-104054, which also
constitutes a post-effective amendment to a previous registration statement
No. 333-77371) covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses. Promptly after execution and delivery
of this Agreement, the Company will prepare and file a prospectus in
accordance with the provisions of paragraph (b) of Rule 424 ("Rule 424(b)") of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Each prospectus used before such registration statement became
effective and any prospectus that was used after such effectiveness and prior
to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, is
herein called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as
the "Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final prospectus, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
1
form first furnished to the Underwriter for use in connection with the
offering of the Securities is herein called the "Prospectus." For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to either of the
foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
The term "Subsidiary" means a corporation or a partnership a majority of
the outstanding voting or capital stock, partnership or membership interests,
or the general partnership interest, as the case may be, of which is owned or
controlled, directly or indirectly, by the Company, LaSalle Hotel Operating
Partnership, L.P., a Delaware limited partnership (the "Operating
Partnership"), or by one or more other Subsidiaries of the Company or the
Operating Partnership.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating
Partnership Each of the Company and the Operating Partnership represents and
warrants to the Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with the Underwriter, as
follows:
(i) Compliance with Registration Requirements. The Company and the
transactions contemplated by this Agreement meet the requirements for
use of Form S-3 under the 1933 Act. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has
been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission) became effective, at the date of this
Agreement and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the
Rule 462(b) Registration Statement and any amendments and supplements
thereto complied
2
and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, and any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement
was issued and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. No document has
been or will be prepared in connection with the offering of the
Securities in reliance on Rule 434 of the 1933 Act. The representations
and warranties in this paragraph shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the Company
in writing by the Underwriter expressly for use in the Registration
Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act and
the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriter for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(ii) Incorporated Documents The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at
the time the Prospectus was issued and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), did not and
will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements of the Company
and its consolidated subsidiaries included in the Registration Statement
and the Prospectus, together with the related schedules and notes,
present fairly the financial position, results of operations and cash
flows of the Company and its consolidated subsidiaries at the dates and
for the periods specified, and such financial statements have been
prepared in
3
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement and Prospectus
present fairly in accordance with GAAP the information required to be
stated therein. The selected historical operating and financial data
included in the Registration Statement and Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with the books and records of the Company and that of the audited
financial statements included in the Registration Statement and
Prospectus. In addition, any pro forma financial statements and the
related notes thereto included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled
on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred
to therein.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been
no material adverse change in the condition, financial or otherwise, or
in the properties, earnings, business affairs or business prospects of
the Company, the Operating Partnership and the Subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company, the Operating Partnership or
any Subsidiary, other than those in the ordinary course of business,
which are material with respect to the Company, the Operating
Partnership and the Subsidiaries considered as one enterprise and (C)
except for regular monthly dividends on the Company's Common Shares, in
amounts per share that are consistent with past practice, regular
quarterly distributions on the Company's preferred shares, and regular
monthly and quarterly distributions on the units (the "Units") and the
preferred units (the "Preferred Units"), respectively, of the Operating
Partnership, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital shares
or any distribution by the Operating Partnership with respect to its
Units and Preferred Units.
(vi) Good Standing of the Company. The Company is a real estate
investment trust duly formed and validly existing and in good standing
under the laws of the State of Maryland, with full trust power and
authority to own and lease its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified or
registered as a foreign real estate investment trust and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect.
(vii) Good Standing of the Operating Partnership. The Operating
Partnership has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware and
has the requisite power and authority to own,
4
lease and operate its properties and to conduct the business in which it
is engaged as described in the Operating Partnership Agreement (as
defined below) and the Prospectus and to enter into and perform its
obligations under this Agreement. The Operating Partnership is duly
qualified or registered as a foreign partnership and is in good standing
in each jurisdiction in which such qualification or registration is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or
register would not result in a Material Adverse Effect. The Company is
the sole general partner of the Operating Partnership and holds such
number and/or percentage of Units and Preferred Units as disclosed in the
Prospectus as of the dates set forth therein, free and clear of any
perfected security interest or any other security interest, claims, liens
or encumbrances. The Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, dated as of April 29, 1998, as
amended by the First Amendment thereto, dated as of March 6, 2002 (the
"Operating Partnership Agreement"), is in full force and effect.
(viii) Good Standing of Subsidiaries. The Operating Partnership is
the only Subsidiary that is a "significant subsidiary" of the Company
(as such term is defined in Rule 1-02 of Regulation S-X). The only
Subsidiaries of the Company are (A) the Subsidiaries listed on Exhibit
21 to the Company's most recent Annual Report on Form 10-K and (B)
certain other Subsidiaries which, considered in the aggregate as a
single Subsidiary, do not constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X. Each of the Subsidiaries of the
Company or the Operating Partnership has been duly incorporated or
organized and is validly existing as a corporation, limited partnership,
general partnership or limited liability company, as applicable, in good
standing under the laws of the jurisdiction in which it is chartered or
organized and has the requisite power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, and is duly qualified or registered as a foreign
corporation, limited partnership, general partnership or limited
liability company, as applicable, and is in good standing in the
jurisdiction in which such qualification or registration is required,
whether by reason of the ownership or licensing of property or the
conduct of business, except where the failure to so qualify or register
would not result in a Material Adverse Effect. All the outstanding
shares of capital stock, partnership interests, limited liability
company interests or other equivalent equity interest of each such
Subsidiary has been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock, partnership
interests, limited liability company interests or other equivalent
equity interest of the Subsidiaries are owned by the Company or the
Operating Partnership either directly or through wholly-owned
Subsidiaries free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances.
(ix) Capitalization. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding capital shares of the
Company are as set forth in the column entitled "Actual" under such
section (except for subsequent issuances thereof, if any, contemplated
under this Agreement, pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus).
Such capital shares have
5
been duly authorized and validly issued by the Company and are fully paid
and non-assessable, and none of such capital shares was issued in
violation of preemptive or other similar rights of any securityholder of
the Company.
(x) Authorization of Units and Preferred Units. All issued and
outstanding Units and Preferred Units have been duly authorized and are
validly issued, fully paid and non-assessable and have been offered and
sold or exchanged by the Operating Partnership in compliance with
applicable laws.
(xi) Authorization and Description of Securities. The Securities
to be purchased by the Underwriter from the Company have been duly
authorized for issuance and sale to the Underwriter pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued, fully paid and non-assessable. The Securities of the
Company conform to all statements relating thereto contained in the
Prospectus. No holder of the Securities will be subject to personal
liability by reason of being such a holder; the issuance of the
Securities is not subject to the preemptive or other similar rights of
any securityholder of the Company.
(xii) Authorization of Agreement. This Agreement and the
transactions contemplated herein have been duly authorized by the
Company and the Operating Partnership, and this Agreement has been duly
executed and delivered by the Company and the Operating Partnership and
constitutes a valid and binding obligation of the Company and the
Operating Partnership enforceable in accordance with its terms except to
the extent that the indemnification provisions hereof may be limited by
federal or state securities laws and public policy considerations in
respect thereof and except as enforcement may be limited by bankruptcy,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(xiii) Absence of Defaults and Conflicts. None of the Company, the
Operating Partnership or any Subsidiary is (A) in violation of its
declaration of trust, partnership agreement, charter, by-laws or other
governing instrument ("Governing Instruments") or (B) in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument
to which the Company, the Operating Partnership or any Subsidiary is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Company, the Operating Partnership or any
Subsidiary is subject (collectively, "Agreements and Instruments") or
(C) in violation of any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company, the Operating Partnership or any Subsidiary or any of their
assets, properties or operations ("Laws"), except for such violations or
defaults of any Agreements and Instruments or Laws that would not result
in a Material Adverse Effect. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
herein and in the Prospectus (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities
as described in the Prospectus under the caption "Use of Proceeds") and
6
compliance by the Company and the Operating Partnership with their
respective obligations hereunder have been duly authorized by all
necessary action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute
a breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, the Operating Partnership or
any Subsidiary pursuant to, the Agreements and Instruments or Laws
(except for such conflicts, breaches, defaults or Repayment Events or
liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the Governing Instruments of the Company, the Operating
Partnership or any Subsidiary or of any Laws except for such violations
that would not have a Material Adverse Effect. As used herein, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a material portion of such
indebtedness by the Company, the Operating Partnership or any
Subsidiary.
(xiv) Absence of Labor Dispute. No labor dispute with the
employees of the Company, the Operating Partnership or any Subsidiary
exists or, to the knowledge of the Company or the Operating Partnership,
is imminent, and the Company and the Operating Partnership are not aware
of any existing or imminent labor disturbance by the employees of any of
its or any Subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to result
in a Material Adverse Effect.
(xv) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company or the Operating Partnership, threatened, against or
affecting the Company, the Operating Partnership or any Subsidiary,
which is required to be disclosed in the Registration Statement (other
than as disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect or materially adversely affect the
consummation of the transactions contemplated in this Agreement or the
performance by the Company or the Operating Partnership of their
respective obligations hereunder. The aggregate of all pending legal or
governmental proceedings to which the Company, the Operating Partnership
or any Subsidiary is a party or of which any of their respective
properties or assets is the subject which are not described in the
Prospectus, including ordinary routine litigation could not reasonably
be expected to result in a Material Adverse Effect.
(xvi) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xvii) REIT Qualification. Commencing with its taxable year ended
December 31, 1998, the Company has been, and upon the sale of the
Securities, the Company will continue to be organized and operated in
conformity with the requirements for
7
qualification and taxation as a real estate investment trust (a "REIT")
under the Internal Revenue Code of 1986, as amended (the "Code"), and the
Company's present and proposed method of operation as described in the
Prospectus will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code, and no actions have
been taken (or not taken which are required to be taken) which would
cause such qualification to be lost. The Operating Partnership will be
taxed as a partnership for federal income tax purposes.
(xviii) Investment Company Act. None of the Company, the Operating
Partnership and any Subsidiary is, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xix) Possession of Intellectual Property. The Company, the
Operating Partnership and any Subsidiary own or possess, or can acquire
on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company,
the Operating Partnership or any Subsidiary has received any written
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or
of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company,
the Operating Partnership or any Subsidiary therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xx) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company or
the Operating Partnership of their respective obligations hereunder, in
connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, except such as has already been obtained or as required under
such securities laws or as required under the rules of the National
Association of Securities Dealers, Inc.
(xxi) Possession of Licenses and Permits. Each of the Company, the
Operating Partnership and the Subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local
or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them except where failure to possess any such
Governmental Licenses would not result in a Material Adverse Event; the
Company, the Operating Partnership and their Subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or
8
in the aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in
a Material Adverse Effect; and none of the Company, the Operating
Partnership or any of the Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xxii) Title to Property. The Company, the Operating Partnership,
the Subsidiaries or any joint ventures in which the Company, the
Operating Partnership or any Subsidiary owns an interest, as the case
may be, have good and marketable title to all real property owned, as
applicable, by the Company, the Operating Partnership, the Subsidiaries
or the applicable joint ventures, respectively, and good title to all
other properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind, except (A) as otherwise stated in the
Prospectus or (B) those which do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company,
the Operating Partnership, the Subsidiaries or the applicable joint
ventures. Each of the properties of any of the Company, the Operating
Partnership or the Subsidiaries complies with all applicable codes and
zoning laws and regulations except in any case where such non-compliance
would not have a material adverse effect on the conditions, operations,
prospects or earnings of the non-compliant property; and none of the
Company, the Operating Partnership and the Subsidiaries has knowledge of
any pending or threatened condemnation, zoning change or other
proceeding or action that will in any manner affect the size of, use of,
improvements on, construction on, or access to the properties of any of
the Company, the Operating Partnership and the Subsidiaries except in
any case where such action or proceeding would not have a material
adverse effect on the conditions, operations, prospects or earnings of
the property. All of the leases and subleases material to the business
of the Company, the Operating Partnership and the Subsidiaries
considered as one enterprise, and under which the Company, the Operating
Partnership or any Subsidiary holds properties described in the
Prospectus, are in full force and effect, and none of the Company, the
Operating Partnership or any Subsidiary has received any notice of any
material claim of any sort that has been asserted by anyone adverse to
the rights of the Company, the Operating Partnership or any Subsidiary
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company, the Operating Partnership or any
Subsidiary of the continued possession of the leased or subleased
premises under any such lease or sublease. Except as described in the
Prospectus or as would not result in a Material Adverse Effect, no
tenant under any lease to which the Company, the Operating Partnership
or any Subsidiary lease any portion of its property is in default under
such lease.
(xxiii) Title Insurance. Title insurance in favor of the Company,
the Operating Partnership and the Subsidiaries is maintained with
respect to each property owned by any such entity in an amount at least
equal to (A) the cost of acquisition of such property
9
or (B) the cost of construction of such property (measured at the time of
such construction), except, in each case, where the failure to maintain
such title insurance would not have a Material Adverse Effect.
(xxiv) Mortgages and Deeds of Trust. The mortgages and deeds of
trust encumbering the properties and assets described in the Prospectus
(A) are not convertible (in the absence of foreclosure) into an equity
interest in the property or asset described therein or in the Company,
the Operating Partnership or any Subsidiary, nor does any of the
Company, the Operating Partnership or the Subsidiaries hold a
participating interest therein, (B) except as set forth in the
Prospectus are not cross-defaulted to any indebtedness other than
indebtedness of the Company or any of the Subsidiaries and (C) are not
cross-collateralized to any property not owned by the Company, the
Operating Partnership or any of the Subsidiaries.
(xxv) Real Property. The real property of the Company, the
Operating Partnership and their Subsidiaries is free of material
structural defects and all building systems contained therein are in
good working order in all material respects, subject to ordinary wear
and tear or, in each instance, the Company maintains adequate reserves
to effect reasonably required repairs, maintenance and capital
expenditures.
(xxvi) Transfer Taxes. There are no transfer taxes or other
similar fees or charges under federal law or the laws of any state, or
any political subdivision thereof, required to be paid in connection
with the execution and delivery of this Agreement or the issuance by the
Company or sale by the Company of the Securities.
(xxvii) Tax Returns. The Company has filed all foreign, federal,
state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so
to file would not have a Material Adverse Effect), whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a Material
Adverse Effect, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus.
(xxviii) Insurance. The Company, the Operating Partnership, the
Subsidiaries and each of their properties are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which
they are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company, the Operating Partnership or any of the
Subsidiaries or their respective properties, businesses, employees,
officers and directors are in full force and effect.
(xxix) Internal Accounting Controls. The Company, the Operating
Partnership and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with
10
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability; (C) access to
assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(xxx) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in
a Material Adverse Effect, (A) none of the Company, the Operating
Partnership or any of the Subsidiaries is in violation of any federal,
state or local statute, law, rule, regulation, ordinance, code, policy
or rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company, the Operating Partnership and the Subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the knowledge of the Company, the
Operating Partnership and the Subsidiaries, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violations, investigations or
proceedings relating to any Environmental Law against the Company, the
Operating Partnership or any of the Subsidiaries and (D) there are no
events or circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against
or affecting the Company, the Operating Partnership or any of the
Subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxxi) Registration Statement. No holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement except for those that have been effectively
waived or are inapplicable to the offering hereby.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company, or any authorized representative of the Operating Partnership or any
of their subsidiaries delivered to the Underwriter or to counsel for the
Underwriter shall be deemed a representation and warranty by such person or
entity, as the case may be, to the Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to
11
the Underwriter, and the Underwriter agrees to purchase from the Company, at
the price per share of $14.26, the Initial Securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriter to purchase
up to an additional 204,000 Common Shares in the aggregate at the price per
share of $14.26, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial Securities
but not payable on the Option Securities. The option hereby granted will
expire 30 days after the date hereof and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments that may be
made in connection with the offering and distribution of the Initial
Securities upon notice by the Underwriter to the Company setting forth the
number of Option Securities as to which the Underwriter is then exercising the
option and the time and date of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall be
determined by the Underwriter, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, as hereinafter defined.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the San Francisco
offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, or at such other place as shall be
agreed upon by the Underwriter and the Company, 9:00 A.M. (Eastern time) on
June 30, 2003, or such other time not later than ten business days after such
date as shall be agreed upon by the Underwriter and the Company (such time and
date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriter, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made on each Date of
Delivery as specified in the notice from the Underwriter to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Underwriter of certificates for the Securities to be purchased by the
Underwriter. The Initial Securities and, if any, the Option Securities will be
delivered to the Underwriter in book-entry form through the facilities of The
Depository Trust Company.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and
registered in such names as the Underwriter may request in writing at least
one full business day before the Closing Time or the relevant Date of
Delivery, as the case may be. The Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by
the Underwriter at the office of The Depository Trust Company not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
12
SECTION 3. Covenants of the Company. Each of the Company and the
Operating Partnership covenants with the Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will notify the Underwriter immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take
such steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for filing by
the Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During the period a Prospectus is required to
be delivered under the 1933 Act, the Company will give the Underwriter notice
of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Underwriter with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Underwriter or counsel for the Underwriter
shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Underwriter and counsel for the Underwriter, without
charge, one signed copy of the Registration Statement as originally filed and
of each amendment thereto (including conformed copies of exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Underwriter, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits). The copies
of the Registration Statement and each amendment thereto furnished to the
Underwriter will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to the
Underwriter, without charge, as many copies of each preliminary prospectus as
the Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to the Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as the
Underwriter may reasonably
13
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934
Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. Without
limiting the generality of the foregoing, the Company agrees, during the
period when the Prospectus is required to be delivered under the 1933 Act in
connection with the sale of the Securities, to file all documents required to
be filed with the Commission pursuant to the 1934 Act and the 1934 Act
regulations within the time periods prescribed thereby. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the Underwriter
or for the Company, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to the Underwriter
such number of copies of such amendment or supplement as the Underwriter may
reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriter, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other
jurisdictions as the Underwriter may designate and to maintain such
qualifications in effect for a period of not less than one year from the date
of this Agreement; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the date of this Agreement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
14
(i) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(j) REIT Qualification. The Company will use its best efforts to
continue to meet the requirement to qualify as a REIT under the Code for each
of its taxable years for so long as the board of trustees deems it in the best
interests of the Company's shareholders to remain so qualified.
(k) No Manipulation of Market for Securities. Except for the
authorization of actions permitted to be taken by the Underwriter as
contemplated herein or in the Prospectus, neither the Company nor the Operating
Partnership will (i) take, directly or indirectly, any action designed to
cause or to result in, or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities, and (ii) until the Closing
Date, or the Date of Delivery, if any, (A) sell, bid for or purchase the
Securities or pay any person any compensation for soliciting purchases of the
Securities or (B) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(l) Rule 462(b) Registration Statement. If the Company elects to rely
upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement
with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the 1933 Act.
(m) NYSE Listing. The Company will use its best efforts to list the
Securities on the New York Stock Exchange.
(n) Lock-Up Agreement. For a period of 45 days after the date of the
Prospectus (the "Lock-Up Period"), the Company will not directly or
indirectly, (A) offer, pledge, sell, or contract to sell any shares of capital
stock, (B) sell any option or contract to sell any shares of capital stock,
(C) purchase any option or contract to sell any shares of capital stock, (D)
grant any option, right or warrant to purchase any shares of capital stock,
(E) enter into any swap or other agreement that transfers, in whole or in
part, the economic consequence of ownership of any shares of capital stock
whether any such swap or transaction is to be settled by delivery of shares or
other securities, in cash or otherwise, (F) take any of the foregoing actions
with respect to any securities convertible into or exchangeable or exercisable
for or repayable with shares of capital stock, (G) file with the Commission a
registration statement under the 1933 Act relating to any additional shares of
capital stock or securities convertible into or exchangeable or exercisable
for its shares of capital stock, or (H) publicly disclose the intention to
take any of the foregoing actions, without the prior written consent of the
Underwriter; provided, however, that the Company shall not be restricted from
issuing shares of capital stock or options, warrants, partnership units or
other securities convertible into shares of capital stock (A) upon the
exercise of outstanding employee share options, and options pursuant to
employee benefit plants, (B) pursuant to non-employee trustee share plans, (C)
pursuant to any dividend reinvestment plan of the Company, (D) pursuant to
employee option plans in the ordinary course of business, or (E) upon
conversion of any currently outstanding convertible securities.
15
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and the Operating Partnership will pay or
cause to be paid all expenses incident to the performance of their obligations
under this Agreement, including (i) the preparation, printing and filing of
the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation
(exclusive of fees and disbursements of counsel for the Underwriter), printing
and delivery to the Underwriter of this Agreement, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriter, including any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Securities to
the Underwriter, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof, (vi)
the printing and delivery to the Underwriter of copies of each of the
preliminary prospectus, Prospectus and any amendments or supplements thereto
and (vii) the fees and expenses of any transfer agent or registrar for the
Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i)
or (iii) (with respect to the first clause only), the Company shall reimburse
the Underwriter for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriter.
SECTION 5. Conditions of Underwriter' Obligations. The obligations of
the Underwriter hereunder are subject to the accuracy of the representations
and warranties of the Company and the Operating Partnership contained in
Section 1 hereof or in certificates of any officer or authorized
representative of the Company or the Operating Partnership delivered pursuant
to the provisions hereof, to the performance by the Company or the Operating
Partnership of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriter. A prospectus shall have
been timely filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Underwriter
shall have received the favorable opinion, dated as of Closing Time, of Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company and the Operating Partnership
to the effect set forth in Exhibit A hereto and to such further effect as
counsel to the Underwriter may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriter shall have received the favorable opinion of ▇▇▇▇▇▇ & Bird, LLP,
counsel for the Underwriter, dated the Closing Date, with respect to the
Securities, the Registration Statement and the Prospectus, as amended or
supplemented, and such other related matters as the Underwriter may require,
and the Company shall have furnished to such counsel such documents as they
request for the
16
purpose of enabling them to pass upon such matters. Such counsel may state
that, insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the Company, the
Operating Partnership and the Subsidiaries and certificates of public
officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or of the most recent financial statements included or
incorporated by reference in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the properties, earnings,
business affairs or business prospects of the Company, the Operating
Partnership, and the Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Underwriters shall have
received a certificate of the President or an Executive Vice President of the
Company, on behalf of the Company and as general partner of the Operating
Partnership, and of the chief financial or chief accounting officer of the
Company, on behalf of the Company and as general partner of the Operating
Partnership, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) each of the Company and
the Operating Partnership has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission. In addition,
at Closing Time, the Underwriters shall have received a certificate of the
chief executive officer and chief financial officer of the Company, on behalf
of the Company and as general partner of the Operating Partnership, to the
effect as counsel to the Underwriter may reasonably request.
(e) Accountant's Comfort Letter. At the time of execution of this
Agreement, the Underwriters shall have received from KPMG LLP a letter dated
such date, substantially in the form approved by the Underwriter before the
execution of this Agreement.
(f) Bring-down Comfort Letter. At Closing Time, the Underwriter shall
have received from KPMG LLP a letter, dated as of Closing Time, to the effect
that they reaffirm statements made in the letter furnished pursuant to
subsection (e) of this Section 5, except that the "specified date" referred to
shall be a date not more than three days prior to the Closing Time.
(g) Lock-up Agreements. At the time of execution of this Agreement,
Messrs. ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ shall have
executed and delivered to the Underwriter a lock-up agreement substantially in
the form provided by the Underwriter to the Company.
(h) NYSE Listing. The Securities shall have been approved for listing,
and admitted and authorized for trading, on the New York Stock Exchange,
subject to notice of insurance.
(i) Conditions to Purchase of Option Securities. In the event that the
Underwriter exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and
warranties of the Company and the Operating Partnership
17
contained herein and the statements in any certificates furnished by the
Company, the Operating Partnership and any Subsidiary shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery, the
Underwriter shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or an Executive Vice President of the Company,
and of the chief financial or chief accounting officer of the Company,
confirming that the certificate delivered at the Closing Time pursuant to
Section 5(d) hereof remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company and the
Operating Partnership, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery to the same
effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriter. The favorable opinion of
▇▇▇▇▇▇ & Bird, LLP, counsel for the Underwriter, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date
of Delivery and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(iv) Bring-down Comfort Letter. Letter from KPMG LLP, in form and
substance satisfactory to the Underwriter and dated such Date of
Delivery, substantially in the same form and substance as the letter
furnished to the Underwriter pursuant to Section 5(f) hereof, except that
the "specified date" in each letter furnished pursuant to this paragraph
shall be a date not more than three days prior to such Date of Delivery.
(j) Additional Documents. At Closing Time and at each Date of Delivery
counsel for the Underwriter shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or
in order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale of
the Securities as herein contemplated shall be reasonably satisfactory in form
and substance to the Underwriter and counsel for the Underwriter.
(k) Termination of Agreement. If any condition specified in this Section
5 shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option
Securities on a Date of Delivery that is after the Closing Time, the
obligations of the Underwriter to purchase the relevant Option Securities may
be terminated by the Underwriter by notice to the Company at any time at or
prior to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except
as provided in Section 4 and except that Sections 1, 6, 7, 8 and 12 shall
survive any such termination and remain in full force and effect.
18
SECTION 6. Indemnification.
(a) Indemnification of Underwriter. Each of the Company and the
Operating Partnership agrees, jointly and severally, to indemnify and hold
harmless the Underwriter and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, and any director, officer, employee or affiliate thereof as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact included
in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. The foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of
the Underwriter if it failed to deliver a Prospectus (as then amended or
supplemented, provided by the Company to the Underwriter in accordance
with Section 3(d)) to the person asserting any losses, claims, damages
and liabilities and judgments caused by any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, if such material misstatement
or omission or alleged material misstatement or omission was cured, as
determined by a court of competent jurisdiction in a decision not subject
to further appeal, in such Prospectus and such Prospectus was required by
law to be delivered at or prior to the written confirmation of sale to
such person.
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided any such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged
19
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Underwriter expressly for
use in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification of Company, Trustees and Officers. The Underwriter
agrees to indemnify and hold harmless the Company and the Operating
Partnership, each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and any officer,
director, trustee, employee or affiliate thereof, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter expressly for use in the Registration Statement
(or any amendment thereto) or such preliminary prospectus or the Prospectus
(or any amendment or supplement thereto). The Company and the Operating
Partnership acknowledge that the sentences related to stabilization, syndicate
covering transactions and penalty bids set forth under the heading
"Underwriting" in the Prospectus constitutes the only information furnished in
writing by the Underwriter expressly for use in the Registration Statement or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party
of any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve
it from any liability that it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by the
Underwriter, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless (x) such settlement, compromise
or consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation, proceeding
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any
20
indemnified party and (y) the indemnifying party confirms in writing its
indemnification obligations hereunder with respect to such settlement,
compromise or judgment.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Operating Partnership on the one hand and the Underwriter on the other hand
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Operating Partnership on the one hand and of the Underwriter on the other
hand in connection with the statements or omissions that resulted in such
losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriter on the other hand in
connection with the offering of the Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Securities pursuant to this Agreement
(before deducting expenses) received by the Company and the total underwriting
discount received by the Underwriter, in each case as set forth on the cover
of the Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault of the Company and the Operating Partnership on the
one hand and the Underwriter on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the Operating
Partnership or by the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Operating Partnership and the Underwriter agree that it
would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above
in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall
not be required to contribute any amount in excess of the amount of the
underwriting discount or commission applicable to the Securities purchased by
the Underwriter hereunder.
21
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each director, officer, employee or
affiliate of the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter,
and each trustee of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company, subject in each
case to the preceding two paragraphs. For purposes of this Section 7, the
Company and the Operating Partnership shall be deemed one party, jointly and
severally liable for any obligations hereunder.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or the Operating
Partnership submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company or the
Operating Partnership, and shall survive delivery of the Securities to the
Underwriter.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriter may, without liability,
terminate this Agreement, by notice to the Company, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, the Operating Partnership and any of the Subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial
markets in the United States, any outbreak of hostilities or escalation
thereof, any acts of terrorism involving the United States or other calamity
or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the sole judgment of the
Underwriter, impracticable to market the Securities or inadvisable to enforce
contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, Inc., or if trading generally on
the American Stock Exchange or the New York Stock Exchange, Inc. or in the
Nasdaq National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States,
or (iv) if a banking moratorium has been declared by either Federal or New
York authorities.
22
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7, 8 and 12 shall survive such termination and remain in full
force and effect.
SECTION 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication and confirmed to the
receiving party. Notices to the Underwriter shall be directed to the
Underwriter at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention
of Vivek Seth; notices to the Company and the Operating Partnership shall be
directed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President.
SECTION 11. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriter, the Company and the Operating Partnership and
their respective successors. Nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any person, firm or corporation,
other than the Underwriter, the Company and the Operating Partnership and
their respective successors and the controlling persons and officers, trustees
and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter and the Company and their respective
successors, and said controlling persons and officers, trustees and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. UNLESS OTHERWISE
EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 13. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriter, the Company and the Operating Partnership in
accordance with its terms.
Very truly yours,
LASALLE HOTEL PROPERTIES
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
LASALLE HOTEL OPERATING PARTNERSHIP, L.P.
By: LaSalle Hotel Properties, its
general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Authorized Signatory
24
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company is a real estate investment trust duly formed and
validly existing and in good standing under the laws of the State of Maryland
with full trust power and authority to own and lease its properties and to
conduct its business as described in the Prospectus.
(ii) The authorized, issued and outstanding capital shares of the
Company are as set forth in the column entitled "Actual" under the caption
"Capitalization" in the Prospectus (except for subsequent issuances thereof,
if any, contemplated under the Underwriting Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus). Such capital shares have been duly authorized
and validly issued by the Company and are fully paid and non-assessable, and
none of such capital shares was issued in violation of preemptive or other
similar rights to purchase or subscribe for shares of beneficial interest of
the Company arising under the laws of the State of Maryland, the Articles of
Amendment and Restatement of Declaration of Trust, dated as of April 24, 1998,
as amended and supplemented (the "Declaration of Trust") or Amended and
Restated Bylaws of the Company (the "Bylaws") or any contract to which the
Company is a party of which such counsel has knowledge.
(iii) All of the outstanding Units and Preferred Units, have been duly
authorized by the Operating Partnership and, assuming that the holders of
Units, as limited partners of the Operating Partnership, do not participate in
the control of the business of the Operating Partnership, the Units represent
valid and, subject to the qualifications set forth herein, fully paid and
nonassessable limited partner interests in the Operating Partnership as to
which the limited partners holding Units, in their capacity as limited
partners of the Operating Partnership, have no liability in excess of their
obligations to make contributions to the Operating Partnership, their
obligations to make other payments provided for in the Operating Partnership
Agreement and their share of distributed assets and profits of the Operating
Partnership to the extent that a limited partner of the Operating Partnership
may be required to repay any funds wrongfully distributed to it. To such
counsel's knowledge, except as described in the Prospectus, no Units are
reserved for issuance for any purpose, there are no outstanding securities
convertible into or exchangeable for any Units and there are no preemptive or
other similar rights to purchase or subscribe for Units or any other
securities of the Operating Partnership arising under the Delaware Revised
Uniform Limited Partnership Act ("DRULPA") or under the Operating Partnership
Agreement or any contracts to which the Operating Partnership is a party of
which such counsel has knowledge.
(iv) The Securities to be purchased by the Underwriter from the Company
have been duly authorized for issuance and sale to the Underwriter pursuant
to, and in accordance with the terms of, the Underwriting Agreement and, when
issued and delivered by the Company pursuant to the Underwriting Agreement
against payment of the consideration set forth in the Underwriting Agreement,
will be validly issued, fully paid and nonassessable; the issuance and sale of
the Securities by the Company is not subject to any preemptive or other
similar rights to
purchase or subscribe for shares of beneficial interest of the Company arising
under the laws of the State of Maryland, the Declaration of Trust or Bylaws or
any contract to which the Company is a party of which such counsel has
knowledge.
(v) Each of the Operating Partnership and the Subsidiaries identified on
Exhibit B (the "Certain Subsidiaries") is validly existing as a limited
partnership, corporation or limited liability company, as applicable, in good
standing under the laws of its jurisdiction of organization, formation or
incorporation and has the requisite partnership, corporate or company power
and authority to own, lease and operate its properties and to conduct the
business in which it is engaged as described in the Operating Partnership
Agreement, with respect to the Operating Partnership, and the Prospectus and,
based solely upon the certificates of good standing or similar certificates
received from the Secretary of State or similar official of each of the
respective states listed on Schedule 2 to such counsel's opinion with respect
to the applicable entity, is duly qualified or registered as a foreign limited
partnership, corporation or limited liability company to transact business and
is in good standing in the respective states listed on Schedule 2 to such
counsel's opinion. Based solely on a review of the books and records of the
Subsidiaries provided to such counsel, all the outstanding shares of capital
stock, partnership interests, limited liability company interests or other
equivalent equity interest of the Certain Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, as
applicable, and except as described in the Prospectus, all outstanding shares
of capital stock, partnership interests, limited liability company interests
or other equivalent equity interest of the Operating Partnership and such
Certain Subsidiaries are owned by the Company either directly or through
wholly-owned Subsidiaries.
(vi) The execution and delivery of the Underwriting Agreement have been
duly authorized by all necessary action of the Company and the Operating
Partnership, and the Underwriting Agreement has been duly executed and
delivered by the Company and the Operating Partnership.
(vii) At the time the Registration Statement became effective, the
Registration Statement (other than the financial statements, financial data,
statistical data and supporting schedules included or incorporated by
reference therein or omitted therefrom, as to which no opinion is expressed)
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations. As of the date hereof, the Prospectus (other
than the financial statements, financial data, statistical data and supporting
schedules included or incorporated by reference therein or omitted therefrom,
as to which no opinion is expressed) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations.
(viii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose shall have been instituted or threatened.
(ix) The documents incorporated by reference in the Prospectus (other
than the financial statements, financial data, statistical data and supporting
schedules included or incorporated by reference therein or omitted therefrom,
as to which no opinion is rendered), when they became effective or were filed
with the Commission, as the case may be, complied as
to form, in all material respects, with the requirements of the 1934 Act and
the 1934 Act Regulations.
(x) To such counsel's knowledge and except as described or incorporated
by reference in the Prospectus, there is not pending or threatened any action,
suit, proceeding, inquiry or investigation, to which the Company, the
Operating Partnership or any Subsidiary is a party, or to which the property
of the Company, the Operating Partnership or any Subsidiary is subject, before
or brought by any court or governmental agency or body, domestic or foreign,
or any arbitrator that might reasonably be expected to result in a Material
Adverse Effect or to affect the consummation of the transactions contemplated
in the Underwriting Agreement or the performance by the Company or the
Operating Partnership of their respective obligations thereunder or is of a
character required to be described in the Prospectus which is not adequately
disclosed.
(xi) The information in the Prospectus under "Description of Common
Shares" and "Federal Income Tax Considerations" to the extent that it
constitutes matters of law, summaries of legal matters, the Company's
Declaration of Trust and Bylaws, legal proceedings or legal conclusions, has
been reviewed by such counsel and is correct in all material respects.
(xii) To such counsel's knowledge, there are no laws of the States of
Maryland or New York, any provisions of DRULPA or any federal laws of the
United States of America that are required to be described in the Prospectus
that are not described as required.
(xiii) Commencing with its taxable year ended December 31, 1998, the
Company was organized and has been operated in conformity with the
requirements for qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code") and the present and
proposed method of operation of the Company and the Operating Partnership, as
described in the Prospectus and as represented by the Company and the
Operating Partnership, will permit the Company to continue to so qualify.
(xiv) All descriptions contained or incorporated in the Registration
Statement of contracts and other documents which are filed as exhibits to the
Company's Annual Report on Form 10-K for the year ended December 31, 2002 (the
"Form 10-K") to which the Company, the Operating Partnership or any Subsidiary
is a party are correct in all material respects. To such counsel's knowledge,
there are no franchises, contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments ("Agreements") required to be described or
referred to therein or filed or incorporated by reference as exhibits thereto
that were not so filed, incorporated by reference or described as required.
(xv) No consent, approval, authorization or other order of any federal
regulatory body, federal administrative agency or other federal governmental
body of the United States of America or any state regulatory body, state
administrative agency or other state governmental body of the State of New
York is required under Applicable Laws for the issuance and sale of the
Securities to the Underwriter as contemplated by the Agreement or the public
offering of the Securities as contemplated by the Prospectus. As used in such
counsel's opinion letter, the term "Applicable Laws" means those state laws of
the State of New York, Maryland Corporation Law and federal laws of the United
States of America which, in such counsel's experience and
without independent investigation, are normally applicable to transactions of
the type contemplated by the Agreement (provided that the term "Applicable
Laws" shall not include federal or state securities or blue sky laws or any
rules or regulations thereunder including, without limitation, the 1933 Act,
the 1934 Act and the Investment Company Act of 1940, as amended (the "1940
Act") and the respective rules and regulations thereunder), or any antifraud
or similar laws.
(xvi) The execution, delivery and performance of the Underwriting
Agreement by the Company and the Operating Partnership and the consummation of
the transactions contemplated in the Underwriting Agreement and in the
Prospectus (including the issuance and sale of the Securities and the use of
the proceeds from the sale of the Securities as described in the Prospectus
under the caption "Use of Proceeds") and compliance by the Company and the
Operating Partnership with their respective obligations under the Underwriting
Agreement do not and will not (i) whether with or without the giving of notice
or lapse of time or both, conflict with or constitute a breach of, or default
or Repayment Event under, or result in the creation or imposition of any
material lien, charge or encumbrance upon any material property or assets of
the Company or the Operating Partnership pursuant to any contract listed as an
exhibit to the Form 10-K to which the Company, the Operating Partnership or
any of the Subsidiaries is a party or by which any of them may be bound or to
which any of the property or assets of the Company, the Operating Partnership
or any of the Subsidiaries is subject, (ii) result in any violation of the
provisions of the Governing Instruments of the Company or the Operating
Partnership, or (iii) result in any violation of any Applicable Laws or any
judgment, order, writ or decree, known to such counsel, of any Maryland,
Delaware, New York or U.S. federal government, government instrumentality or
court having jurisdiction over the Company or the Operating Partnership or any
of their respective assets or properties.
(xvii) Neither the Company nor the Operating Partnership is an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the 1940 Act.
In acting as counsel to the Company in connection with the transactions
contemplated by the Agreement, such counsel has participated in conferences
with officers and other representatives of the Company, including its
independent accountants, representatives of outside counsel for the
Underwriter and its representatives, at which conferences the contents of the
Registration Statement, the Prospectus and related matters were discussed.
Although such counsel is not passing upon or assuming responsibility for the
accuracy, completeness or fairness of the statements included in the
Registration Statement and the Prospectus and has made no independent check or
verification thereof (except as set forth in the first sentence of paragraph
(ii) and paragraph (xi), nothing has come to such counsel's attention which
has caused counsel to believe that the Registration Statement or any of the
materials incorporated by reference therein (other than the financial
statements, financial data, statistical data and supporting schedules included
or incorporated by reference therein or omitted therefrom, as to which no
belief is expressed), at the time it became effective or as of the date of the
Agreement, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus (other than the
financial statements, financial data, statistical data and supporting
schedules included or incorporated by reference therein or omitted therefrom,
as to which no belief is expressed), as of
the date of the Agreement or as of the Closing Date, included any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
EXHIBIT B
1. LaSalle Hotel Operating Partnership, L.P.
2. LHO Hollywood Financing, Inc.
3. LHO Hollywood LM, L.P.
4. LHO New Orleans Financing, Inc.
5. LHO New Orleans LM, L.P.
6. LHO Key West Financing, Inc.
7. LHO Key West HI, L.P.
8. LHO Financing, Inc.
9. LHO Financing Partnership I, L.P.