SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 19, 2005
LASALLE HOTEL PROPERTIES
(Exact name of registrant specified in its charter)
Maryland | 1-14045 | 36-4219376 | ||
(State of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
3 Bethesda Metro Center
Suite 1200
Bethesda, Maryland 20814
(Address of principal executive offices, zip code)
Registrants telephone number, including area code: (301) 941-1500
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
On August 19, 2005, LaSalle Hotel Properties (the Company) and LaSalle Hotel Operating Partnership, L.P. (the Operating Partnership), for which the Company is the general partner, entered into an underwriting agreement with Raymond James & Associates, Inc., as representative of the several underwriters (the Underwriting Agreement). Pursuant to the terms and conditions of the Underwriting Agreement, the Company agreed to sell 3,000,000 7.5% Series D Cumulative Redeemable Preferred Shares, par value $0.01 per share (the Series D Preferred Shares), at a per share purchase price of $24.3388, plus an additional 300,000 Series D Preferred Shares solely to cover over-allotments.
The offering closed on August 24, 2005.
Item 3.03. Material Modifications to Rights of Security Holders.
On August 24, 2005, the Company issued 3,000,000 Series D Preferred Shares. As set forth in the Articles Supplementary establishing the rights and preferences of the Series D Preferred Shares filed with the Maryland State Department of Assessments and Taxation on August 22, 2005, the Series D Preferred Shares rank senior to the Companys common shares, par value $0.01 per share, and on par with the Companys 10.25% Series A Cumulative Redeemable Preferred Shares, par value $0.01 per share, and 8.375% Series B Cumulative Redeemable Preferred Shares, par value $0.01 per share. Holders of the Series D Preferred Shares, if authorized by the Board of Trustees and declared by the Company, are entitled to a cumulative quarterly dividend, at the annualized rate of $1.875 per share, that will be paid before any dividend on the common shares is paid. In addition to other preferential rights, the holders of the Series D Preferred Shares are entitled to receive the liquidation value, which is $25.00 per share, before the holders of the common shares receive any payment in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Companys affairs.
On August 22, 2005, the Company, as general partner of the Operating Partnership, executed an amendment to the limited partnership agreement of the Operating Partnership creating a series of preferred units (the Series D Preferred Units) that mirror the rights and preferences of the Series D Preferred Shares described above. At the closing of the offering, the proceeds were contributed by the Company to the Operating Partnership in exchange for
Item 5.03. Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information set forth under Item 3.03 of this report regarding the Series D Preferred Shares is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(a) Exhibits
1 | Underwriting Agreement dated as of August 19, 2005 among Raymond James & Associates, Inc., as the representative of the several underwriters, the Company and the Operating Partnership |
3.1 | Articles Supplementary filed on August 22, 2005 with the Maryland State Department of Assessments and Taxation |
3.2 | Fourth Amendment to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership |
4 | Form of certificate evidencing the 7.5% Series D Cumulative Redeemable Preferred Shares |
5 | Opinion of DLA Piper Rudnick Gray Cary US LLP re legality |
8 | Opinion of DLA Piper Rudnick Gray Cary US LLP re tax matters |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
LASALLE HOTEL PROPERTIES | ||
By: |
/s/ Hans S. Weger |
|
Hans S. Weger | ||
Executive Vice President, Treasurer and | ||
Chief Financial Officer |
Dated: August 24, 2005
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Exhibit 1
Execution Copy
LASALLE HOTEL PROPERTIES
(a Maryland real estate investment trust)
3,000,000 7.5% Series D Cumulative Redeemable Preferred Shares *
UNDERWRITING AGREEMENT
Dated: August 19, 2005
* | Plus an option to purchase from LaSalle Hotel Properties up to 300,000 additional shares to cover over-allotments. |
Table of Contents
SECTION 1. Representations and Warranties. |
2 | |
(a) Representations and Warranties by the Company and the Operating Partnership |
2 | |
(b) Officers Certificates |
14 | |
SECTION 2. Sale and Delivery to Underwriters; Closing. |
14 | |
(a) Initial Securities |
14 | |
(b) Option Securities |
15 | |
(c) Payment |
15 | |
(d) Denominations; Registration |
15 | |
SECTION 3. Covenants of the Company |
16 | |
(a) Compliance with Securities Regulations and Commission Requests |
16 | |
(b) Filing of Amendments |
16 | |
(c) Delivery of Registration Statements |
16 | |
(d) Delivery of Prospectuses |
16 | |
(e) Continued Compliance with Securities Laws |
17 | |
(f) Blue Sky Qualifications |
17 | |
(g) Rule 158 |
17 | |
(h) Use of Proceeds |
17 | |
(i) REIT Qualification |
17 | |
(j) No Manipulation of Market for Securities |
18 | |
(k) Rule 462(b) Registration Statement |
18 | |
(l) NYSE Listing |
18 | |
(m) Lock-Up Agreement |
18 | |
(n) Information Furnished by the Underwriters |
18 |
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SECTION 4. Payment of Expenses. |
18 | |
(a) Expenses |
18 | |
(b) Termination of Agreement |
19 | |
SECTION 5. Conditions of Underwriters Obligations |
19 | |
(a) Effectiveness of Registration Statement |
19 | |
(b) Opinion of Counsel for Company. |
19 | |
(c) Opinion of Counsel for the Underwriters |
20 | |
(d) Officers Certificate |
20 | |
(e) Accountants Comfort Letter |
20 | |
(f) Bring-down Comfort Letter |
20 | |
(g) Conditions to Purchase of Option Securities |
20 | |
(h) Additional Documents |
21 | |
(i) Termination of Agreement |
21 | |
SECTION 6. Indemnification. |
22 | |
(a) Indemnification of Underwriter |
22 | |
(b) Indemnification of Company, Trustees and Officers |
23 | |
(c) Actions against Parties; Notification |
23 | |
SECTION 7. Contribution |
24 | |
SECTION 8. Representations, Warranties and Agreements to Survive |
25 | |
SECTION 9. Termination of Agreement. |
25 | |
(a) Termination; General |
25 | |
(b) Liabilities |
26 |
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SECTION 10. Notices |
26 | |
SECTION 11. Parties |
26 | |
SECTION 12. GOVERNING LAW AND TIME |
26 | |
SECTION 13. Effect of Headings |
26 | |
SECTION 14. Representation of Underwriters |
27 |
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LASALLE HOTEL PROPERTIES
(a Maryland real estate investment trust)
3,000,000 7.5% Series D Cumulative Redeemable Preferred Shares
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
August 19, 2005
Raymond James & Associates, Inc.
As Representative of the several Underwriters listed on Schedule I hereto
c/o Raymond James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, Florida 33716
Ladies and Gentlemen:
LaSalle Hotel Properties, a Maryland real estate investment trust (the Company), confirms its agreement with Raymond James & Associates, Inc. (Raymond James) and each of the other Underwriters named in Schedule I hereto (the Underwriters) for which Raymond James is acting as representative (the Representative), with respect to the issue and sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of 3,000,000 of the Companys 7.5% series D cumulative redeemable preferred shares of beneficial interest (liquidation preference $25 per share), par value $.01 per share (the Series D Shares), and with respect to the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of 300,000 additional Series D Shares to cover over-allotments, if any. The aforesaid 3,000,000 Series D Shares (the Initial Securities) to be purchased by the Underwriters and all or any part of the 300,000 Series D Shares subject to the option described in Section 2(b) hereof (the Option Securities) are hereinafter collectively called the Securities.
The Company has filed with the Securities and Exchange Commission (the Commission) a registration statement on Form S-3 (No. 333-125057, which also constitutes a post-effective amendment to a previous registration statement No. 333-104054 pursuant to Rule 429 of the 1933 Act Regulations (as defined below)) covering the registration of the Securities under the Securities Act of 1933, as amended (the 1933 Act), including the related preliminary prospectus or prospectuses. Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with the provisions of paragraph (b) of Rule 424 (Rule 424(b)) of the rules and regulations of the Commission under the 1933 Act (the 1933 Act Regulations). Each prospectus used before such registration statement became effective and any prospectus that was used after such effectiveness and prior to the execution and delivery of this Agreement is herein called a preliminary prospectus. Such registration statement, including the exhibits thereto, schedules thereto, if any, and the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, is herein called the Registration Statement. Any registration statement filed pursuant to Rule 462(b) of
the 1933 Act Regulations is herein referred to as the Rule 462(b) Registration Statement, and after such filing the term Registration Statement shall include the Rule 462(b) Registration Statement. The final prospectus, including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for use in connection with the offering of the Securities is herein called the Prospectus. For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to either of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (EDGAR).
The Company will contribute the net proceeds from the sale of the Securities to LaSalle Hotel Operating Partnership, L.P., a Delaware limited partnership (the Operating Partnership), and in exchange therefor, at the Closing Time (as defined in Section 2(c)) or Date of Delivery (as defined in Section 2(b)), as applicable, the Operating Partnership will issue to the Company Series D preferred units of limited partnership interest in the Operating Partnership having an aggregate liquidation preference equal to the aggregate liquidation preference of such Securities and having terms substantially equivalent to the economic terms of the Securities (the Series D Units).
All references in this Agreement to financial statements and schedules and other information which is contained, included or stated in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended (the 1934 Act), which is incorporated by reference in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
The term Subsidiary means a corporation, partnership, limited liability company or other entity, a majority of the outstanding voting or capital stock, partnership, membership or other voting or equity interests or general partnership interests, as the case may be, of which is owned or controlled, directly or indirectly, by the Company, the Operating Partnership, or by one or more other Subsidiaries of the Company or the Operating Partnership.
SECTION 1. Representations and Warranties .
(a) Representations and Warranties by the Company and the Operating Partnership. Each of the Company and the Operating Partnership represents and warrants to the Underwriters as of the date hereof, as of the Closing Time referred to in Section 2(c) hereof, and as of the Date of Delivery (if any) referred to in Section 2(b) hereof, and agrees with the Underwriters, as follows:
(i) | Compliance with Registration Requirements . The Company and the transactions contemplated by this Agreement meet the requirements for use of Form S-3 under the 1933 Act. The Registration Statement, |
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including any Rule 462(b) Registration Statement, has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effective, at the date of this Agreement and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, and any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. No document has been or will be prepared in connection with the offering of the Securities in reliance on Rule 434 of the 1933 Act. The representations and warranties in this paragraph shall not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by the Underwriters through the Representative expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act and the 1933 Act Regulations and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering were identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) | Incorporated Documents . The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or |
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hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the 1934 Act Regulations) and, when read together with the other information in the Prospectus, at the time the Registration Statement became effective, at the date hereof, at the time the Prospectus was issued and at the Closing Time (and, if any Option Securities are purchased, at the Date of Delivery), did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(iii) | Independent Accountants . The accounting firm that certified the financial statements and supporting schedules incorporated by reference in the Registration Statement is an independent registered public accounting firm as required by the 1933 Act and the 1933 Act Regulations and the Public Company Accounting Oversight Board (United States). |
(iv) | Financial Statements; Non-GAAP Financial Measures . The financial statements of the Company and its consolidated subsidiaries set forth in or incorporated by reference in the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly the financial position, results of operations and cash flows of the Company and its consolidated subsidiaries at the dates and for the periods specified, and such financial statements have been prepared in conformity with generally accepted accounting principles (GAAP) applied on a consistent basis throughout the periods involved. The supporting schedules, if any, set forth in or incorporated by reference in the Registration Statement and Prospectus present fairly in accordance with GAAP the information required to be stated therein. Any selected historical operating and financial data set forth in or incorporated by reference in the Registration Statement and Prospectus present fairly the information shown therein and have been compiled on a basis consistent with the books and records of the Company and that of the audited financial statements set forth in or incorporated by reference in the Registration Statement and Prospectus. In addition, any pro forma financial statements and the related notes thereto set forth in or incorporated by reference in the Registration Statement and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commissions rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein; and all disclosures contained in the Registration Statement or the Prospectus regarding non-GAAP financial measures (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the 1934 Act and the 1934 Act Regulations and Item 10 of Regulation S-K under the 1933 Act, to the extent applicable. |
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(v) | No Material Adverse Change in Business . Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the properties, earnings, business affairs or business prospects of the Company, the Operating Partnership and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a Material Adverse Effect), (B) there have been no transactions entered into by the Company, the Operating Partnership or any Subsidiary, other than those in the ordinary course of business, which are material with respect to the Company, the Operating Partnership and the Subsidiaries considered as one enterprise and (C) except for regular monthly dividends on the Companys common shares of beneficial interest, par value $.01 per share, in amounts per share that are consistent with past practice, regular quarterly distributions on the Companys 10-1/4% Series A Cumulative Redeemable Preferred Shares of Beneficial Interest (liquidation preference $25 per share), par value $.01 per share, regular quarterly distributions on the Companys 8.375% Series B Cumulative Redeemable Preferred Shares of Beneficial Interest (liquidation preference $25 per share), par value $.01 per share, and regular monthly and quarterly distributions on the common units of limited partnership in the Operating Partnership (the Units), the series A preferred units of limited partnership in the Operating Partnership (the Series A Units) and the series B preferred units of limited partnership in the Operating Partnership (the Series B Units), there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital shares or any distribution by the Operating Partnership with respect to any of its limited partnership interests. |
(vi) | Good Standing of the Company . The Company is a real estate investment trust duly formed and validly existing and in good standing under the laws of the State of Maryland, with full trust power and authority to own and lease its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement; and the Company is duly qualified or registered as a foreign real estate investment trust and is in good standing in each jurisdiction in which such qualification or registration is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect. |
(vii) | Good Standing of the Operating Partnership . The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware and has the |
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partnership power and partnership authority under the Operating Partnership Agreement (as defined below) and the Delaware Revised Uniform Limited Partnership Act to own, lease and operate its properties and to conduct the business in which it is engaged as described in the Prospectus and to enter into and perform its obligations under this Agreement. The Operating Partnership is duly qualified or registered as a foreign partnership to transact business and is in good standing in each jurisdiction in which such qualification or registration is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or register would not result in a Material Adverse Effect. The Company is the sole general partner of the Operating Partnership and holds such number and/or percentage of Units, Series A Units and Series B Units as disclosed in the Prospectus as of the dates set forth therein, free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances. The Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated as of April 29, 1998, as amended by the First Amendment thereto, dated as of March 6, 2002 and the Second Amendment thereto, dated as of September 30, 2003 (collectively, the Operating Partnership Agreement), is in full force and effect.
(viii) | Good Standing of Subsidiaries . The only Subsidiaries of the Company are the Subsidiaries listed on Exhibit 21 to the Companys most recent Annual Report on Form 10-K. Each of the Subsidiaries of the Company or the Operating Partnership has been duly incorporated or organized and is validly existing as a corporation, limited partnership, general partnership or limited liability company, as applicable, in good standing under the laws of the jurisdiction in which it is chartered or organized and has the requisite power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus, and is duly qualified or registered as a foreign corporation, limited partnership, general partnership or limited liability company, as applicable, and is in good standing in the jurisdiction in which such qualification or registration is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or register would not result in a Material Adverse Effect. All the outstanding shares of capital stock, partnership interests, limited liability company interests or other equivalent equity interests of each such Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock, partnership interests, limited liability company interests or other equivalent equity interest of the Subsidiaries are owned by the Company or the Operating Partnership either directly or through wholly-owned Subsidiaries free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances. |
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(ix) | Capitalization . If the Prospectus contains a Capitalization section, the authorized, issued and outstanding capital shares of the Company are as set forth in the column entitled Actual under such section (except for subsequent issuances thereof, if any, contemplated under this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Prospectus). The issued and outstanding capital shares have been duly authorized and validly issued by the Company and are fully paid and non-assessable, and none of the outstanding capital shares was issued in violation of preemptive or other similar rights of any securityholder of the Company. |
(x) | Authorization of Units and Preferred Units . All issued and outstanding Units, Series A Units and Series B Units have been duly authorized and are validly issued, fully paid and non-assessable and have been offered and sold or exchanged by the Operating Partnership in compliance with applicable laws. The Series D Units to be issued to the Company in connection with the offering contemplated by this Agreement have been duly authorized and, when issued and delivered by the Operating Partnership to the Company in exchange for the net proceeds of the offering, will be validly issued, fully paid and non-assessable, and the issuance of such Series D Units will not be subject to the preemptive or other similar rights of any securityholder or partner of the Operating Partnership. |
(xi) | Authorization and Description of Securities . The Securities to be purchased by the Underwriters from the Company have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and non-assessable. At or prior to the Closing Time, the Company will have executed and filed, articles supplementary to the Companys Articles of Amendment and Restatement of Declaration of Trust, dated as of April 24, 1998, as amended and supplemented (the Declaration of Trust), with the Maryland State Department of Assessments and Taxation establishing the terms of the Securities (the Articles Supplementary). The Securities conform to all statements relating thereto contained in the Prospectus and such statements conform to the rights set forth in the Articles Supplementary. No holder of the Securities will be subject to personal liability by reason of being such a holder. The issuance of the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company. The form of certificate used to evidence the Securities will be in substantially the form to be filed or incorporated by reference, as the case may be, as an exhibit to the Registration Statement, and such form complies with all applicable statutory requirements, requirements of the Companys Declaration of Trust, the Amended and Restated Bylaws of the Company (the Bylaws) and requirements of the New York Stock Exchange. |
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(xii) | Authorization of Agreement . This Agreement and the transactions contemplated herein have been duly authorized by the Company and the Operating Partnership, and this Agreement has been duly executed and delivered by the Company and the Operating Partnership and constitutes a valid and binding obligation of the Company and the Operating Partnership enforceable in accordance with its terms except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof and except as enforcement may be limited by bankruptcy, reorganization, moratorium or similar laws affecting creditors rights generally and general principles of equity. |
(xiii) | Absence of Defaults and Conflicts . None of the Company, the Operating Partnership or any Subsidiary is (A) in violation of its declaration of trust, partnership agreement, charter, by-laws or other governing instrument (Governing Instruments) or (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company, the Operating Partnership or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary is subject (collectively, Agreements and Instruments) or (C) in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations (Laws), except for such violations or defaults of any Agreements and Instruments or Laws that would not result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption Use of Proceeds) and compliance by the Company and the Operating Partnership with their respective obligations hereunder have been duly authorized by all necessary action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Operating Partnership or any Subsidiary pursuant to, the Agreements and Instruments or Laws (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action |
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result in any violation of the provisions of the Governing Instruments of the Company, the Operating Partnership or any Subsidiary or of any Laws except for such violations that would not have a Material Adverse Effect. As used herein, a Repayment Event means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holders behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the Company, the Operating Partnership or any Subsidiary.
(xiv) | Absence of Labor Dispute . No labor dispute with the employees of the Company, the Operating Partnership or any Subsidiary exists or, to the knowledge of the Company or the Operating Partnership, is imminent, and the Company and the Operating Partnership are not aware of any existing or imminent labor disturbance by the employees of any of their or any Subsidiarys principal suppliers, manufacturers, customers or contractors, which, in either case, may reasonably be expected to result in a Material Adverse Effect. |
(xv) | Absence of Proceedings . There is no action, arbitration, suit, proceeding, inquiry or investigation before or brought by any arbitrator or court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company or the Operating Partnership, threatened, against or affecting the Company, the Operating Partnership or any Subsidiary, which is required to be disclosed in the Registration Statement (other than as disclosed therein), or which might reasonably be expected to result in a Material Adverse Effect or which might materially and adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Company or the Operating Partnership of their respective obligations hereunder. The aggregate of all pending legal or governmental proceedings to which the Company, the Operating Partnership or any Subsidiary is a party or of which any of their respective properties or assets is the subject which are not described in the Registration Statement, including ordinary routine litigation, could not reasonably be expected to result in a Material Adverse Effect. |
(xvi) | Accuracy of Exhibits . There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required. |
(xvii) | REIT Qualification . Commencing with its taxable year ended December 31, 1998, the Company has been, and upon the sale of the Securities, the Company will continue to be organized and operated in conformity with the requirements for qualification and taxation as a real estate investment trust (a REIT) under the Internal Revenue Code of 1986, as amended (the Code), and the Companys present and proposed method of |
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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. The Operating Partnership will be taxed as a partnership for federal income tax purposes.
(xviii) | Investment Company Act . None of the Company, the Operating Partnership or any Subsidiary is, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will be, an investment company or an entity controlled by an investment company as such terms are defined in the Investment Company Act of 1940, as amended. |
(xix) | Possession of Intellectual Property . The Company, the Operating Partnership and the Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, Intellectual Property) necessary to carry on the business now operated by them, and none of the Company, the Operating Partnership or any Subsidiary has received any written notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company, the Operating Partnership or any Subsidiary therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect. |
(xx) | Absence of Further Requirements . No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Company or the Operating Partnership of their respective obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except such as have already been obtained or will be obtained under the 1933 Act or as required under state securities laws or the rules of the National Association of Securities Dealers, Inc. (NASD). |
(xxi) | Possession of Licenses and Permits . Each of the Company, the Operating Partnership and the Subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, Governmental Licenses) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them except where failure to possess any such Governmental Licenses |
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would not result, singly or in the aggregate, in a Material Adverse Effect; the Company, the Operating Partnership and their Subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect; and none of the Company, the Operating Partnership or any of the Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(xxii) | Title to Property . The Company, the Operating Partnership, the Subsidiaries or any joint ventures in which the Company, the Operating Partnership or any Subsidiary owns an interest, as the case may be, have good and insurable title to all real property owned, as applicable, by the Company, the Operating Partnership, the Subsidiaries or the applicable joint ventures, respectively, and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind, except (A) as otherwise stated in the Prospectus or (B) those which do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company, the Operating Partnership, the Subsidiaries or the applicable joint ventures. Each of the properties of any of the Company, the Operating Partnership or the Subsidiaries complies with all applicable codes and zoning laws and regulations except in any case where such non-compliance would not have a material adverse effect on the conditions, operations, prospects or earnings of the non-compliant property; and none of the Company, the Operating Partnership and the Subsidiaries has knowledge of any pending or threatened condemnation, zoning change or other proceeding or action that will in any manner affect the size of, use of, improvements on, construction on, or access to the properties of any of the Company, the Operating Partnership and the Subsidiaries except in any case where such action or proceeding would not have a material adverse effect on the conditions, operations, prospects or earnings of the property. All of the leases and subleases material to the business of the Company, the Operating Partnership and the Subsidiaries considered as one enterprise, and under which the Company, the Operating Partnership or any Subsidiary holds properties described in the Prospectus, are in full force and effect, and none of the Company, the Operating Partnership or any Subsidiary has received any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company, the Operating Partnership or any Subsidiary under any of the leases or |
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subleases mentioned above, or affecting or questioning the rights of the Company, the Operating Partnership or any Subsidiary of the continued possession of the leased or subleased premises under any such lease or sublease. Except as described in the Prospectus or as would not result in a Material Adverse Effect, no tenant under any lease to which the Company, the Operating Partnership or any Subsidiary leases any portion of its property is in default under such lease.
(xxiii) | Title Insurance . Title insurance in favor of the Company, the Operating Partnership and the Subsidiaries has been obtained with respect to each property owned by any such entity in an amount at least equal to (A) the cost of acquisition of such property or (B) the cost of construction of such property (measured at the time of such construction), except where the failure to maintain such title insurance would not have a Material Adverse Effect. |
(xxiv) | Mortgages and Deeds of Trust . The mortgages and deeds of trust encumbering the properties and assets described in the Prospectus (A) are not convertible (in the absence of foreclosure) into an equity interest in the property or asset described therein or in the Company, the Operating Partnership or any Subsidiary, nor does any of the Company, the Operating Partnership or the Subsidiaries hold a participating interest therein, (B) except as set forth in the Prospectus are not cross-defaulted to any indebtedness other than indebtedness of the Company or any of the Subsidiaries and (C) are not cross-collateralized to any property not owned by the Company, the Operating Partnership or any of the Subsidiaries. |
(xxv) | Real Property . The real property of the Company, the Operating Partnership and their Subsidiaries is free of material structural defects and all building systems contained therein are in good working order in all material respects, subject to ordinary wear and tear or, in each instance, the Company maintains adequate reserves to effect reasonably required repairs, maintenance and capital expenditures. |
(xxvi) | Transfer Taxes . There are no transfer taxes or other similar fees or charges under federal law or the laws of any state, or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance by the Company or sale by the Company of the Securities. |
(xxvii) | Tax Returns . The Company has filed all foreign, federal, state and local tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect), whether or not arising from transactions in the ordinary course of business, except as described in the Prospectus and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and |
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payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as described in the Prospectus.
(xxviii) | Insurance . The Company, the Operating Partnership, the Subsidiaries and each of their properties are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company, the Operating Partnership or any of the Subsidiaries or their respective properties, businesses, employees, officers and directors are in full force and effect. |
(xxix) | Disclosure Controls and Procedures; Internal Controls . The Company, the Operating Partnership and the Subsidiaries have established and maintain disclosure controls and procedures (as such term is defined in Rule 13a-14 and 15d-14 under the 1934 Act); such disclosure controls and procedures are designed to ensure that material information relating to the Company and its Subsidiaries, is made known to the Companys Chief Executive Officer and its Chief Financial Officer by others within those entities, and such disclosure controls and procedures are effective to perform the functions for which they were established; the Companys auditors and the Audit Committee of the Board of Trustees have been advised of: (i) any significant deficiencies in the design or operation of internal controls which could adversely affect the Companys ability to record, process, summarize, and report financial data; and (ii) any fraud, whether or not material, that involves management or other employees of the Company who have a role in the Companys internal controls; and any fraud that is material or known to the Company that involves persons other than management or employees of the Company who have a role in the Companys internal controls; any material weaknesses in internal controls have been identified for the Companys auditors; 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. |
(xxx) | Environmental Laws . Except as described in the Registration Statement and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) none of the Company, the Operating Partnership or any of the Subsidiaries is in violation of any federal, state or local statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or |
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subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, Hazardous Materials) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, Environmental Laws), (B) the Company, the Operating Partnership and the Subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or, to the knowledge of the Company, the Operating Partnership and the Subsidiaries, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violations, investigations or proceedings relating to any Environmental Law against the Company, the Operating Partnership or any of the Subsidiaries and (D) there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company, the Operating Partnership or any of the Subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxxi) | Registration Statement . No holders of securities of the Company have rights to the registration of such securities under the Registration Statement except for those that have been effectively waived or are inapplicable to the offering hereby. |
(xxxii) | Sarbanes-Oxley Act . The Company, the Operating Partnership and the Subsidiaries and any of the officers, trustees and directors of the Company, the Operating Partnership and any of the Subsidiaries, in their capacities as such, are in compliance in all material respects with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder. |
(b) Officers Certificates. Any certificate signed by any officer of the Company, or any authorized representative of the Operating Partnership or any of their Subsidiaries delivered to the Representative or other Underwriters or to counsel for the Underwriters shall be deemed a representation and warranty by such person or entity, as the case may be, to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to the Underwriters, and the Underwriters agree, severally and not jointly, to purchase from the Company, at the price per share of $24.3388, the respective number of shares of Initial Securities set forth opposite the names of the Underwriters on Schedule I hereto.
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(b) Option Securities. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company hereby grants an option to the Underwriters to purchase up to an additional 300,000 Series D Shares in the aggregate at the price per share of $24.3388, less an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. The option hereby granted will expire 30 days after the date hereof and may be exercised in whole or in part once only for the purpose of covering over-allotments that may be made in connection with the offering and distribution of the Initial Securities upon notice by the Representative to the Company setting forth the number of Option Securities as to which the Underwriters are exercising the option and the time and date of payment and delivery for such Option Securities. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that portion of the total number of Option Securities being purchased which the number of Initial Securities set forth opposite such Underwriters name bears to the total number of Initial Securities (subject to adjustment by the Representative to eliminate fractions). Such time and date of delivery (Date of Delivery) shall be determined by the Representative, but shall not be later than seven full business days after the exercise of said option, nor in any event prior to the Closing Time, as hereinafter defined.
(c) Payment. Payment of the purchase price for, and delivery of certificates for, the Initial Securities shall be made at the New York offices of Sidley Austin Brown & Wood LLP, or at such other place as shall be agreed upon by the Representative and the Company, at 10:00 a.m. (Eastern time) on August 24, 2005, or such other time not later than ten business days after such date as shall be agreed upon by the Representative and the Company (such time and date of payment and delivery being herein called Closing Time).
In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates for, such Option Securities shall be made on the Date of Delivery as specified in the notice from the Representative to the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to the Representative for the accounts of the several Underwriters of certificates for the Securities to be purchased by the Underwriters. The Initial Securities and, if any, the Option Securities will be delivered to the Underwriters in book-entry form through the facilities of The Depository Trust Company.
(d) Denominations; Registration. Certificates for the Initial Securities and the Option Securities, if any, shall be in such denominations and registered in such names as the Representative may request in writing at least one full business day before the Closing Time or the Date of Delivery, as the case may be. Certificates for the Initial Securities and the Option Securities, if any, will be made available for examination and packaging by the Underwriters in The City of New York not later than 10:00 a.m. (Eastern time) on the business day prior to the Closing Time or the Date of Delivery, as the case may be.
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SECTION 3. Covenants of the Company . Each of the Company and the Operating Partnership covenants with the Underwriters as follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will notify the Underwriters immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or for additional information, and (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424(b) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During the period a Prospectus is required to be delivered under the 1933 Act, the Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b)) or any amendment, supplement or revision to either the prospectus included in the Registration Statement at the time it became effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Representative with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to the Representative and counsel for the Underwriters, without charge, one signed copy of the Registration Statement as originally filed and of each amendment thereto (including conformed copies of exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits). The copies of the Registration Statement and each amendment thereto furnished to the Representative will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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(e) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act and-the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. Without limiting the generality of the foregoing, the Company agrees, during the period when the Prospectus is required to be delivered under the 1933 Act in connection with the sale of the Securities, to file all documents required to be filed with the Commission pursuant to the 1934 Act and the 1934 Act regulations within the time periods prescribed thereby. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Representative may designate and to maintain such qualifications in effect for a period of not less than one year from the date of this Agreement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for a period of not less than one year from the date of this Agreement.
(g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under Use of Proceeds.
(i) REIT Qualification. The Company will use its best efforts to continue to meet the requirements for qualification as a REIT under the Code for each of its taxable years for so long as the board of trustees deems it in the best interests of the Companys securityholders to remain so qualified.
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(j) No Manipulation of Market for Securities. Except for the authorization of actions permitted to be taken by the Underwriters as contemplated herein or in the Prospectus, neither the Company nor the Operating Partnership has or will (i) take, directly or indirectly, any action designed to cause or to result in, or that might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities, and (ii) until the Closing Date, (A) sell, bid for or purchase the Securities or pay any person any compensation for soliciting purchases of the Securities or (B) pay or agree to pay to any person any compensation for soliciting another to purchase any other securities of the Company.
(k) Rule 462(b) Registration Statement. If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the 1933 Act.
(l) NYSE Listing. The Company will use its best efforts to list the Securities on the New York Stock Exchange.
(m) Lock-Up Agreement. For a period of 30 days after the date of the Prospectus, the Company will not directly or indirectly, (i) offer, pledge, sell, or contract to sell any Series D Shares, (ii) sell any option or contract to sell any Series D Shares, (iii) purchase any option or contract to sell any Series D Shares, (iv) grant any option, right or warrant to purchase any Series D Shares, (v) enter into any swap or other agreement that transfers, in whole or in part, the economic consequence of ownership of any Series D Shares whether any such swap or transaction is to be settled by delivery of shares or other securities, in cash or otherwise, (vi) take any of the foregoing actions with respect to any securities convertible into or exchangeable or exercisable for or repayable with Series D Shares, (vii) file with the Commission a registration statement under the 1933 Act relating to any additional Series D Shares or securities convertible into or exchangeable or exercisable for Series D Shares, or (viii) publicly disclose the intention to take any of the foregoing actions, without the prior written consent of the Representative.
(n) Information Furnished by the Underwriters. The Company acknowledges that the list of Underwriters and their respective participation in the sale of the Securities, the concession and reallowances sentences and the paragraphs relating to stabilization, syndicate covering transactions and penalty bids appearing under the caption Underwriting in the Prospectus constitute the only information furnished by or on behalf of the Underwriters as such information is referred to in Sections 1(a)(i) and 6 hereof.
SECTION 4. Payment of Expenses .
(a) Expenses. The Company and the Operating Partnership will pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement,
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including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation (exclusive of fees and disbursements of counsel for the Underwriters), printing and delivery to the Underwriters of this Agreement, (iii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Companys counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(f) hereof, (vi) the printing and delivery to the Underwriters of copies of each of the preliminary prospectus, Prospectus and any amendments or supplements thereto, (vii) the fees and expenses of any transfer agent or registrar for the Securities and (viii) the fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i) or (iii) (with respect to the first clause only), the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters Obligations . The obligations of the Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company and the Operating Partnership contained in Section 1 hereof or in certificates of any officer or authorized representative of the Company or the Operating Partnership delivered pursuant to the provisions hereof, to the performance by each of the Company and the Operating Partnership of its covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement, including any Rule 462(b) Registration Statement, shall have become effective and at Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus shall have been timely filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company.
(i) | At Closing Time, the Representative shall have received the favorable opinion, dated as of Closing Time, of DLA Piper Rudnick Gray Cary US LLP, counsel for the Company and the Operating Partnership to the effect set forth in Exhibit A hereto and to such further effect as counsel to the Underwriters may reasonably request. |
(ii) | At Closing Time, the Representative shall have received the favorable opinion, dated as of the Closing Time, of Hagan & Vidovic, L.L.P., special counsel for the Company and the Operating Partnership to the effect set forth in Exhibit B hereto and to such further effect as counsel to the Underwriters may reasonably request. |
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(c) Opinion of Counsel for the Underwriters. At Closing Time, the Underwriters shall have received the favorable opinion of Sidley Austin Brown & Wood LLP , counsel for the Underwriters, dated the Closing Date, with respect to the Securities, the Registration Statement and the Prospectus, as amended or supplemented, and such other related matters as the Underwriters may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. Such counsel may state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company, the Operating Partnership and the Subsidiaries and certificates of public officials.
(d) Officers Certificate. At Closing Time, there shall not have been, since the date hereof or of the most recent financial statements included or incorporated by reference in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the properties, earnings, business affairs or business prospects of the Company, the Operating Partnership, and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representative shall have received a certificate of the president or an executive vice president of the Company, on behalf of the Company and as general partner of the Operating Partnership, and of the chief financial or chief accounting officer of the Company, on behalf of the Company and as general partner of the Operating Partnership, dated as of Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1(a) hereof are true and correct with the same force and effect as though expressly made at and as of Closing Time, (iii) each of the Company and the Operating Partnership has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission. In addition, at Closing Time, the Representative shall have received a certificate of the chief executive officer and chief financial officer of the Company, on behalf of the Company and as general partner of the Operating Partnership, to the effect as counsel to the Underwriters may reasonably request.
(e) Accountants Comfort Letter. At the time of execution of this Agreement, the Underwriters shall have received from KPMG LLP a letter dated such date with respect to (i) the financial statements and certain financial information set forth in or incorporated by reference in the Registration Statement and the Prospectus and (ii) the financial statements and certain financial information of Westban Hotel Venture, incorporated by reference in the Registration Statement and the Prospectus, each such letter substantially in the form approved by the Underwriters before the execution of this Agreement.
(f) Bring-down Comfort Letter. At Closing Time, the Representative shall have received from KPMG LLP a letter, dated as of Closing Time, to the effect that they reaffirm statements made in their letter furnished pursuant to subsection (e) of this Section 5, except that the specified date referred to shall be a date not more than, three days prior to the Closing Time.
(g) Conditions to Purchase of Option Securities. In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option
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Securities, the representations and warranties of the Company and the Operating Partnership contained herein and the statements in any certificates furnished by the Company, the Operating Partnership and any Subsidiary shall be true and correct as of the Date of Delivery and, at the Date of Delivery, the Representative shall have received:
(i) | Officers Certificate . A certificate, dated such Date of Delivery, of the president or an executive vice president of the Company, and of the chief financial or chief accounting officer of the Company, confirming that the certificate delivered at the Closing Time pursuant to Section 5(d) hereof remains true and correct as of such Date of Delivery. |
(ii) | Opinion of Counsel for Company . The favorable opinion of DLA Piper Rudnick Gray Cary US LLP, counsel for the Company and the Operating Partnership, and Hagan & Vidovic, L.L.P., special counsel for the Company and the Operating Partnership, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery to the same effect as the opinion required by Section 5(b) hereof. |
(iii) | Opinion of Counsel for Underwriters . The favorable opinion of Sidley Austin Brown & Wood LLP , counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(c) hereof. |
(iv) | Bring-down Comfort Letter . Letter from KPMG LLP dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 5(f) hereof, except that the specified date in each letter furnished pursuant to this paragraph shall be a date not more than three days prior to such Date of Delivery. |
(h) Additional Documents. At Closing Time and at the Date of Delivery counsel for the Underwriters shall have been furnished with such documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(i) Termination of Agreement. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement, or in the case of any condition to the purchase of Option Securities on the Date of Delivery that is after the Closing Time, the obligations of the Underwriters to purchase the relevant Option Securities, may be terminated by the Underwriters by notice to the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8 and 12 shall survive any such termination and remain in full force and effect.
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SECTION 6. Indemnification .
(a) Indemnification of Underwriter. Each of the Company and the Operating Partnership agrees, jointly and severally, to indemnify and hold harmless each Underwriter and each person, if any, who controls each Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and any director, officer, employee or affiliate thereof as follows:
(i) | against any and all loss, liability, claim, damage and expense whatsoever, as incurred, jointly or severally, by any Underwriter or any such person, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included in any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing indemnity agreement with respect to any preliminary prospectus shall not inure to the benefit of any Underwriter if it failed to deliver a Prospectus (as then amended or supplemented, provided by the Company to the Representative in accordance with Section 3(d)) to the person asserting any losses, claims, damages and liabilities and judgments caused by any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, if such material misstatement or omission or alleged material misstatement or omission was cured, as determined by a court of competent jurisdiction in a decision not subject to further appeal, in such Prospectus and such Prospectus was required by law to be delivered at or prior to the written confirmation of sale to such person. |
(ii) | against any and all loss, liability, claim, damage and expense whatsoever, as incurred, jointly or severally by any Underwriter or any such person, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided any such settlement is effected with the written consent of the Company; and |
(iii) | against any and all expense whatsoever, as incurred, jointly or severally by any Underwriter or any such person (including the fees and disbursements of counsel chosen by such Underwriter), reasonably incurred in |
22
investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided , however , that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representative expressly for use in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Trustees and Officers. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company and the Operating Partnership, each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and any officer, director, trustee, employee or affiliate thereof, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representative expressly for use in the Registration Statement (or any amendment thereto) or such preliminary prospectus or the Prospectus (or any amendment or supplement thereto). The Company and the Operating Partnership acknowledge that such information consists only of the information described in Section 3(n) herein.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability that it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Underwriters, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body,
23
commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless (x) such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party and (y) the indemnifying party confirms in writing its indemnification obligations hereunder with respect to such settlement, compromise or judgment.
SECTION 7. Contribution . If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Operating Partnership on the one hand and one or more of the Underwriters on the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Operating Partnership on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Operating Partnership on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company and the total underwriting discount received by the Underwriters, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company and the Operating Partnership on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Operating Partnership or by any of the Underwriters and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
24
Notwithstanding the provisions of this Section 7, no Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) shall be required to contribute any amount in excess of the amount of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations in this Section 7 to contribute are several in proportion to their respective underwriting obligations and not joint.
For purposes of this Section 7, each director, officer, employee or affiliate of the Underwriters and each person, if any, who controls the Underwriters within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Underwriters, and each trustee of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company, subject in each case to the preceding two paragraphs. For purposes of this Section 7, the Company and the Operating Partnership shall be deemed one party, jointly and severally liable for any obligations hereunder.
SECTION 8. Representations, Warranties and Agreements to Survive . All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or the Operating Partnership submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Underwriters or any controlling person, or by or on behalf of the Company or the Operating Partnership, and shall survive delivery of the Securities to the Underwriters and shall survive the termination of this Agreement.
SECTION 9. Termination of Agreement .
(a) Termination; General. The Underwriters may, without liability, terminate this Agreement, by notice to the Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the properties, earnings, business affairs or business prospects of the Company, the Operating Partnership and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States, any outbreak of hostilities or escalation thereof, any acts of terrorism involving the United States or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the sole judgment of the Representative, impracticable to market the Securities or inadvisable to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or the New York Stock Exchange,
25
Inc., or if trading generally on the American Stock Exchange or the New York Stock Exchange, Inc. or in the Nasdaq National Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, or (iv) if a banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities . If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8 and 12 shall survive such termination and remain in full force and effect.
SECTION 10. Notices . All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication and confirmed to the receiving party. Notices to the Underwriters shall be directed to the Representative at c/o Raymond James & Associates, Inc., 880 Carillon Parkway, St. Petersburg, Florida, 33716, attention of Vivek Seth; notices to the Company and the Operating Partnership shall be directed to it at 3 Bethesda Metro Center, Suites 1200, Bethesda, MD 20814, attention of Hans S. Weger, Executive Vice President.
SECTION 11. Parties . This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company and the Operating Partnership and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Company and the Operating Partnership and their respective successors and the controlling persons and officers, trustees and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers, trustees and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from the Underwriters shall be deemed to be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME . THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 13. Effect of Headings . The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
26
SECTION 14. Representation of Underwriters . The Representative will act for the several Underwriters in connection with this offering, and any action under this Agreement taken by the Representative will be binding upon all the Underwriters.
[SIGNATURE PAGE FOLLOWS]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with its counterparts, will become a binding agreement among the Underwriters, the Company and the Operating Partnership in accordance with its terms.
Very truly yours, | ||
LASALLE HOTEL PROPERTIES | ||
By: |
/s/ Hans S. Weger |
|
Name: | Hans Weger | |
Title: | Chief Financial Officer | |
LASALLE HOTEL OPERATING PARTNERSHIP, L.P. | ||
By: | LaSalle Hotel Properties, its general partner | |
By: |
/s/ Hans S. Weger |
|
Name: | Hans Weger | |
Title: | Chief Financial Officer |
CONFIRMED AND ACCEPTED, | ||
as of the date first above written: | ||
RAYMOND JAMES & ASSOCIATES, INC. | ||
By: |
/s/ Brad Butcher |
|
Authorized Signatory |
Acting on behalf of itself and as the Representative of the several Underwriters.
Schedule I
Underwriters
Underwriter |
Number of Initial Securities |
|
Raymond James & Associates, Inc. |
2,100,000 | |
A.G. Edwards & Sons, Inc. |
570,000 | |
KeyBanc Capital Markets, a division of McDonald Investments, Inc. |
270,000 | |
Harris Nesbitt Corp. |
60,000 | |
|
||
Total |
3,000,000 | |
|
EXHIBIT A
FORM OF OPINION OF COMPANYS COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)(i)
(i) The Company is a real estate investment trust duly formed and validly existing and in good standing under the laws of the State of Maryland, with full trust power and authority to own and lease its properties and to conduct its business as described in the Prospectus.
(ii) The issued and outstanding shares of beneficial interest in the Company have been duly authorized and validly issued by the Company and are fully paid and non-assessable, and none of such shares was issued in violation of preemptive or other similar rights to purchase or subscribe for shares of beneficial interest of the Company arising under the Maryland REIT Law, as defined in Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland, the Declaration of Trust or the Bylaws or any contract to which the Company is a party of which we have knowledge.
(iii) All of the outstanding Units, Series A Units and Series B Units of the Operating Partnership have been duly authorized for issuance by the Operating Partnership to holders thereof. To our knowledge, except as described in the Prospectus, no Units, Series A Units or Series B Units are reserved for issuance for any purpose, there are no outstanding securities convertible into or exchangeable for any Units, Series A Units or Series B Units and there are no preemptive or other similar rights to purchase or subscribe for Units, Series A Units, Series B Units or Series D Units or any other securities of the Operating Partnership arising under the Delaware Revised Uniform Limited Partnership Act (the DRULPA) or under the Operating Partnership Agreement or any contracts to which the Operating Partnership is a party of which we have knowledge, other than as described in the Prospectus.
(iv) The Securities to be issued and sold to the Underwriters by the Company pursuant to the Underwriting Agreement have been duly authorized by the Company and, when issued and delivered by the Company to the Underwriters pursuant to the Underwriting Agreement against payment of the consideration set forth in the Underwriting Agreement, will be validly issued, fully paid and non-assessable. The Securities will not be subject to preemptive or other similar rights to purchase or subscribe for shares of beneficial interest of the Company arising under the Maryland REIT Law, the Declaration of Trust or Bylaws or any contract to which the Company is a party of which we have knowledge.
(v) The Operating Partnership has been duly formed and is validly existing as a limited partnership and is in good standing under the laws of the State of Delaware. The Operating Partnership has the partnership power and partnership authority under the Operating Partnership Agreement and the DRULPA to own, lease and operate its properties and to conduct its business as described in the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Exhibit A-1 hereto, is duly qualified and registered as a foreign partnership to transact business and is in good standing in such states. Based solely on a review of the books and records of the Operating Partnership provided to us, all the outstanding partnership interests of the Operating Partnership have been duly authorized for issuance by the Operating Partnership to the holders of such interests.
Exhibit A-1
(vi) LHO New Orleans LM, LP has been duly formed and is validly existing as a limited partnership and is in good standing under the laws of the State of Delaware. LHO New Orleans LM, LP has the partnership power and partnership authority under its partnership agreement and the DRULPA to own, lease and operate its properties and to conduct its business as described in the Prospectus and, based solely upon the certificate of good standing received from the State Corporation Commission of Virginia, is duly qualified and registered as a foreign partnership to transact business and is in good standing in the State of Virginia. Based solely on a review of the books and records of LHO New Orleans LM, LP provided to us, all the outstanding partnership interests of LHO New Orleans LM, LP have been duly authorized for issuance by LHO New Orleans LM, LP to the holders of such interests and, assuming that the holders of the interests, as limited partners of LHO New Orleans LM, LP, do not participate in the control of the business of LHO New Orleans LM, LP, the partnership interests will represent valid and, subject to the qualifications set forth herein, fully paid and non-assessable limited partnership interests in LHO New Orleans LM, LP, as to which the holders of the partnership interests, in their capacity as limited partners of LHO New Orleans LM, LP, will have no liability in excess of their obligations to make contributions to LHO New Orleans LM, LP, their obligations to make other payments provided for in the limited partnership agreement and their share of the LHO New Orleans LM, LPs assets and undistributed profits (subject to the obligation of a limited partner of LHO New Orleans LM, LP to repay any funds wrongfully distributed to it).
(vii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership.
(viii) To our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(ix) The Registration Statement, the Prospectus (excluding the documents incorporated by reference in the Prospectus), and each amendment or supplement to the Registration Statement and Prospectus (excluding the documents incorporated by reference in any such amendment or supplement to the Prospectus), as of their respective effective or issue dates (other than the financial statements (including notes), supporting schedules and other financial information included or incorporated by reference therein or omitted therefrom and for statistical information derived from such financial statements (including notes), supporting schedules or other financial information, as to which we express no opinion), complied as to form, in all material respects, with the requirements of the 1933 Act and the 1933 Act Regulations.
(x) The documents incorporated by reference in the Prospectus (other than the financial statements (including notes), supporting schedules and other financial information included or incorporated by reference therein or omitted therefrom and for statistical information derived from such financial statements (including notes), supporting schedules or other financial information, as to which we express no opinion), when they became effective or were filed with the SEC, as the case may be, complied as to form, in all material respects, with the requirements of the Securities Exchange Act of 1934, as amended and the rules and regulations of the SEC thereunder.
Exhibit A-2
(xi) To our knowledge, except as described or incorporated by reference in the Prospectus, there are no pending or threatened actions, suits or proceedings, against the Company, the Operating Partnership or any Subsidiary, or any of their respective properties or assets that, if determined adversely to any such entity, would individually or in the aggregate have a Material Adverse Effect or would materially and adversely affect the ability of the Company or the Operating Partnership to perform their obligations under the Underwriting Agreement or that are of a character required to be described in the Prospectus which are not adequately disclosed.
(xii) The information in the Prospectus under Description of Series D Preferred Shares, Description of Common Shares, Description of Preferred Shares, and Federal Income Tax Considerations to the extent that it constitutes matters of law, summaries of legal matters, the Companys Declaration of Trust and Bylaws or legal proceedings or legal conclusions, has been reviewed by us and is correct in all material respects.
(xiii) Commencing with its taxable year ended December 31, 1998, the Company was organized and has been operated in conformity with the requirements for qualification as a real estate investment trust (REIT) under the Internal Revenue Code of 1986, as amended, (the Code) and the present and proposed method of operation of the Company and the Operating Partnership, as described in the Prospectus and as represented by the Company and the Operating Partnership, will permit the Company to continue to so qualify.
(xiv) The descriptions in the Registration Statement of the contracts and other documents filed as exhibits to the Companys Annual Report on Form 10-K for the year ended December 31, 2004 (the Annual Report), to which the Company, the Operating Partnership or any Subsidiary is a party are correct in all material respects. To our knowledge, there are no franchises, contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto.
(xv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any federal administrative agency or other federal governmental body of the United States, any state administrative agency or other state governmental body of the State of Maryland or the State of Delaware, or U.S. federal court or governmental authority or agency is necessary or required for the performance by the Company or the Operating Partnership of its obligations under the Underwriting Agreement or in connection with the transactions contemplated under the Underwriting Agreement, other than under the 1933 Act or the 1933 Act Regulations, which have been obtained, or as may be required under the bylaws and rules of the NASD, Inc., state securities or blue sky laws or real estate syndication laws.
(xvi) The execution, delivery and performance of the Underwriting Agreement by the Company and the Operating Partnership and the consummation of the transactions contemplated in the Underwriting Agreement and in the Prospectus (including the issuance and sale of the
Exhibit A-3
Securities) and compliance by the Company and the Operating Partnership with their respective obligations under the Underwriting Agreement do not and, as of the date hereof, will not, (i) whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of or default or Repayment Event under, or result in the creation or imposition of any material lien, charge or encumbrance upon any material property or assets of the Company or the Operating Partnership pursuant to any contract listed as an exhibit to the Annual Report to which the Company, the Operating Partnership or any Subsidiary is a party or by which any of them may be bound, or to which any of the property or assets of the Company, the Operating Partnership or any Subsidiary is subject, (ii) result in any violation of the provisions of the Governing Instruments of the Company or the Operating Partnership, or (iii) result in any violation of the Maryland REIT Law, DRULPA, or U.S. federal laws, statute, rule, regulations, or any judgment, order, writ or decree, known to us, of any Maryland, Delaware or U.S. federal government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Operating Partnership or any Subsidiary or any of their assets, properties or operations.
(xvii) Neither the Company nor the Operating Partnership is an investment company within the meaning of the Investment Company Act of 1940, as amended.
(xviii) The form of certificate used to evidence the Series D Shares and incorporated by reference as an exhibit to the Registration Statement complies, in all material respects, with the requirements of the Maryland REIT Law, the Declaration of Trust and the Bylaws and the New York Stock Exchange.
(xix) The articles supplementary relating to the Series D Shares have been filed with the Maryland State Department of Assessment and Taxation.
No fact has come to our attention that has caused us to believe that the Registration Statement (except for financial statements (including notes) and supporting schedules and other financial information included or incorporated by reference therein or omitted therefrom and for statistical information derived from such financial statements (including notes), supporting schedules and other financial information, as to which we need make no statement), at the time such Registration Statement became effective or as of the date of this Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (except for financial statements (including notes) and supporting schedules and other financial information included or incorporated by reference therein or omitted therefrom and for statistical information derived from such financial statements (including notes), supporting schedules and other financial information, as to which we need make no statement), at the time the Prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Exhibit A-4
EXHIBIT A-1
Name |
Foreign Qualifications |
|
1. LaSalle Hotel Operating Partnership, L.P. | Minnesota, California, Texas, New Jersey, New York | |
2. LHO New Orleans LM, LP | Virginia |
Exhibit A-1-1
EXHIBIT B
FORM OF OPINION OF COMPANYS COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)(ii)
(i) Each of the Subsidiaries identified on Exhibit B-1 (Significant Subsidiaries) has been duly organized and is validly existing as a limited partnership, corporation or limited liability company, as applicable, in good standing under the laws of its jurisdiction of organization or formation or incorporation and has the requisite power and authority to own, lease and operate its properties and to conduct the business in which it is engaged as described in the Prospectus and, based solely upon the certificates of good standing or similar certificates received from the Secretary of State or similar official of each of the respective states listed on Exhibit B-1 with respect to the applicable entity, is duly qualified or registered as a foreign limited partnership, corporation or limited liability company, as applicable, to transact business and is in good standing in the respective states listed on Exhibit B-1. Based solely on a review of the books and records of the Subsidiaries provided to such counsel, all the outstanding shares of capital stock, partnership interests, limited liability company interests or other equivalent equity interests, as applicable, of the Significant Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, and except as described in the Prospectus, all outstanding shares of capital stock, partnership interests, limited liability company interests or other equivalent equity interests of the Significant Subsidiaries are wholly-owned by the Company either directly or indirectly.
Exhibit B-1
EXHIBIT B-1
Name (state of formation) |
Foreign Qualifications |
|
LaSalle Hotel Lessee, Inc. |
New York, New Jersey |
|
LHO Financing Partnership I, L.P. (DE) |
Minnesota, Texas |
|
LHO Hollywood LM, L.P. (DE) | California | |
LHO Bloomington One Lessee, LLC (DE) | Minnesota | |
LHO Leesburg One Lessee, Inc. (DE) | Virginia | |
LHO Viking Hotel L.L.C. (DE) | Rhode Island | |
Chicago 540 Hotel, L.L.C. (DE) | Illinois | |
LHO Washington Hotel One, L.L.C.(DE) | District of Columbia | |
LHO Washington Hotel Two, L.L.C. (DE) | District of Columbia | |
LHO Washington Hotel Four, L.L.C.(DE) | District of Columbia | |
LaSalle Washington Two Lessee, Inc. (DE) | District of Columbia | |
LaSalle Washington Four Lessee, Inc. (DE) | District of Columbia | |
LHO Harborside Hotel LLC (DE) | Massachusetts | |
LHO Washington Hotel Three LLC (DE) | District of Columbia | |
LHO Indianapolis One Lessee, LLC (DE) | Indiana | |
LHO Indianapolis Hotel One, LLC (DE) | Indiana | |
I&G Capitol LLC (DE) | District of Columbia | |
LHO Washington Hotel Six LLC (DE) | District of Columbia | |
LHO Mission Bay Hotel, LP (CA) | (no foreign qualification) | |
LHO Alexandria One, LLC | Virginia | |
LHO San Diego Hotel One, LP | California |
Exhibit B-1-1
Exhibit 3.1
LASALLE HOTEL PROPERTIES
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND PREFERENCES OF
7.5% SERIES D CUMULATIVE REDEEMABLE PREFERRED SHARES,
$.01 PAR VALUE PER SHARE
LASALLE HOTEL PROPERTIES, a Maryland real estate investment trust (the Trust), having its principal office in Bethesda, Maryland, hereby certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: Pursuant to authority expressly vested in the Trustees by Article VI Section 6.3 of the Articles of Amendment and Restatement of Declaration of Trust, dated April 24, 1998, as amended (the Declaration of Trust), the Trustees have duly classified and designated 3,300,000 Preferred Shares of the Trust as 7.5% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, $.01 par value per share, of the Trust (Series D Preferred Shares).
SECOND: The preferences, conversion and other rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption of the Series D Preferred Shares are as follows,
7.5% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, $.01 par value per share
1. Designation and Number . A series of Preferred Shares, designated the 7.5% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, $.01 par value per share, is hereby established. The number of authorized Series D Preferred Shares shall be 3,300,000.
2. Relative Seniority . The Series D Preferred Shares will, with respect to distribution rights and rights upon liquidation, dissolution or winding up of the Trust, rank (a) senior to all classes or series of Common Shares (as defined in the Declaration of Trust) and to all equity securities the terms of which provide that such equity securities shall rank junior to such Series D Preferred Shares; (b) on a parity with all equity securities issued by the Trust, other than those equity securities referred to in clauses (a) and (c); and (c) junior to all equity securities issued by the Trust which rank senior to the Series D Preferred Shares in accordance with Section 6(d). The term equity securities shall not include convertible debt securities.
3. Distributions .
(a) Holders of Series D Preferred Shares shall be entitled to receive, when and as authorized by the Trustees, out of funds legally available for the payment of distributions, cumulative preferential cash distributions at the rate of seven and one-half percent (7.5%) per annum of the Twenty-five Dollars ($25.00) per share liquidation preference of the Series D Preferred Shares (equivalent to a fixed annual amount of $1.875 per share). Such distributions shall accumulate on a daily basis and be cumulative from (but excluding) the original date of issuance and be payable quarterly in equal amounts in arrears on or about the fifteenth day of each January, April, July and October of each year, beginning on
October 17, 2005 (each such day being hereinafter called a Distribution Payment Date); provided that if any Distribution Payment Date is not a Business Day (as hereinafter defined), then the distribution which would otherwise have been payable on such Distribution Payment Date may be paid on the next succeeding Business Day with the same force and effect as if paid on such Distribution Payment Date, and no interest or additional distributions or other sums shall accrue on the amount so payable from such Distribution Payment Date to such next succeeding Business Day. Any distribution payable on the Series D Preferred Shares for any partial distribution period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months. Distributions shall be payable to holders of record as they appear in the share records of the Trust 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 such other date designated by the Trustees for the payment of distributions that is not more than 90 nor less than 10 days prior to such Distribution Payment Date (each, a Distribution Record Date).
(b) No distribution on the Series D Preferred Shares shall be authorized by the Trustees or paid or set apart for payment by the Trust at such time as the terms and provisions of any agreement of the Trust, including any agreement relating to its indebtedness, prohibits such declaration, payment or setting apart for payment or provides that such declaration, payment or setting apart for payment would constitute a breach thereof, or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law.
(c) Notwithstanding anything to the contrary contained herein, distributions on the Series D Preferred Shares shall accumulate whether or not the restrictions referred to in clause (b) exist, whether or not the Trust has earnings, whether or not there are funds legally available for the payment of such distributions and whether or not such distributions are authorized. Accumulated but unpaid distributions on the Series D Preferred Shares will accumulate as of the Distribution Payment Date on which they first become payable or on the date of redemption as the case may be. Accumulated and unpaid distributions will not bear interest.
(d) If any Series D Preferred Shares are outstanding, no distributions will be authorized or paid or set apart for payment on any equity securities of the Trust of any other class or series ranking, as to distributions, on a parity with or junior to the Series D Preferred Shares unless full cumulative distributions have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof set apart for such payment on the Series D Preferred Shares for all past distribution periods and the then current distribution period. When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the Series D Preferred Shares and all other equity securities ranking on a parity, as to distributions, with the Series D Preferred Shares, all distributions authorized, paid or set apart for payment upon the Series D Preferred Shares and all other equity securities ranking on a parity, as to distributions, with the Series D Preferred Shares shall be authorized and paid pro rata or authorized and set apart for payment pro rata so that the amount of distributions authorized per Series D Preferred Share and each such other equity security shall in all cases bear to each other the same ratio that accumulated distributions per Series D Preferred Share and other equity security (which shall not include any accumulation in respect of unpaid distributions for prior distribution periods if such equity securities 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 D Preferred Shares which may be in arrears.
(e) Except as provided in clause (d), unless full cumulative distributions on the Series D Preferred Shares have been or contemporaneously are authorized and paid or authorized and a sum
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sufficient for the payment thereof is set apart for payment for all past distribution periods and the then current distribution period, no distributions (other than in Common Shares or other equity securities of the Trust ranking junior to the Series D Preferred Shares as to distributions and upon liquidation) shall be authorized or paid or set apart for payment nor shall any other distribution be authorized or made upon the Common Shares or any other equity securities of the Trust ranking junior to or on a parity with the Series D Preferred Shares as to distributions or upon liquidation, nor shall any Common Shares or any other equity securities of the Trust ranking junior to or on a parity with the Series D Preferred Shares as to distributions or upon liquidation be redeemed, purchased or otherwise acquired directly or indirectly for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such equity securities) by the Trust (except by conversion into or exchange for other equity securities of the Trust ranking junior to the Series D Preferred Shares as to distributions and upon liquidation, by redemption, purchase or acquisition of equity securities under incentive, benefit or share purchase plans of the Trust for officers, Trustees or employees or others performing or providing similar services, or by other redemption, purchase or acquisition of such equity securities for the purpose of preserving the Trusts status as a REIT).
(f) Holders of Series D Preferred Shares shall not be entitled to any distribution, whether payable in cash, property or shares, in excess of full cumulative distributions on the Series D Preferred Shares as described above. Any distribution payment made on the Series D Preferred Shares shall first be credited against the earliest accumulated but unpaid distribution due with respect to such shares which remains payable.
(g) In determining whether a distribution by dividend, redemption or other acquisition of the Trusts equity securities is permitted under Maryland law, no effect shall be given to amounts that would be needed, if the Trust were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of shareholders whose preferential rights on dissolution are superior to those receiving the distribution.
(h) Business Day shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York, New York are authorized or required by law, regulation or executive order to close.
4. Liquidation Rights .
(a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Trust (referred to herein sometimes as a liquidation), the holders of Series D Preferred Shares then outstanding shall be entitled to receive, out of the assets of the Trust legally available for distribution to shareholders (after payment or provision for payment of all debts and other liabilities of the Trust), a liquidation preference in cash of Twenty-five Dollars ($25.00) per Series D Preferred Share, plus an amount equal to all accumulated and unpaid distributions through and including the date of payment, before any distribution of assets is made to holders of Common Shares or any other equity securities of the Trust that rank junior to the Series D Preferred Shares as to liquidation rights.
(b) If, upon any such voluntary or involuntary liquidation, dissolution or winding up of the Trust, the assets of the Trust are insufficient to make full payment to holders of Series D Preferred Shares and to the corresponding amounts payable on all shares of other classes or series of equity securities of the Trust ranking on a parity with the Series D Preferred Shares as to liquidation rights, then the holders of the Series D Preferred Shares and all other such classes or series of equity securities shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled.
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(c) Written notice of any such liquidation, dissolution or winding up of the Trust, 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 D Preferred Shares at the respective address of such holders as the same shall appear on the share transfer records of the Trust.
(d) After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series D Preferred Shares will have no right or claim to any of the remaining assets of the Trust.
(e) None of a consolidation or merger of the Trust with or into another entity, a merger of another entity with or into the Trust, a statutory share exchange by the Trust or a sale, lease, transfer or conveyance of all or substantially all of the Trusts property or business shall be considered a liquidation, dissolution or winding up of the Trust.
5. Redemption
(a) The Series D Preferred Shares are not redeemable prior to August 24, 2010. To ensure that the Trust remains qualified as a real estate investment trust (REIT) for federal income tax purposes, however, the Series D Preferred Shares shall be subject to the provisions of Article VII of the Declaration of Trust pursuant to which Series D Preferred Shares owned by a shareholder in excess of the Ownership Limit (as defined in Article VII of the Declaration of Trust) shall automatically be transferred to a Charitable Trust (as defined in Article VII of the Declaration of Trust) and the Trust shall have the right to purchase such shares, as provided in Article VII of the Declaration of Trust. On and after August 24, 2010, the Trust, at its option, upon giving notice as provided below, may redeem the Series D Preferred Shares, in whole or from time to time in part, for cash, at a redemption price of Twenty-five Dollars ($25.00) per share, plus all accumulated and unpaid distributions on such Series D Preferred Shares through the date of such redemption (the Redemption Right).
(b) If fewer than all of the outstanding Series D Preferred Shares are to be redeemed pursuant to the Redemption Right, the shares to be redeemed shall be selected pro rata (as nearly as practicable without creating fractional shares) or by lot or in such other equitable method prescribed by the Trustees. If such redemption is to be by lot and, as a result of such redemption, any holder of Series D Preferred Shares would become a holder of a number of Series D Preferred Shares in excess of the Ownership Limit because such holders Series D Preferred Shares were not redeemed, or were only redeemed in part then, except as otherwise provided in the Declaration of Trust, the Trust will redeem the requisite number of Series D Preferred Shares of such holder such that no holder will hold in excess of the Ownership Limit subsequent to such redemption.
(c) Notwithstanding anything to the contrary contained herein, unless full cumulative distributions on all Series D Preferred Shares shall have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof set apart for payment for all past distribution periods and the then current distribution period, no Series D Preferred Shares shall be redeemed unless all outstanding Series D Preferred Shares are simultaneously redeemed; provided, however, that the foregoing shall not prevent the purchase by the Trust of Series D Preferred Shares pursuant to Article VII of the Declaration of Trust or otherwise in order to ensure that the Trust remains
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qualified as a REIT for federal income tax purposes or the purchase or acquisition of Series D Preferred Shares pursuant to a purchase or exchange offer made on the same terms to holders of all Series D Preferred Shares. In addition, unless full cumulative distributions on all Series D Preferred Shares have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof set apart for payment for all past distributions periods and the then current distribution period, the Trust shall not purchase or otherwise acquire directly or indirectly for any consideration, nor shall any monies be paid to or be made available for a sinking fund for the redemption of, any Series D Preferred Shares (except by conversion into or exchange for equity securities of the Trust ranking junior to the Series D Preferred Shares as to distributions and upon liquidation; provided, however , that the foregoing shall not prevent any purchase or acquisition of Series D Preferred Shares for the purpose of preserving the Trusts status as a REIT or pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Series D Preferred Shares.)
(d) Immediately prior to any redemption of Series D Preferred Shares, the Trust 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 D Preferred Shares at the close of business on such Distribution Record Date shall be entitled to the distribution payable on such shares on the corresponding Distribution Payment Date (including any accrued and unpaid distributions for prior periods) notwithstanding the redemption of such shares before such Distribution Payment Date. Except as provided above, the Trust will make no payment or allowance for unpaid distributions, whether or not in arrears, on Series D Preferred Shares for which a notice of redemption has been given.
(e) The following provisions set forth the procedures for redemption:
(i) Notice of redemption will be given by publication in a newspaper of general circulation in the City of New York, such publication to be made once a week for two successive weeks commencing not less than 30 nor more than 60 days prior to the redemption date. A similar notice will be mailed by the Trust, postage prepaid, no less than 30 nor more than 60 days prior to the redemption date, addressed to the respective holders of record of the Series D Preferred Shares to be redeemed at their respective addresses as they appear on the share transfer records of the Trust. No failure to give such notice or any defect thereto or in the mailing thereof shall affect the validity of the proceedings for the redemption of any Series D Preferred Shares except as to the holder to whom notice was defective or not given.
(ii) In addition to any information required by law or by the applicable rules of any exchange upon which the Series D Preferred Shares may be listed or admitted to trading, such notice shall state: (A) the redemption date; (B) the redemption price; (C) the number of Series D Preferred Shares to be redeemed; (D) the place or places where the Series D Preferred Shares are to be surrendered for payment of the redemption price; and (E) that distributions on the Series D Preferred Shares to be redeemed will cease to accumulate on such redemption date. If less than all of the Series D Preferred Shares held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of Series D Preferred Shares held by such holder to be redeemed.
(iii) On or after the redemption date, each holder of Series D Preferred Shares to be redeemed shall present and surrender the certificates representing his Series D Preferred Shares to the Trust at the place designated in the notice of redemption and thereupon the redemption price of such shares (including all accumulated and unpaid distributions up to the redemption date) shall be paid to or on the order of the person whose name appears on such certificate evidencing Series D Preferred Shares as the owner thereof and each surrendered certificate shall be canceled. If fewer than all the shares evidenced by any such certificate evidencing Series D Preferred Shares are to be redeemed, a new certificate shall be issued evidencing the unredeemed shares.
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(iv) From and after the redemption date (unless the Trust defaults in payment of the redemption price), all distributions on the Series D Preferred Shares designated for redemption in such notice shall cease to accumulate and all rights of the holders thereof, except the right to receive the redemption price thereof (including all accumulated and unpaid distributions up to the redemption date), shall cease and terminate and such shares shall not thereafter be transferred (except with the consent of the Trust) on the Trusts share transfer records, and such shares shall not be deemed to be outstanding for any purpose whatsoever. At its election, the Trust, prior to a redemption date, may irrevocably deposit the redemption price (including accumulated and unpaid distributions to the redemption date) of the Series D Preferred Shares so called for redemption in trust for the holders thereof with a bank or trust company, in which case the redemption notice to holders of the Series D Preferred Shares to be redeemed shall (A) state the date of such deposit, (B) specify the office of such bank or trust company as the place of payment of the redemption price and (C) require such holders to surrender the certificates evidencing such shares at such place on or about the date fixed in such redemption notice (which may not be later than the redemption date) against payment of the redemption price (including all accumulated and unpaid distributions to the redemption date). Any monies so deposited which remain unclaimed by the holders of the Series D Preferred Shares at the end of two years after the redemption date shall be returned by such bank or trust company to the Trust.
(f) Any Series D Preferred Shares that shall at any time have been redeemed shall, after such redemption, have the status of authorized but unissued Preferred Shares, without designation as to series until such shares are once more designated as part of a particular series by the Trustees.
6. Voting Rights .
(a) Holders of the Series D Preferred Shares will not have any voting rights, except as set forth below or as otherwise from time to time required by law. In any matter in which the holders of Series D Preferred Shares are entitled to vote, each such holder shall have the right to one vote for each Series D Preferred Share held by such holder. If the holders of the Series D Preferred Shares and the holders of another series of preferred shares are entitled to vote together as a single class on any matter, the holders of the Series D Preferred Shares and the holders of such other preferred shares shall each have one vote for each $25.00 of liquidation preference.
(b) Whenever distributions on any Series D Preferred Shares shall be in arrears for six or more quarterly periods, whether or not consecutive (a Preferred Distribution Default), the holders of Series D Preferred Shares (voting as a single class with all other equity securities upon which like voting rights have been conferred and are exercisable (Parity Preferred Shares)) will be entitled to vote for the election of a total of two additional trustees of the Trust (each, a Preferred Share Trustee) at a special meeting called by the holders of at least 10% of the outstanding Series D Preferred Shares or the holders of at least 10% of any other series of Parity Preferred Shares so in arrears (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of shareholders) or, if the request for a special meeting is received by the Trust less than 90 days before the date fixed for the next annual or special meeting of shareholders, at the next annual meeting of shareholders, and at each subsequent annual meeting until all distributions accumulated on the Series D Preferred Shares for the past distribution periods and the then current distribution period shall have been fully paid or authorized and a sum sufficient for the payment thereof set apart for payment in full.
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(c) If and when all accumulated distributions and the distribution for the then current distribution period on the Series D Preferred Shares shall have been paid in full or authorized and set aside for payment in full, the holders of Series D Preferred Shares shall be divested of the voting rights set forth in clause (b) above (subject to revesting in the event of each and every Preferred Distribution Default) and, if all accumulated distributions and the distribution for the current distribution period have been paid in full or authorized by the Trustees and set aside for payment in full on all other series of Parity Preferred Shares upon which like voting rights have been conferred and are exercisable, the term of office of each Preferred Share Trustee so elected shall terminate. Any Preferred Share Trustee may be removed at any time with or without cause by the vote of, and shall not be removed otherwise than by the vote of, the holders of a majority of the outstanding Series D Preferred Shares when they have the voting rights set forth in clause (b) above and all other series of Parity Preferred Shares (voting as a single class). So long as a Preferred Distribution Default shall continue, any vacancy in the office of a Preferred Share Trustee may be filled by written consent of the Preferred Share Trustee remaining in office, or if none remains in office, by a vote of the holders of a majority of the outstanding Series D Preferred Shares when they have the voting rights set forth in clause (b) above and all other series of Parity Preferred Shares (voting as a single class). The Preferred Share Trustees shall each be entitled to one vote per trustee on any matter.
(d) So long as any Series D Preferred Shares remain outstanding, the Trust shall not, without the affirmative vote of the holders of at least two-thirds of the Series D Preferred Shares outstanding at the time, given in person or by proxy, either in writing or at a meeting (such series voting separately as a class), (i) authorize or create, or increase the authorized or issued amount of, any class or series of equity securities ranking senior to the Series D Preferred Shares with respect to payment of distributions or the distribution of assets upon voluntary or involuntary liquidation, dissolution or winding up of the Trust, or reclassify any authorized equity securities of the Trust into any such equity securities, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such equity securities; or (ii) amend, alter or repeal the provisions of the Declaration of Trust (including these Articles Supplementary), whether by merger or consolidation (in either case, an Event) or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of the Series D Preferred Shares or the holders thereof; provided, however , that with respect to the occurrence of any Event set forth in (ii) above, so long as Series D Preferred Shares remain outstanding with the terms thereof materially unchanged, taking into account that upon the occurrence of an Event, the Trust may not be the surviving entity and such surviving entity may thereafter be the issuer of the Series D Preferred Shares, the occurrence of any such Event shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers of the Series D Preferred Shares or the holders thereof; and provided further that (x) any increase in the amount of the authorized Preferred Shares or the creation or issuance of any other class or series of equity securities, or (y) any increase in the amount of authorized Series D Preferred Shares or any other class or series of equity securities, in the case of each of (x) or (y) above ranking on a parity with or junior to the Series D Preferred Shares with respect to payment of distributions and the distribution of assets upon voluntary or involuntary liquidation, dissolution or winding up of the Trust, shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers.
(e) The foregoing voting provisions shall not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding Series D Preferred Shares shall have been redeemed or called for redemption upon proper notice and sufficient funds shall have been deposited in trust to effect such redemption.
7. Conversion . The Series D Preferred Shares are not convertible into or exchangeable for any other property or securities of the Trust at the option of holders thereof.
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8. Application of Article VII . The Series D Preferred Shares are subject to the provisions of Article VII of the Declaration of Trust.
THIRD: The Series D Preferred Shares have been classified and designated by the Trustees under the authority contained in the Declaration of Trust.
FOURTH: These Articles Supplementary have been approved by the Trustees in the manner and by the vote required by law.
FIFTH: These Articles Supplementary shall be effective at the time the State Department of Assessments and Taxation of Maryland accepts these Articles Supplementary for record.
SIXTH: The undersigned President of the Trust acknowledges these Articles Supplementary to be the act of the Trust and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
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IN WITNESS WHEREOF, LASALLE HOTEL PROPERTIES has caused these Articles Supplementary to be signed in its name and on its behalf by its President and witnessed by its Secretary on August 22, 2005.
WITNESS: | LASALLE HOTEL PROPERTIES | |||
/s/ Hans S. Weger |
By: |
/s/ Jon E. Bortz |
||
Hans S. Weger Secretary |
Jon E. Bortz President |
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Exhibit 3.2
Fourth Amendment to the
Amended and Restated Agreement
of Limited Partnership
of
LaSalle Hotel Operating Partnership, L.P.
This Amendment is made as of August 22, 2005 by and among LaSalle Hotel Properties, a Maryland real estate investment trust, as the general partner (the Trust or the General Partner) of LaSalle Hotel Operating Partnership, L.P., a Delaware limited partnership (the Partnership), and as attorney-in-fact for the Persons named on Exhibit A to the Amended and Restated Agreement of Limited Partnership of LaSalle Hotel Operating Partnership, L.P., dated as of April 29, 1998 (the Partnership Agreement) for the purpose of amending the Partnership Agreement. Capitalized terms used herein and not defined shall have the meanings given to them in the Partnership Agreement.
WHEREAS, the Board of Trustees of the Trust (the Board), met and approved on April 19, 2005, July 19, 2005 and August 1, 2005, and the Pricing Committee adopted certain resolutions on August 19, 2005, classifying and designating 3,300,000 Preferred Shares (as defined in the Articles of Amendment and Restatement of Declaration of Trust of the Trust (the Declaration of Trust)) as Series D Preferred Shares (as defined below);
WHEREAS, the Trust filed Articles Supplementary to the Declaration of Trust (the Articles Supplementary) with the State Department of Assessments and Taxation of Maryland on August 22, 2005, establishing a series of preferred shares, designated Series D Preferred Shares;
WHEREAS, on August 24, 2005, the Trust issued 3,000,000 Series D Preferred Shares;
WHEREAS, the General Partner has determined that, in connection with the issuance of the Series D Preferred Shares, it is necessary and desirable to amend the Partnership Agreement to create additional Partnership Units having designations, preferences and other rights which are substantially the same as the economic rights of the Series D Preferred Shares.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the General Partner hereby amends the Partnership Agreement as follows:
1. Article 1 of the Partnership Agreement is hereby amended by adding the
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following definitions:
Series D Preferred Shares means the 7.5% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, $.01 par value per share (Liquidation Preference $25 per share) of the Trust, with the preferences, liquidation and other rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption of shares as described in the Articles Supplementary; and
Series D Preferred Units means the series of Partnership Units representing units of Limited Partnership Interest designated as the 7.5% Series D Cumulative Redeemable Preferred Units (Liquidation Preference $25 per share), with the preferences, liquidation and other rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption of units as described herein.
2. In accordance with Section 4.2.A of the Partnership Agreement, set forth below are the terms and conditions of the Series D Preferred Units hereby established and issued to the Trust in consideration of the Trusts contribution to the Partnership of the net proceeds from the issuance and sale of the Series D Preferred Shares by the Trust:
A. Designation and Number. A series of Partnership Units, designated as Series D Preferred Units, is hereby established. The number of Series D Preferred Units shall be 3,300,000.
B. Rank. The Series D Preferred Units will, with respect to distribution rights and rights upon liquidation, dissolution or winding up of the Partnership, rank (a) senior to the Class A Units, Class B Units and to all Partnership Interests the terms of which specifically provide that such Partnership Interests shall rank junior to such Series D Preferred Units; (b) on a parity with all Partnership Interests issued by the Partnership, other than those Partnership Interests referred to in clauses (a) and (c); and (c) junior to all Partnership Interests issued by the Partnership the terms of which specifically provide that such Partnership Interests shall rank senior to the Series D Preferred Units.
C. Distributions.
(i) Pursuant to Section 5.1 of the Partnership Agreement, holders of Series D Preferred Units shall be entitled to receive, out of Available Cash, cumulative preferential cash distributions at the rate of seven and one-half percent (7.5%) per annum of the twenty-five dollars ($25.00) per share liquidation preference of the Series D Preferred Units (equivalent to a fixed annual amount of $1.875 per unit). Distributions on the Series D Preferred Units shall accumulate on a daily basis and be cumulative from (but excluding) the date of original
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issue and be payable quarterly in equal amounts in arrears on the fifteenth day of January, April, July, and October of each year, beginning on October 17, 2005 or, if not a Business Day, the next succeeding Business Day, or such other day as the General Partner may determine (each, a Series D Preferred Unit Distribution Payment Date). Any distribution (including the initial distribution) payable on the Series D Preferred Units for any partial distribution period shall be prorated and computed on the basis of a 360-day year consisting of twelve 30-day months.
(ii) No distribution on the Series D Preferred Units shall be authorized by the Board 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, prohibits such authorization, payment or setting apart for payment or provides that such authorization, payment or setting apart for payment would constitute a breach thereof, or a default thereunder, or if such authorization or payment shall be restricted or prohibited by law.
(iii) Notwithstanding anything to the contrary contained herein, distributions with respect to the Series D Preferred Units shall accumulate whether or not the restrictions referred to in Subsection 2.C.(ii) exist, whether or not the Partnership has earnings, whether or not there is sufficient Available Cash for the payment thereof and whether or not such distributions are authorized. Accumulated but unpaid distributions on the Series D Preferred Units will accumulate as of the Series D Preferred Unit Distribution Payment Date on which they first become payable or on the date of redemption as the case may be.
(iv) If any Series D Preferred Units are outstanding, no distributions will be authorized or paid or set apart for payment on any Partnership Interests of the Partnership of any other class or series ranking, as to distributions, on a parity with or junior to the Series D Preferred Units unless full cumulative distributions have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof set apart for such payment on the Series D Preferred Units for all past distribution periods and the then current distribution period. When distributions are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the Series D Preferred Units and all other Partnership Interests ranking on a parity, as to distributions, with the Series D Preferred Units, all distributions authorized, paid or set apart for payment upon the Series D Preferred Units and all other units ranking on a parity, as to distributions, with the Series D Preferred Units shall be authorized and paid pro rata or authorized and set apart for payment pro rata so that the amount of distributions authorized per Series D Preferred Unit and each such other Partnership Interest shall in all cases bear to each other the same ratio that accumulated distributions per Series D Preferred Unit and other Partnership Interest (which shall not include any accumulation in respect of unpaid distributions for prior distribution periods if such Partnership Interests 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 D Preferred Units which may be in arrears.
(v) Except as provided in subsection 2.C.(iv), unless full cumulative distributions on the Series D Preferred Units have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof is set apart for payment
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for all past distribution periods and the then current distribution period, no distributions (other than in Partnership Interests ranking junior to the Series D Preferred Units as to distributions and upon liquidation) shall be authorized or paid or set apart for payment nor shall any other distribution be authorized or made upon the Class A Units, Class B Units or any other Partnership Interests ranking junior to or on a parity with the Series D Preferred Units as to distributions or upon liquidation, nor shall any Class A Units, Class B Units or any other Partnership Interests ranking junior to or on a parity with the Series D Preferred Units as to distributions or upon liquidation be redeemed, purchased or otherwise acquired directly or indirectly for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such Partnership Interests) by the Partnership (except by conversion into or exchange for other Partnership Interests ranking junior to the Series D Preferred Units as to distributions and upon liquidation, dissolution or winding up of the affairs of the Partnership or by redemption, purchase or acquisition of Partnership Interests under incentive, benefit or unit purchase plans of the Partnership for Employees of the General Partner, the Partnership, Subsidiaries of the Partnership or any Affiliate of any of them.)
(vi) Holders of Series D Preferred Units shall not be entitled to any distribution, whether payable in cash, property or Partnership Interests, in excess of full cumulative distributions on the Series D Preferred Units as described above. Any distribution payment made on the Series D Preferred Units shall first be credited against the earliest accumulated but unpaid distribution due with respect to such units which remains payable.
D. Allocations.
Allocations of the Partnerships items of income, gain, loss and deduction shall be allocated among holders of Series D Preferred Units in accordance with Article VI of the Partnership Agreement.
E. Liquidation Preference.
(i) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Partnership, the holders of the Series D Preferred Units shall be entitled to receive out of the assets of the Partnership legally available for distribution to the Partners pursuant to Section 13.2.A of the Partnership Agreement a liquidation preference in cash of $25.00 per Series D Preferred Unit, plus an amount equal to all accumulated and unpaid distributions to the date of payment, before any distribution of assets is made to holders of Class A Units, Class B Units or any other Partnership Interests that rank junior to the Series D Preferred Units as to liquidation rights.
(ii) If upon any such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Partnership, the assets of the Partnership are insufficient to make such full payment to holders of the Series D Preferred Units and the corresponding amounts payable on all other Partnership Interests ranking on a parity with the Series D Preferred Units in the distribution of assets, then the holders of the Series D Preferred Units and other such Partnership Interests shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled.
(iii) After payment of the full amount of the liquidating distributions to which
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they are entitled, the holders of Series D Preferred Units shall have no right or claim to any of the remaining assets of the Partnership.
(iv) None of a consolidation or merger of the Partnership with or into another entity, a merger of another entity with or into the Partnership or a sale, lease or conveyance of all or substantially all of the Partnerships property or business shall be considered a liquidation, dissolution or winding up of the affairs of the Partnership.
F. Redemption.
In connection with redemption by the Trust of any of its Series D Preferred Shares in accordance with the provisions of the Articles Supplementary, the Partnership shall provide cash to the Trust for such purpose which shall be equal to the redemption price (as set forth in the Articles Supplementary) and one Series D Preferred Unit shall be canceled with respect to each Series D Preferred Share so redeemed by the Trust (unless another Conversion Factor is specified under the Partnership Agreement). From and after the Series D Preferred Share redemption date, the Series D Preferred Units so canceled shall no longer be outstanding and all rights hereunder, to distributions or otherwise, with respect to such Series D Preferred Units shall cease.
3. Except as modified herein, all terms and conditions of the Partnership Agreement shall remain in full force and effect, which terms and conditions the General Partner hereby ratifies and confirms.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first set forth above.
LASALLE HOTEL OPERATING PARTNERSHIP, L.P. | ||
By: | LaSalle Hotel Properties, a Maryland real estate investment trust, its General Partner, and attorney-in-fact of each Limited Partner | |
By: |
/s/ Hans S. Weger |
|
Name: | Hans S. Wager | |
Title. | Executive Vice President, Chief | |
Financial Officer, Secretary and | ||
Treasurer |
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Exhibit 4
Temporary Certificate
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7.5% SERIES D CUMULATIVE REDEEMABLE PREFERRED SHARES OF BENEFICIAL INTEREST ($.01 PAR VALUE PER SHARE) (LIQUIDATION PREFERENCE $25.00 PER SHARE) |
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NUMBER |
THIS CERTIFICATE IS TRANSFERABLE IN THE CITIES OF CHICAGO, ILLINOIS OR NEW YORK, N.Y. |
SHARES | ||||||
LASALLE HOTEL PROPERTIES |
A Real Estate Investment Trust Formed Under the Laws of the State of Maryland |
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THIS CERTIFIES THAT | CUSIP: 517942 40 5 | |||||||
SEE REVERSE FOR IMPORTANT NOTICE ON TRANSFER RESTRICTIONS, CERTAIN DEFINITIONS AND OTHER INFORMATION | ||||||||
IS THE OWNER OF | ||||||||
FULLY PAID AND NONASSESSABLE 7.5% SERIES D CUMULATIVE REDEEMABLE PREFERRED SHARES OF BENEFICIAL INTEREST $.01 PAR VALUE PER SHARE (PREFERRED SHARES), IN | ||||||||
LaSalle Hotel Properties (the Trust), transferable on the books of the Trust by the holder hereof in person or by its duly authorized attorney upon surrender of this Certificate properly endorsed. This Certificate and the shares represented hereby are issued and shall be held subject to all of the provisions of the Declaration of Trust and Bylaws of the Trust and any amendments thereto. This Certificate is not valid unless countersigned and registered by the Transfer Agent and Registrar.
Witness the seal of the Trust and the signatures of its duly authorized officers.
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Dated: | ||||||||
COUNTERSIGNED AND REGISTERED: LASALLE BANK, N.A. |
[corporate seal] |
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TRANSFER AGENT AND REGISTRAR BY |
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President | ||||||||
AUTHORIZED SIGNATURE | ||||||||
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Secretary |
L A S ALLE H OTEL P ROPERTIES
The Trust will furnish to any shareholder upon request and without charge a full statement of the information required by section 8-203(d) of the Corporations and Associations Article of the Annotated Code of Maryland with respect to the designations and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, and terms and conditions of redemption of the shares of each class of beneficial interest which the Trust has authority to issue and (i) the differences in the relative rights and preferences between the shares of each series to the extent set and (ii) the authority of the Board of Trustees to set such rights and preferences of subsequent series. The foregoing summary does not purport to be complete and is subject to and qualified in its entirety by reference to the Declaration of Trust of the Trust, a copy of which will be sent without charge to each shareholder who so requests. Such request must be made to the secretary of the Trust at its principal office or to the Transfer Agent.
The Preferred Shares represented by this certificate are subject to restrictions on Beneficial and Constructive Ownership and Transfer for the purpose of the Trusts maintenance of its status as a real estate investment trust (a REIT) under the Internal Revenue Code of 1986, as amended (the Code). Subject to certain further restrictions and except as expressly provided in the Trusts Declaration of Trust, as amended, (i) no Person may Beneficially Own or Constructively Own Common Shares of the Trust in excess of 9.8 percent (in value or number of Shares) of the outstanding Common Shares of the Trust; (ii) with respect to any class or series of preferred shares, no Person may Beneficially Own or Constructively Own more than 9.8 percent (in value or number of Shares) of the outstanding Shares of such class or series of preferred shares of the Trust; (iii) no Person may Beneficially Own or Constructively Own Shares that would result in the Trust being closely held under Section 856(h) of the Code or otherwise cause the Trust to fail to qualify as a REIT; and (iv) no Person may Transfer Shares if such Transfer would result in Shares of the Trust being owned by fewer than 100 Persons. Any Person who Beneficially Owns or Constructively Owns or attempts to Beneficially Own or Constructively Own Shares which cause or will cause a Person to Beneficially Own or Constructively Own Shares in excess or in violation of the above limitations must immediately notify the Trust. If any of the restrictions on transfer or ownership are violated, the Preferred Shares represented hereby will be automatically transferred to a Charitable Trustee of a Charitable Trust for the benefit of one or more Charitable Beneficiaries. In addition, upon the occurrence of certain events, attempted Transfers in violation of the restrictions described above may be void ab initio. A Person who attempts to Beneficially Own or Constructively Own Shares in violation of the ownership limitations described above shall have no claim, cause of action, or any recourse whatsoever against a transferor of such Shares. Unless otherwise defined herein, all capitalized terms in this legend have the meanings defined in the Trusts Declaration of Trust, as the same may be amended from time to time, a copy of which, including the restrictions on transfer and ownership, will be furnished to each holder of Preferred Shares of the Trust on request and without charge.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM TEN ENT JT TEN |
-as tenants in common -as tenants by the entireties -as joint tenants with right of survivorship and not as tenants in common |
UNIF GIFT MIN ACT |
- Custodian (Cust) (Minor) |
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under Uniform Gifts to Minors Act (State) |
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
_______________________________________________________________________________________________________ |
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(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE.) | ||
_______________________________________________________________________________________________________ |
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_______________________________________________________________________________________________________ |
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_______________________________________________________________________________________________________ |
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Preferred Shares represented by the within Certificate, and do hereby irrevocably constitute and appoint |
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Attorney | ||
to transfer the said shares on the books of the within-named Trust with full power of substitution in the premises. | ||
Dated. |
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|
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(Sign here) |
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Signature(s) Guaranteed By: |
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATION AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE, IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED, THE TRUST WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
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Exhibit 5
DLA Piper Rudnick Gray Cary US LLP 4700 Six Forks Road, Suite 200 Raleigh, North Carolina 27609-5244 T 919.786.2000 F 919.786.2200 W www.dlapiper.com |
J EFFREY M. S ULLIVAN Jeffrey.sullivan@dlapiper.com T 919.786.2003 F 919.786.2203 |
August 24, 2005
LaSalle Hotel Properties
3 Bethesda Metro Center, Suite 1200
Bethesda, Maryland 20814
Re: | 3,000,000 7.5% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest |
Ladies and Gentlemen:
We are acting as counsel to LaSalle Hotel Properties, a Maryland real estate investment trust (the Company), in connection with its registration statement on Form S-3 (registration no. 333-125057, which also constituted a post-effective amendment to registration statement no. 333-104054) (as amended, the Registration Statement), previously declared effective by the Securities and Exchange Commission (the Commission). The Registration Statement relates to the proposed public offering of securities of the Company that may be offered and sold by the Company from time to time as set forth in the prospectus dated August 19, 2005, which forms a part of the Registration Statement (the Prospectus), and as may be set forth in one or more supplements to the Prospectus. This opinion letter is rendered in connection with the proposed public offering of up to 3,000,000 7.5% Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $.01 per share, of the Company (the Shares), as described in the Prospectus, and a prospectus supplement dated August 19, 2005 (the Prospectus Supplement). This opinion letter is rendered pursuant to Item 9.01 of Form 8-K and Item 601(b)(5) of Regulation S-K.
We are familiar with the proceedings taken to date by the Company with respect to the proposed issuance and sale of the Shares pursuant to the terms of the Underwriting Agreement dated August 19, 2005 by and among the Company, LaSalle Hotel Operating Partnership, L.P. and Raymond James & Associates, Inc., as representative of the several underwriters named therein (the Underwriting Agreement). We have also examined copies of the Companys Articles of Amendment and Restatement of Declaration of Trust (the Declaration of Trust), the
1
articles supplementary pursuant to which the terms of the Shares are established, the Companys Amended and Restated Bylaws, the trust action taken by the Company that provides for the registration and issue of the Shares and such other materials and matters as we have deemed necessary for the issuance of this opinion. In our examination, we have assumed the genuineness of all signatures and the conformity to original documents of all copies submitted to us. As to various questions of fact material to this opinion, we have relied on statements and certificates of officers and representatives of the Company and others.
Based upon, subject to and limited by the foregoing, we are of the opinion that (a) the Shares have been duly authorized by the Company and, upon issuance and delivery of the Shares against payment therefor as provided in the underwriting agreement, will be validly issued, fully paid and non-assessable and are not subject to any preemptive or other similar rights under any provision of the Maryland REIT Law, as defined in Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland, or under the Declaration of Trust of the Company and (b) the terms of the Shares conform in all material respects to all statements and descriptions thereof contained in the Prospectus Supplement.
Our opinions set forth above are subject to the following general qualifications and assumptions:
1. | The foregoing opinions are rendered as of the date hereof. We assume no obligation to update or supplement the opinions if any laws change after the date hereof or if any facts or circumstances come to our attention after the date hereof that might change the opinions. |
2. | We have made no investigation as to, and we express no opinion concerning, any laws other than the Maryland REIT Law, applicable provisions of the Constitution of the State of Maryland and reported judicial decisions interpreting the Maryland REIT Law and such Constitution, and we do not express any opinion herein concerning any other laws. |
3. | Without limiting the effect of the immediately preceding qualification, we note that we express no opinion as to compliance with the securities or blue sky laws or principles of conflicts of laws of the State of Maryland or any other jurisdiction. |
4. | We assume that the issuance of the Shares, together with all outstanding shares, will not cause the Company to issue common shares or preferred shares in excess of the number of such shares authorized by the Companys Declaration of Trust. |
5. | We assume that none of the Shares will be issued in violation of Article VII of the Declaration of Trust. |
6. | Our opinions are limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated. |
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We hereby consent to the filing of this opinion letter as Exhibit 5 to the Companys current report on Form 8-K, filed with the Commission on the date hereof, portions of which are incorporated by reference into the Registration Statement, and to the reference to this firm under the caption Legal Matters in the Prospectus and the Prospectus Supplement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.
Very truly yours, |
/s/ DLA PIPER RUDNICK GRAY CARY US LLP |
3
Exhibit 8
DLA Piper Rudnick Gray Cary US LLP 203 North LaSalle Street, Suite 1900 Chicago, Illinois 60601-1293 T 312.368.4000 F 312.236.7516 W www.dlapiper.com |
August 24, 2005
Board of Trustees
LaSalle Hotel Properties
3 Bethesda Metro Center, Suite 1200
Bethesda, Maryland 20814
Re: |
Tax Opinion for REIT Status and Tax Discussion in Connection with Offering of 7.5% Series D Cumulative Redeemable Preferred Shares |
Ladies and Gentlemen:
We have acted as special tax counsel to LaSalle Hotel Properties, a Maryland real estate investment trust (LHP or the Company), in connection with certain aspects related to its registration statement on Form S-3 (the Registration Statement) (No. 333-125057) previously filed with, and declared effective by, the Securities and Exchange Commission relating to the proposed public offering of its securities including common and preferred shares of beneficial interest and warrants, which includes the final prospectus dated August 19, 2005, as filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the Securities Act) (the Prospectus), as supplemented by the Prospectus Supplement dated August 19, 2005, relating to up to 3,300,300 7.5% Series D Cumulative Redeemable Preferred Shares (the Preferred Shares). This opinion letter is furnished to enable the Company to fulfill the requirements of Item 601(b)(8) of Regulation S-K, 17 C.F.R. (S) 929.601(b)(8), in connection with the Registration Statement.
In connection with rendering the opinions expressed below, we have examined originals (or copies identified to our satisfaction as true copies of the originals) of the following documents (collectively, the Reviewed Documents):
(1) | the Registration Statement; |
(2) | the Prospectus; |
(3) | the Articles of Amendment and Restatement of Declaration of Trust of LHP, dated as of April 14, 1998, including Articles Supplementary, dated as of February 28, 2002, Articles Supplementary, dated as of September 23, 2003, and Articles Supplementary, dated as of August 22, 2005, as amended to date (the LHP Charter); |
Serving clients globally
Board of Trustees
August 24, 2005
Page 2
(4) | the Agreement of Limited Partnership of LaSalle Hotel Operating Partnership, L.P., a Delaware limited partnership (LHP Operating Partnership), dated April 28, 1998, as amended (the LHP Operating Partnership Agreement); |
(5) | the Amended and Restated Bylaws of the LHP, adopted in February 2003 (the LHP Bylaws); and |
(6) | such other documents as may have been presented to us by LHP from time to time. |
In addition, we have relied upon the factual representations contained in LHPs certificate, dated August 24, 2005 (the LHP Officers Certificate), executed by a duly appointed officer of LHP, setting forth certain representations relating to the organization and operation of LHP, LHP Operating Partnership, and their respective subsidiaries.
For purposes of our opinions, we have not made an independent investigation of the facts set forth in the documents we reviewed. We consequently have assumed that the information presented in such documents or otherwise furnished to us accurately and completely describes all material facts relevant to our opinions. No facts have come to our attention, however, that would cause us to question the accuracy and completeness of such facts or documents in a material way. Any representation or statement in any document upon which we rely that is made to the best of our knowledge or otherwise similarly qualified is assumed to be correct. Any alteration of such facts may adversely affect our opinions. In the course of our representation of LHP, no information has come to our attention that would cause us to question the accuracy or completeness of the representations contained in the LHP Officers Certificate, or the Reviewed Documents in a material way.
In our review, we have assumed, with your consent, that all of the representations and statements of a factual nature set forth in the documents we reviewed are true and correct, and all of the obligations imposed by any such documents on the parties thereto have been and will be performed or satisfied in accordance with their terms. We have also assumed the genuineness of all signatures, the proper execution of all documents, the authenticity of all documents submitted to us as originals, the conformity to originals of documents submitted to us as copies, and the authenticity of the originals from which any copies were made.
The opinions set forth in this letter are based on relevant provisions of the Internal Revenue Code of 1986, as amended (the Code), the regulations promulgated thereunder by the United States Department of the Treasury (Regulations) (including proposed and temporary Regulations), and interpretations of the foregoing as expressed in court decisions, the legislative history, and existing administrative rulings and practices of the Internal Revenue Service (including its practices and policies in issuing private letter rulings, which are not binding on the Internal Revenue Service (IRS) except with respect to a taxpayer that receives such a ruling), all as of the date hereof.
Board of Trustees
August 24, 2005
Page 3
In rendering these opinions, we have assumed that the transactions contemplated by the Reviewed Documents will be consummated in accordance with the terms and provisions of such documents, and that such documents accurately reflect the material facts of such transactions. In addition, the opinions are based on the correctness of the following specific assumptions:
(i) | LHP, LHP Operating Partnership and their respective subsidiaries will each be operated in the manner described in the LHP Charter, the LHP Bylaws, the LHP Operating Partnership Agreement, the other organizational documents of each such entity and their subsidiaries, as the case may be, and all terms and provisions of such agreements and documents will be complied with by all parties thereto; |
(ii) | LHP is a duly formed real estate investment trust under the laws of the State of Maryland; |
(iii) | LHP Operating Partnership is a duly organized and validly existing limited partnership under the laws of the State of Delaware; and |
(iv) | There has been no change in the applicable laws of the State of Maryland, the State of Delaware or in the Code, the Regulations, and the interpretations of the Code and Regulations by the courts and the IRS, all as they are in effect and exist at the date of this letter. |
With respect to the last assumption, it should be noted that statutes, regulations, judicial decisions, and administrative interpretations are subject to change at any time and, in some circumstances, with retroactive effect. A material change that is made after the date hereof in any of the foregoing bases for our opinions could affect our conclusions. Furthermore, if the facts vary from those relied upon (including any representations, warranties, covenants or assumptions upon which we have relied are inaccurate, incomplete, breached or ineffective), our opinion contained herein could be inapplicable. Moreover, the qualification and taxation of LHP as a real estate investment trust (a REIT) depends upon its ability to meet, through actual annual operating results, distribution levels and diversity of share ownership and the various qualification tests imposed under the Code, the results of which will not be reviewed by the undersigned. Accordingly, no assurance can be given that the actual results of the operations of LHP for any one taxable year will satisfy such requirements.
Board of Trustees
August 24, 2005
Page 4
Based upon and subject to the foregoing, it is our opinion that:
1. LHP was organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code for its taxable years ended December 31, 2002 through December 31, 2004, and LHPs current organization and method of operations will enable it to continue to meet the requirements for qualification and taxation as a REIT.
2. The discussion in the Prospectus under the heading Federal Income Tax Considerations, to the extent that it constitutes matters of federal income tax law or legal conclusions relating thereto, is correct in all material respects.
The foregoing opinions are limited to the matters specifically discussed herein, which are the only matters to which you have requested our opinions. Other than as expressly stated above, we express no opinion on any issue relating to LHP or LHP Operating Partnership, or to any investment therein.
For a discussion relating the law to the facts and the legal analysis underlying the opinions set forth in this letter, we incorporate by reference the discussions of federal income tax issues, which we assisted in preparing, in the Preliminary Prospectus under the heading Federal Income Tax Considerations. We assume no obligation to advise you of any changes in the foregoing subsequent to the date of this opinion letter, and we are not undertaking to update the opinion letter from time to time. You should be aware that an opinion of counsel represents only counsels best legal judgment, and has no binding effect or official status of any kind, and that no assurance can be given that contrary positions may not be taken by the IRS or that a court considering the issues would not hold otherwise.
This opinion is rendered only to you and may not be quoted in whole or in part or otherwise referred to, nor be filed with, or furnished to, any other person or entity. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement under the Securities Act and the reference to DLA Piper Rudnick Gray Cary US LLP in the Prospectus. In giving this consent, we do not admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Securities and Exchange Commission thereunder.
Sincerely,
/s/ DLA PIPER RUDNICK GRAY CARY US LLP