EXHIBIT 1.1
EXECUTION VERSION
HERSHA HOSPITALITY TRUST
(a Maryland real estate investment trust)
3,000,000 Shares of 6.875% Series C Cumulative Redeemable Preferred Shares
(Liquidation Preference $25.00 per share, $0.01 Par Value)
UNDERWRITING AGREEMENT
February 25, 2013
UNDERWRITING AGREEMENT
February 25, 2013
WELLS FARGO SECURITIES, LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
RAYMOND JAMES & ASSOCIATES, INC.
As Representatives of the several Underwriters
c/o WELLS FARGO SECURITIES, LLC
550 South Tryon Street
Charlotte, NC 28202
c/o MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
One Bryant Park
New York, New York 10036
c/o CITIGROUP GLOBAL MARKETS INC.
388 Greenwich Street,
New York, New York 10013
c/o RAYMOND JAMES & ASSOCIATES, INC.
880 Carillon Parkway
Saint Petersburg, Florida 33716
Ladies and Gentlemen:
Hersha Hospitality Trust, a Maryland real estate investment trust (the “
Company
”), proposes to issue and sell to the several underwriters listed on Schedule A attached hereto (the “
Underwriters
”), an aggregate of 3,000,000 (the “
Shares
”) of its 6.875% Series C Cumulative Redeemable Preferred Shares of Beneficial Interest (liquidation preference $25.00 per share), $ 0.01 par value (the “
Series C Preferred Shares
”), of the Company. Wells Fargo Securities, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., and Raymond James & Associates, Inc. have agreed to act as Representatives of the several Underwriters (in such capacity, the “
Representatives
”) in connection with the offering and sale of the Shares. The Shares are described in the Prospectus, which is referred to below.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the “
Act
”), with the Securities and Exchange Commission (the “
Commission
”) a registration statement on Form “S-3” (File No. 333-174029) (the “
registration statement
”), including a prospectus, which registration statement incorporates by reference documents which the Company has filed, or will file, in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “
Exchange Act
”). Amendments to such registration statement, if necessary or appropriate, have been similarly prepared and filed with the Commission in accordance with the Act. Such registration statement, as so amended, has become effective under the Act.
Except where the context otherwise requires, “
Registration Statement
,” as used herein, means the registration statement, as amended at the time of such registration statement’s effectiveness for purposes of Section 11 of the Act, as such section applies to the respective Underwriters within the meaning of Rule 430B under the Act (the “
Effective Time
”), including (i) all documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein, (ii) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Act, to be part of the registration statement at the Effective Time, and (iii) any registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under the Act.
The Company has furnished to the Representatives, for use by the Underwriters and by dealers in connection with the offering of the Shares, copies of one or more preliminary prospectus supplements, and the documents incorporated by reference therein, relating to the Shares. Except where the context otherwise requires, “
Pre-Pricing Prospectus
,” as used herein, means each such preliminary prospectus supplement, in the form so furnished, including any basic prospectus (whether or not in preliminary form) furnished to the Representatives by the Company and attached to or used with such preliminary prospectus supplement. Except where the context otherwise requires, “
Basic Prospectus
,” as used herein, means any such basic prospectus and any basic prospectus furnished to the Representatives by the Company and attached to or used with the Prospectus Supplement (as defined below).
Except where the context otherwise requires, “
Prospectus Supplement
,” as used herein, means the final prospectus supplement, relating to the Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Act on or before the second business day after the date hereof (or such earlier time as may be required under the Act), in the form furnished by the Company to the Representatives for use by the Underwriters and by dealers in connection with the offering of the Shares.
Except where the context otherwise requires, “
Prospectus
,” as used herein, means the Prospectus Supplement together with the Basic Prospectus attached to or used with the Prospectus Supplement.
“
Permitted Free Writing Prospectuses
,” as used herein, means the documents listed on Schedule C attached hereto and each “road show” (as defined in Rule 433 under the Act), if any, related to the offering of the Shares contemplated hereby that is a “written communication” (as defined in Rule 405 under the Act).
“
Disclosure Package
,” as used herein, means any Pre-Pricing Prospectus or Basic Prospectus, in either case, together with the information set forth on
Schedule C
hereto, if any.
Any reference herein to the registration statement, the Registration Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “
Incorporated Documents
”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “
amend
,” “
amendment
” or “
supplement
” with respect to the Registration Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the initial effective date of the Registration Statement, or the date of such Basic Prospectus, such Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein by reference.
As used in this Agreement, “
business day
” shall mean a day on which the New York Stock Exchange is open for trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and similar terms, as used in this Agreement, shall in each case refer to this Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of this Agreement. The term “or,” as used herein, is not exclusive. For purposes of this Agreement, all references to the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and any Permitted Free Writing Prospectuses or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System (“
EDGAR
”), and such copy shall be identical in content to any Prospectus delivered to the Underwriters for use in connection with the offering of the Shares.
The Company, Hersha Hospitality Limited Partnership (the “
Partnership
”) and the Underwriters agree as follows:
1.
Sale and Purchase
. Upon the basis of the representations and warranties and subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the Underwriters and the Underwriters, acting severally and not jointly, agree to purchase from the Company the Shares in the respective amounts set forth on Schedule A hereto at a purchase price of $24.2125 per Share. The Company is advised by the Representatives that the Underwriters intend (i) to make a public offering of the Shares as soon as the Representatives deem advisable after this Agreement has been executed and delivered and (ii) initially to offer the Shares upon the terms set forth in the Prospectus. The Representatives may from time to time increase or decrease the public offering price after the initial public offering to such extent as the Representatives may determine.
2.
Payment and Delivery
. Payment of the purchase price for the Shares shall be made to the Company by Federal Funds wire transfer, against delivery to the Underwriters of Shares through the facilities of The Depository Trust Company (“
DTC
”) for the account of the Underwriters. Such payment and delivery shall be made at 10:00 a.m., New York City time, on March 6, 2013 (unless another time shall be agreed to by the Representatives and the Company). The time at which such payment and delivery are to be made is hereinafter sometimes called “
the time of purchase
.” Electronic transfer of the Shares shall be made to the Underwriters at the time of purchase in such names and in such denominations as they shall specify.
Deliveries of the documents described in Section 6 hereof with respect to the purchase of the Shares shall be made at the offices of Underwriters’ Counsel and the address of its New York office, at 9:00 a.m., New York City time, on the date of the closing of the purchase of the Shares.
3.
Representations and Warranties of the Company
. Each of the representations and warranties made herein with respect to HHMLP (as defined below) are made to the best of the Company’s knowledge, after due inquiry. The Company and the Partnership, jointly and severally, represent and warrant to, and agree with, the Underwriters that:
(a)
the Company meets the requirements for use of Form S-3 under the Act. The Registration Statement has been filed with the Commission and has been declared effective under the Act. The Company has not received, and has no notice of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening or instituting proceedings for that purpose. 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 have been so described or filed. The Prospectus Supplement has been or will be so prepared and will be filed pursuant to Rule 424(b) of the Act on or before the second business day following the date of this Agreement or on such other day as the parties may mutually agree. Copies of the Registration Statement and the Prospectus, any such amendments or supplements and all documents incorporated by reference therein that were filed with the Commission on or prior to the date of this Agreement (including one fully executed copy of the Registration Statement and each amendment thereto for the Underwriters) have been delivered to the Underwriters and their counsel. The Company has not distributed any offering material in connection with the offering or sale of the Shares other than the Registration Statement, the Prospectus or any other materials, if any, permitted by the Act;
(b)
(A) at the original effectiveness of the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Act, and (D) as of the time of purchase, the Company was and is a “well-known seasoned issuer” (as defined in Rule 405 under the Act);
(c)
(A) at the time of filing the Registration Statement and any post-effective amendment thereto, (B) at the earliest time thereafter that the Company or another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) of the Act) of the Shares and (C) at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer;
(d)
the Registration Statement complied when it became effective, complies as of the date hereof and, as amended or supplemented, at the time of purchase, and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, will comply, in all material respects, with the requirements of the Act; the conditions to the use of Form S-3 in connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the Registration Statement meets, and the offering and sale of the Shares as contemplated hereby complies with, the requirements of Rule 415 under the Act; the Registration Statement did not, as of the Effective Time, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; each Pre-Pricing Prospectus complied, at the time it was filed with the Commission, and complies as of the date hereof, in all material respects with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Pre-Pricing Prospectus or the date such Pre-Pricing Prospectus was filed with the Commission and ends at the time of purchase did or will any Pre-Pricing Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Pre-Pricing Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Basic Prospectus complied or will comply, as of its date and the date it was or will be filed with the Commission, complies as of the date hereof (if filed with the Commission on or prior to the date hereof) and, at the time of purchase, and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, will comply, in all material respects, with the requirements of the Act; at no time during the period that begins on the earlier of the date of such Basic Prospectus or the date such Basic Prospectus was filed with the Commission and ends at the time of purchase did or will any Basic Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and at no time during such period did or will any Basic Prospectus, as then amended or supplemented, together with any combination of one or more of the then issued Permitted Free Writing Prospectuses, if any, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each of the Prospectus Supplement and the Prospectus will comply, as of the date that it is filed with the Commission, the date of the Prospectus Supplement, the time of purchase, and at all times during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares, in all material respects, with the requirements of the Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the Act); at no time during the period that begins on the earlier of the date of the Prospectus Supplement and the date the Prospectus Supplement is filed with the Commission and ends at the later of the time of purchase, and the end of the period during which a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Shares did or will any Prospectus Supplement or the Prospectus, as then amended or supplemented, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; at no time during the period that begins on the date of such Permitted Free Writing Prospectus and ends at the time of purchase did or will any Permitted Free Writing Prospectus include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
, that the Company makes no representation or warranty in this Section
3(d) with respect to any statement contained in the Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity with information concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through the Representatives to the Company expressly for use in the Registration Statement, such Pre-Pricing Prospectus, the Prospectus or such Permitted Free Writing Prospectus; each Incorporated Document, at the time such document was filed with the Commission or at the time such document became effective, as applicable, complied, in all material respects, with the requirements of the Exchange Act and did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(e)
the documents incorporated by reference in the Registration Statement, the Prospectus or any amendment or supplement thereto, that were or are filed prior to the time of purchase, when they became or become effective under the Act or were or are filed with the Commission under the Act or the Exchange Act, as the case may be, conformed or will conform in all material respects with the requirements of the Act and the Exchange Act, as applicable, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(f)
no Permitted Free Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified; any offer that is a written communication relating to the Shares made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the Act) has been filed with the Commission in accordance with and otherwise complied with the, requirements of Rule 163 under the Act, including without limitation Rule 163(b)(1) under the Act and qualified for such offer for the exemption from Section 5(c) of the Act provided by Rule 163 under the Act.
(g)
prior to the execution of this Agreement, the Company has not, directly or indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the Shares, in each case other than the Pre-Pricing Prospectus and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing Prospectus is accompanied or preceded by the most recent Pre-Pricing Prospectus or the Prospectus, as the case may be, and that such Permitted Free Writing Prospectus is so sent or given after the Registration Statement was filed with the Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with the Commission), the sending or giving, by any Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the Pre-Pricing Prospectus dated February 25, 2013 is a prospectus that, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the requirements of Section 10 of the Act, including a price range where required by rule; neither the Company nor the Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the Act; the Company is not an “ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility determination date for purposes of Rules 164 and 433 under the Act with respect to the offering of the Shares contemplated by the Registration Statement; the parties hereto agree and understand that the content of any and all “road shows” (as defined in Rule 433 under the Act) related to the offering of the Shares contemplated hereby is solely the property of the Company;
(h)
the Prospectus delivered to the Underwriters for use in connection with this offering will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T;
(i)
no stop order of the Commission preventing or suspending the use of any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus or the effectiveness of the Registration Statement has been issued and no proceedings for such purpose have been instituted or, to the Company’s knowledge, are contemplated by the Commission;
(j)
the Company had an authorized, issued and outstanding capitalization as set forth in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus under the heading “Capitalization” in the column entitled “Actual” (and any similar sections or information, if any, contained in any Permitted Free Writing Prospectuses) and “Description of Shares of Beneficial Interest—Overview” (except for subsequent issuances thereof, if any, contemplated under this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Registration Statement, the Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration Statement, the Disclosure Package and the Prospectus, which subsequent issuances, if any, did not, individually or in the aggregate, result in a material change to the outstanding capitalization of the Company as set forth in the Registration Statement, the Disclosure Package and the Prospectus); all of the issued and outstanding shares of capital stock or other securities, including the Priority Class A common shares, $0.01 par value (the "
Common Shares
") (as of the time of purchase) of the Company have been duly authorized and validly issued and are fully paid and non-assessable, have been issued in compliance with all federal and state securities laws and were not issued in violation of any preemptive right, resale right, right of first refusal or similar right;
(k)
the Company is and at the time of purchase will be the sole general partner of the Partnership; as of the date hereof, the Company owns an approximate 96.6% partnership interest in the Partnership;
(l)
the Company has been duly organized and is validly existing as a real estate investment trust in good standing under the laws of the State of Maryland, with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, to execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein;
(m)
the Company is duly qualified to do business as a foreign entity and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a material adverse effect on the business, properties, financial condition, or results of operation or prospects of the Company and the Subsidiaries (as defined below) taken as a whole (a “
Material Adverse Effect
”);
(n)
the Company has no subsidiaries (as defined in the Act) other than those set forth in Schedule B (such subsidiaries that are consolidated with the Company in the Company’s financial statements in accordance with GAAP are collectively referred to herein as the “
Subsidiaries
”); the Company owns, directly or indirectly, the interests in each of the Subsidiaries as provided on Schedule B; other than (i) the interests in the Subsidiaries, (ii) the interests in the unconsolidated subsidiaries of the Company as set forth on Schedule B (the “
Unconsolidated Subsidiaries
”) and (iii) the development loans made by the Company in the ordinary course of business (in the case of (i) and (ii), as described in the Disclosure Package and the Prospectus), the Company does not own, directly or indirectly, any shares of stock or any other equity or long-term debt securities of any corporation or have any equity interest in any firm, partnership, limited liability company, joint venture, association or other entity; complete and correct copies of the organizational documents of the Company, the Partnership and the Subsidiaries and all amendments thereto have been delivered to the Representatives, and no changes therein will be made subsequent to the date hereof and prior to the time of purchase, except as necessary to consummate the transactions contemplated by this Agreement; each Subsidiary has been duly organized and is validly existing as a corporation, limited liability company, limited partnership or trust in good standing under the laws of the jurisdiction of its organization, with full power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any; each Subsidiary is duly qualified to do business as a foreign entity and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a Material Adverse Effect; all of the outstanding shares of capital stock or other securities of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and, except as disclosed in the Prospectus, with respect to each Subsidiary and each Unconsolidated Subsidiary, are owned by the Company, directly or indirectly, free and clear of any security interests, other encumbrances or adverse claims; except as disclosed in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into shares of capital stock or ownership interests in the Subsidiaries are outstanding; and no waivers, consents or approvals of the holders of any class or series of preferred units of partnership interest need to be obtained in connection with the issuance and sale of the Shares, except for those that have been obtained and delivered in writing to the Representatives before the date hereof;
(o)
the Partnership has been duly organized and is validly existing as a limited partnership in good standing under the laws of the Commonwealth of Virginia, with full partnership power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and the Prospectus and to execute and deliver this Agreement;
(p)
the Partnership is duly qualified to do business as a foreign entity and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, have a Material Adverse Effect;
(q)
Hersha Hospitality Management L.P. (“
HHMLP
”) has been duly organized and is validly existing as a limited partnership under the laws of the Commonwealth of Pennsylvania with all requisite partnership power and authority to conduct its business as now conducted and as proposed to be conducted, and to own, lease and operate its properties, as described in the Registration Statement and Prospectus, and is qualified to do business and is in good standing as a foreign limited partnership in each other jurisdiction in which the failure so to qualify could reasonably be expected to have a Material Adverse Effect. HHMLP is not in violation of any provision of its partnership agreement or other governing documents and is not in default or in breach of, and does not know of the occurrence of any event that with the giving of notice or the lapse of time or both would constitute a default under or breach of, any term or condition of any material agreement or instrument to which it is a party or by which any of its properties is bound, except as disclosed in the Registration Statement and Prospectus. No consent, approval, authorization or order from any court, governmental agency or body is required in connection with the consummation by HHMLP of the transactions contemplated herein and in the Registration Statement and Prospectus, except such as may be required by the Act, the Exchange Act, and applicable state securities or blue sky laws;
(r)
the Shares have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim created by the Company, and will be registered pursuant to Section 12 of the Exchange Act; prior to the time of purchase, the Company will have executed and filed with the State Department of Assessments and Taxation of Maryland (the “
MSDAT
”) articles supplementary establishing the terms of the Series C Preferred Shares (the “
Articles Supplementary
”); the Shares conform to all statements relating thereto contained in the Registration Statement, the Disclosure Package and the Prospectus and such description conforms to the rights set forth in the instruments defining the same; and except as described in the Registration Statement, the Disclosure Package and the Prospectus, the issuance of the Shares is not subject to any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar rights of any securityholder of the Company;
(s)
the Common Shares issuable upon conversion of the Shares have been duly authorized and, when issued upon conversion of the Shares in accordance with the terms of the Articles Supplementary, will be validly issued and fully paid and non-assessable free and clear of any pledge, lien, encumbrance, security interest or other claim created by the Company; the Company has reserved such Common Shares for issuance upon conversion of the Shares; the Common Shares conform to all statements relating thereto contained in the Registration Statement, the Disclosure Package and the Prospectus and such description conforms to the rights set forth in the instruments defining the same; the certificates, if any, for such Common Shares issuable upon conversion of the Shares are in due and proper form; no holder of the Shares will be subject to personal liability by reason of being such a holder;
(t)
the capital stock of the Company, including the Shares, and the description of the Partnership Agreement (as defined below), including the description of the units of the Partnership contained therein, conform in all material respects to the description thereof contained in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus, the Permitted Free Writing Prospectuses, if any, and the description contained in the Articles Supplementary; the form of the certificates used to evidence the Shares, if any, (the “
Series C Preferred Share Certificate
”), is in due and proper form and complies with all applicable legal requirements, the requirements of the Company’s charter (including the Articles Supplementary) and the bylaws of the Company and the requirements of the New York Stock Exchange, and the holders of the Shares will not be subject to personal liability by reason of being such holders;
(u)
the preferred units of partnership interest in the Partnership designated as Series C Preferred Units (“
Series C Preferred Units
”) to be issued to the Company in connection with the Company's sale of the Shares have been duly authorized and upon the Company's contribution of the net proceeds from the sale of the Shares will be validly issued and fully paid in accordance with the Amended and Restated Agreement of Limited Partnership of the Partnership, dated January 26, 1999, as amended by Amendment No. 2, Amendment No. 3, Amendment No. 4, and Amendment No. 5 thereto (the “
Partnership Agreement
”); except as set forth in the Registration Statement, the Disclosure Package and the Prospectus, there are no outstanding options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities or interests for Series C Preferred Units or other ownership interests of the Partnership; all offers and sales of the Partnership’s Series C Preferred Units prior to the date hereof, if any, were at all relevant times duly registered under the Act or were exempt from the registration requirements of the Act and were duly registered or the subject of an available exemption from the registration requirements of the applicable state securities or blue sky laws.
(v)
this Agreement has been duly authorized, executed and delivered by the Company and the Partnership;
(w)
neither the Company, the Partnership nor any of the Subsidiaries is in breach or violation of or in default under (nor has any event occurred which with notice, lapse of time or both would result in any breach or violation of, constitute a default under) or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) (i) its respective charter (in the case of the Company, including the Articles Supplementary upon the filing with the MSDAT and the effectiveness of the same) or by-laws, or (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company, the Partnership or any of the Subsidiaries is a party or by which any of them or any of their properties may be bound or affected, except with respect to (ii) as individually or in the aggregate would not have a Material Adverse Effect, and the execution, delivery and performance of this Agreement, the issuance and sale of the Shares and the consummation of the transactions contemplated hereby will not conflict with, result in any breach or violation of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach or violation of or constitute a default under) the charter (including the Articles Supplementary upon the filing with the MSDAT and the effectiveness of the same) or by-laws of the Company or the organizational documents of the Partnership or any of the Subsidiaries, or any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company, the Partnership or any of the Subsidiaries is a party or by which any of them or any of their respective properties may be bound or affected, or any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company, the Partnership or any of the Subsidiaries;
(x)
during the period of at least the last 24 calendar months prior to the date of this Agreement, the Company has timely filed with the Commission all documents and other material required to be filed pursuant to Sections 13, 14 and 15(d) under the Exchange Act. During the period of at least the last 36 calendar months preceding the filing of the Registration Statement, the Company has filed all reports required to be filed pursuant to Sections 13, 14 and 15(d) under the Exchange Act. As of the date of this Agreement, the aggregate market value of the Company’s voting stock held by nonaffiliates of the Company (based on the closing price on February 25, 2013) and the annual trading volume of the Common Shares was equal to or greater than $100 million and 3,000,000 shares, respectively;
(y)
no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the issuance and sale of the Shares or the consummation by the Company or the Partnership of the transactions contemplated hereby other than (i) the filing of the Articles Supplementary with the MSDAT, which filing will be made prior to the time of purchase, (ii) registration of the Shares under the Act, which has been or will be effected, and (iii) any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters or under the rules and regulations of the New York Stock Exchange or the Financial Industry Regulatory Authority (“
FINRA
”);
(z)
The Articles Supplementary have been duly authorized by the Company;
(aa)
except as set forth in the Registration Statement, each Pre-Pricing Prospectus and the Prospectus, (i) no person has the right, contractual or otherwise, to cause (a) the Company to issue or sell Series C Preferred Shares or shares of any other capital stock or other equity interests of the Company, or (b) the Partnership to issue or sell to it any units or other equity interests of the Partnership, (ii) no person has any preemptive rights, resale rights, rights of first refusal or other rights to purchase any Series C Preferred Shares or shares of any other capital stock or other equity interests of the Company, and (iii) except for the Underwriters, no person has the right to act as an underwriter or as a financial advisor to the Company in connection with the offer and sale of the Shares, in the case of each of the foregoing clauses (i), (ii) and (iii), whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise; except as set forth in the Registration Statement, each Pre-Pricing Prospectus and the Prospectus, no person has the right, contractual or otherwise, to cause the Company to register under the Act any Series C Preferred Shares or shares of any other capital stock or other equity interests of the Company, or to include any such shares or interests in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise;
(bb)
each of the Company, the Partnership, HHMLP and the Subsidiaries has all necessary licenses, authorizations, franchises, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, in order to conduct its respective business, except where the failure to so have, file or obtain would not have a Material Adverse Effect; neither the Company, HHMLP, the Partnership nor any of the Subsidiaries is in violation of, or in default under, or has received notice of any proceedings relating to revocation or modification of, any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company, HHMLP, the Partnership or any of the Subsidiaries, except where such violation, default, revocation or modification would not, individually or in the aggregate, have a Material Adverse Effect;
(cc)
all legal or governmental proceedings, affiliate transactions, off-balance sheet transactions, contracts, licenses, agreements, leases or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required;
(dd)
there are no actions, suits, claims, investigations or proceedings pending or threatened or, to the Company’s or Partnership’s knowledge, contemplated to which the Company, the Partnership, HHMLP or any of the Subsidiaries or any of their respective directors or officers is or would be a party or of which any of their respective properties is or would be subject at law or in equity, before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency, except any such action, suit, claim, investigation or proceeding which would not result in a judgment, decree or order having, individually or in the aggregate, a Material Adverse Effect or preventing consummation of the transactions contemplated hereby;
(ee)
all agreements to which the Company, the Partnership and their respective Subsidiaries are a party, and all agreements between or among the Company, the Partnership or their respective affiliates, on the one hand, and HHMLP, on the other hand, are legal, valid, and binding obligations of the Company, the Partnership, HHMLP and their respective Subsidiaries enforceable in accordance with their respective terms, except where the failure to be legal, valid, binding and enforceable would not, individually or in the aggregate, have a Material Adverse Effect, and except to the extent enforceability may be limited by (i) bankruptcy, insolvency, moratorium, liquidation, reorganization, or similar laws affecting creditors’ rights generally, regardless of whether such enforceability is considered in equity or at law, (ii) general equity principles and (iii) the public policy regarding the enforceability of indemnification or contribution provisions;
(ff)
KPMG LLP, whose report on the consolidated financial statements of the Company, the Partnership and the Subsidiaries was filed with the Commission and incorporated by reference in the Registration Statement, the Pre-Pricing Prospectus and the Prospectus, as of the date of such report, was an independent registered accountant as required by the Act;
(gg)
the audited financial statements included or incorporated in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, together with the related notes and schedules, are accurate in all material respects and present fairly the consolidated financial position of the Company, the Partnership and the Subsidiaries as of the dates indicated and the consolidated results of operations and cash flows of the Company, the Partnership and the Subsidiaries for the periods specified and have been prepared in compliance with the requirements of the Act and in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved; any pro forma financial statements or data included or incorporated in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, comply with the requirements of Regulation S-X of the Act, and the assumptions used in the preparation of such pro forma financial statements and data are reasonable, the pro forma adjustments used therein are appropriate to give effect to the transactions or circumstances described therein and the pro forma adjustments have been properly applied to the historical amounts in the compilation of those statements and data; the other financial and statistical data set forth in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, are accurately presented and prepared on a basis consistent with the financial statements and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, that are not included as required; and the Company, the Partnership and the Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not disclosed in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any;
(hh)
subsequent to the respective dates as of which information is given in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, there has not been (i) any material adverse change, or any development reasonably expected to result in a material adverse change, in the business, properties, management, financial condition or results of operations of the Company, the Partnership, and the Subsidiaries, taken as a whole, or HHMLP, (ii) except as contemplated by the Pre-Pricing Prospectus, the Disclosure Package and the Prospectus, any transaction which is material to the Company, the Partnership and the Subsidiaries taken as a whole, (iii) except as disclosed in the Pre-Pricing Prospectus, the Disclosure Package and the Prospectus, any obligation, direct or contingent (including any off-balance sheet obligations), incurred by the Company, the Partnership, HHMLP or the Subsidiaries, which is material to the Company, the Partnership and the Subsidiaries taken as a whole, or HHMLP, (iv) except as disclosed in the Pre-Pricing Prospectus, the Disclosure Package and the Prospectus, any material change in the capital stock, ownership interests or outstanding indebtedness of the Company, the Partnership or the Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on the capital stock of the Company;
(ii)
the Company is not and, after giving effect to the offering and sale of the Shares, will not be an “investment company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended;
(jj)
the Company, the Partnership and each of the Subsidiaries has good and marketable title to all property (real and personal) described the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, as being owned by each of them, free and clear of all liens, claims, security interests or other encumbrances except for such as (1) are described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, (2) are related to financings described in the Pre-Pricing Prospectus and the Prospectus, or (3) that would not individually or in the aggregate have a Material Adverse Effect; except as set forth in the Registration Statement, the Disclosure Package and the Prospectus, no person other than the Company has an option or right of first refusal to purchase all or part of any hotel owned by the Company, the Partnership or the Subsidiaries (the “
Hotels
”) or any interest therein; each Hotel complies with all applicable codes, laws, and regulations (including, without limitation, building and zoning codes, laws and regulations, and laws relating to access to hotels), except if and to the extent disclosed in the Prospectus and except for such failures to comply that would not individually or in the aggregate have a Material Adverse Effect; neither the Company nor the Partnership has knowledge of any pending or threatened condemnation proceedings, zoning change, or other proceeding or action that will in any manner effect the size of, use of, improvements on, construction on, or access to any of the Hotels, except such proceedings or actions that would not have a Material Adverse Effect;
(kk)
the Company, the Partnership and the Subsidiaries own, or have obtained valid and enforceable licenses for, or other rights to use, the inventions, patent applications, patents, trademarks (both registered and unregistered), tradenames, copyrights, trade secrets and other proprietary information described in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or the Permitted Free Writing Prospectuses, if any, as being owned or licensed by them or which are necessary for the conduct of their respective businesses, except where the failure to own, license or have such rights would not, individually or in the aggregate, have a Material Adverse Effect (collectively, “
Intellectual Property
”); to the Company’s knowledge (i) there are no third parties who have or will be able to establish rights to any Intellectual Property, except for the ownership rights of the owners of the Intellectual Property which is licensed to the Company; (ii) there is no infringement by third parties of any Intellectual Property; (iii) there is no pending or threatened action, suit, proceeding or claim by others challenging the Company’s, the Partnership’s, or HHMLP’s, rights in or to any Intellectual Property, and the Company and the Partnership are unaware of any facts which could form a reasonable basis for any such claim; (iv) there is no pending or threatened action, suit, proceeding or claim by others challenging the validity or scope of any Intellectual Property, and the Company and the Partnership are unaware of any facts which could form a reasonable basis for any such claim; (v) there is no pending or threatened action, suit, proceeding or claim by others that the Company or the Partnership infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Company and the Partnership are unaware of any facts which could form a reasonable basis for any such claim; (vi) there is no patent or patent application that contains claims that interfere with the issued or pending claims of any of the Intellectual Property; and (vii) there is no prior art that may render any patent application owned by the Company or the Partnership of the Intellectual Property unpatentable that has not been disclosed to the U.S. Patent and Trademark Office;
(ll)
except for matters which would not, individually or in the aggregate, have a Material Adverse Effect, (i) neither the Company, the Partnership nor any of the Subsidiaries is engaged in any unfair labor practice; (ii) there is (A) no unfair labor practice complaint pending or, to the Company’s or the Partnership’s knowledge after due inquiry, threatened against the Company, the Partnership or any of the Subsidiaries before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending or threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the Company’s or the Partnership’s knowledge after due inquiry, threatened against the Company, the Partnership or any of the Subsidiaries and (C) no union representation dispute currently existing concerning the employees of the Company, the Partnership, HHMLP or any of the Subsidiaries, and (iii) to the Company’s knowledge after due inquiry, (A) no union organizing activities are currently taking place concerning the employees of the Company, the Partnership, HHMLP or any of the Subsidiaries and (B) there has been no violation of any federal, state, local or foreign law relating to discrimination in the hiring, promotion or pay of employees, any applicable wage or hour laws or any provision of the Employee Retirement Income Security Act of 1974 (“
ERISA
”) or the rules and regulations promulgated thereunder concerning the employees of the Company, the Partnership, HHMLP or any of the Subsidiaries;
(mm)
the Company, the Partnership, HHMLP and the Subsidiaries and their properties, assets and operations are in compliance with, and hold all permits, authorizations and approvals required under, Environmental Laws (as defined below), except to the extent that failure to so comply or to hold such permits, authorizations or approvals would not, individually or in the aggregate, have a Material Adverse Effect; except as would not, individually or in the aggregate, have a Material Adverse Effect, there are no past, present or, to the Company’s or Partnership’s knowledge after due inquiry, reasonably anticipated future events, conditions, circumstances, activities, practices, actions, omissions or plans that could reasonably be expected to give rise to any material costs or liabilities to the Company, the Partnership, HHMLP or the Subsidiaries under, or to interfere with or prevent compliance by the Company, the Partnership, HHMLP or the Subsidiaries with, Environmental Laws; except as would not, individually or in the aggregate, have a Material Adverse Effect, neither the Company, the Partnership, HHMLP nor any of the Subsidiaries (i) is the subject of any investigation, (ii) has received any notice or claim, (iii) is a party to or affected by any pending or threatened action, suit or proceeding, (iv) is bound by any judgment, decree or order or (v) has entered into any agreement, in each case relating to any alleged violation of any Environmental Law or any actual or alleged release or threatened release or cleanup at any location of any Hazardous Materials (as defined below) (as used herein, “
Environmental Law
” means any federal, state, local or foreign law, statute, ordinance, rule, regulation, order, decree, judgment, injunction, permit, license, authorization or other binding requirement, or common law, relating to health, safety or the protection, cleanup or restoration of the environment or natural resources, including those relating to the distribution, processing, generation, treatment, storage, disposal, transportation, other handling or release or threatened release of Hazardous Materials, and “
Hazardous Materials
” means any material (including, without limitation, pollutants, contaminants, hazardous or toxic substances or wastes) that is regulated by or may give rise to liability under any Environmental Law);
(nn)
in the ordinary course of its business, the Company, the Partnership, HHMLP and each of the Subsidiaries conducts a periodic review of the effect of the Environmental Laws on its business, operations and properties, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for cleanup, closure of properties or compliance with the Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties);
(oo)
all tax returns required to be filed as of the date hereof by the Company, the Partnership, HHMLP and each of the Subsidiaries have been timely filed (or valid extensions to such filings have been obtained), all such tax returns are true, correct and complete in all material respects, and all taxes and other assessments of a similar nature (whether imposed directly or through withholding) including any interest, additions to tax or penalties applicable thereto due or claimed to be due from such entities have been paid, other than those being contested in good faith and for which adequate reserves have been provided, except in any case in which the failure so to file such tax returns or pay such taxes and other assessments would not, individually or in the aggregate, have a Material Adverse Effect;
(pp)
commencing with the Company’s taxable year ended December 31, 1999, the Company has been organized and operated in conformity with the requirements for qualification and taxation as a real estate investment trust (“
REIT
”) under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the “
Code
”), and its proposed method of operation as described in the Prospectus will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2013 and thereafter. All statements in the Pre-Pricing Prospectus and the Prospectus regarding the Company’s qualification and taxation as a REIT under the Code are true, correct and complete in all material respects;
(qq)
the Company, the Partnership, HHMLP and each of the Subsidiaries maintains insurance covering its properties, operations, personnel and businesses as the Company and the Partnership deem adequate; such insurance insures against such losses and risks to an extent which is in accordance with customary industry practice to protect the Company, the Partnership, HHMLP and the Subsidiaries and their businesses; all such insurance is fully in force on the date hereof and will be fully in force at the time of purchase;
(rr)
neither the Company, the Partnership, HHMLP nor any of the Subsidiaries has sustained since the date of the last audited financial statements included in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectuses any loss or interference with its respective business from fire, explosion, flood (except as would not, individually or in the aggregate, have a Material Adverse Effect) or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree;
(ss)
except as disclosed in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectuses, neither the Company, the Partnership nor HHMLP has sent or received any communication regarding termination of, or intent not to renew, any of the contracts or agreements referred to or described in, or filed as an exhibit to, the Registration Statement, and no such termination or non-renewal has been threatened by the Company, the Partnership or, to the Company’s knowledge, any other party to any such contract or agreement;
(tt)
except as disclosed in the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectuses, the Company, the Partnership, HHMLP and each of the Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences;
(uu)
the Company has established, maintains and evaluates disclosure controls and procedures (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and “
internal control over financial reporting
” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) in accordance with such rules and any related rules of the Commission or the New York Stock Exchange; such disclosure controls and procedures are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief Financial Officer by others within those entities, and except as disclosed in the Company’s Annual Report on Form 10-K for the year ended December 31, 2012, such disclosure controls and procedures are effective to perform the functions for which they were established; the Company’s auditors and the Audit Committee of the Board of Directors have been advised of: (i) any significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s ability to record, process, summarize, and report financial data; and (ii) any fraud, whether or not material, that involves management or other employees who have a role in the Company’s internal controls; and since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses;
(vv)
the Company is in compliance with all presently applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder;
(ww)
the Company has made available to the Representatives true, correct, and complete copies of all documentation pertaining to any extension of credit in the form of a personal loan made, directly or indirectly, by the Company to any director or executive officer of the Company, or to any family member or affiliate of any director or executive officer of the Company; and since July 30, 2002, the Company has not, directly or indirectly, including through any subsidiary, (i) extended credit, arranged to extend credit, or renewed any extension of credit, in the form of a personal loan, to or for any director or executive officer of the Company, or to or for any family member or affiliate of any director or executive officer of the Company; or (ii) made any material modification, including any renewal thereof, to any term of any personal loan to any director or executive officer of the Company, or any family member or affiliate of any director or executive officer, which loan was outstanding on July 30, 2002;
(xx)
any statistical and market-related data included in the Registration Statement and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate;
(yy)
neither the Company, the Partnership nor any of the Subsidiaries nor, to the Company’s and the Partnership’s knowledge after due inquiry, any employee or agent of the Company, the Partnership or the Subsidiaries has made any payment of funds of the Company, the Partnership or the Subsidiaries or received or retained any funds in violation of any law, rule or regulation, which payment, receipt or retention of funds is of a character required to be disclosed in the Registration Statement or the Prospectus;
(zz)
neither the Company, the Partnership nor any of the Subsidiaries nor any of their respective directors, officers, affiliates or controlling persons has taken, directly or indirectly, any action designed, or which has constituted or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company or the Partnership to facilitate the sale or resale of the Shares;
(aaa)
to the Company’s knowledge after due inquiry, there are no affiliations or associations between any member of the FINRA and any of the Company’s officers, directors or 5% or greater securityholders, except as set forth in the Registration Statement and the Prospectus;
(bbb)
the Common Shares of the Company are registered pursuant to Section 12(b) of the Exchange Act. The Common Shares are listed on the New York Stock Exchange. The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Shares under the Exchange Act or the listing of the Common Shares or, once listed, the Shares on the New York Stock Exchange, nor has the Company received any notification that the Commission or the New York Stock Exchange is contemplating terminating such registration or listing;
(ccc)
An application has been submitted for the approval of the listing of the Shares on the NYSE;
(ddd)
the description of the Company’s, the Partnership’s and the Subsidiaries’ organization and current and proposed method of operation set forth in the Basic Prospectus under the heading “Federal Income Tax Consequences of our Status as a REIT” as supplemented by the description in the Pre-Pricing Prospectus and the Prospectus Supplement under the caption, "Additional Federal Income Tax Considerations" is an accurate and fair summary of the matters referred to therein;
(eee)
neither the Company nor any of its Subsidiaries or affiliates, nor any trustee, officer, or employee, nor, to the Company’s knowledge, any agent or representative of the Company or of any of its Subsidiaries or affiliates, has taken or will take any action, on behalf of the Company or any of its Subsidiaries, in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage, in each case in violation of any law, rule or regulation applicable to the Company or its Subsidiaries including, without limitation, the Foreign Corrupt Practices Act of 1977; and the Company and its Subsidiaries and affiliates have conducted their businesses in compliance with anti-corruption laws to the extent applicable to the Company or its Subsidiaries and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws to the extent applicable to the Company or its Subsidiaries;
(fff)
the operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with (i) financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, to the extent applicable to the Company or its Subsidiaries, (ii) the money laundering statutes of all jurisdictions and the rules and regulations thereunder to the extent applicable to the Company or its Subsidiaries, and (iii) any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental entity to the extent applicable to the Company or its Subsidiaries (collectively, the “
Money Laundering Laws
”); and no action, suit or proceeding by or before any governmental entity involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened;
(ggg)
(i) the Company represents that neither the Company nor any of its Subsidiaries, nor any trustee, officer, or employee thereof, nor, to the Company’s knowledge, any agent, affiliate or representative of the Company or any of its Subsidiaries, is an individual or entity that is, or is owned or controlled by a an individual or entity that is:
(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“
OFAC
”), the United Nations Security Council (“
UNSC
”), the European Union (“
EU
”), Her Majesty’s Treasury (“
HMT
”), or other relevant sanctions authority (collectively, “
Sanctions
”), nor
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria); and
(ii) the Company represents and covenants that it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity:
(A) to fund or facilitate any activities or business of or with any individual or entity or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, or
(B) in any other manner that will result in a violation of Sanctions by any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise); and
(iii) the Company represents and covenants that for the past five years, the Company and its Subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(hhh)
The interactive data in the eXtensible Business Reporting Language (“
XBRL
”) incorporated by reference into the Registration Statement, the Disclosure Package, and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
In addition, any certificate signed by any officer of the Company, the Partnership or any of the Subsidiaries and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Shares shall be deemed to be a representation and warranty by the Company, the Partnership or Subsidiary, as the case may be, as to matters covered thereby, to the Underwriters.
4.
Certain Covenants of the Company
. The Company and the Partnership hereby agree:
(a)
to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Representatives may designate and to maintain such qualifications in effect so long as the Representatives may request for the distribution of the Shares;
provided
that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b)
the Company will prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Act not later than 4:00 p.m. (New York City time), on or before the business day following the date of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 4:00 p.m. (New York City time) on or before the business day following the date of this Agreement or on such other day as the parties may mutually agree) to each of the Underwriters copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Act, and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via EDGAR, except to the extent permitted by Regulation S-T;
(c)
the Company will advise the Representatives, confirming such advice in writing, of (i) the receipt of any comments from the Commission relating to any filing of the Company under the Act or the Exchange Act, (ii) any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, (iii) a notice of institution of proceedings for, or the entry of a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Prospectus, (iv) the suspension of the qualification of the Shares for offering or sale in any jurisdiction, (v) the initiation, threatening or contemplation of any proceedings for any of such purposes and, if the Commission or any other governmental agency or authority should issue any such order, the Company will make every reasonable effort to obtain the lifting or removal of such order as soon as possible. The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus including by filing any documents that would be incorporated therein by reference and to file no such amendment or supplement to which the Representatives shall object to in writing;
(d)
the Company will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing when any post-effective amendment to the Registration Statement becomes effective under the Act;
(e)
if necessary, to file a registration statement pursuant to Rule 462(b) under the Act;
(f)
to advise the Representatives promptly of the happening of any event within the time during which a Prospectus relating to the Shares is required to be delivered under the Act which is reasonably likely to require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law. If within the time during which a Prospectus relating to the Shares is required to be delivered under the Act any event shall occur or condition shall exist which, in the reasonable opinion of the Company, the Representatives or their counsel, would require the making of any change in the Prospectus then being used, or in the information incorporated by reference therein, so that the Prospectus would not include an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement, Pre-Pricing Prospectus, Prospectus or any Permitted Free Writing Prospectuses to comply with any law, the Company will promptly prepare and furnish to the Representatives copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish, at the Company’s own expense, to the Underwriters and to dealers copies in such quantities and at such locations as each such Underwriter may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Pre-Pricing Prospectus or Prospectus so that the Pre-Pricing Prospectus or Prospectus as so amended or supplemented will not, in the circumstances when it is so delivered, be misleading or so that the Pre-Pricing Prospectus or Prospectus will comply with the law;
(g)
to make generally available to its security holders, and to deliver to the Representatives, an earnings statement of the Company (which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period;
(h)
to furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report (including a consolidated balance sheet and statements of income, shareholders’ equity and cash flow of the Company, the Partnership and the Subsidiaries for such fiscal year, accompanied by a copy of the certificate or report thereon of nationally recognized independent certified public accountants);
(i)
to furnish to the Underwriters a signed copy of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and such number of conformed copies of the foregoing (other than exhibits) as the Underwriters may reasonably request;
(j)
to furnish to the Representatives promptly for a period of five years from the date of this Agreement (i) copies of any reports, proxy statements, or other communications which the Company shall send to its shareholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed, and (iv) such other information as the Representatives may reasonably request regarding the Company, the Partnership or the Subsidiaries
provided
that the obligations of this Section 4(j) shall be deemed satisfied if such filings or reports are timely filed with the Commission and are generally available to the public through EDGAR;
(k)
to furnish to the Representatives as early as practicable prior to the time of purchase a copy of the latest available unaudited interim and monthly consolidated financial statements, if any, of the Company, the Partnership and the Subsidiaries which have been read by the Company’s independent certified public accountants, as stated in their letter to be furnished pursuant to Section 6(c) hereof;
(l)
to apply the net proceeds from the sale of the Shares in the manner set forth under the caption “Use of Proceeds” in the Prospectus;
(m)
prior to the time of purchase, the Company will execute and file with the MSDAT, the Articles Supplementary. The Company shall first provide the form of Articles Supplementary to counsel to the Underwriters and shall not file any form of Articles Supplementary to which counsel to the Underwriters has reasonably objected;
(n)
to pay all costs, expenses, fees and taxes in connection with (i) the preparation and filing of the Registration Statement, each Basic Prospectus, each Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and each Permitted Free Writing Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to each Underwriter and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the Shares including any stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or delivery of the Shares to the Underwriters, (iii) the producing, word processing and/or printing of this Agreement and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to the Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state or foreign laws and the determination of their eligibility for investment under state or foreign law as aforesaid (including the legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters and to dealers, (v) the listing of the Shares on the New York Stock Exchange, (vi) any filing for review of the public offering of the Shares by the FINRA, including the legal fees and filing fees and other disbursements of counsel to the Underwriters, (vii) the fees and disbursements of any transfer agent or registrar for the Shares, (viii) the costs and expenses of the Company relating to presentations or meetings undertaken in connection with the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’ respective sales forces, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel, lodging and other expenses incurred by the officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, and the performance of the Company’s and the Partnership’s other obligations hereunder;
(o)
not to (1) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Series C Preferred Shares or securities convertible into or exchangeable or exercisable for Series C Preferred Shares or warrants or other rights to purchase or otherwise transfer the economic consequences of ownership of Series C Preferred Shares or any other securities of the Company or the Partnership that are substantially similar to Series C Preferred Shares, respectively, or (2) file or cause to be declared effective a registration statement under the Act relating to the offer and sale by the Company or any of its affiliates of any Series C Preferred Shares or securities convertible into or exercisable or exchangeable for Series C Preferred Shares or other rights to purchase Series C Preferred Shares or any other securities of the Company or the Partnership that are substantially similar to Series C Preferred Shares, respectively, for a period of 30 days after the date hereof (the “
Lock-Up Period
”), without the prior written consent of the Representatives, except for the registration of the Shares and the sales to the Underwriters pursuant to this Agreement;
provided
,
however
, that if (a) during the period that begins on the date that is fifteen (15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or (b) prior to the expiration of the Lock-Up Period, the Company announces that it will release earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Section 4(o) shall continue to apply until the expiration of the date that is fifteen (15) calendar days plus three (3) business days after the date on which the issuance of the earnings release or the material news or material event occurs;
(p)
to use its best efforts to cause the Series C Preferred Shares to be listed on the New York Stock Exchange;
(q)
to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the Company, a registrar for the Series C Preferred Shares;
(r)
to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(s)
prior to the time of purchase, to issue no press release or other communication directly or indirectly and hold no press conferences with respect to the Company or any Subsidiary, the financial condition, results of operations, business, properties, assets, or liabilities of the Company or any Subsidiary, or the offering of the Shares, without the Representatives’ prior consent, unless such press release or other communication and such press conference is in the ordinary course of business;
(t)
to use the Company’s best efforts to continue to meet the requirements for qualification and taxation as a REIT for the taxable year ending December 31, 2013 and for its future taxable years, unless the Board of Trustees determines that it is no longer in the best interests of the Company to be so qualified; and
(u)
the Company will reserve the maximum number of Common Shares issuable upon conversion of the Shares until such time as such Common Shares have been issued or the Series C Preferred Shares have been redeemed.
5.
Reimbursement of Underwriters’ Expenses
. If the Shares are not delivered for any reason other than the termination of this Agreement pursuant to a default by the Underwriters in their obligations hereunder, the Company and the Partnership, jointly and severally, shall, in addition to paying the amounts described in Section 4(n) hereof, reimburse the Underwriters for all of their reasonable out-of-pocket expenses, including the reasonable fees and disbursements of Underwriters’ counsel.
6.
Conditions of Underwriters’ Obligations
. The obligations of the Underwriters hereunder are subject to the accuracy of the representations and warranties on the part of the Company and the Partnership on the date hereof and at the time of purchase, the performance by the Company and the Partnership of their obligations hereunder, and to the following additional conditions precedent:
(a)
The Company shall furnish to the Representatives at the time of purchase an opinion of Hunton & Williams LLP, counsel for the Company, addressed to the Underwriters, and dated the time of purchase and in the form of
Exhibits A-1
and
A-2
, and a letter from Hunton & Williams LLP, addressed to the Underwriters, and dated the time of purchase and in the form of
Exhibit A-3
.
(b)
The Company shall furnish to the Representatives at the time of purchase an opinion of the Senior Corporate Counsel of the Company, addressed to the Underwriters, and dated the time of purchase and in the form of
Exhibit B
.
(c)
The Representatives shall have received from KPMG LLP a comfort letter dated the date of this Agreement and the time of purchase and addressed to the Underwriters in the form and substance satisfactory to the Underwriters.
(d)
The Representatives shall have received at the time of purchase the favorable opinion of Clifford Chance US LLP, counsel for the Underwriters, dated the time of purchase in form and substance satisfactory to the Representatives.
(e)
No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Representatives object in writing.
(f)
Prior to the time of purchase, (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Pre-Pricing Prospectus or the Prospectus and no amendments or supplements thereto shall contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(g)
Between the time of execution of this Agreement and the time of purchase, no material adverse change or any development reasonably expected to result in a material adverse change in the business, properties, management, financial condition or results of operations of the Company, the Partnership and the Subsidiaries taken as a whole shall occur or become known.
(h)
The Company and the Partnership will, at the time of purchase, deliver to the Representatives a certificate of its Chief Executive Officer and its Chief Financial Officer, in the case of the Company, and of its general partner, in the case of the Partnership, in the form attached as
Exhibit C
hereto. The Representatives shall have received from the Company and the Partnership on the date of this Agreement, and will receive at the time of purchase, a certificate of its Chief Executive Officer and its Chief Financial officer, in the case of the Company, and its general partner, in the case of the Partnership, in the form attached as
Exhibit D
hereto.
(i)
The Company and the Partnership shall have furnished to the Representatives such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus as of the time of purchase, as the Representatives may reasonably request.
(j)
The Shares shall have been approved for listing on the New York Stock Exchange.
(k)
The Articles Supplementary shall have been accepted for record by the MSDAT and shall be effective under the Maryland REIT Law.
7.
Termination
. The obligations of the Underwriters hereunder shall be subject to termination in the absolute discretion of the Representatives if (x) since the time of execution of this Agreement or the earlier respective dates as of which information is given in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, there has been any material adverse change or any development reasonably expected to result in a material adverse change in the business, properties, management, financial condition or results of operations of the Company, the Partnership, HHMLP and the Subsidiaries taken as a whole, which would, in the Representatives’ judgment, make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, or (y) since of execution of this Agreement, there shall have occurred: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the NYSE Amex or the NASDAQ; (ii) a suspension or material limitation in trading in any of the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) an outbreak or escalation of hostilities or acts of terrorism involving the United States or a declaration by the United States of a national emergency or war; or (v) any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the Representatives’ judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, or (z) since the time of execution of this Agreement, there shall have occurred any downgrading, or any notice or announcement shall have been given or made of (i) any intended or potential downgrading or (ii) any watch, review or possible change that does not indicate an affirmation or improvement in the rating accorded any securities of or guaranteed by the Company or any Subsidiary by any “nationally recognized statistical rating organization,” as that term is defined in Section 3(a)(62) under the Exchange Act.
If the Underwriters elect to terminate this Agreement as provided in this Section 7, the Company shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not carried out by the Underwriters for any reason permitted under this Agreement or if such sale is not carried out because the Company or the Partnership shall be unable to comply with any of the terms of this Agreement, the Company shall not be under any obligation or liability under this Agreement (except to the extent provided in Sections 4(n), 5 and 8 hereof), and the Underwriters shall be under no obligation or liability to the Company or the Partnership under this Agreement (except to the extent provided in Section 8 hereof).
8.
Indemnification and Contribution
.
(a)
The Company and the Partnership will indemnify and hold each Underwriter, its affiliates, directors, officers, employees and agents and each person, if any, who controls it within the meaning of Section 15 of the Act or Section 20 of the Exchange Act harmless from and against any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any and all investigative, legal and other expenses reasonably incurred in connection with, and any and all amounts paid in settlement of, any action, suit or proceeding between any of the indemnified parties and any indemnifying parties or between any indemnified party and any third party, or otherwise, or any claim asserted), as and when incurred, to which any Underwriter, or any such person may become subject under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise out of or are based on (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment or supplement thereto or in any documents filed under the Exchange Act and deemed to be incorporated by reference into the Registration Statement, or in any application or other document executed by or on behalf of the Company or any Subsidiary or based on written information furnished by or on behalf of the Company or any Subsidiary filed in any jurisdiction in order to qualify the Shares under the securities or blue sky laws thereof or filed with the Commission, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (the term Prospectus for the purpose of this Section 8 being deemed to include any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and any amendments or supplements to the foregoing), in any Permitted Free Writing Prospectus, in any “issuer information” (as defined in Rule 433 under the Act), which “issuer information” is required to be, or is, filed with the Commission, or in any Prospectus together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, or arises out of or is based upon the omission or alleged omission to state in the Prospectus or Permitted Free Writing Prospectus a material fact required to be stated in it or necessary to make the statements in it, in the light of the circumstances under which they were made, not misleading or (iii) any act or failure to act or any alleged act or failure to act by any Underwriter in connection with, or relating in any manner to, the Shares or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability, expense or action arising out of or based upon matters covered by clause (i) or (ii) above (
provided
that the Company and the Partnership shall not be liable under this clause (iii) to the extent it is finally judicially determined by a court of competent jurisdiction that such loss, claim, damage, liability, expense or action resulted directly from any such acts or failures to act undertaken or omitted to be taken by such Underwriter through its gross negligence or willful misconduct);
provided
that the Company and the Partnership will not be liable to the extent that such loss, claim, damage, liability, expense or action arises from the sale of the Shares in the public offering to any person by any Underwriter and is based on an untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information relating to the Underwriter furnished in writing to the Company by such Underwriter expressly for inclusion in the Registration Statement or the Prospectus. This indemnity agreement will be in addition to any liability that the Company and the Partnership might otherwise have.
(b)
Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company and the Partnership, each person, if any, who controls the Company and the Partnership within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, each director of the Company and the Partnership and each officer of the Company who signs the Registration Statement to the same extent as the foregoing indemnity from the Company and the Partnership to each Underwriter, but only insofar as losses, claims, damages, liabilities, expenses or actions arise out of or are based on any untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information relating to any Underwriter furnished in writing to the Company by such Underwriter expressly for use in the Registration Statement, the Pre-Pricing Prospectus, or the Prospectus or any Permitted Free Writing Prospectuses. The Company and the Partnership hereby acknowledge that the only information that the Underwriters have furnished to the Company expressly for use in the Registration Statement, the Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus are the statements described in Section 10 of this Agreement. This indemnity will be in addition to any liability that each Underwriter might otherwise have;
provided
,
however
, that in no case shall any Underwriter be liable or responsible for any amount in excess of the underwriting discounts and commissions received by such Underwriter.
(c)
Any party that proposes to assert the right to be indemnified under this Section 8 will, promptly after receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section 8, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served, but the omission so to notify such indemnifying party will not relieve it from any liability that it may have to any indemnified party under the foregoing provisions of this Section 8 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the indemnifying party, and shall not in any event relieve the indemnifying party from its obligations under the succeeding provisions of this Section 8. If any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense, the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below and except for the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at the expense of such indemnified party unless (i) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (ii) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (iii) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or (iv) the indemnifying party has not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one additional firm admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not be liable for any settlement of any action or claim effected without its written consent (which consent will not be unreasonably withheld);
provided
,
however
, no indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 8 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising or that may arise out of such claim, action or proceeding and does not include a statement as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party.
(d)
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs of this Section 8 is applicable in accordance with its terms but for any reason is held to be unavailable from the Company, the Partnership or the Underwriters, then the Company, the Partnership and the Underwriters will contribute to the total losses, claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any contribution received by the Company and the Partnership from persons other than the Underwriters, such as persons who control the Company and the Partnership within the meaning of the Act, officers of the Company who signed the Registration Statement and directors of the Company, who also may be liable for contribution) to which the Company, the Partnership and any one or more of the Underwriters may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Company and the Partnership on the one hand and the Underwriters on the other. The relative benefits received by the Company and the Partnership on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company and the Partnership bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Company and the Partnership, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions which resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company and the Partnership or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Partnership and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purposes) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, liability, expense or damage, or action in respect thereof, referred to above in this Section 8(d) shall be deemed to include, for purpose of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions received by it and no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute as provided in this Section 8(d) are several in proportion to their respective underwriting obligations and not joint. For purposes of this Section 8(d), any person who controls a party to this Agreement within the meaning of the Act will have the same rights to contribution as that party, and each officer of the Company who signed the Registration Statement will have the same rights to contribution as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in respect of which a claim for contribution may be made under this Section 8(d), will notify any such party or parties from whom contribution may be sought, but the omission so to notify will not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have under this Section 8(d). No party will be liable for contribution with respect to any action or claim settled without its written consent (which consent will not be unreasonably withheld).
(e)
The indemnity and contribution agreements contained in this Section 8 and the representations and warranties of the Company and the Partnership contained in this Agreement shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of the Underwriters or by or on behalf of the Company or the Partnership, or the Company’s officers and directors or any persons controlling the Company or the Partnership, (ii) acceptance of the Shares and payment therefor or (iii) any termination of this Agreement.
9.
Representations and Agreements to Survive Delivery
. All representations, warranties, agreements and covenants of the Company and the Partnership herein or in certificates delivered pursuant hereto, and the agreements of the Underwriters contained in Section 8 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling persons, or the Company or the Partnership or any of their officers, directors, or any controlling persons, and shall survive (i) termination of this Agreement and (ii) delivery of and payment for the Shares hereunder.
10.
Information Furnished by the Underwriters
. The statements set forth under the sections entitled “Commissions and Discounts,” only with respect to selling concessions, and “Price Stabilization and Short Positions” under the caption “Underwriting” in the Prospectus Supplement constitute the only information furnished by or on behalf of the Underwriters as such information is referred to in Sections 3 and 8 hereof.
11.
Default by One or More of the Underwriters
. If one or more of the Underwriters shall fail at the time of purchase to purchase the Shares which it or they are obligated to purchase under this Agreement (the “
Defaulted Shares
”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Shares in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then:
(a)
if the number of Defaulted Shares does not exceed 10% of the number of Shares to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters; or
(b)
if the number of Defaulted Shares exceeds 10% of the number of Shares to be purchased on such date, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 11 shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement, the Underwriters shall have the right to postpone the time of purchase for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 11.
12.
No Advisory or Fiduciary Relationship
. The Company acknowledges and agrees that (a) the purchase and sale of the Shares pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, or its shareholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby, and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
13.
Notices
. Except as otherwise herein provided, all statements, requests, notices and agreements shall be in writing or by telegram and, if to the Underwriters, shall be sufficient in all respects if delivered or sent to Wells Fargo Securities, LLC, 550 South Tryon Street, 5
th
Floor, Charlotte, North Carolina 28202, Attention: Transaction Management, Facsimile: 704-410-0326, Merrill Lynch, Pierce, Fenner & Smith Incorporated, 50 Rockefeller Plaza, NY1-050-12-02, New York, New York 10020, Attention: High Grade Transaction Management/Legal, Facsimile: 646-855-5958; Citigroup Global Markets Inc., 388 Greenwich Street, New York, New York 1001, Attention: General Counsel, Facsimile: 212-816-7912, Raymond James & Associates, Inc., 880 Carillon Parkway, Saint Petersburg, Florida 33716, Attention: General Counsel, and, if to the Company or the Partnership, shall be sufficient in all respects if delivered or sent to the Company at the offices of the Company at 44 Hersha Drive, Harrisburg, PA 17102, Attention: Ashish R. Parikh.
14.
Patriot Act
. The Company acknowledges and agrees that in accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the underwriters to properly identify their respective clients.
15.
Governing Law; Construction
. This Agreement and any claim, counterclaim or dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement (“
Claim
”), directly or indirectly, shall be governed by, and construed in accordance with, the laws of the State of New York. The Section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this Agreement.
16.
Submission to Jurisdiction
. Except as set forth below, no Claim may be commenced, prosecuted or continued in any court other than the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts shall have jurisdiction over the adjudication of such matters, and the Company and the Partnership consent to the jurisdiction of such courts and personal service with respect thereto. The Company and the Partnership hereby consent to personal jurisdiction, service and venue in any court in which any Claim arising out of or in any way relating to this Agreement is brought by any third party against the Underwriters or any indemnified party. The Underwriters and the Company (on their own behalf and, to the extent permitted by applicable law, on behalf of their respective shareholders and affiliates) and the Partnership waive all right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating to this Agreement. The Company and the Partnership agree that a final judgment in any such action, proceeding or counterclaim brought in any such court shall be conclusive and binding upon the Company and/or the Partnership and may be enforced in any other courts to the jurisdiction of which the Company or the Partnership is or may be subject, by suit upon such judgment.
17.
Parties at Interest
. The Agreement herein set forth has been and is made solely for the benefit of the Underwriters, the Company and the Partnership and to the extent provided in Section 8 hereof the controlling persons, partners, directors and officers referred to in such section, and their respective successors, assigns, heirs, personal Representatives and executors and administrators. No other person, partnership, association or corporation (including a purchaser, as such purchaser, from an Underwriter) shall acquire or have any right under or by virtue of this Agreement.
18.
Counterparts
. This Agreement may be signed by the parties in one or more counterparts, which together shall constitute one and the same agreement among the parties.
19.
Successors and Assigns
. This Agreement shall be binding upon the Underwriters, the Company, the Partnership and their successors and assigns and any successor or assign of any substantial portion of the Company’s, the Partnership’s and any of the Underwriters’ respective businesses and/or assets.
[The remainder of the page has been left blank intentionally.]
If the foregoing correctly sets forth the understanding between the Company, the Partnership and the Underwriters, please so indicate in the space provided below for that purpose, whereupon this agreement and the Representatives’ acceptance shall constitute a binding agreement between the Company, the Partnership and the Underwriters, severally.
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Very truly yours,
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HERSHA HOSPITALITY TRUST
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By:
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/s/ Ashish Parikh
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Name:
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Title:
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HERSHA HOSPITALITY LIMITED PARTNERSHIP
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By:
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Hersha Hospitality Trust, its sole general partner
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By:
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/s/ Ashish Parikh
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Name:
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Title:
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Underwriting Agreement
Accepted and agreed to as of the
date first above written, on their behalf
and on behalf of each of the several
Underwriters named on Schedule A hereto.
WELLS FARGO SECURITIES, LLC
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By:
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/s/ Carolyn Hurley
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Name:
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Carolyn Hurley
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Title:
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Director
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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By:
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/s/ James Scott
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Name:
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James Scott
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Title:
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Managing Director
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CITIGROUP GLOBAL MARKETS INC.
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By:
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/s/ Aaron Weiss
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Name:
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Aaron Weiss
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Title:
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Director
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RAYMOND JAMES & ASSOCIATES, INC.
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By:
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/s/ Brad Butcher
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Name:
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Brad Butcher
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Title:
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Managing Director
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Underwriting Agreement
Schedule A
UNDERWRITING COMMITMENTS
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Underwriter
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Number of
Shares to Be
Purchased
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Wells Fargo Securities, LLC
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630,000
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
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630,000
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Citigroup Global Markets Inc.
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630,000
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Raymond James & Associates, Inc.
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630,000
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Robert W. Baird & Co. Incorporated
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300,000
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Cantor Fitzgerald & Co.
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60,000
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FBR Capital Markets & Co.
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60,000
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MLV & Co. LLC
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60,000
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Total
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3,000,000
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Underwriting Agreement
EXHIBIT 10.1
FORM OF FIFTH AMENDMENT
TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
HERSHA HOSPITALITY LIMITED PARTNERSHIP
March , 2013
THIS FIFTH AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (this “
Fifth Amendment
”), dated as of March , 2013, is entered into by HERSHA HOSPITALITY TRUST, a Maryland real estate investment trust, as general partner (the “
General Partner
”) of HERSHA HOSPITALITY LIMITED PARTNERSHIP, a Virginia limited partnership (the “
Partnership
”), for itself and on behalf of the limited partners of the Partnership.
WHEREAS, the Amended and Restated Agreement of Limited Partnership of the Partnership was executed on January 26, 1999, a First Amendment thereto was executed on December 31, 1999, a Second Amendment thereto was executed on April 21, 2003, a Third Amendment thereto was executed on August 5, 2005, and a Fourth Amendment thereto was executed on May 18, 2011 (the “
Partnership Agreement
”); and
WHEREAS, Section 4.02(a) of the Partnership Agreement authorizes the General Partner to cause the Partnership to issue additional Partnership Units in one or more classes or series, with such designations, preferences and relative, participating, optional or other special rights, powers and duties as shall be determined by the General Partner, without the approval of the Limited Partners; and
WHEREAS, on March 6, 2013, the General Partner issued 3,000,000 shares of its 6.875% Series C Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $0.01 per share (the “
Series C Preferred Shares
”) at a gross offering price of $25.00 per Series C Preferred Share and, in connection therewith, the General Partner, pursuant to Section 4.02(b) of the Partnership Agreement, is contributing the net proceeds of such issuance to the Partnership and is causing the Partnership to issue to the General Partner Series C Preferred Partnership Units (as hereinafter defined); and
WHEREAS, pursuant to the authority granted to the General Partner pursuant to Sections 4.02(a) and Article XI of the Partnership Agreement and as authorized by the resolutions of the General Partner dated February 22, 2013, the General Partner desires to amend the Partnership Agreement (i) to set forth the designations, rights, powers, preferences and duties of the Series C Preferred Partnership Units and (ii) to issue the Series C Preferred Partnership Units to the General Partner.
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the General Partner hereby amends the Partnership Agreement as follows:
1. The Partnership Agreement is hereby amended by the addition of a new annex thereto, entitled Annex B, in the form attached hereto, which sets forth the designations, allocations, preferences and other special rights, powers and duties of the Series C Preferred Partnership Units and which shall be attached to and made a part of the Agreement.
2. Pursuant to Section 4.02(a) of the Partnership Agreement, effective as of March 6, 2013, the issuance date of the Series C Preferred Shares by the General Partner, the Partnership hereby issues 3,000,000 Series C Preferred Partnership Units to the General Partner. The Series C Preferred Partnership Units have been created and are being issued in conjunction with the General Partner’s issuance of the Series C Preferred Shares, and as such, the Series C Preferred Partnership Units are intended to have designations, preferences and other rights, all such that the economic interests are substantially identical to the designations, preferences and other rights of the Series C Preferred Shares, and the terms of this Fifth Amendment, including without limitation the attached Annex B, shall be interpreted in a fashion consistent with this intent. In return for the issuance to the General Partner of the Series C Preferred Partnership Units, the General Partner has contributed to the Partnership the funds raised through its issuance of the Series C Preferred Shares (the General Partner’s capital contribution shall be deemed to equal the amount of the gross proceeds of that share issuance (
i.e.
, the net proceeds actually contributed, plus any underwriter’s discount or other expenses incurred, with any such discount or expense deemed to have been incurred by the General Partner on behalf of the Partnership)).
3. In order to reflect the issuance of the Series C Preferred Partnership Units, Exhibit A to the Partnership Agreement is hereby amended by adding to the end of such Exhibit A the following table:
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Partner
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Cash
Contribution
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Agreed
Value of
Capital
Contribution
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Series C
Preferred
Partnership
Units
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Percentage
Interest
of
Series
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Hersha Hospitality Trust
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$72,637,500
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$75,000,000
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3,000,000
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100.00%
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4. The foregoing recitals are incorporated in and are part of this Fifth Amendment.
5. Except as specifically defined herein, all capitalized terms shall have the definitions provided in the Partnership Agreement. This Fifth Amendment has been authorized by the General Partner pursuant to Article XI of the Partnership Agreement and does not require execution by the Limited Partners. No other changes to the Partnership Agreement are authorized under this Fifth Amendment.
[
Signature Page Follows.
]
IN WITNESS WHEREOF, this Fifth Amendment has been executed as of the date first above written.
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GENERAL PARTNER:
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HERSHA HOSPITALITY TRUST,
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a Maryland real estate investment trust
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By:
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Name:
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Ashish R. Parikh
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Title:
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Chief Financial Officer
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SIGNATURE PAGE TO FIFTH AMENDMENT TO PARTNERSHIP AGREEMENT
ANNEX B
DESIGNATION OF THE SERIES C PREFERRED PARTNERSHIP UNITS
OF
HERSHA HOSPITALITY LIMITED PARTNERSHIP
1.
Designation and Number
. A series of preferred partnership units, designated the “Series C Preferred Partnership Units” (the “
Series C Preferred Partnership Units
”), is hereby established. The number of Series C Preferred Partnership Units hereby authorized shall be 3,000,000.
2.
Rank
. The Series C Preferred Partnership Units shall, with respect to distribution rights and rights upon liquidation, dissolution or winding up of the Partnership, rank (a) senior to all classes or series of Partnership Units the terms of which do not specifically provide that such units rank on a parity with or senior to the Series C Preferred Partnership Units (the “
Common Units
”); (b) on a parity with the Series A Preferred Partnership Units of the Partnership, the Series B Preferred Partnership Units, and all other Partnership Units issued by the Partnership the terms of which specifically provide that such Partnership Units rank on a parity with the Series C Preferred Partnership Units as to the payment of distributions and the distribution of assets in the event of any liquidation, dissolution or winding up; and (c) junior to (i) all indebtedness of the Partnership and (ii) Partnership Units issued by the Partnership the terms of which specifically provide that such Partnership Units rank senior to the Series C Preferred Partnership Units as to the payment of distributions and the distribution of assets in the event of any liquidation, dissolution or winding up.
3.
Distributions
.
(a) Holders of the then outstanding Series C Preferred Partnership Units shall be entitled to receive, when and as declared by the Partnership, out of funds legally available for the payment of distributions, cumulative cash distributions at the rate of 6.875% per year of the $25.00 liquidation preference (equivalent to a fixed annual amount of $1.71875 per share). Distributions on the Series C Preferred Partnership Units are payable quarterly in arrears on January 15, April 15, July 15 and October 15 of each year and, if such day is not a business day, the next succeeding business day, commencing on April 15, 2013 (each, a “
Distribution Payment Date
”). The quarterly period beginning on, and including, each Distribution Payment Date and ending on, but excluding, the next succeeding Distribution Payment Date is referred to herein as a “
distribution period
” and the distribution which shall accrue in respect of any full distribution period shall be $0.4296875 regardless of the actual number of days in such full distribution period. The first distribution will be for less than a full quarter and will cover the period from, and including, March 6, 2013 to, but excluding, April 15, 2013. Such distribution and any distribution payable on the Series C Preferred Partnership Units for any partial distribution period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Distributions will be payable to holders of record as they appear in the stock records of the Partnership at the close of business on the applicable record date, which shall be the first day of the calendar month in which the applicable Distribution Payment Date falls or on such other date designated by the Partnership as the record date for the payment of distributions on the Series C Preferred Partnership Units that is not more than 30 nor less than 10 days prior to such Distribution Payment Date (each, a “
Distribution Record Date
”).
(b) No distributions on Series C Preferred Partnership Units shall be declared by the Partnership or paid or set apart for payment by the Partnership at such time as the terms and provisions of any agreement of the Partnership, including any agreement relating to its indebtedness, (i) prohibits such declaration, payment or setting apart for payment of distributions or (ii) provides that such declaration, payment or setting apart for payment of distributions would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law.
(c) Notwithstanding the foregoing, distributions on the Series C Preferred Partnership Units shall accrue whether or not the terms and provisions set forth in Section 3(b) hereof at any time prohibit the current payment of distributions, whether or not the Partnership has earnings, whether or not there are funds legally available for the payment of such distributions and whether or not such distributions are declared.
(d) Accrued but unpaid distributions on the Series C Preferred Partnership Units will accumulate as of the Distribution Payment Date on which they first become payable. Except as provided in Section 3(e) below, no distributions will be declared or paid or set apart for payment, and no distribution will be made on any Common Units or any other class or series of Partnership Units ranking, as to distributions, on a parity with or junior to the Series C Preferred Partnership Units other than a distribution that consists of the Partnership’s Common Units or units of any other class or series of Partnership Units ranking junior to the Series C Preferred Partnership Units as to distributions and upon liquidation, for any period unless full cumulative distributions on the Series C Preferred Partnership Units have been or contemporaneously are declared and paid, or declared and a sum sufficient for the payment thereof is set apart for such payment on the Series C Preferred Partnership Units for all distribution periods ending on or prior to the date of such action with respect to the Common Units or any other class or series of Partnership Units ranking, as to distributions, on a parity with or junior to the Series C Preferred Partnership Units.
(e) When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the Series C Preferred Partnership Units and the units of any other class or series of Partnership Units ranking on a parity as to distributions with the Series C Partnership Units, all distributions declared upon the Series C Preferred Partnership Units and any other class or series of Partnership Units ranking on a parity as to distributions with the Series C Preferred Partnership Units shall be declared pro rata so that the amount of distributions declared per unit of Series C Preferred Partnership Units and such other class or series of Partnership Units shall in all cases bear to each other the same ratio that accrued distributions per unit on the Series C Preferred Partnership Units and such other class or series of Partnership Units (which shall not include any accrual in respect of unpaid distributions for prior distribution periods if such Partnership Units do not have a cumulative distribution) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any distribution payment or payments on Series C Preferred Partnership Units which may be in arrears.
(f) Except as provided in the immediately preceding paragraph, unless full cumulative distributions on the Series C Preferred Partnership Units have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof is set apart for payment for all past distribution periods, no distributions (other than distributions paid in Common Units or any other class or series of Partnership Units ranking junior to the Series C Preferred Partnership Units as to distributions and upon liquidation) shall be declared or paid or set aside for payment, nor shall any other distribution be declared or made, upon the Common Units or any other class or series of Partnership Units ranking junior to or on a parity with the Series C Preferred Partnership Units as to distributions or upon liquidation, nor shall any Common Units, or any other class or series of Partnership Units ranking junior to or on a parity with the Series C Preferred Partnership Units as to distributions or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such units) by the Partnership (except by conversion into or exchange for any other class or series of Partnership Units ranking junior to the Series C Preferred Partnership Units as to distributions and upon liquidation) and except in connection with the redemption of Partnership Units in connection with a redemption of “Shares-in-Trust” under the Articles of Amendment and Restatement, which intended to assist the General Partner in qualifying as a REIT for federal income tax purposes.
(g) Holders of the Series C Preferred Partnership Units shall not be entitled to any distribution, whether payable in cash, property or Partnership Units in excess of full cumulative distributions on the Series C Preferred Partnership Units as provided above. Any distribution payment made on Series C Preferred Partnership Units shall first be credited against the earliest accrued but unpaid distribution due with respect to such units which remains payable.
4.
Liquidation Preference
.
(a) Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Partnership, the holders of Series C Preferred Partnership Units then outstanding are entitled to be paid out of the assets of the Partnership legally available for distribution to its partners a liquidation preference of $25.00 per share, plus an amount equal to any accrued and unpaid distributions to the date of payment, before any distribution of assets is made to holders of Common Units or any other class or series of Partnership Units that ranks junior to the Series C Preferred Partnership Units as to liquidation rights. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series C Preferred Partnership Units will have no right or claim to any of the remaining assets of the Partnership.
(b) In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Partnership are insufficient to pay the amount of the liquidating distributions on all outstanding Series C Preferred Partnership Units and the corresponding amounts payable on all Partnership Units of other classes or series of Partnership Units ranking on a parity with the Series C Preferred Partnership Units in the distribution of assets, then the holders of the Series C Preferred Partnership Units and all other such classes or series of Partnership Units shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled.
(c) Written notice of any such liquidation, dissolution or winding up of the Partnership, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not less than 30 nor more than 60 days prior to the payment date stated therein, to each record holder of the Series C Preferred Partnership Units at the respective addresses of such holders as the same shall appear in the books and records of the Partnership.
(d) The consolidation, combination or merger of the Partnership with or into any other corporation, partnership or entity or consolidation or merger of any other corporation with or into the Partnership, or the sale, lease or conveyance of all or substantially all of the Partnership’s assets, property or business or any statutory share exchange, shall not be deemed to constitute a liquidation, dissolution or winding up of the Partnership.
5.
Redemption
.
(a)
Right of Optional Redemption
. Except as expressly provided herein, the Series C Preferred Partnership Units are not redeemable prior to March 6, 2018. On and after March 6, 2018, the Partnership, at its option and upon not less than 30 nor more than 60 days’ written notice, may redeem the Series C Preferred Partnership Units, in whole or in part, at any time or from time to time, for cash at a redemption price of $25.00 per share, plus an amount equal to all accrued and unpaid distributions thereon to the date fixed for redemption (except as provided in Section 5(c) below), without interest. If less than all of the outstanding Series C Preferred Partnership Units are to be redeemed, the Series C Preferred Partnership Units to be redeemed shall be selected pro rata (as nearly as may be practicable without creating fractional units) or by any other equitable method determined by the Partnership.
(b)
Limitations on Redemption
. Unless full cumulative distributions on all Series C Preferred Partnership Units shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past distribution periods, no Series C Preferred Partnership Units shall be redeemed unless all outstanding Series C Preferred Partnership Units are simultaneously redeemed, and the Partnership shall not purchase or otherwise acquire directly or indirectly any Series C Preferred Partnership Units (except by exchange for Partnership Units ranking junior to the Series C Preferred Partnership Units as to distributions and upon liquidation); provided, however, that the foregoing shall not prevent the purchase or acquisition of Series C Preferred Partnership Units pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Series C Preferred Partnership Units.
(c)
Payment of Distributions in Connection with Redemption
. Immediately prior to any redemption of Series C Preferred Partnership Units, the Partnership shall pay, in cash, any accumulated and unpaid distributions through the redemption date, unless a redemption date falls after a Distribution Record Date and prior to the corresponding Distribution Payment Date, in which case each holder of Series C Preferred Partnership Units at the close of business on such Distribution Record Date shall be entitled to the distribution payable on such units on the corresponding Distribution Payment Date notwithstanding the redemption of such units before such Distribution Payment Date. Except as provided above, the Partnership will make no payment or allowance for unpaid distributions, whether or not in arrears, on Series C Preferred Partnership Units which are redeemed.
(d)
Other Redemptions
. At any time that the General Partner exercises its right to redeem all or any of the Series C Preferred Shares, the General Partner shall cause the Partnership to concurrently redeem an equal number of Series C Preferred Partnership Units, at a redemption price per Series C Preferred Partnership Unit payable in cash and equal to the same price per share paid by the General Partner to redeem the Series C Preferred Shares (i.e., a redemption price of $25.00 per Series C Preferred Share, plus any accrued and unpaid dividends thereon). No interest shall accrue for the benefit of the Series C Preferred Partnership Units to be redeemed on any cash set aside by the Partnership.
(e) Notwithstanding anything to the contrary contained herein, the Partnership may redeem one Series C Preferred Partnership Unit for each Series C Preferred Share purchased in the open market, through tender or by private agreement with the General Partner.
(f) Notwithstanding anything to the contrary contained herein, the Partnership may redeem Series C Preferred Partnership Units at any time in connection with any redemption by the General Partner of Series C Preferred Shares.
(g)
Status of Redeemed Units
. Any Series C Preferred Partnership Units that shall at any time have been redeemed shall, after such redemption, have the status of authorized but unissued Partnership Units, without designation as to class or series until such Partnership Units are thereafter classified or designated as part of a particular series.
6.
Voting Rights
. Except as provided by law, the General Partner, in its capacity as the holder of the Series C Preferred Partnership Units, shall not be entitled to vote for any purpose or otherwise participate in any action taken by the Partnership or the Partners.
7.
Conversion
.
(a) Except as otherwise set forth herein, the Series C Preferred Partnership Units are not convertible into or exchangeable for any other property or units of the Partnership.
(b) In the event that a holder of Series C Preferred Shares of the General Partner exercises its right to convert the Series C Preferred Shares into Common Shares of the General Partner in accordance with the terms of the Articles Supplementary, then, concurrently therewith, an equivalent number of Series C Preferred Partnership Units held by the General Partner shall automatically be converted into a number of Common Units of the Partnership equal to the number of Common Shares issued upon conversion of such Series C Preferred Shares; provided, however, that if a holder of Series C Preferred Shares of the General Partner receives cash or other consideration in addition to or in lieu of Common Shares in connection with such conversion, then the General Partner, as the holder of Series C Preferred Partnership Units, shall be entitled to receive cash or such other consideration
8.
Allocations
.
(a) Sections 5.01(a) and (b) of the Partnership Agreement are hereby deleted and replaced by sections (a) and (b), below.
“(a)
Net Profit
. Except as otherwise provided herein, Net Profit for any fiscal year or other applicable period shall be allocated in the following order and priority:
(i) first, to the General Partner in respect of its Series A Preferred Partnership Units, its Series B Preferred Partnership Units and its Series C Preferred Partnership Units, to the extent that Net Loss previously allocated to such holder pursuant to Section 5.01(b)(iii) below for all prior fiscal years or other applicable periods exceeds Net Profit previously allocated to the General Partner pursuant to this Section 5.01(a)(i) for all prior fiscal years or other applicable periods,
(ii) second, to the General Partner and the Limited Partners holding Common Units in proportion to their respective Percentage Interests to the extent that Net Loss previously allocated to such holders pursuant to Section 5.01(b)(ii) below for all prior fiscal years or other applicable periods exceeds Net Profit previously allocated to such Partners pursuant to this Section 5.01(a)(ii) for all prior fiscal years or other applicable periods,
(iii) third, to the General Partner in respect of its Series A Preferred Partnership Units, its Series B Preferred Partnership Units and its Series C Preferred Partnership Units, until it has been allocated Net Profit equal to the excess of (x) the cumulative amount of distributions the General Partner has received for all fiscal years or other applicable period or to the date of redemption, to the extent such Series A Preferred Partnership Units, Series B Preferred Partnership Units and Series C Preferred Partnership Units are redeemed during such period, over (y) the cumulative Net Profit allocated to the General Partner, pursuant to this Section 5.01(a)(iii) for all prior fiscal years or other applicable periods, and
(iv) thereafter, to the Partners holding Common Units in accordance with their respective Percentage Interests.
(b)
Net Loss
. Except as otherwise provided herein, Net Loss for any fiscal year or other applicable period shall be allocated in the following order and priority:
(i) first, to the Partners holding Common Units in accordance with their respective Percentage Interests to the extent of Net Profit previously allocated to such Partners pursuant to Section 5.01(a)(iv) above for all prior fiscal years or other applicable period exceeds Net Loss previously allocated to such Partners pursuant to this Section 5.01(b)(i) for all prior fiscal years or other applicable periods,
(ii) second, to the General Partner and the Limited Partners holding Common Units in proportion to their respective Percentage Interests until the adjusted Capital Account (including for this purpose any amounts a Partner is obligated to contribute to the capital of the Partnership or is deemed obligated to contribute pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)(2)) of each Partner with respect to such Common Units is reduced to zero, and
(iii) thereafter, to the General Partner in respect of its Series A Preferred Partnership Units, its Series B Preferred Partnership Units and its Series C Preferred Partnership Units until the adjusted Capital Account (modified in the same manner as in clause (ii)) of the General Partner with respect to such Series A Preferred Partnership Units, Series B Preferred Partnership Units and Series C Preferred Partnership Units is reduced to zero.
It is the intention of the parties hereunder that the aggregate Capital Account balance of the General Partner in respect of its Series A Preferred Partnership Units, its Series B Preferred Partnership Units and its Series C Preferred Partnership Units at any date shall not exceed the amount of the original Capital Contributions made in respect of its Series A Preferred Partnership Units, its Series B Preferred Partnership Units and its Series C Preferred Partnership Units plus all accrued and unpaid distributions thereon, whether or not declared, to the extent not previously distributed.”
(b) Notwithstanding anything to the contrary contained herein, in connection with the liquidation of the Partnership or the interest of a holder of Series A Preferred Partnership Units, the Series B Preferred Partnership Units and the Series C Preferred Partnership Units, and prior to making any other allocations of Net Profit or Net Loss, items of income and gain or deduction and loss shall first be allocated to the General Partner in respect of its Series A Preferred Partnership Units, its Series B Preferred Partnership Units and its Series C Preferred Partnership Units in such amounts as is required to cause the General Partner’s adjusted Capital Account Balance (taking into account any amounts such Partner is obligated to contribute to the capital of the Partnership or is deemed obligated to contribute pursuant to Regulations Section 1.704-1(b)(2)(ii)(c)(2)) to equal the amount such Partner is entitled to receive pursuant to the provisions of Sections 4 and 5 hereof.
(c) For purposes of this Section 8, “Net Profit” means the excess of the Partnership’s Profit over the Partnership’s Loss for any fiscal year or portion thereof, and “Net Loss” means the excess of the Partnership’s Loss over the Partnership’s Profit for any fiscal year or portion thereof.
