Exhibit 1.1
Host Marriott Corporation
(a Maryland corporation)
10,000,000 Shares
Common Stock
($.01 par value)
Underwriting Agreement
New York, New York
May 2, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The persons named in Schedule II hereto (the "Selling Stockholders")
propose to sell to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (the "Underwriter") 10,000,000
shares of Common Stock, $.01 par value ("Common Stock") of Host Marriott
Corporation, a corporation organized under the laws of Maryland (the "Company")
(said shares to be sold by the Selling Stockholders being hereinafter called the
"Securities"). To the extent that there is not more than one Selling
Stockholder named in Schedule II, the term Selling Stockholder shall mean either
the singular or plural. The use of the neuter in this Agreement shall include
the feminine and masculine wherever appropriate. Any reference herein to the
Registration Statement, a Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of
such Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement, or the
issue date of any Preliminary Prospectus or the Prospectus, as the case may be,
deemed to be incorporated therein by reference. All references to any
subsidiary or subsidiaries of the Company shall be deemed to include, without
limitation, Host Marriott, L.P., a Delaware limited partnership (the "Operating
Partnership") and the Non-Controlled Subsidiaries. Certain terms used herein
are defined in Section 16 hereof.
1. Representations and Warranties.
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(a) The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, the Underwriter and each of the
Selling Stockholders as set forth below in this Section 1.
(i) The Company has prepared and filed with the Commission a
registration statement (333-78091) on Form S-3, including a related
preliminary prospectus, for registration under the Securities Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a related preliminary prospectus, if
any, each of which has previously been furnished to you. The Company will
next file with the Commission one of the following: either (1) prior to the
Effective Date of such registration statement, a further amendment to such
registration statement, (including the form of final prospectus) or (2)
after the Effective Date of such registration statement, a final prospectus
in accordance with Rules 430A and 424(b). In the case of clause (2), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Securities Act and the rules thereunder to be included in such
registration statement and the Prospectus. As filed, such amendment and
form of final prospectus, or such final prospectus, shall contain all Rule
430A Information, together with all other such required information, and,
except to the extent the Underwriter shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary Prospectus,
if any) as the Company has advised you, prior to the Execution Time, will
be included or made therein.
(ii) On the Effective Date, the Registration Statement did
or will, and when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein), the
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Securities Act and the
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company and the Operating
Partnership make no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Prospectus
(or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter
specifically for inclusion in the Registration Statement or the Prospectus
(or any supplement thereto).
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(iii) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Maryland, has the corporate power and authority to own and lease its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(iv) Each subsidiary of the Company has been duly organized,
is validly existing as a corporation, limited or general partnership or
limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its organization, has power and authority to
own and lease its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole; all of the issued and outstanding capital stock, partnership
interests, limited liability company interests or other ownership
interests, as the case may be (collectively, "Ownership Interests"), of
each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and (except for general partnership interests) non-
assessable; approximately 82% (before giving effect to the transactions
contemplated hereby) of the outstanding partnership interests in the
Operating Partnership are owned directly by the Company and all of the
Company's Ownership Interests in each of the Company's other subsidiaries
are owned directly or indirectly by the Company, in each case free and
clear of all liens, encumbrances, claims or equities except for liens
created by the Pledge Agreement dated as of August 5, 1998, as amended (the
"Pledge Agreement") entered into by the Company and certain of its
subsidiaries in favor of Bankers Trust Company, as collateral agent; the
Company is the sole general partner of the Operating Partnership and owns,
directly, all of the outstanding general partnership interests in the
Operating Partnership.
(v) This Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership. (vi) The authorized
capital stock of the Company conforms as to legal matters to the
description thereof contained in the Prospectus; and the outstanding shares
of the Company's capital stock have been duly authorized and validly issued
and are fully paid and non-assessable and none of such shares was issued in
violation of any preemptive or similar rights.
(vii) The Securities have been duly authorized and, when issued
and delivered to the Selling Stockholders at or prior to the Closing Date
and at the Closing Date, will be validly issued, fully paid and non-
assessable, and the issuance of the Securities will not be subject to any
preemptive or similar rights.
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(viii) The execution and delivery by the Company and the
Operating Partnership of, and the performance by the Company and the
Operating Partnership of their respective obligations under, this Agreement
will not (A) result in a violation of any provision of the charter or
bylaws of the Company or the limited partnership agreement or certificate
of limited partnership of the Operating Partnership, (B) conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, (C) result in a violation of any law,
statute, rule or regulation which is applicable to the Company or any of
its subsidiaries or (D) result in a violation of any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any of its subsidiaries; and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company or the Operating
Partnership of their respective obligations under this Agreement, except
(x) such as may be required by the securities or Blue Sky laws of the
various states and any foreign jurisdictions in connection with the offer
and sale of the Securities, (y) such as have been obtained under the
Securities Act and are in full force and effect and (z) such as are
required under the Exchange Act in connection with the listing of the
Securities on the NYSE.
(ix) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(x) There are no legal or governmental proceedings pending
or, to the knowledge of the Company and the Operating Partnership,
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(xi) Each preliminary prospectus, if any, filed pursuant to
Rule 424 under the Securities Act complied when so filed in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder.
(xii) Neither the Company nor the Operating Partnership is and,
after giving effect to the issuance of the Securities, neither the Company
nor the Operating Partnership will be an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended.
(xiii) The Company and its subsidiaries and, to the knowledge of
the Company and the Operating Partnership in the case of properties leased
by the Company or any of its subsidiaries as lessors, the lessees of such
properties (i) are in compliance with any
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and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(xiv) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(xv) There are no contracts, agreements or understandings
between the Company or any of its subsidiaries, on the one hand, and any
person, on the other hand, granting such person the right (i) to require
the Company or any of its subsidiaries to file a registration statement
under the Securities Act with respect to any securities of the Company or
any of its subsidiaries, except for the Registration Rights Agreement dated
as of December 30, 1998 among the Company and those entities specified on
Schedule 1 to the Contribution Agreement dated as of April 16, 1999 or (ii)
to require the Company or any of its subsidiaries to include such
securities with the Securities registered pursuant to the Registration
Statement or in the offering contemplated by the Prospectus.
(xvi) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
(xvii) The Company and its subsidiaries have good and marketable
title in fee simple to all land underlying the Company's hotel properties
described in the Prospectus as owned by them and good and marketable title
to all improvements thereon and to all personal property owned by them, in
each case which is material to the business of the Company and its
subsidiaries and in each case free and clear of all liens, encumbrances,
claims, equities, mortgages, security interests or pledges (each, a
"Lien"), except such as are described in the Prospectus or such as do not
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 and its
subsidiaries; any real property, buildings and other improvements held
under a lease by the Company or any of its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries, in each
case except as described in the Prospectus; all of the leases pursuant to
which the Company or any of its subsidiaries, as lessor, leases to a
subsidiary of HMT Lessee or a third party (each, a "Lessee") any hotels
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or other real or personal property, buildings or other improvements are in
full force and effect; all of the management agreements and similar
agreements pursuant to which the Company, any of its subsidiaries or, to
the best knowledge of the Company and the Operating Partnership, any of the
Lessees has contracted with a third party to manage or operate any of the
hotels or other properties owned or leased, as lessee, by the Company or
any of its subsidiaries are in full force and effect; all franchise
agreements between the Company or any of its subsidiaries or, to the best
knowledge of the Company and the Operating Partnership, any of the Lessees,
on the one hand, and Marriott International, Inc., a Delaware corporation
("Marriott International"), or any other hotel operating or management
company (each, a "Manager"), on the other hand, are in full force and
effect; and the Company and its subsidiaries have complied with all of
their respective obligations and agreements under the leases, management
and similar agreements and franchise agreements referred to above and, to
the best knowledge of the Company and the Operating Partnership, no default
by any other party to any of such leases, management or similar agreements
or franchise agreements has occurred and is continuing which, individually
or in the aggregate, would have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(xviii) The merger (the "Merger") of Host Marriott Corporation, a
Delaware corporation ("Host Delaware"), with and into the Company, with the
Company as the surviving corporation, qualified as a reorganization under
Section 368 of the Internal Revenue Code of 1986, as amended (the "Code").
(xix) The Company is organized in conformity with the
requirements for qualification and taxation as a "real estate investment
trust" under the Code and the Company's intended method of operation will
enable it to meet the requirements for qualification and taxation as a
"real estate investment trust" under the Code for its 2000 tax year and
thereafter.
(xx) From and after December 28, 1998, the first date that the
Operating Partnership had two or more partners for federal income tax
purposes, the Operating Partnership at all times has been and will be
qualified as a partnership for federal income tax purposes and the
Operating Partnership has not and will not be treated as a publicly traded
partnership taxable as a corporation.
(xxi) With respect to its taxable years ended December 31, 1999
and December 31, 2000, the Company has not been treated as owning voting
securities of the Non-Controlled Subsidiaries within the meaning of Section
856(c)(4)(B) of the Code. Effective January 1, 2001, each Non-Controlled
Subsidiary has qualified and, together with the Company, has elected, to be
treated as a "taxable REIT subsidiary" as described in Section 856(l) of
the Code.
(xxii) All real estate leases which the Operating Partnership
owns, or in which the Operating Partnership has an interest, as a lessor or
sub-lessor, including the Harbor Beach Resort Lease, will be treated as
true leases for federal income tax purposes.
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(xxiii) The Company is eligible to use Form S-3 under the
Securities Act, and also meets the requirements for use of Form S-3 as in
effect immediately prior to October 21, 1992.
(xxiv) The Securities do not constitute 20% or more of the total
voting power of the outstanding shares of the Company's "Voting Stock" as
defined in the Distribution Agreement dated as of September 15, 1993, as
amended (the "Distribution Agreement"), between the Company, as successor
to Marriott Corporation, a Delaware corporation, and Marriott
International. Marriott International does not and will not have any right
to acquire any Common Stock pursuant to the Distribution Agreement or
otherwise, and no notice to or consent, approval or waiver of Marriott
International is required for the issuance and the sale of the Securities
as contemplated hereby.
Any certificate signed by any officer of the Company or the
Operating Partnership and delivered to the Underwriter or counsel for the
Underwriter in connection with the offering of the Securities shall be
deemed a representation and warranty by the Company and the Operating
Partnership, as to matters covered thereby, to the Underwriter.
(b) Each Selling Stockholder represents and warrants to, and agrees
with, the Underwriter and the Company that:
(i) On the Closing Date, such Selling Stockholder will be the
record and a beneficial owner of the Securities to be sold by it hereunder
free and clear of all liens, encumbrances, equities and claims; such
Selling Stockholder has full partnership or corporate power, right and
authority to sell such Securities and, assuming that the Underwriter
acquires its interest in the Securities it has purchased from such Selling
Stockholder without notice of any adverse claim within the meaning of
Section 8-105 of the UCC and, assuming further that the transfer agent for
the Company's Common Stock properly performs the instructions provided by
the Selling Stockholders and delivers the Securities by book-entry transfer
to the Underwriter, the Underwriter, upon payment for and delivery of such
Securities in accordance with this Agreement, will acquire all of the
rights of such Selling Stockholder in the Securities and will also acquire
their interest in such Securities free of any adverse claim (within the
meaning of Section 8-102(a)(1) of the UCC), and will acquire a security
entitlement (within the meaning of Section 8-102(a)(17) of the UCC) with
respect to such Securities, and no action based on an adverse claim (within
the meaning of Section 8-102(a)(1) of the UCC) may be asserted against the
Underwriter with respect to such Securities.
(ii) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(iii) No consent, approval, authorization or order of any court
or governmental agency or body ("Approval") is required for the
consummation by such Selling Stockholder of the transactions contemplated
herein, except for registration of the Securities under the Securities Act
and such Approvals as may be required under the blue
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sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other approvals
as have been obtained.
(iv) Neither the sale of the Securities being sold by such
Selling Stockholder nor the consummation of any other of the transactions
herein contemplated by such Selling Stockholder nor the fulfillment of the
terms hereof by such Selling Stockholder will conflict with, result in a
breach or violation of, or constitute a default under (A) any law or the
constituting documents of such Selling Stockholder or (B) the terms of any
indenture or other agreement or instrument to which such Selling
Stockholder or any of its subsidiaries is a party or bound, or (C) any
judgment, order or decree applicable to such Selling Stockholder or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over such Selling
Stockholder or any of its subsidiaries which, with respect to (B) or (C)
above, would have a material adverse effect on such Selling Stockholder or
any of its subsidiaries.
(v) Solely in respect of any statements in or omissions from
the Registration Statement or the Prospectus or any supplements thereto
made in reliance upon and in conformity with information furnished in
writing to the Company by any Selling Stockholder specifically for use in
connection with the preparation thereof, such Selling Stockholder hereby
makes the same representations and warranties to the Underwriter as the
Company makes to the Underwriter under paragraph (a)(ii) of this Section.
Any certificate signed by any officer of any Selling Stockholder and
delivered to the Underwriter in connection with the offering of the Securities
shall be deemed a representation and warranty by such Selling Stockholder, as to
matters covered thereby, to the Underwriter.
2. Purchase and Sale.
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Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholders agree,
severally and not jointly, to sell to the Underwriter, and the Underwriter
agrees to purchase from the Selling Stockholders, at a purchase price of $12.32
per share, the amount of the Securities set forth opposite the Underwriter's
name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
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shall be made at 10:00 AM, New York City time, on May 8, 2001, or at such time
on such later date not more than three Business Days after the foregoing date as
the Underwriter shall designate, which date and time may be postponed only by
written agreement among the Underwriter, the Company and the Selling
Stockholders (such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the Securities shall be
made to the Underwriter against payment by the Underwriter of the respective
aggregate purchase prices of the Securities being sold by each of the Selling
Stockholders to or upon the order of the Selling Stockholders by wire transfer
payable in same-day funds to the accounts specified by the Selling Stockholders.
Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Underwriter shall otherwise instruct.
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Each Selling Stockholder will pay all applicable state transfer taxes,
if any, involved in the transfer to the Underwriter of the Securities to be
purchased by them from such Selling Stockholder and the Underwriter will pay any
additional stock transfer taxes involved in further transfers.
4. Offering by the Underwriter. It is understood that the
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Underwriter proposes to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements.
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(a) The Company agrees with the Underwriter that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus is otherwise required
under Rule 424(b), the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Underwriter of
such timely filing. The Company will promptly advise the Underwriter (1)
when the Registration Statement, if not effective at the Execution Time,
shall have become effective, (2) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or
any Rule 462(b) Registration Statement, or for any supplement to the
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act, any event
occurs as a result of which the Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend the Registration Statement or supplement the Prospectus
to comply with the
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Securities Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Underwriter of such event, (2) prepare
and file with the Commission, subject to the second sentence of paragraph
(a)(i) of this Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance and (3) supply any
supplemented Prospectus to you in such quantities as you may reasonably
request.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriter an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
under the Securities Act.
(iv) The Company will furnish to the Underwriter and counsel
for the Underwriter, without charge, signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by the Underwriter or any dealer may be required by the
Securities Act, as many copies of each Preliminary Prospectus, if any, and
the Prospectus and any supplement thereto as the Underwriter may reasonably
request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(v) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Underwriter may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Securities and will pay any fee of the National Association of Securities
Dealers, Inc., in connection with its review of the offering; provided that
in no event shall the Company be obligated to qualify to do business or
subject itself to taxation in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of process
in suits, other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so subject.
(vi) The Company will not, without the prior written consent
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell, contract to sell, pledge or
otherwise dispose of (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or any affiliate of the Company or any person
in privity with the Company or any affiliate of the Company), directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act
with respect to, any shares of Common Stock (other than the Securities sold
to the Underwriters under this Agreement) or any securities convertible
into, or exercisable or exchangeable for, shares of Common Stock, or
publicly announce an intention to effect any such transaction, for a period
of 30 days after the date of this Agreement; provided, however, that (A)
the Company may (I) issue Common Stock pursuant to any employee stock
option plan, stock ownership plan, dividend reinvestment plan or other
employee benefit plan of the Company in effect at the Execution Time, (II)
issue Common Stock issuable upon the conversion of convertible securities
or the
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exercise of warrants outstanding at the Execution Time, (III) issue Common
Stock in satisfaction of a redemption right of any holder of preferred or
common units of the Operating Partnership (or in satisfaction of a
conversion or exchange right of any holder of any equity interest in any
entity in which the Company or an affiliate of the Company also holds an
equity interest), (IV) issue Common Stock, or any securities convertible
into, or exercisable or exchangeable for, shares of Common Stock, in
transactions exempt from registration under the Securities Act (or publicly
announce an intention to effect any such transaction), or (V) issue Common
Stock, or any securities convertible into, or exercisable or exchangeable
for, shares of Common Stock, in connection with mergers, asset acquisitions
or other business combination transactions (or publicly announce an
intention to effect any such transaction), (B) the Operating Partnership
may issue preferred or common units of the Operating Partnership, and (C)
any officer or director of the Company, or any of their respective
affiliates (other than the Company and its subsidiaries), may offer, sell,
contract to sell, pledge or otherwise dispose of Common Stock, or any
securities convertible into, or exercisable or exchangeable for, shares of
Common Stock.
(vii) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(b) Each Selling Stockholder agrees with the Underwriter and, with
respect only to (ii) and (iii) below, the Company that:
(i) Such Selling Stockholder will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to
sell, pledge or otherwise dispose of (or enter into any transaction which
is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Selling Stockholder
or any affiliate of the Selling Stockholder or any person in privity with
the Selling Stockholder or any affiliate of the Selling Stockholder),
directly or indirectly, or file (or participate in the filing of) a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act
with respect to, any shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such capital
stock, or publicly announce an intention to effect any such transaction,
for a period of 30 days after the date of this Agreement, provided that
nothing contained herein shall prohibit the Selling Stockholders and their
direct and indirect partners from distributing Units of the Operating
Partnership redeemable for Common Stock to their direct and indirect
partners who agree to be bound by the terms of this Section 5(b)(i).
(ii) Such Selling Stockholder will not take, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
11
(iii) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as delivery
of a prospectus relating to the Securities by the Underwriter or any dealer
may be required under the Securities Act, of any change in information in
the Registration Statement or the Prospectus relating to such Selling
Stockholder.
6. Conditions to the Obligations of the Underwriter. The obligations
------------------------------------------------
of the Underwriter to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company, the Operating
Partnership and the Selling Stockholders contained herein as of the Execution
Time and the Closing Date, to the accuracy of the statements of the Company, the
Operating Partnership and the Selling Stockholders made in any certificates
pursuant to the provisions hereof, to the performance by the Company, the
Operating Partnership and the Selling Stockholders of their respective
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Underwriter agrees in writing to a later
time, the Registration Statement will become effective not later than
(i) 6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Assistant General Counsel and Assistant Secretary of the Company, to have
furnished to the Underwriter his opinion, dated the Closing Date and
addressed to the Underwriter, to the effect that:
(i) the Company is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly organized,
is validly existing as a corporation, limited or general partnership
or limited liability company, as the case may be, in good standing
under the laws of the jurisdiction of its organization, has the power
and authority to own and lease its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or in good standing would
12
not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(iii) the outstanding shares of the Company's Common Stock
(including the Securities) and preferred stock have been duly
authorized and validly issued and are fully paid and non-assessable
and none of such shares was issued in violation of any preemptive or
similar rights;
(iv) the outstanding Ownership Interests in each subsidiary
have been duly authorized and validly issued, are fully paid and
(except for general partnership interests) non-assessable; all of the
outstanding limited partnership interests in the Operating Partnership
are owned (except as otherwise set forth in the Prospectus) directly
by the Company, all of the outstanding general partnership interests
in the Operating Partnership are owned directly by the Company, and
all of the Company's Ownership Interests in each of the other
subsidiaries are owned directly or indirectly by the Company, in each
case free and clear of all liens, encumbrances, equities or claims,
except for liens created by the Pledge Agreement;
(v) this Agreement has been duly authorized, executed and
delivered by the Company and the Operating Partnership;
(vi) the execution and delivery by the Company and the
Operating Partnership of, and the performance by the Company and the
Operating Partnership of their respective obligations under, this
Agreement will not (A) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, the Credit Agreement, any Senior Note Document or, to
the best of such counsel's knowledge, any other agreement or
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or (B)
result in a breach or violation of or default under any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its subsidiaries; and no
consent, approval, authorization or order of, or qualification with,
any Maryland or Delaware governmental body or agency having
jurisdiction over the Company or the Operating Partnership is required
under the laws of the State of Maryland or the Delaware Revised
Uniform Limited Partnership Act (the "Partnership Act") for the
offering, issuance or sale of the Securities as contemplated by this
Agreement, except such as may be required by Maryland securities laws;
(vii) the statements (A) in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 2000 (the "2000 10-K")
under the captions "Business and Properties--Environmental and
Regulatory Matters," "Business and Properties--The Management
Agreements," "Business and Properties--Non-competition Agreements,"
"Legal Proceedings," and (B) in the Company's Proxy Statement dated
April 12, 2001 under the caption "Certain Relationships and Related
Transactions," in each case insofar as such statements constitute
13
summaries of legal matters, documents or proceedings, are accurate in
all material respects;
(viii) to the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and that are not so described or of any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required;
(ix) the Company and its subsidiaries (A) are in compliance
with any and all applicable Environmental Laws, (B) have received all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (C) are
in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and
(x) each document filed pursuant to the Exchange Act and
incorporated or deemed to be incorporated by reference in the
Registration Statement or the Prospectus pursuant to Item 12 of
Form S-3 under the Securities Act (except for financial statements and
schedules and other financial and statistical data, as to which such
counsel need not express any opinion) complied when so filed as to
form in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder. In passing upon
compliance as to form of such documents, such counsel may assume that
the statements made and incorporated by reference therein are correct
and complete.
(c) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P., counsel for the Company and the Operating Partnership, to have
furnished to the Underwriter their opinion, dated the Closing Date and
addressed to the Underwriter, to the effect as set forth in Schedule III.
(d) In addition to the opinion set forth above in Section 6(b), ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, will also state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company, and
representatives of the Underwriter, at which the contents of the
Registration Statement and the Prospectus and related matters were
discussed and, although such counsel may state that such counsel is not
passing upon, and does not assume any responsibility for the accuracy,
completeness or fairness of, the statements contained or incorporated by
reference in the Registration Statement and the Prospectus and such counsel
has not made any independent check or verification thereof (except as set
forth in Section 6(b)(vii)), during the course of such participation, no
facts
14
came to such counsel's attention that have caused such counsel to believe
that the Registration Statement, at the time it became effective, contained
an 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, as of May 2, 2001 or as of the date
of such opinion, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that such counsel may state that
they express no belief with respect to the financial statements, schedules
and other financial and statistical data included or incorporated by
reference in or omitted from the Registration Statement or the Prospectus.
The opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. described
in Sections 6(b) and 6(c) above shall state, solely in the case of those
opinions of counsel which refer to subsidiaries of the Company, that all
references in such opinions to "subsidiaries" of the Company include,
without limitation, the Operating Partnership and the Non-Controlled
Subsidiaries. In addition, the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall state that
it covers matters arising under the laws of the State of Maryland, the
general corporation law of the State of Delaware (the "DGCL"), the
Partnership Act, the Delaware Limited Liability Company Act and the federal
laws of the United States, and shall further state that, to the extent that
the opinion set forth in Section 6(b)(vi) relates to any instrument or
agreement which is governed by the laws of any jurisdiction other than the
State of Maryland, such counsel has assumed that the laws of such other
jurisdiction are in all relevant respects identical to the laws of the
State of Maryland; the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state that
it covers matters arising under the laws of the State of Maryland, the
Partnership Act and the federal laws of the United States.
(e) The Selling Stockholders shall have requested and caused ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Selling Stockholders, to have furnished
to the Underwriter their opinion, dated the Closing Date and addressed to
the Underwriter, to the effect that:
(i) Each Selling Stockholder is the sole registered owner of
the Securities to be sold by such Selling Stockholder; each Selling
Stockholder has full partnership or corporate power, right and authority to
sell such Securities and upon payment for and delivery of the Securities in
accordance with this Agreement, the Underwriter will acquire a security
entitlement (within the meaning of the UCC) with respect to the Securities
and will also acquire their interest in the Securities free of any adverse
claim (within the meaning of the UCC), assuming that the Underwriter does
not have notice of any adverse claim (within the meaning of the UCC) to the
Securities and assuming further that the transfer agent for the Company's
Common Stock properly performs the instructions provided by the Selling
Stockholders and delivers the Securities by book-entry transfer to the
Underwriter.
(ii) This Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling Stockholder.
15
(iii) The sale of the Securities by the Selling Stockholders
and the compliance by the Selling Stockholders with all of the provisions
of this Agreement will not breach or result in a default under any
indenture or other agreement or instrument identified on a schedule annexed
to such opinion furnished to such counsel by the Selling Stockholders and
which each Selling Stockholder has represented lists all material
instruments to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound or to which any of the property or assets of
such Selling Stockholder is subject, nor will such action violate the
constituting documents of any Selling Stockholder or any Federal or New
York statute or the Delaware General Corporation Law or the Delaware
Revised Uniform Limited Partnership Act or any rule or regulation issued
pursuant to any Federal or New York statute or the Delaware General
Corporation Law or the Delaware Revised Uniform Limited Partnership Act or
any order known to such counsel issued pursuant to any Federal or New York
statute or the Delaware General Corporation Law or the Delaware Revised
Uniform Limited Partnership Act by any court or governmental agency or body
or court having jurisdiction over any Selling Stockholder or any of its
properties.
(iv) No consent, approval, authorization, order, registration
or qualification of or with any Federal or New York governmental agency or
body or any Delaware governmental agency or body acting pursuant to the
Delaware General Corporation Law or the Delaware Revised Uniform Limited
Partnership Act or, to our knowledge, any Federal or New York court or any
Delaware court acting pursuant to the Delaware General Corporation Law or
the Delaware Revised Uniform Limited Partnership Act is required for the
sale of the Securities by the Selling Stockholders and the compliance by
the Selling Stockholders with all of the provisions of this Agreement,
except for the registration under the Securities Act of the Securities, and
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriter.
(f) The Underwriter shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
Wood LLP, counsel for the Underwriter, such opinion or opinions, dated the
Closing Date and addressed to the Underwriter, with respect to the
Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Underwriter may reasonably
require, and the Company and each Selling Stockholder shall have furnished
to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter and to the
Selling Stockholders a certificate of the Company, signed by an executive
officer and the principal financial or accounting officer of the Company,
in their capacity as executive officers of the Company and in their
capacity as executive officers of the general partner of the Operating
Partnership, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and that:
16
(i) the representations and warranties of the Company and the
Operating Partnership in this Agreement are true and correct on and as
of the Closing Date with the same effect as if made on the Closing
Date and the Company and the Operating Partnership have complied with
all the agreements and satisfied all the conditions on their part to
be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any supplement thereto subsequent to the date of this Agreement), no
material adverse change has occurred, nor has any development
involving a prospective material adverse change occurred, in the
condition (financial or otherwise), or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto subsequent to the date hereof).
(h) Each Selling Stockholder shall have furnished to the Underwriter
and the Company a certificate, signed by an executive officer or general
partner of such Selling Stockholder, dated the Closing Date, to the effect
that the representations and warranties of such Selling Stockholder in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date.
(i) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to
have furnished to the Underwriter, at the Closing Date a letter, dated as
of the Closing Date, in form and substance satisfactory to the Underwriter,
confirming that they are independent accountants within the meaning of the
Securities Act and the Exchange Act and the respective applicable rules and
regulations adopted by the Commission thereunder and containing statements
and information of the type ordinarily included in an accountant's "comfort
letter" to underwriters with respect to the financial statements of the
Company, CCHP I Corporation, CCHP II Corporation, CCHP III Corporation and
CCHP IV Corporation and certain financial information contained or
incorporated by reference in the Registration Statement and the Prospectus.
(j) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof subsequent to the date hereof) and the Prospectus
(exclusive of any supplement thereto subsequent to the date hereof), there
shall not have been any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto subsequent to the date hereof), the
effect of which, in any case referred to above, is, in the
17
sole judgment of the Underwriter, so material and adverse as to make it
impractical to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof subsequent to the date hereof) and the Prospectus (exclusive of any
supplement thereto subsequent to the date hereof).
(k) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Underwriter such further
information, certificates and documents as the Underwriter may reasonably
request.
(l) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities or preferred
stock by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act) or any notice
given of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction of
the possible change.
(m) The Securities shall have been listed and admitted and authorized
for trading on the NYSE, and satisfactory evidence of such actions shall
have been provided to the Underwriter.
(n) At the Execution Time, the Selling Stockholders shall have
furnished to the Underwriter a letter substantially in the form of Exhibit
A hereto from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, RTZ Management Corp., CRE/RE L.L.C. and
BRE/Ceriale L.L.C. addressed to the Underwriter.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter and counsel for the Underwriter, this Agreement
and all obligations of the Underwriter hereunder may be canceled at, or at any
time prior to, the Closing Date by the Underwriter. Notice of such cancellation
shall be given to the Company and each Selling Stockholder in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriter, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 94104-
1715, on the Closing Date or such other location or date as the Company, the
Selling Stockholders and the Underwriter may agree.
7. Reimbursement of Underwriter's Expenses. If the sale of the
---------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 6 hereof is not satisfied or
because of any refusal, inability or failure on the part of the Company or any
Selling Stockholder to perform any agreement herein or comply with any provision
hereof other than by reason of a default by the Underwriter, the Company or the
18
Selling Stockholders, as the case may be, will reimburse the Underwriter on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by the Underwriter in
connection with the proposed purchase and sale of the Securities. If the
Company is required to make any payments to the Underwriter under this Section 7
because of any Selling Stockholder's refusal, inability or failure to satisfy
any condition to the obligations of the Underwriter set forth in Section 6, the
Selling Stockholders pro rata in proportion to the percentage of Securities to
be sold by each shall reimburse the Company on demand for all amounts so paid.
8. Indemnification and Contribution.
--------------------------------
(a) The Company and the Operating Partnership jointly and severally
agree to indemnify and hold harmless the Underwriter, the directors, officers,
employees and agents of the Underwriter and each person who controls the
Underwriter within the meaning of either the Securities Act or the Exchange Act
and each of the Selling Stockholders, the directors, officers, employees and
agents of each Selling Stockholder and each person who controls each Selling
Stockholder within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company and the Operating Partnership will not be liable to the
Underwriter or the Selling Stockholders, the directors, officers, employees and
agents of the Underwriter or the Selling Stockholders and each person who
controls the Underwriter or the Selling Stockholders within the meaning of
either the Securities Act or the Exchange Act in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein; and provided, further, however, that the
Company and the Operating Partnership will not be liable to the Selling
Stockholders, the directors, officers, employees and agents of the Selling
Stockholders and each person who controls the Selling Stockholders within the
meaning of either the Securities Act or the Exchange Act in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Selling Stockholders
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company or the Operating Partnership may
otherwise have.
19
(b) Each Selling Stockholder severally agrees to indemnify and hold
harmless the Company, the Operating Partnership, each of their directors, each
of their officers who signs the Registration Statement, the Underwriter, the
directors, officers, employees and agents of the Underwriter and each person who
controls the Company or the Underwriter within the meaning of either the
Securities Act or the Exchange Act and each other Selling Stockholder, if any,
to the same extent as the foregoing indemnity from the Company to the
Underwriter, but only with respect to written information furnished to the
Company by or on behalf of such Selling Stockholder specifically for inclusion
in the documents referred to in paragraph (a) of this section. This indemnity
agreement will be in addition to any liability which any Selling Stockholder may
otherwise have. The Company, the Operating Partnership and the Underwriter
acknowledge that the information concerning each of the Selling Stockholders
included in the table under the heading "Selling Shareholders" constitutes the
only information furnished in writing by or on behalf of each such Selling
Stockholder for inclusion in the Prospectus.
(c) The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement, the Operating Partnership and each person who controls the Company or
the Operating Partnership within the meaning of either the Securities Act or the
Exchange Act and each Selling Stockholder, the directors, officers, employees
and agents of each Selling Stockholder and each person who controls each Selling
Stockholder within the meaning of either the Securities Act or the Exchange Act
to the same extent as the foregoing indemnity to the Underwriter, but only with
reference to written information relating to the Underwriter furnished to the
Company by the Underwriter specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability which the Underwriter may otherwise have. The Company, the
Operating Partnership and each Selling Stockholder acknowledge that the
statements set forth in the last two paragraphs of the cover page regarding
delivery of the Securities and the $.05 commission from institutional investors
and, under the heading "Underwriting" or "Plan of Distribution," (i) the
sentences related to concessions and reallowances and (ii) the paragraphs
related to stabilization, syndicate covering transactions, penalty bids and the
$.05 commissions from institutional investors in any Preliminary Prospectus and
the Prospectus constitute the only information furnished in writing by or on
behalf of the Underwriter for inclusion in any Preliminary Prospectus or the
Prospectus.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a), (b) or (c) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a), (b) or (c) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be satisfactory
-------- -------
to the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the indemnified
party shall
20
have the right to employ one separate counsel (and local counsel, if necessary),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Operating Partnership,
jointly and severally, the Selling Stockholders and the Underwriter agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company, the Operating
Partnership, one or more of the Selling Stockholders and the Underwriter may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Operating Partnership, by the Selling
Stockholders and by the Underwriter from the offering of the Securities;
provided, however, that in no case shall the Underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by the Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the Operating Partnership, jointly and severally, the Selling Stockholders
and the Underwriter shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and the Operating Partnership, of the Selling Stockholders and of the
Underwriter in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company and the Operating Partnership and by the Selling
Stockholders, on the one hand, shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses), and benefits received by
the Underwriter, on the other hand, shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company or the Operating Partnership or
the Selling Stockholders on the one hand or the Underwriter on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Operating Partnership, the Selling Stockholders and
21
the Underwriter agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (e), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls the Underwriter within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of the Underwriter shall have the same rights to contribution as the
Underwriter, and each person who controls the Company or the Operating
Partnership within the meaning of either the Securities Act or the Exchange Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company and each partner of the Operating Partnership shall
have the same rights to contribution as the Company and the Operating
Partnership, subject in each case to the applicable terms and conditions of this
paragraph (e).
9. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Underwriter, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the NYSE or trading in securities generally on the NYSE shall have
been suspended or limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Underwriter,
impractical to proceed with the offering or delivery of the Securities as
contemplated by the Prospectus (exclusive of any supplement thereto subsequent
to the date hereof).
10. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company, the Operating Partnership or any of their officers, of each Selling
Stockholder and of the Underwriter set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Underwriter, any Selling Stockholder, the Company or
the Operating Partnership or any of the officers, directors, partners,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. Attention: General
Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to Host Marriott Corporation (fax no.: (▇▇▇) ▇▇▇ ▇▇▇▇)
and confirmed to it at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇,
attention of the Legal Department; or if sent to any Selling Stockholder, will
be mailed, delivered or telefaxed and confirmed
22
to it at the address set forth in Schedule II hereto with a copy mailed,
delivered or telefaxed and confirmed to Messrs. ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ at
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, confirmation (▇▇▇) ▇▇▇-▇▇▇▇.
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the
officers, directors, partners, employees, agents and controlling persons
referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
14. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. Headings. The section headings used herein are for convenience
--------
only and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this
-----------
Agreement, shall have the meanings indicated.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Credit Agreement" shall mean the Amended and Restated Credit
Agreement dated as of August 5, 1998 among the Company, as successor by
merger to Host Marriott Corporation, a Delaware corporation, the Operating
Partnership, the lenders party thereto, ▇▇▇▇▇ Fargo Bank, National
Association, The Bank of Nova Scotia and Credit Lyonnais New York Branch,
as co-arrangers, and Bankers Trust Company, as arranger and administrative
agent, as amended, together with all promissory notes, guarantees, guaranty
agreements and pledge or other security agreements entered into by the
Company, the Operating Partnership or any of their respective subsidiaries
in connection with any of the foregoing, in each case as the same may have
been or may be amended or supplemented from time to time.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
23
"Harbor Beach Resort Lease" shall mean the lease of the Marriott
Harbor Beach Resort from Lauderdale Beach Association to Marriott Hotel
Services, Inc.
"HMT Lessee" shall mean HMT Lessee LLC, a Delaware limited liability
company.
"Non-Controlled Subsidiaries" shall mean Rockledge Hotel Properties,
Inc. and Fernwood Hotel Assets, Inc.
"NYSE" shall mean the New York Stock Exchange.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a)(i) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the base prospectus, dated July 2, 1999, and
the prospectus supplement dated May 2, 2001 relating to the Securities that
is filed pursuant to Rule 424(b).
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424," "Rule 430A" and "Rule 462" refer to such rules under the
Securities Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Securities Act" and "Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Senior Note Documents" shall mean, collectively, the 7O% Series A
Senior Notes due 2005, the 7O% Series B Senior Notes due 2008, the 8.45%
Series C Senior Notes due 2008, the 8M% Series E Senior Notes due 2006, the
9 1/4% Series F Senior Notes due 2007 and the 9 1/4% Series G Senior Notes
Due 2007 of the Operating Partnership, the Amended and Restated Indenture
dated as of August 5, 1998 among the Operating Partnership, as successor by
merger to HMH Properties, Inc., a Delaware
24
corporation, the guarantors and subsidiary guarantors named therein, and
Marine Midland Bank, as trustee, pursuant to which the foregoing notes were
issued, and all guarantees, guaranty agreements and pledge or other
security agreements entered into by the Company, the Operating Partnership
or any of their respective subsidiaries in connection with any of the
foregoing, in each case as the same may have been or may be amended or
supplemented from time to time.
"UCC" shall mean the New York Uniform Commercial Code.
[SIGNATURE PAGE FOLLOWS]
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholders and the Underwriter.
Very truly yours,
HOST MARRIOTT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President
HOST MARRIOTT, L.P.
By: Host Marriott Corporation,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President
BLACKSTONE REAL ESTATE PARTNERS I L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates L.P.,
a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director and
Vice President
BLACKSTONE REAL ESTATE PARTNERS TWO L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates L.P.,
a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director
and Vice President
BLACKSTONE REAL ESTATE PARTNERS THREE L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates L.P.,
a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director
and Vice President
BLACKSTONE REAL ESTATE PARTNERS IV L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates L.P.,
a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director
and Vice President
BLACKSTONE RE CAPITAL PARTNERS L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates L.P.,
a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director
and Vice President
BLACKSTONE RE CAPITAL PARTNERS II L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates L.P.,
a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director
and Vice President
BLACKSTONE RE OFFSHORE CAPITAL PARTNERS L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates L.P.,
a Delaware limited partnership,
its general partner
By: BREA L.L.C., a Delaware limited
liability company, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director
and Vice President
BLACKSTONE REAL ESTATE HOLDINGS L.P.,
a Delaware limited partnership
By: BREA L.L.C., a Delaware limited
liability company, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director and
Vice President
BLACKSTONE REAL ESTATE PARTNERS II L.P.,
a Delaware limited partnership,
its general partner
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership,
its general partner
By: Blackstone Real Estate Management
Associates II L.P., its general partner
By: BREA II L.L.C., a Delaware
limited liability company,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director and
Vice President
BLACKSTONE REAL ESTATE HOLDINGS II L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership,
its general partner
By: BREA II L.L.C., a Delaware limited
liability company, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director and
Vice President
BLACKSTONE REAL ESTATE PARTNERS II.TE.1 L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership,
its general partner
By: Blackstone Real Estate Management
Associates II L.P., a Delaware limited
partnership, its general partner
By: BREA II L.L.C., a Delaware limited
liability company, its general
partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director and
Vice President
BLACKSTONE REAL ESTATE PARTNERS II.TE.2 L.P., a
Delaware limited partnership
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership,
its general partner
By: Blackstone Real Estate Management
Associates II L.P., a Delaware limited
partnership, its general partner
By: BREA II L.L.C., a Delaware
limited liability company,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director and
Vice President
BLACKSTONE REAL ESTATE PARTNERS II.TE.3 L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership,
its general partner
By: Blackstone Real Estate Management
Associates II L.P., a Delaware limited
partnership, its general partner
By: BREA II L.L.C., a Delaware
limited liability company,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director and
Vice President
BLACKSTONE REAL ESTATE PARTNERS II.TE.4 L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership,
its general partner
By: Blackstone Real Estate Management
Associates II L.P., a Delaware limited
partnership, its general partner
By: BREA II L.L.C.,
a Delaware limited liability
company, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director and
Vice President
BLACKSTONE REAL ESTATE PARTNERS II.TE.5 L.P.,
a Delaware limited partnership
By: Blackstone Real Estate Associates II L.P.,
a Delaware limited partnership,
its general partner
By: Blackstone Real Estate Management
Associates II L.P., a Delaware limited
partnership, its general partner
By: BREA II L.L.C., a Delaware limited
liability company, its general
partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director and
Vice President
▇▇▇ ▇▇▇▇▇ HOTEL, INC., a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Managing Director and
Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
SCHEDULE I
----------
Underwriter Number of Securities to be Purchased
----------- ------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 10,000,000
Schedule I-1
SCHEDULE II
-----------
Number of Securities
Selling Stockholders: to be Sold Tax ID
--------------------- -------------------- ------
Blackstone Real Estate Partners I L.P. 1,079,698 ▇▇-▇▇▇▇▇▇▇
Blackstone Real Estate Partners Two L.P. 70,796 ▇▇-▇▇▇▇▇▇▇
Blackstone Real Estate Partners Three L.P. 686,810 ▇▇-▇▇▇▇▇▇▇
Blackstone Real Estate Partners IV L.P. 21,594 ▇▇-▇▇▇▇▇▇▇
Blackstone RE Capital Partners L.P. 112,593 ▇▇-▇▇▇▇▇▇▇
Blackstone RE Capital Partners II L.P. 12,358 ▇▇-▇▇▇▇▇▇▇
Blackstone RE Offshore Capital Partners L.P. 21,735 ▇▇-▇▇▇▇▇▇▇
Blackstone Real Estate Holdings L.P. 452,751 ▇▇-▇▇▇▇▇▇▇
Blackstone Real Estate Partners II L.P. 2,969,847 ▇▇-▇▇▇▇▇▇▇
Blackstone Real Estate Holdings II L.P. 745,737 ▇▇-▇▇▇▇▇▇▇
Blackstone Real Estate Partners II.TE.1 L.P. 2,769,664 ▇▇-▇▇▇▇▇▇▇
Blackstone Real Estate Partners II.TE.2 L.P. 119,773 ▇▇-▇▇▇▇▇▇▇
Blackstone Real Estate Partners II.TE.3 L.P. 569,383 ▇▇-▇▇▇▇▇▇▇
Blackstone Real Estate Partners II.TE.4 L.P. 115,818 ▇▇-▇▇▇▇▇▇▇
Blackstone Real Estate Partners II.TE.5 L.P. 243,601 ▇▇-▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ Hotel, Inc. 7,842 ▇▇-▇▇▇▇▇▇▇
Total 10,000,000
==========
The address of each of the above Selling Stockholders is:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Schedule II-1
SCHEDULE III
------------
FORM OF OPINION OF ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
TO BE DELIVERED PURSUANT TO SECTION 6(c)
(a) The Company has been duly incorporated and is validly existing as
a corporation and in good standing, as of the date of the good standing
certificate with respect to the Company delivered on the Closing Date, under the
laws of the State of Maryland. The Company has the corporate power and
corporate authority to own, lease and operate its current properties, to conduct
its business as described in the Prospectus and to enter into and perform its
obligations under the Underwriting Agreement.
(b) The Partnership is validly existing as a limited partnership and
in good standing, as of the date of the good standing certificate with respect
to the Partnership delivered on the Closing Date, under the laws of the State of
Delaware. The Partnership has the partnership power and partnership authority
to own, lease and operate its current properties and conduct its business as
described in the Prospectus.
(c) The Company's Common Stock conforms in all material respects to
the description thereof set forth under the caption "Description of Host REIT
Capital Stock" contained in the Registration Statement on Form S-4 (No. 333-
55807), as amended by Amendment Nos. 1, 2, 3 and 4 thereto (the "Form S-4"), as
incorporated by reference into Item 1 of the Registration Statement on Form 8-A
filed with the Commission on November 18, 1998, as amended on December 28, 1998
(the "Form 8-A").
(d) The Shares have been duly authorized by the Company. When issued
in accordance with the provisions of the Amended and Restated Agreement of
Limited Partnership of the Partnership dated as of December 30, 1998, as amended
(the "Partnership Agreement"), and the Contribution Agreement dated as of April
16, 1998 among the Company, the Partnership and certain contributors named
therein, as amended (the "Contribution Agreement"), the Shares will be validly
issued, fully paid and non-assessable. The form of certificate evidencing the
Shares complies in all material respects with the applicable requirements of the
Maryland Corporation Law and the Company's charter and bylaws. The issuance of
the shares is not subject to any statutory preemptive rights under the Maryland
Corporation Law or under the Company's charter and bylaws in favor of any holder
of outstanding shares of the Company's Common Stock.
(e) The execution, delivery and performance on the date of this
opinion letter by the Company and the Partnership of the Underwriting Agreement
do not (i) violate, with respect to the Company, the Company's charter and
bylaws, or, to our knowledge, any applicable provision of any Maryland statute
or regulation covered by this opinion letter or any Maryland administration or
court decree that names the Company and is specifically directed to it or any of
its property, (ii) violate, with respect to the Partnership, its certificate of
limited partnership or the Partnership Agreement, (iii) to our knowledge,
violate any applicable provision of any federal statute or regulation covered by
this opinion letter (other than with respect to federal
Schedule III-1
securities statutes and regulations, certain matters with respect to which are
addressed elsewhere herein).
(f) No approval or consent of, or registration or filing with, any
federal government agency or any Maryland or Delaware state government agency is
required to be obtained or made by the Company or the Partnership in connection
with the execution, delivery and performance on the date of this opinion letter
by the Company and the Partnership of the Underwriting Agreement, except such as
may be required under federal securities laws (certain matters with respect to
which are addressed elsewhere herein) and state securities or "blue sky" laws
(as to which we express no opinion).
(g) The information in the Prospectus under the caption "Risk
Factors--Risks of Ownership of our Common Stock" and "Risk Factors--There are
possible adverse consequences of limits on ownership of our common stock," to
the extent that such information constitutes matters of law, summaries of the
Company's charter or other instruments or agreements, or legal conclusions, has
been reviewed by us and is correct in all materials respects.
(h) The Registration Statement and the Prospectus (except for the
documents incorporated or deemed to be incorporated by reference therein,
including financial statements and supporting schedules and other financial and
statistical data included or incorporated by reference therein, as to which we
express no opinion) as of their respective effective or issue dates complied as
to form in all material respects with the requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the applicable rules and
regulations thereunder.
(i) Neither the Company nor the Partnership is an "investment company"
as such term is defined in the Investment Company Act of 1940, as amended.
(j) The Company was organized and has operated in conformity with the
requirements for qualification and taxation as a real estate investment trust
under the Code, effective for its taxable years ended December 31, 1999 and
December 31, 2000, and the Company's current organization and intended method of
operation will enable it to continue to meet the requirements for qualification
and taxation as a real estate investment trust under the Code for taxable year
2001 and thereafter.
(k) The Leases (as defined below) will be respected as leases for
federal income tax purposes.
(l) Each of the discussions in the Prospectus Supplement dated May 2,
2001 relating to the Securities under the headings "Risk Factors - Federal
income tax risks" and "Material Federal Income Tax Consequences," to the extent
that it describes provisions of federal income tax law, is correct in all
material respects.
During the course of the preparation of the Registration Statement and
the Prospectus, we participated in conferences with officers and other
representatives of the Company, with representatives of the independent public
accountants of the Company and with you and your representatives. The Company
has prepared and filed the documents incorporated by reference into the
Registration Statement and the Prospectus without our involvement. While we
have not
Schedule III-2
undertaken to determine independently, and we do not assume any responsibility
for, the accuracy, completeness, or fairness of the statements in the
Registration Statement or Prospectus (except as set forth in paragraphs (c), (g)
and (l) above), we may state on the basis of these conferences and our
activities as counsel to the Company in connection with the Registration
Statement that no facts have come to our attention which cause us to believe
that the Registration Statement, at the time it became effective, contained an
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, as of May 2, 2001 or as of the date of this opinion
letter, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that in making the foregoing statements (which shall not
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constitute an opinion), we are not expressing any views as to the financial
statements and supporting schedules and other financial and statistical
information and data included or incorporated by reference in or omitted from
the Registration Statement or the Prospectus.
Such opinion letter shall define the term "Leases" in substantially
the same manner as in the opinion letter from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP to the
Underwriter dated February 7, 2001.
The matters set forth in (j) through (l) above may be covered in a
separate legal opinion.
Schedule III-3
EXHIBIT A
Host Marriott Corporation
Public Offering of Common Stock
May 2, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Host Marriott
Corporation, a Maryland corporation (the "Company"), Host Marriott, L.P., the
Selling Stockholders named therein and you, relating to an underwritten public
offering of Common Stock, $.01 par value (the "Common Stock"), of the Company.
In order to induce you to enter into the Underwriting Agreement, the
undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the undersigned or any
affiliate of the undersigned or any person in privity with the undersigned or
any affiliate of the undersigned), directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the Securities
and Exchange Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of capital stock of the Company or any securities
convertible into, or exercisable or exchangeable for such capital stock, or
publicly announce an intention to effect any such transaction, for a period of
30 days after the date of the Underwriting Agreement, other than shares of
Common Stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
A-1
Yours very truly,
-------------------------------------
(Name of Seller)
By:
---------------------------------
Name:
Title:
A-2