Exhibit 1.1
FELCOR LODGING TRUST INCORPORATED
$1.95 Series A Cumulative Convertible Preferred Stock
($.01 par value)
Underwriting Agreement
New York, New York
March 30, 2004
Citigroup Global Markets Inc.
Bear, Stearns & Co. Inc.
Deutsche Bank Securities Inc.
Legg Mason Wood Walker, Incorporated
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
FelCor Lodging Trust Incorporated, a corporation organized under the
laws of Maryland (the "Company"), proposes to sell to the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, 4,000,000 shares of $1.95
Series A Cumulative Convertible Preferred Stock, $.01 par value, of the Company
(the "Preferred Stock") (said shares to be issued and sold by the Company being
hereinafter called the "Underwritten Securities"). The Company also proposes to
grant to the Underwriters an option to purchase up to the number of additional
shares of the Securities set forth in Schedule I hereto to cover over-allotments
(the "Option Securities"; the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities"). To the extent there are
no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a
registration statement on file number 333-46357 on Form S-3, including
a related basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a Preliminary Final Prospectus, each
of which has previously been furnished to you. The Company will next
file with the Commission one of the following: (1) after the Effective
Date of such registration statement, a final prospectus supplement
relating to the Securities in accordance with Rules 430A and 424(b),
(2) prior to the Effective Date of such registration statement, an
amendment to such registration statement (including the form of final
prospectus supplement) or (3) a final prospectus supplement in
accordance with Rules 415 and 424(b). In the case of clause (1), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in such
registration statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which Option Securities are purchased, if such date
is not the Closing Date (a "settlement date"), the Final Prospectus
(and any supplement thereto) will, comply in all material respects with
the applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing
Date and any settlement date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto).
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(c) The Registration Statement has become effective under the
Act; no order preventing or suspending the use of any Final Prospectus
has been issued and no proceeding for that purpose has been instituted
or threatened by the Commission or the securities authority of any
state or other jurisdiction. No stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and
no proceeding for that purpose has been instituted or threatened or, to
the best knowledge of the Company, contemplated by the Commission or
the securities authority of any state or other jurisdiction and any
request on the part of the Commission for additional information has
been complied with.
(d) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Final Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder.
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of Maryland with all requisite corporate power and authority to own and
lease its properties and to conduct its business as described in the
Final Prospectus. The Company has been duly qualified or registered to
do business and is in good standing as a foreign corporation in each
other jurisdiction in which the ownership or leasing of its properties
or the nature or conduct of its business as described in the Final
Prospectus requires such qualification, except where the failure to do
so would not have a material adverse effect on the condition, financial
or otherwise, business, prospects, net worth or results of operations
of the Company, the Operating Partnership and the Subsidiaries (as
defined below), taken as a whole (a "Material Adverse Effect"). Except
for the entities listed on Schedule II hereto (the "Subsidiaries"), the
Company does not own, control, or have an equity interest in, directly
or indirectly, any corporation, association or other entity. The
Company, the Operating Partnership or a Subsidiary, as applicable, owns
the percentage equity interests of each of the Subsidiaries as
reflected on Schedule II. All of such equity interests have been duly
and validly authorized and issued and, except for general partnership
interests, are fully paid and non-assessable and, except as set forth
on Schedule II are so owned free and clear of any pledge, lien, charge,
encumbrance, security interests, preemptive right or other claims,
except as set forth in such entity's governing documents.
(f) The Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under the
Delaware Revised Uniform Limited Partnership Act (the "Delaware Act")
with all requisite partnership power and authority to own and lease its
properties and to conduct its business as described in the Final
Prospectus. Each Subsidiary (other than the Operating Partnership) has
been duly formed and is validly existing as a corporation, limited
partnership or limited liability company in good standing under the
laws of its respective jurisdiction of formation, except where the
failure to do so would not have a Material Adverse Effect. Each
Subsidiary has been duly qualified or registered to do business and is
in good standing as a foreign corporation, partnership or limited
liability company, as the case may be, in each other jurisdiction in
which the ownership or leasing of its properties or the nature or
conduct of its business as now conducted requires such qualification or
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registration, except where the failure to do so would not have a
Material Adverse Effect. The Company is and, at the Closing Date will
be, the sole general partner of the Operating Partnership, and at the
Closing Date will own, directly or indirectly, at least a 95% interest
in the Operating Partnership.
(g) The Company has all requisite corporate right, power and
authority to enter into this Agreement, to execute and file articles
supplementary relating to the classification and increase in the number
of authorized shares of Securities (the "Articles Supplementary"), to
enter into the other documents to be entered into in connection with
the transactions contemplated hereby, to issue, sell and deliver the
Securities as provided in the Final Prospectus and to consummate the
transactions contemplated in the Final Prospectus.
(h) This Agreement and the Articles Supplementary have been
duly authorized, executed and delivered by the Company.
(i) The Second Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, as amended (the "Partnership
Agreement"), has been duly and validly executed by the Company on
behalf of itself and all of the other partners in the Operating
Partnership. The Subsidiaries that are parties to the Management
Agreements have the requisite power and authority to enter into the
Management Agreements and to perform their obligations thereunder. Each
such agreement has been duly authorized, executed and delivered by the
Company, the Operating Partnership and the Subsidiaries, as applicable.
(This Agreement, the Articles Supplementary, the Partnership Agreement
and the Management Agreements sometimes are hereinafter referred to
collectively as the "Operative Documents").
(j) Each consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing by or with any
governmental agency or body necessary for the valid authorization,
issuance, sale and delivery of the Securities, the execution, delivery
and performance of this Agreement and the Articles Supplementary and
the consummation by the Company of the transactions contemplated hereby
and thereby has been made or obtained and is in full force and effect;
provided, however, that the Articles Supplementary has not been filed,
but will be filed with the Maryland Department of Assessments and
Taxation at or before the Closing Date.
(k) Neither the issuance, sale and delivery by the Company of
the Securities, nor the execution, delivery and performance of this
Agreement or the Articles Supplementary and the other documents to be
entered into in connection with the transactions contemplated hereby
and thereby by the Company nor the consummation of the transactions
contemplated hereby or thereby or in the Final Prospectus will conflict
with or result in a breach or violation of any of the terms and
provisions of, or (with or without the giving of notice or the passage
of time or both) constitute a default under, any of the Operative
Documents, the charter (as amended by the Articles Supplementary),
articles or certificate of incorporation, bylaws, certificate of
limited partnership or partnership agreement, certificate of formation
or limited liability company agreement, as the case may be, of the
Company, the Operating Partnership or any Subsidiary; any indenture,
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mortgage, deed of trust, loan agreement, note, lease or other agreement
or instrument to which any of the Company, the Operating Partnership or
any Subsidiary is a party or to which they, any of them, any of their
respective properties or other assets or any Hotel is subject, except
that any violation of the "Ownership Limit," as defined in the
Company's articles of amendment and restatement, because of the
issuance of the Securities, has been waived, or will be waived prior to
the Closing Date, by the Company's board of directors as permitted by
such instrument and except such conflicts, breaches, violations or
defaults that would not have a Material Adverse Effect; or any
applicable statute, judgment, decree, order, rule or regulation of any
court or governmental agency or body applicable to any of the foregoing
or any of their respective properties, except such breaches or
violations that would not have a Material Adverse Effect; or result in
the creation or imposition of any lien, charge, claim or encumbrance
upon any property or asset of any of the foregoing, except such liens,
charges, claims or encumbrances that would not have a Material Adverse
Effect.
(l) The Securities have been validly authorized by the
Company. When the Securities are issued and delivered against payment
therefor as provided in this Agreement, the Securities will be duly and
validly issued, fully paid and nonassessable. There are no statutory or
other preemptive rights of shareholders with respect to any of the
Securities. No person or entity holds a right to require or participate
in the registration under the Act of the Securities pursuant to the
Registration Statement other than those persons who have expressly
waived such rights. No person or entity has a right of participation or
first refusal with respect to the sale of the Securities by the
Company. The form of certificates evidencing the Securities comply with
all applicable requirements of Maryland law.
(m) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Final Prospectus. All of the issued shares
of capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
of the Common Stock, the Securities and the Series B Preferred Stock,
as the case may be, contained in the Final Prospectus. The Securities
conform to the description thereof contained in the Final Prospectus.
None of the issued and outstanding shares of capital stock of the
Company has been issued or is owned or held in violation of any
preemptive rights of shareholders. The Company has no other issued and
outstanding capital stock. Except as disclosed in the Final Prospectus,
and except for any grants of options or restricted stock made in the
ordinary course of business under the Company's restricted stock and
stock option plans, there is no outstanding option, warrant or other
right calling for the issuance of, and no commitment, plan or
arrangement to issue, any shares of capital stock of the Company or any
security convertible into or exchangeable for capital stock of the
Company.
(n) All offers and sales of the Company's capital stock prior
to the date hereof were at all relevant times duly registered under the
Act or exempt from the registration requirements of the Act by reason
of Sections 3(b), 4(2) or 4(6) thereof and were duly registered or were
issued pursuant to an available exemption from the registration
requirements of the applicable state securities or blue sky laws.
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(o) All of the issued Units have been duly and validly
authorized and issued and are fully paid. None of the issued Units has
been issued or is owned or held in violation of any preemptive right.
The Units to be issued to the Company at the Closing Date have been
duly and validly authorized by the Operating Partnership. At the
Closing Date, such Units will be validly issued and fully paid. All of
the outstanding Units have been issued, offered and sold in compliance
with all applicable laws (including, without limitation, federal and
state securities laws). The Units to be issued to the Company at the
Closing Date will be issued, offered and sold in compliance with all
applicable laws (including, without limitation, federal and state
securities laws).
(p) The financial statements included or incorporated by
reference in the Registration Statement and Final Prospectus together
with related schedules and notes (and any amendment or supplement
thereto), present fairly the consolidated financial position of the
Company and its consolidated Subsidiaries, as of the dates indicated,
and the results of operations, cash flows and shareholder's equity of
the Company and its consolidated Subsidiaries for the periods
specified, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
specified. No other financial statements or schedules are required by
Form S-3 or otherwise to be included or incorporated by reference in
the Registration Statement or the Final Prospectus.
(q) PricewaterhouseCoopers LLP, who has examined and is
reporting upon the audited financial statements and schedules relating
to the Company included or incorporated by reference in the
Registration Statement and the Final Prospectus, is and was, during the
periods covered by their report included or incorporated by reference
in the Registration Statement and the Final Prospectus, independent
public accountants within the meaning of the Act.
(r) Since December 31, 2003, neither the Company nor the
Operating Partnership has sustained any material loss or interference
with its business from fire, explosion, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor
dispute or arbitrators' or court or governmental action, order or
decree; and, since the respective dates as of which information is
given in the Final Prospectus, and except as otherwise stated in the
Final Prospectus, there has not been (i) any material change in the
capital stock or partnership interests, as applicable, long-term debt,
obligations under capital leases or short-term borrowings of either the
Company or the Operating Partnership, (ii) any material adverse change,
or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the business, prospects,
net worth or results of operations of either the Company, the Operating
Partnership and their respective subsidiaries, taken as a whole, from
that set forth in the Final Prospectus, (iii) any liability or
obligation, direct or contingent, incurred or undertaken by either the
Company or the Operating Partnership which is material to the business
or condition (financial or other) of such entity, except for
liabilities or obligations incurred in the ordinary course of business,
(iv) any declaration or payment of any dividend or distribution of any
kind on or with respect to the capital stock or partnership interests,
as applicable, of either the Company or the Operating Partnership,
except for the declaration of distributions on preferred units of the
Operating Partnership and of dividends on the preferred stock of the
Company for the quarter ended March 31, 2004, or (v) any transaction
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that is material to either the Company or the Operating Partnership
except transactions in the ordinary course of business or as otherwise
disclosed in the Final Prospectus.
(s) The Operating Partnership and its Subsidiaries have good
and indefeasible title in fee simple to the Hotels and the improvements
thereon free and clear of all liens, encumbrances, claims, security
interests, restrictions and defects except (i) those Hotels that are
leased from third parties as identified in the Final Prospectus, (ii)
such as are identified in the Final Prospectus, (iii) such matters
reflected in the owner's title insurance policies relating to such
properties and (iv) such as do not materially adversely affect the
value of the properties, taken as a whole, or the use proposed to be
made of the properties, taken as a whole, by the Operating Partnership
and its Subsidiaries. Except as disclosed in the Final Prospectus,
neither the Company nor the Operating Partnership owns or leases any
real property as lessee other than pursuant to leases which
individually or in the aggregate are not material to the business,
financial condition or results of operations of the Company and the
Operating Partnership. Except as disclosed in the Final Prospectus, no
person other than the Operating Partnership has an option or right of
first refusal to purchase all or part of any Hotel or any interest
therein other than certain options and rights of first refusal
contained in the ground lease relating to the Embassy Suites in Kansas
City, Missouri or partnership agreements to which the Operating
Partnership or its Subsidiaries are parties. Each of the Hotels
complies with all applicable codes, laws and regulations (including,
without limitation, building and zoning codes, laws and regulations and
laws relating to access to the Hotels), except if and to the extent
disclosed in the Final Prospectus and except for such failures to
comply that would not have a Material Adverse Effect. Neither the
Company nor the Operating Partnership has knowledge of any pending or
threatened condemnation proceedings, 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 Hotels, except such
proceedings or actions that would not have a Material Adverse Effect.
(t) None of the Company, the Operating Partnership or any
Subsidiary is in violation of its respective charter, articles or
certificate of incorporation, bylaws, certificate of limited
partnership, partnership agreement, certificate of formation or limited
liability company agreement, as the case may be, except such as in the
aggregate do not now have and will not in the future have a Material
Adverse Effect; no default exists, and no event has occurred, nor state
of facts exists, which, with notice or after the lapse of time to cure
or both, would constitute a default in the due performance and
observance of any obligation, agreement, term, covenant, consideration
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which any
such entity is a party or to which any such entity or any of its
properties is subject, except such as in the aggregate do not now have
and will not in the future have a Material Adverse Effect. None of the
Company, the Operating Partnership or any Subsidiary is in violation
of, or in default with respect to, any statute, rule, regulation,
order, judgment or decree, except as may be properly described in the
Final Prospectus or such as in the aggregate do not now have and will
not in the future have a Material Adverse Effect.
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(u) Except as described in the Final Prospectus, there is not
pending or, to the knowledge of either the Company or the Operating
Partnership, threatened, any action, suit, proceeding, inquiry or
investigation against either the Company, the Operating Partnership or
any Subsidiary or any of their respective officers and directors or to
which the properties, assets or rights of any such entity are subject,
before or brought by any court or governmental agency or body or board
of arbitrators, which could result in any material adverse change in
the condition, financial or otherwise, business, prospects, or results
of operations of such entities taken as a whole or which could
materially and adversely affect the consummation of the transactions
contemplated by the Final Prospectus.
(v) The descriptions in the Registration Statement and the
Final Prospectus of the contracts, leases and other legal documents
therein described present fairly the information required to be shown,
and there are no contracts, leases, or other documents of a character
required to be described in the Registration Statement or the Final
Prospectus or to be filed as exhibits to the Registration Statement
which are not described or filed as required. To the knowledge of the
Company and the Operating Partnership, there are no statutes or
regulations applicable to either the Company, the Operating Partnership
or any Subsidiary or certificates, permits or other authorizations from
governmental regulatory officials or bodies required to be obtained or
maintained by either the Company, the Operating Partnership or any
Subsidiary of a character required to be disclosed in the Registration
Statement or the Final Prospectus which have not been so disclosed and
properly described therein. All agreements between the Company, the
Operating Partnership and any Subsidiary, respectively, and third
parties expressly referenced in the Final Prospectus are legal, valid
and binding obligations of the Company, the Operating Partnership and
such Subsidiary, respectively, enforceable against such parties in
accordance with their respective terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization
or other laws of general applicability relating to or affecting
creditors' rights and by general equitable principles.
(w) Except as described in the Final Prospectus, either the
Company, the Operating Partnership or a Subsidiary owns, possesses or
has obtained or has taken all necessary action to obtain (and will
obtain) all material permits, licenses, franchises, except where the
failure to obtain would not have a Material Adverse Effect,
certificates, consents, orders, approvals and other authorizations of
governmental or regulatory authorities or other entities as are
necessary to own or lease, as the case may be, and to operate its
respective properties and to carry on its business, except where the
failure to obtain would not have a Material Adverse Effect. None of the
Company, the Operating Partnership or any Subsidiary has received any
notice of proceedings relating to revocation or modification of any
such licenses, permits, franchises, certificates, consents, orders,
approvals or authorizations, except such notices that would not have a
Material Adverse Effect.
(x) Except as described in the Final Prospectus, the Company,
the Operating Partnership and the Subsidiaries own or possess or have
the right to acquire (and will acquire) adequate licenses or other
rights to use all patents, trademarks, service marks, trade names,
copyrights, software and design licenses, trade secrets, manufacturing
processes, other intangible property rights and know-how (collectively
"Intangibles") necessary to entitle the Company, the Operating
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Partnership and the Subsidiaries to conduct their respective businesses
as presently conducted, except where failure to acquire would not have
a Material Adverse Effect, and neither the Company, the Operating
Partnership nor any of the Subsidiaries has received notice of
infringement or of conflict with (and knows of no such infringement of
or conflict with) asserted rights of others with respect to any
Intangibles which could have a Material Adverse Effect.
(y) The Company's, the Operating Partnership's and each
Subsidiary's system of internal accounting controls taken as a whole is
sufficient to meet the broad objectives of internal accounting control
insofar as those objectives pertain to the prevention or detection of
errors or irregularities in amounts that would be material in relation
to the Company's or the Operating Partnership's financial statements;
and, to the knowledge of the Company, neither the Company nor the
Operating Partnership, nor any employee or agent thereof, has made any
payment of funds of either the Company or the Operating Partnership, as
the case may be, or received or retained any funds, and no funds of
either the Company or the Operating Partnership as the case may be,
have been set aside to be used for any payment, in each case in
violation of any law, rule or regulation.
(z) Each of the Company, the Operating Partnership (to the
extent not consolidated with the Company) and each Subsidiary (to the
extent not consolidated with the Company or the Operating Partnership)
has filed on a timely basis all federal, state, local and foreign tax
returns required to be filed through the date hereof and each such tax
return is true and correct in all material respects, except where the
failure to so have filed would not have a Material Adverse Effect; each
such entity has timely paid all taxes due and payable through the date
hereof, whether or not shown on a tax return; and no tax deficiency has
been asserted against any such entity, nor does any such entity know of
any tax deficiency which is likely to be asserted against any such
entity and which if determined adversely to any such entity, could have
a Material Adverse Effect. All tax liabilities are adequately provided
for on the respective books of such entities.
(aa) The Company, the Operating Partnership, and the
Subsidiaries each maintain insurance (issued by insurers of recognized
financial responsibility) of the types and in the amounts generally
deemed adequate for their respective businesses and, to the knowledge
of the Company consistent with insurance coverage maintained by similar
companies in similar businesses, including, but not limited to,
insurance covering real and personal property owned or leased by the
Company, the Operating Partnership and the Subsidiaries against theft,
damage, destruction, acts of vandalism, and all other risks customarily
insured against, all of which insurance is in full force and effect.
(bb) To the knowledge of the Company no general labor problem
exists or is imminent with the employees of the Company. The Company,
including the Operating Partnership and the Subsidiaries, has no more
than 70 employees.
(cc) Each of the Company, the Operating Partnership, and their
officers, directors or affiliates has not taken and will not take,
directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in or constitute the
stabilization or manipulation of any security of the Company or to
facilitate the sale or resale of the Securities.
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(dd) The Securities are registered, or will be registered at
or before the Closing Date, pursuant to Section 12(b) of the Exchange
Act, and upon issuance the Securities will be listed on the New York
Stock Exchange.
(ee) The Company has not incurred any liability for a fee,
commission or other compensation on account of the employment of a
broker or finder in connection with the transactions contemplated by
this Agreement other than as contemplated hereby or as described in the
Registration Statement.
(ff) Except as otherwise disclosed in the Final Prospectus,
neither the Company, the Operating Partnership, nor any Subsidiary nor,
to the knowledge of the Company any entity from whom the Operating
Partnership or applicable Subsidiary acquired the Hotels has authorized
or conducted or has knowledge of the generation, transportation,
storage, presence, use, treatment, disposal, release, or other handling
of any hazardous substance, hazardous waste, hazardous material,
hazardous constituent, toxic substance, pollutant, contaminant,
asbestos, radon, polychlorinated biphenyls ("PCBs"), petroleum product
or waste (including crude oil or any fraction thereof), natural gas,
liquefied gas, synthetic gas or other material defined, regulated,
controlled, or subject to any remediation requirement under any
environmental law (collectively, "Hazardous Materials"), on, in, under,
or affecting any real property currently leased or owned (or proposed
to be leased or owned) or by any means controlled by either the Company
or the Operating Partnership, including the Hotels (the "Real
Property"), except as in material compliance with applicable laws and
except as would not result in a Material Adverse Effect; to the
knowledge of the Company and the Operating Partnership, the Real
Property and the Company's and the Operating Partnership's operations
with respect to the Real Property are in compliance with all federal,
state and local laws, ordinances, rules, regulations and other
governmental requirements relating to pollution, control of chemicals,
management of waste, discharges of materials into the environment,
health, safety, natural resources, and the environment (collectively,
"Environmental Laws"), and the Company and the Operating Partnership
have complied with, and are in compliance with, all licenses, permits,
registrations, and government authorizations necessary to operate under
all applicable Environmental Laws, except where such noncompliance does
not now have and will not have in the future a Material Adverse Effect.
Except as otherwise disclosed in the Final Prospectus, neither the
Company nor the Operating Partnership has received any written or oral
notice from any governmental entity or any other person, and there is
no pending (to the knowledge of the Company) or threatened claim,
litigation, or any administrative agency proceeding that alleges (i) a
violation of any Environmental Laws by either the Company or the
Operating Partnership; (ii) alleges that either the Company or the
Operating Partnership is a liable party or a potentially responsible
party under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601, et seq., or any state superfund
law; (iii) has resulted in or could result in the attachment of an
environmental lien on any of the Real Property; or (iv) alleges that
either the Company or the Operating Partnership is liable for any
contamination of the environment, contamination of the Real Property,
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damage to natural resources, property damage, or personal injury based
on their activities or the activities of their predecessors or third
parties (whether at the Real Property or elsewhere) involving Hazardous
Materials, whether arising under the Environmental Laws, common law
principles, or other legal standards.
(gg) The Company is organized 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 Company's method of operation enables it to meet the
requirements for taxation as a real estate investment trust under the
Code. The Company has qualified and continues to qualify and has taken
all necessary action to be treated, effective beginning with the year
ended December 31, 1994, as a REIT under the Code. The Operating
Partnership has been since its formation in 1994, and continues to be,
treated as a partnership for federal income tax purposes and not as a
corporation or an association taxable as a corporation.
(hh) Neither the Company, the Operating Partnership nor any
Subsidiary is, will become as a result of the transactions contemplated
hereby, or will conduct its respective business in a manner in which
any such entity would become, an "investment company," or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
(ii) No real estate appraisal firm which prepared appraisals
of the Hotels, nor any environmental engineering firm which prepared
Phase I environmental assessment reports with respect to the Hotels,
was employed for such purpose on a contingent basis or has any
substantial interest in either the Company, the Operating Partnership,
or any Subsidiary.
(jj) The Operating Partnership is not currently prohibited,
directly or indirectly, from making distributions to the Company, from
repaying to the Company any loans or advances to the Operating
Partnership, or from transferring any of the Operating Partnership's
property or assets to the Company, except as disclosed in the Final
Prospectus.
(kk) The Company has not, directly or indirectly since the
filing of the Registration Statement sold, bid for, purchased, or paid
anyone any compensation for soliciting purchases of, the Securities.
(ll) Each of the Company and the Subsidiaries are in
compliance with all applicable laws, rules, regulations, ordinances,
directions, judgments, decrees and orders, foreign and domestic, except
where failure to be in compliance could not reasonably be expected to
have a Material Adverse Effect.
11
(mm) There is and has been no failure on the part of the
Company and any of the Company's directors or officers, in their
capacities as such, in any material respects, to comply with any
provision of the Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the "Sarbanes Oxley
Act"), including Section 402 related to loans and Sections 302 and 906
related to certifications.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of $22.7562, plus
accrued dividends from January 1, 2004 to April 5, 2004, per share, the amount
of the Underwritten Securities set forth opposite such Underwriter's name in
Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
600,000 Option Securities. If the Underwriters exercise the option to purchase
Option Securities and settle on or prior to April 15, 2004 (the "Record Date")
and such Option Securities are entitled to receive the accrued dividends payable
on April 30, 2004 with respect to such securities, the purchase price per share
to be paid by the Underwriters shall be the purchase price of $22.7562, plus
accrued dividends per share, from January 1, 2004 to the settlement date. If the
Underwriters exercise the option to purchase Option Securities and settle after
the Record Date and such Option Securities are not entitled to receive the
accrued dividends payable on April 30, 2004 with respect to such securities, the
purchase price per share to be paid by the Underwriters shall be the purchase
price of $22.7562, plus accrued dividends from April 1, 2004 to the settlement
date. Said option may be exercised only to cover over-allotments in the sale of
the Underwritten Securities by the Underwriters. Said option may be exercised in
whole or in part at any time on or before the 30th day after the date of the
Final Prospectus upon written or telegraphic notice by the Representatives to
the Company setting forth the number of shares of the Option Securities as to
which the several Underwriters are exercising the option and the settlement
date. The number of shares of the Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 A.M., New York City time, on April5 ,
2004, or at such time on such later date not more than three Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
12
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 388
Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Final Prospectus is otherwise required under Rule 424(b),
the Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed in a form reasonably approved by the
Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when
the Registration Statement, if not effective at the Execution Time,
shall have become effective, (2) when the Final Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Final Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
13
jurisdiction or the institution or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its Subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will pay any fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
14
(f) The Company will not, without the prior written consent of
Citigroup Global Markets Inc. and Bear Stearns & Co., Inc., offer,
sell, contract to sell, pledge, or otherwise dispose of, (or enter into
any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by
the Company or any affiliate of the Company or any person in privity
with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange
Act, any shares of the Securities or other preferred stock ranking pari
passu with the Securities or publicly announce an intention to effect
any such transaction, for a period of 30 days after the date of the
Underwriting Agreement.
(g) The Company will comply, in all material respects, with
all applicable securities and other applicable laws, rules and
regulations, including, without limitation, the Sarbanes Oxley Act, and
to use its best efforts to cause the Company's directors and officers,
in their capacities as such, to comply, in all material respects, with
such laws, rules and regulations, including, without limitation, the
provisions of the Sarbanes Oxley Act.
(h) The Company will not take, directly or indirectly, any
action designed to or that might constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time and the Closing Date and any settlement date pursuant to
Section 3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
15
(b) The Company shall have requested and caused Jenkens &
Gilchrist, a Professional Corporation, counsel for the Company and the
Operating Partnership, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives,
to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under Maryland law with all
requisite corporate power and authority to own and lease its properties
and to conduct its business as described in the Final Prospectus. The
Company has been duly qualified or registered to do business and is in
good standing as a foreign corporation in the states of Arizona,
California, Colorado, Delaware, Florida, Georgia, Illinois, Kentucky,
Louisiana, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey,
New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina,
Tennessee and Texas. To such counsel's knowledge, there are no other
jurisdictions in which the ownership or leasing of the Company's
properties or the nature or conduct of its business requires such
qualification or registration, except where the failure to do so would
not have a Material Adverse Effect. To such counsel's knowledge, the
Operating Partnership or the Company, as applicable, directly or
indirectly, owns the percentage equity interests of each of the
Subsidiaries as reflected on Schedule II to the Underwriting Agreement.
All of the equity interests reflected on Schedule II to the
Underwriting Agreement have been duly and validly authorized and issued
and, except for general partnership interests, are to such counsel's
knowledge fully paid and non-assessable and are so owned free and clear
of any pledge, lien, charge, encumbrance, security interests,
preemptive right or other claims, except as set forth in such entity's
governing documents.
(ii) The Operating Partnership has been duly formed and is
validly existing under the Delaware Revised Uniform Limited Partnership
Act (the "Delaware Act") with all requisite partnership power and
authority to own and lease its properties and to conduct its business
as described in the Final Prospectus. The Operating Partnership has
been duly qualified or registered to do business and is in good
standing as a foreign limited partnership in the states of Arizona,
California, Colorado, Florida, Georgia, Illinois, Kentucky, Louisiana,
Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New
York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina,
Tennessee and Texas. To such counsel's knowledge, there are no other
jurisdictions in which the ownership or leasing of the Operating
Partnership's properties or the nature or conduct of its business
requires such qualification or registration, except where such failure
would not have a Material Adverse Effect. The Company is the sole
general partner of the Operating Partnership and owns, directly or
indirectly, at least a 95% interest in the Operating Partnership.
(iii) Each Significant Subsidiary has been duly formed and is
validly existing as a limited partnership or limited liability company
in good standing under the laws of its respective jurisdiction of
formation. Each such Significant Subsidiary has all requisite
partnership or limited liability company power and authority to own and
lease its properties and conduct its business as presently conducted.
16
(iv) The Company has all requisite corporate right, power and
authority to enter into, deliver and perform the Underwriting Agreement
and the Articles Supplementary, to issue, sell and deliver the
Securities as provided in the Final Prospectus and to consummate the
transactions contemplated in the Final Prospectus.
The Underwriting Agreement and the Articles Supplementary have
been duly authorized, executed and delivered by the Company.
(v) Each consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing by or with any
governmental agency or body necessary for the valid authorization,
issuance, sale and delivery of the Securities, the execution, delivery
and performance of the Underwriting Agreement and the consummation by
the Company of the transactions contemplated by the Final Prospectus
has been made or obtained and is in full force and effect, except such
(i) as may be necessary under state securities or real estate
syndication laws or by the NASD in connection with the purchase and
distribution of the Securities by the Underwriters, as to which such
counsel need express no opinion, or (ii) solely as the same may relate
to the Operative Documents, the lack of which would not have a Material
Adverse Effect.
(vi) Neither the issuance, sale and delivery of the
Securities, nor the execution, delivery and performance of this
Agreement and the other documents to be entered into in connection with
the transaction contemplated hereby and thereby by the Company, nor the
consummation of the transactions contemplated hereby or thereby or in
the Final Prospectus, will violate any of the terms and provisions of,
or constitute a default under, any of the Operative Documents, the
charter (as amended by the Articles Supplementary), articles or
certificates of incorporation, bylaws, certificate of limited
partnership, partnership agreement, certificate of formation or limited
liability company agreement, as the case may be, of the Company, the
Operating Partnership or any Subsidiary; or, to the knowledge of such
counsel, under any material indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument filed as an
exhibit to any required reports, schedules, forms, statements or other
documents filed by the Company or the Operating Partnership with the
Commission (collectively, the "SEC Reports"), except that any violation
of the "Ownership Limit," as defined in the Company's articles of
amendment and restatement, because of the issuance of the Preferred
Stock has been waived by the Company's board of directors as permitted
by such instrument and except for violations or defaults under
agreements or instruments which have since been terminated, cured or
otherwise satisfied or such violations or defaults as would not have a
Material Adverse Effect; or, to the knowledge of such counsel, violate
any applicable statute, judgment, decree, order, rule or regulation of
any court or governmental agency or body of the United States of
America or the State of Texas (provided that no opinion is given with
respect to laws regulating alcoholic beverages), except for violations
as would not have a Material Adverse Effect; or, to the knowledge of
such counsel, result in the creation or imposition of any lien, charge,
claim or encumbrance upon any property or asset of any of the
foregoing, except for liens, charges, claims or encumbrances which are
created by the Operative Documents or which have since been terminated,
cured or otherwise would not have a Material Adverse Effect.
17
(vii) The Securities have been validly authorized by the
Company. When the Securities are issued and delivered against payment
therefor as provided in the Underwriting Agreement, the Securities will
be duly and validly issued, fully paid and nonassessable. To such
counsel's knowledge, no person or entity has a right of participation
or first refusal with respect to the sale of the Securities by the
Company. The form of certificates evidencing the Preferred Stock comply
in all material respects with all applicable requirements of Maryland
law.
All offers and sales of the Company's capital stock prior to
the date hereof were at all relevant times duly registered under the
Act or exempt from the registration requirements of the Act by reason
of Sections 3(b), 4(2) or 4(6) thereof, and (with the exception of
shares of Common Stock, previously outstanding Series A Preferred Stock
and Series B Preferred Stock registered under the Act, as to which such
counsel need not opine) were duly registered or the subject of an
available exemption from the registration requirements of the
applicable state securities or blue sky laws.
(viii) The Company's authorized, issued and outstanding
capital stock is as disclosed in the Final Prospectus. All of the
issued shares of capital stock of the Company have been duly authorized
and validly issued, fully paid and nonassessable. The Securities
conform to the description thereof contained in the Final Prospectus.
To the knowledge of such counsel, except as disclosed in the Final
Prospectus, and except for any grants of options or restricted stock
made in the ordinary course of business under the Company's restricted
stock and stock option plans, there is no outstanding option, warrant
or other right calling for the issuance of, and no commitment, plan or
arrangement to issue, any shares of capital stock of the Company or any
security convertible into or exchangeable for capital stock of the
Company.
(ix) All of the issued Units have been duly and validly
authorized and issued and are fully paid. None of the issued Units have
been issued or is owned or held in violation of any preemptive rights.
The Units to be issued to the Company at the Closing Date have been
duly and validly authorized by the Operating Partnership. When issued
and delivered against payment thereof as provided in the Partnership
Agreement, such Units will be duly and validly issued and fully paid.
All of the outstanding Units have been issued, offered and sold in
compliance with all applicable laws (including, without limitation,
federal and state securities laws). The Units to be issued to the
Company at the Closing Date will be issued, offered and sold in
compliance with all applicable laws (including, without limitation,
federal and state securities laws).
18
(x) The Company, the Operating Partnership and each
Significant Subsidiary is not in violation of its respective charter,
articles or certificates of incorporation, bylaws, certificate of
limited partnership, partnership agreement, certificate of formation or
limited liability company agreement, as the case may be.
(xi) To such counsel's knowledge, except as described in the
Final Prospectus, there is not pending or threatened, any action, suit,
proceeding, inquiry or investigation against either the Company, the
Operating Partnership or any Significant Subsidiary or any of their
respective officers and directors or to which the properties, assets or
rights of any such entity are subject, which, if determined adversely
to any such entity, would individually or in the aggregate have a
Material Adverse Effect.
(xii) There are no contracts, leases or other documents known
to such counsel of a character required to be described in the
Registration Statement or the Final Prospectus or to be filed as
exhibits to the Registration Statement which are not described or filed
as required. To the knowledge of such counsel, there are no statutes or
regulations of the United States of America or the State of Texas
(provided that no opinion is given with respect to laws regulating
alcoholic beverages) applicable to the Company or the Operating
Partnership or certificates, permits or other authorizations from
governmental regulatory officials or bodies required to be obtained or
maintained by such entity, known to such counsel, of a character
required to be disclosed in the Registration Statement or Final
Prospectus which have not been so disclosed and properly described
therein.
(xiii) The Securities have been approved for listing on the
New York Stock Exchange, subject only to official notice of issuance.
(xiv) The Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or is pending or
contemplated under the Act. Other than financial statements and other
financial and operating information data and schedules contained
therein, as to which counsel need express no opinion, the Registration
Statement, the Final Prospectus and any amendment or supplement
thereto, appear on their face to conform as to form in all material
respects with the requirements of Form S-3 under the Act. To the
knowledge of such counsel, the conditions for use of a registration
statement on Form S-3 set forth in the General Instructions to Form S-3
have been satisfied with respect to the Company and the transactions
contemplated by the Underwriting Agreement.
(xv) The Company's and the Operating Partnership's SEC Reports
(other than financial statements and related schedules and statistical
data, as to which such counsel need express no opinion) appear on their
face to be responsive in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission under
the Exchange Act.
19
(xvi) Neither the Company, the Operating Partnership nor any
Significant Subsidiary is, or solely as a result of the consummation of
the transactions contemplated hereby will become, an "investment
company," or a company "controlled" by an "investment company," within
the meaning of the Investment Company Act of 1940, as amended.
(xvii) The statements in the Final Prospectus under the
caption "Description of Series A Preferred Stock" fairly summarize the
matters referred to therein.
In addition, such counsel shall have participated in the
preparation of the Registration Statement and the Final Prospectus and
participated in discussions with certain officers and employees of the
Company, representatives of the independent accountants who examined
the financial statements of the Company included or incorporated by
reference in the Registration Statement and the Final Prospectus, and
you and your representatives. While such counsel shall have not
independently verified and are not passing upon, and does not assume
any responsibility for, the accuracy, completeness or fairness of the
information contained in the Registration Statement and the Final
Prospectus (including any of the documents incorporated by reference
therein except as set forth in opinion (xvii) above), on the basis of
such participation and review, nothing has come to such counsel's
attention that would lead such counsel to believe that the Registration
Statement (it being understood that we express no comment with respect
to the financial statements and schedules, including the notes thereto,
or any other financial or statistical data that is found in or derived
from the internal accounting or other records of the Company included
or incorporated by reference in the Registration Statement or the Final
Prospectus), at the time such Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus (it
being understood that we express no comment with respect to the
financial statements and schedules, including the notes thereto, or any
other financial or statistical data that is found in or derived from
the internal accounting or other records of the Company included or
incorporated by reference in the Registration Statement or the Final
Prospectus), as of its date, or at the Closing Date, 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.
In rendering their opinion as aforesaid, such counsel may rely
upon an opinion or opinions, each dated the Closing Date, of other
counsel retained by them, the Company or the Operating Partnership as
to laws of any jurisdiction other than the United States and
jurisdictions in which they are admitted, provided that (1) each such
local counsel is acceptable to the Underwriters, (2) a copy of each
such opinion is delivered to the Underwriters and is in form and
substance satisfactory to them and their counsel, and (3) counsel shall
state in their opinion that they believe that they and the Underwriters
are justified in relying thereon. In addition, in rendering the
foregoing opinion, such counsel may rely on, as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of
the Company, the Operating Partnership and the Subsidiaries and
certificates or other written statements of officers or departments of
various jurisdictions, having custody of documents respecting the
existence or good standing of the Company, the Operating Partnership
and the Subsidiaries provided that copies of all such opinions,
statements or certificates shall be delivered to the Underwriters.
The Company shall have requested and caused Hunton & Williams
LLP, REIT counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
20
(i) The Company is organized in conformity with the
requirements for qualification as a real estate investment
trust ("REIT"), pursuant to Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code"), and
the Company's current and proposed method of operation enables
it to meet the requirements for qualification and taxation as
a REIT under the Code.
(ii) The Company qualified and continues to qualify,
and has taken all necessary action to be treated, effective
beginning with the year ended December 31, 1994, as a REIT
under the Code.
(iii) The Operating Partnership has been since its
formation in 1994, and continues to be, treated as a
partnership for federal income tax purposes and not as a
corporation or an association taxable as a corporation.
(iv) each Subsidiary partnership (which term does not
include any TRS) has been since its formation, and continues
to be, treated for federal income tax purpose either as a
partnership or as a disregarded entity and not as a
corporation or an association taxable as a corporation or as a
publicly traded partnership.
(iv) The statements in the Final Prospectus under the
caption "Supplemental Federal Income Tax Consequences,"
insofar as such statements constitute a summary of the U.S.
federal laws referred to therein, are accurate and fairly
summarize in all material respects the U.S. federal tax laws
referred to therein.
In rendering the foregoing opinion, counsel may rely, as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and the Operating Partnership and
certificates or other written statements of officers or departments of
various jurisdictions, having custody of documents respecting the
existence or good standing of the Company and the Operating Partnership
provided that copies of all such opinions, statements or certificates
shall be delivered to counsel for the Underwriters.
(c) The Representatives shall have received from Cahill Gordon
& Reindel LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably
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.
21
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President or Executive Vice President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(e) The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representatives, at
the Execution Time and at the Closing Date, letters, dated respectively
as of the Execution Time and as of the Closing Date, in form and
substance reasonably satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and
the Exchange Act and the respective applicable rules and regulations
adopted by the Commission thereunder and containing statements and
information of the type ordinarily included in accountants' "comfort
letters" with respect to the financial statements and financial
information included or incorporated by reference in the Registration
Statement and Final Prospectus.
(f) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
22
(h) The Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the
Representatives.
(i) Prior to the Closing Date, the Company shall have filed
the Articles Supplementary with the Department of Assessments and
Taxation.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cahill Gordon & Reindel LLP, counsel for the
Underwriters, at 80 Pine Street, New York, NY 10005, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
23
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting" or "Plan of Distribution", (i)
the list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and (iii)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Final Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
24
(d) In the event that the indemnity provided in paragraph (a) or, (b)
or (c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
25
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or the Nasdaq National Market or
trading in securities generally on the New York Stock Exchange or the American
Stock Exchange or the Nasdaq National Market shall have been suspended or
limited or minimum prices shall have been established on either of such
Exchanges or the Nasdaq National Market, (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (212) 816-7912) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 388 Greenwich Street, New York, New York, 10013, Attention:
General Counsel (with copy to William M. Hartnett, Cahill Gordon & Reindel LLP,
80 Pine Street, New York, New York 10005); or, if sent to the Company, will be
mailed, delivered or telefaxed to 545 East John Carpenter Freeway, Suite 1300,
Irving, Texas 75062, attention: Lawrence Robinson (with copy to Robert Dockery,
Jenkens & Gilchrist, P.C., 1445 Ross Avenue, Suite 3200, Dallas, Texas 75202).
26
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus and, in
each case, the documents incorporated therein by reference.
"Hotels" shall mean each of the 163 hotels the Operating
Partnership, directly or indirectly, currently own interest in as
described in the Final Prospectus.
27
"Management Agreement" shall mean separate management
agreements pursuant to which third parties operate and manage the 163
Hotels.
"Operating Partnership" shall mean FelCor Lodging Limited
Partnership, a Delaware limited partnership.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Series B Preferred Stock" shall mean the 9% Series B
cumulative redeemable preferred stock of the Company.
"Significant Subsidiaries" shall mean FelCor Hotel Asset
Company, L.L.C., FelCor/CSS Hotels, L.L.C., each a Delaware limited
liability company, and FelCor/CSS Holdings, L.P., a Delaware limited
partnership.
"Units" shall mean the units of partnership interest in the
Operating Partnership owned, directly or indirectly, by the Company.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
FELCOR LODGING TRUST INCORPORATED
By: /s/ Lawrence D. Robinson
------------------------------------
Name: Lawrence D. Robinson
Title: Executive Vice President, General
Counsel and Secretary
S-1
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Citigroup Global Markets Inc.
Bear, Stearns & Co. Inc.
Deutsche Bank Securities Inc.
Legg Mason Wood Walker, Incorporated
By: Citigroup Global Markets Inc.
/s/ John Todd
- ----------------------------------
Name: John Todd
Title: Vice President
By: Bear, Stearns & Co. Inc.
/s/ Chris O'Connor
- ----------------------------------
Name: Chris O'Connor
Title: Managing Director
For themselves and the other several Underwriters
named in Schedule I to the foregoing Agreement.
S-2
SCHEDULE I
Number of Shares
to be
Underwriters Purchased
- ------------ ---------
Citigroup Global Markets Inc.............................. 1,497,569
Bear, Stearns & Co. Inc................................... 1,497,569
Deutsche Bank Securities Inc.............................. 502,431
Legg Mason Wood Walker, Incorporated...................... 502,431
Total.................. 4,000,000
=========
SCHEDULE II
List of the Subsidiaries of FelCor Lodging Trust Incorporated
[Intentionally Omitted]