EXHIBIT 1
CAPSTAR HOTEL COMPANY
UNDERWRITING AGREEMENT
[FOR DEBT SECURITIES -
STANDARD PROVISIONS
(DEBT SECURITIES)]
August __, 1997
[FOR DEBT SECURITIES USE -- From time to time, CapStar Hotel Company, a
Delaware corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein sometimes referred to as this Agreement. Unless
otherwise defined herein, terms defined in the Underwriting Agreement are used
herein as therein defined.]
[FOR COMMON OR PREFERRED STOCK USE --
______________________
______________________
______________________
As Representatives of the several
Underwriters named in Schedule 1,
c/o
Dear Sirs:
CapStar Hotel Company, a Delaware corporation (the "Company"), together
with certain stockholders of the Company named in Schedule 2 hereto (the
"Selling Stockholders"), propose to sell an aggregate of _________ shares (the
"Firm Stock") of the Company's [IF AN OFFERING COMMON STOCK USE-- Common Stock,
par value $.01 per share (the "Common Stock")][IF AN OFFERING OF PREFERRED STOCK
USE-- __% Preferred Stock, par value __ per share (the "Preferred Stock") -- AND
CONFORM THROUGHOUT]. [IF SECONDARY OFFERING, INSERT --Of the ____________
shares of the [Firm] Stock, ________ are being sold by the Company and ________
by the Selling Stockholders.] In addition, the Company proposes to grant to the
Underwriters named in Schedule 1 hereto (the "Underwriters") an option to
purchase up to an additional ________ shares of the Common Stock on the terms
and for the purposes set forth in Section 3 (the "Option Stock"). The Firm
Stock and the Option Stock, if
purchased, are hereinafter collectively called the "Offered Securities." [IF AN
OFFERING OF CONVERTIBLE PREFERRED STOCK, INSERT -- The shares of Preferred Stock
are convertible into shares of Common Stock, par value $___ per share (the
"Common Stock") of the Company, upon the terms and subject to the conditions and
adjustments set forth in the Certificate of Designations relating thereto (the
"Certificate of Designations"), at a conversion price of $___ per share.] [IF
AN OFFERING OF CONVERTIBLE EXCHANGEABLE PREFERRED STOCK, INSERT -- The Shares of
Preferred Stock are also exchangeable at the option of the Company into [INSERT
THE TITLE OF THE DEBENTURES ISSUABLE IN EXCHANGE FOR THE PREFERRED STOCK] (the
"Debentures") at a rate of ____ principal amount of Debentures for each share of
Preferred Stock, subject to adjustment under certain circumstances. The
Debentures are to be issued pursuant to an Indenture (the "Indenture") to be
entered into between the Company and [INSERT NAME OF INDENTURE TRUSTEE] as
trustee, the form of which has been filed as an exhibit to the Registration
Statement (as defined below).] This is to confirm the agreement concerning the
purchase of the Offered Securities from the Company and the Selling Stockholder
by the Underwriters named in Schedule 1 hereto (the "Underwriters").
[It is understood by all parties that the Company and the Selling
Stockholder are concurrently entering into an agreement dated the date hereof
(the "International Underwriting Agreement") providing for the sale by the
Company and the Selling Stockholder of an aggregate of ________ shares of Common
Stock (the "International Firm Stock"), together with an over-allotment option
thereunder to purchase up to an additional ______ shares of Common Stock from
the Company (the "International Option Stock"; the International Firm Stock and
International Option Stock, if purchased, are hereinafter collectively called
"International Offered Securities") through arrangements with certain
underwriters outside the United States (the "International Managers"), for whom
_________________, _______________ and __________ are acting as lead managers.
The U.S. Underwriters and the International Managers simultaneously are entering
into an agreement among the U.S. and international underwriting syndicates (the
"Agreement Between U.S. Underwriters and International Managers") which provides
for, among other things, the transfer of shares of Common Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Common Stock contemplated by the foregoing, one
relating to the Offered Securities and the other relating to the International
Offered Securities. The latter form of prospectus will be identical to the
former except for certain substitute pages as included in the registration
statement and amendments thereto referred to below. Except as used in Sections
3, 4, 5, 12, and 13 herein, and except as the context may otherwise require,
references herein to the Offered Securities shall include all the shares of the
Common Stock which may be sold pursuant to either this Agreement or the
International Underwriting Agreement, and references herein to any prospectus
whether in preliminary or final form, and whether as amended or supplemented,
shall include both the U.S. and the international versions thereof.]
2
At or prior to August 23, 1996, the Company completed a series of
transactions described under the heading "The Formation Transactions" in that
certain prospectus dated August 20, 1996, relating to the initial public
offering of 9,250,000 shares of Common Stock of the Company (the "IPO
Prospectus"). As part of these transactions, the Company and CapStar LP
Corporation ("CapStar Sub") became the sole partners of CapStar Management
Company, L.P., as governed by an amended and restated Agreement of Limited
Partnership (the "Operating Partnership"), and the Operating Partnership was
restructured to own, directly or indirectly, all of the properties and other
assets previously owned, directly or indirectly, by EquiStar Hotel Investors,
L.P. and CapStar Management Company, L.P. (as constituted as of August 20, 1996,
"CapStar Management"), and their respective subsidiaries, including owned hotel
properties or interests therein and management agreements with hotels. As used
herein the term "Formation Transactions" shall mean the occurrence of all the
events described in the IPO Prospectus under the heading "The Formation
Transactions," the execution of acquisition agreements for the Additional Hotels
(as defined in the IPO Prospectus) and the other transactions related thereto,
and the term "Predecessor Entities" shall mean the subsidiaries of EquiStar
Hotel Investors, L.P. together with CapStar Management and its subsidiaries for
all periods prior to the consummation of the Formation Transactions.
1. Representations, Warranties and Agreements of the Company and the
Operating Partnership. The Company and the Operating Partnership, jointly and
severally, represent, warrant and agree that:
(a) A registration statement on Form S-3 (333-_____), and amendments
thereto, with respect to the Offered Securities has (i) been
prepared by the Company in conformity with the requirements of
the United States Securities Act of 1933 (the "Securities Act")
and the rules and regulations (the "Rules and Regulations") of
the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the
Securities Act [IF AN OFFERING OF CONVERTIBLE EXCHANGEABLE
PREFERRED STOCK, INSERT -- ; and the Indenture shall have been
qualified under the Trust Indenture Act of 1939 (the "Trust
Indenture Act")]. Copies of such registration statement and the
amendments thereto have been delivered by the Company to you as
the representatives (the "Representatives") of the Underwriters.
As used in this Agreement, "Effective Time" means the date and
the time as of which such registration statement, or the most
recent post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date of
the Effective Time; "Preliminary Prospectus" means each
prospectus included in such registration
3
statement, or amendments thereof, before it became effective
under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations;
"Registration Statement" means such registration statement, as
amended at the Effective Time, including any documents
incorporated by reference therein at such time and all
information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations
in accordance with Section 6 hereof and deemed to be a part of
the registration statement as of the Effective Time pursuant to
paragraph (b) of Rule 430A of the Rules and Regulations; "Base
Prospectus" means the prospectus included in the Registration
Statement; "Prospectus Supplement" means the prospectus
supplement filed with, transmitted for filing to, or promptly
hereafter filed with or transmitted for filing to, the
Commission, specifically relating to the Offered Securities; and
"Prospectus" means such final prospectus, consisting of the Base
Prospectus and together with the Prospectus Supplement, as first
filed with the Commission pursuant to paragraph (1) or (4) of
Rule 424(b) of the Rules and Regulations. Reference made herein
to any Preliminary Prospectus or to the Prospectus shall be
deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as of the date of such Preliminary Prospectus or
the Prospectus, as the case may be, and any reference to any
amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document
filed under the United States Securities Exchange Act of 1934
(the "Exchange Act") after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to
include any annual report of the Company filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the
Registration Statement. Any registration statement (including
any amendment or supplement thereto or information which is
deemed part thereof) filed by the Company to register additional
shares of Common Stock of the Company under Rule 462(b) of the
Securities Act ("Rule 462(b) Registration Statement") shall be
deemed a part of the Registration Statement. Any prospectus
(including any amendment or supplement thereto or information
which is
4
deemed to part thereof) included in a Rule 462(b) Registration
Statement and any term sheet as contemplated by Rule 434 of the
Rules and Regulations (a "Term Sheet") shall be deemed to be part
of the Prospectus. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement
or the Prospectus will, when they become effective or are filed
with the Commission, as the case may be, conform in all material
respects to the requirements of the Securities Act and the Rules
and Regulations and do not and will not, as of the applicable
effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to
the Prospectus and any amendment or supplement thereto) contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; PROVIDED that no
representation or warranty is made as to (i) information
contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion
therein [FOR DEBT SECURITIES ADD -- or (ii) to that part of the
Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Trustee].
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the
requirements the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents 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; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents
become effective or are filed with Commission, as the case may
be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a
5
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(d) The Company and each of its subsidiaries (as defined in Section
17) and each Predecessor Entity have been duly organized and are
validly existing as corporations, general or limited partnerships
or limited liability companies, as the case may be, in good
standing under the laws of their respective jurisdictions of
organization, are duly qualified to do business and are in good
standing as foreign corporations, limited partnerships or limited
liability companies, as the case may be, in each jurisdiction in
which their respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own
or hold their respective properties and to conduct the businesses
in which they are engaged;
(e) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description
thereof contained in the Prospectus; and any shares of Common
Stock, any shares of Preferred Stock, any Debt Securities and any
Warrants (other than the Offered Securities to be offered and
sold by the Company hereunder) that are outstanding or will be
issued on or prior to the First Delivery Date were or will be
offered and sold in compliance with all applicable laws
(including, without limitation, federal and state securities
laws); and all of the issued shares of capital stock, partnership
interests or limited liability company membership interests, as
the case may be, of each subsidiary of the Company have been duly
and validly authorized and issued and (except for partnership
interests of general partners and except to the extent the
limited liability company agreements governing the respective
limited liability companies provide otherwise) are fully paid and
non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims except for liens in favor of Bankers Trust Company and/or
any of its affiliates to secure indebtedness.
[FOR STOCK USE -- (f) The unissued shares of the Offered Securities
to be issued and sold by the Company to the Underwriters
hereunder [and under the International
6
Underwriting Agreement] have been duly and validly authorized
and, when issued and delivered against payment therefor as
provided herein [and in the International Underwriting Agreement]
will be duly and validly issued, fully paid and non-assessable;
[IF AN OFFERING OF CONVERTIBLE PREFERRED STOCK, INSERT HERE AND
ELSEWHERE IN THIS PARAGRAPH AS INDICATED -- all of the shares of
Common Stock issuable upon conversion of the Offered Securities
[IF AN OFFERING OF CONVERTIBLE EXCHANGEABLE PREFERRED STOCK,
INSERT HERE AND ELSEWHERE IN THIS PARAGRAPH AS INDICATED -- or
the Debentures] have been duly and validly authorized and
reserved for issuance upon such conversion and, when issued and
delivered in accordance with the terms of the Certificate of
Designations [IF AN OFFERING OF CONVERTIBLE EXCHANGEABLE
PREFERRED STOCK, INSERT -- or Indenture, as applicable,] will be
duly and validly issued, fully paid and non-assessable;] and the
Offered Securities [and the Common Stock issuable upon conversion
of the Offered Securities [or the Debentures]] will conform to
the descriptions thereof contained in the Prospectus.]
[IF AN OFFERING OF CONVERTIBLE EXCHANGEABLE PREFERRED STOCK, INSERT -
- (g) The Indenture has been duly authorized, and when duly
executed by the proper officers of the Company (assuming due
execution and delivery by the Trustee) and delivered by the
Company will constitute a valid and binding agreement of the
Company enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) or an implied covenant of good
faith and fair dealing; and the Debentures have been duly
authorized, and, when duly executed, authenticated, issued and
delivered as contemplated upon exchange for the Stock as provided
in the Certificate of Designations and the Indenture, will be
duly and validly issued and outstanding, and will constitute
valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance with
their terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) or an implied covenant of good
faith and fair
7
dealing; and the Debentures, when issued and delivered, will
conform to the description thereof contained in the Prospectus.]
(h) The partnership interests of the Operating Partnership ("Units")
transferred to the Company and CapStar Sub in connection with the
Formation Transactions, have been duly authorized for issuance by
the Operating Partnership, at the closing of the Formation
Transactions were the only Units outstanding and are validly
issued and fully paid, and, except as otherwise described in the
Prospectus, are the only Units outstanding.
(i) This Agreement has been duly authorized, executed and delivered
by the Company and the Operating Partnership.
[FOR DEBT SECURITIES-- (j) The Indenture pursuant to which the
Offered Securities are to be issued has been duly qualified under
the Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally
or the effect of general principles of equity, including the
possible unavailability of specific performance or injunctive
relief, whether considered in a proceeding in equity or at law.]
[FOR DEBT SECURITIES-- (k) The Offered Securities have been duly
authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Underwriters in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company enforceable
in accordance with their terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
relating to or affecting creditors' rights generally or the
effect of general principals of equity, including the possible
unavailability of specific performance or injunctive relief,
whether considered in a proceeding in equity or at law.]
(l) The execution, delivery and performance of this Agreement [FOR
DEBT SECURITIES-- , the Indenture and the Offered Securities] by
the Company and the Operating Partnership and the consummation of
the transactions contemplated hereby [, and thereby,] will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default
8
under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries or any Predecessor Entity is a party or by which the
Company or any of its subsidiaries or any Predecessor Entity is
bound or to which any of the property or assets of the Company or
any of its subsidiaries or any Predecessor Entity is subject, nor
will such actions result in any violation of the provisions of
the charter, by-laws, partnership agreement or operating
agreement of the Company, any of its subsidiaries or any
Predecessor Entity or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, any of its subsidiaries or any
Predecessor Entity or any of their properties or assets; and
except for the registration of the Offered Securities under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and applicable state securities laws in connection with the
purchase and distribution of the Offered Securities by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental
agency or body or any other person is required for the execution,
delivery and performance of this Agreement [FOR DEBT SECURITIES--
, the Indenture or the Offered Securities] by the Company or the
Operating Partnership, the consummation of the transactions
contemplated hereby [and thereby].
(m) Except as set forth in the Prospectus, there are no preemptive or
other rights to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, any unissued shares of the
Offered Securities to be issued and sold by the Company to the
Underwriters hereunder pursuant to the Company's charter or
by-laws or any agreement or other instrument;
(n) Except as set forth in the Prospectus, there will be no
preemptive or other rights to subscribe for or to purchase, nor
any restriction upon the voting of, any of the partnership
interests in the Operating Partnership pursuant to the Operating
Partnership's Agreement of Limited Partnership, as restated and
amended, or any agreement or other instrument to which the
Company is a party;
(o) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right (other than rights which
9
have been waived or satisfied) to require the Company to file a
registration statement under the Securities Act with respect to
any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities
Act.
(p) Except as described in the Prospectus, the Company has not sold
or issued any shares of Common Stock during the six-month period
preceding the date of the Prospectus, including any sales
pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
(q) None of the Company, any of its subsidiaries or any Predecessor
Entity has sustained, since the date of the latest audited
financial statements included in the Prospectus, any material
loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, other than as set forth or
contemplated in the Prospectus, (i) there has been no material
adverse change in the financial condition, results of operation
or business of the Company, the Operating Partnership, any
subsidiary of the Company or any Predecessor Entity, whether or
not arising in the ordinary course of business, (ii) no material
casualty loss or material condemnation or other material adverse
event with respect to any Property has occurred, (iii) there have
been no transactions or acquisition agreements entered into by
the Company, the Operating Partnership or any subsidiary of the
Company other than those in the ordinary course of business,
which are material with respect to such entity, (iv) there has
been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock or by the
Operating Partnership with respect to its partnership interests
and (v) there has been no change in the capital stock of the
Company or the partnership interests of the Operating
Partnership, or any increase in the indebtedness of the Company,
the Operating Partnership or any subsidiary.
10
(r) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement
or included or incorporated by reference in the Prospectus
present fairly the financial condition and results of operations
of the entities purported to be shown thereby, at the dates and
for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as
otherwise stated herein.
(s) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and the Predecessor Entities, whose
reports appear in the Prospectus or is incorporated by reference
therein and who have delivered the initial letter referred to in
Section 9(h) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations; and
_______________ , whose report appears in the Prospectus or is
incorporated by reference therein and who have delivered the
initial letter referred to in Section 9(i) hereof, were
independent accountants as required by the Securities Act and the
Rules and Regulations during the periods covered by the financial
statements on which they reported contained or incorporated in
the Prospectus.
(t) The Company and each of its subsidiaries have or will have on the
First Delivery Date good and marketable title in fee simple to
all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and all real property and buildings held under
lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or with such exceptions as are not
material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its
subsidiaries. There shall be issued and outstanding with respect
to each of the Owned Hotels (as defined in the Prospectus) an
ALTA form of owner's title insurance policy (or local equivalent
with respect to those Owned Hotels located in jurisdictions where
an ALTA form of owner's title insurance policy is not available)
insuring the fee
11
simple estate of the applicable subsidiary of the Company in the
Owned Hotel owned by such subsidiary in an amount at least equal
to the acquisition price of such Owned Hotel and each such title
insurance policy will continue to be in full force and effect
immediately following the consummation of the Offering.
(u) The Company and each of its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the
value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries.
(v) Each of the Company, its subsidiaries and the Predecessor
Entities possesses such certificates, authorizations or permits
issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated
by them, except where the failure to possess such certificates,
authorizations or permits would not have a material adverse
effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the
Company and its subsidiaries (a "Material Adverse Effect"), and
none of the Company, any of its subsidiaries or any Predecessor
Entity has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling, or finding, would have a Material
Adverse Effect.
(w) The Company, each of its subsidiaries and each Predecessor Entity
own or possess adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, franchises,
copyrights and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and
have not received any notice of any claim of conflict with, any
such rights of others.
(x) There are no legal or governmental proceedings pending to which
the Company, any of its subsidiaries or any Predecessor Entity is
a party or of which any property or assets of the Company, any of
its subsidiaries or any Predecessor Entity is the subject which
could reasonably be expected to have a Material Adverse Effect;
and to the best of the Company's
12
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(y) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(z) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or
filed as exhibits to the Registration Statement.
(aa) No relationship, direct or indirect, exists between or among the
Company, the Operating Partnership, any subsidiary of the
Company, or any Predecessor Entity, on the one hand, and the
directors, officers, stockholders of the Company, or customers or
suppliers of the Company, or customers or suppliers of the
Operating Partnership, on the other hand, which is required to be
described in the Prospectus which is not so described.
(ab) There is (i) no material unfair labor practice complaint pending
against the Company, its subsidiaries or any Predecessor Entity
nor, to the best knowledge of the Company, threatened against any
of them before the National Labor Relations Board or any state or
local labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the
Company, its subsidiaries or any Predecessor Entity or, to the
best knowledge of the Company, threatened against any of them,
(ii) no material strike, labor dispute, slowdown or stoppage
pending against the Company, its subsidiaries or any Predecessor
Entity nor, to the best knowledge of the Company, threatened
against the Company, its subsidiaries or any Predecessor Entity
which might be expected to have a Material Adverse Effect.
(ac) None of the Company, any subsidiary or any Predecessor Entity has
violated any safety or similar law applicable to its business nor
any federal, state or local law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable federal
or state wages and hours laws which in each case might result in
a Material Adverse Effect.
(ad) The Company, its subsidiaries and each Predecessor Entity are in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income
13
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable
event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company, any
of its subsidiaries or any Predecessor Entity would have any
liability; the Company, its subsidiaries and each Predecessor
Entity have not incurred and do not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company, any of
its subsidiaries or any Predecessor Entity would have any
liability that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
(ae) The Company, each of its subsidiaries and each Predecessor Entity
has filed all federal, state and local income and franchise tax
returns required to be filed through the date hereof and has paid
all taxes due thereon, and no tax deficiency has been determined
adversely to the Company, any of its subsidiaries or any
Predecessor Entity which has had (nor does the Company have any
knowledge of) any tax deficiency which, if determined adversely
to the Company, any of its subsidiaries or any Predecessor
Entity, might have a Material Adverse Effect; the amounts
currently set up as provisions for taxes or otherwise by the
Company and its subsidiaries on their books and records are
sufficient for the payment of all their unpaid federal, foreign,
state, county and local taxes accrued through the dates as of
which they speak, and for which the Company and its subsidiaries
may be liable in their own right or as a transferee of the assets
of, or as successor to any other corporation, association,
partnership, joint venture or other entity.
(af) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed
in the Prospectus, the Company and its subsidiaries have not (i)
issued or granted any securities, (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary
course of business or (iv) declared or paid any dividend on its
capital stock.
14
(ag) The Company, its subsidiaries, and the Predecessor Entities (i)
make and keep accurate books and records and (ii) maintain
internal accounting controls which provide reasonable assurance
that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as
necessary to permit preparation of their financial statements and
to maintain accountability for their assets, (C) access to their
books, records and accounts is permitted only in accordance with
management's authorization and (D) the reported accountability
for their assets is compared with existing assets at reasonable
intervals.
(ah) None of the Company, any of its subsidiaries or any Predecessor
Entity is, or will be, (i) in violation of its charter, by-laws,
partnership agreement or operating agreement, (ii) in default in
any material respect, and no event has or will have occurred
which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) in
violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject
or has or will have failed to obtain any material license,
permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its
property or to the conduct of its business, which violation or
failure could reasonably be expected to have a Material Adverse
Effect.
(ai) None of the Company, any of its subsidiaries or any Predecessor
Entity, or any director, officer, agent, employee or other person
associated with or acting on behalf of the Company, any of its
subsidiaries or any Predecessor Entity, has used any corporate,
partnership or limited liability company funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official
or employee from corporate funds; violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977; or
made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
15
(aj) There has been no storage, disposal, generation, manufacture,
refinement, installation, transportation, handling or treatment
of toxic wastes, medical wastes, hazardous wastes, petroleum or
petroleum products (including crude oil or any fraction thereof),
hazardous substances or any other substances which pose a hazard
to human health, safety, natural resources, industrial hygiene or
the environment or which cause or threaten to cause a nuisance by
the Company, any of its subsidiaries, or any Predecessor Entity
(or, to the knowledge of the Company, by any of their
predecessors in interest or by any other entity) at, upon or from
any of the property now or previously owned or leased by the
Company, its subsidiaries or any Predecessor Entity except to the
extent commonly used in the normal operations of such property,
in violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require
investigation, monitoring, removal action, corrective action,
remedial action or other response action ("response action")
under any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit, except for any violation or response
action which would not have, or could not be reasonably likely to
have, singularly or in the aggregate with all such violations and
response actions, a Material Adverse Effect; there has been no
material spill, discharge, leak, emission, injection, escape,
dumping or release or threatened release of any kind onto such
property or into the environment surrounding such property of any
toxic wastes, medical wastes, solid wastes, hazardous wastes,
petroleum or petroleum products (including crude oil or any
fraction thereof), hazardous substances or any other substances
which pose a hazard to human health, safety, natural resources,
industrial hygiene or the environment or which cause or threaten
to cause a nuisance, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release or threatened
release which would not have or would not be reasonably likely to
have, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings,
releases and threatened releases, a Material Adverse Effect; and
the terms "hazardous wastes," "solid wastes," "toxic wastes,"
"hazardous substances," "petroleum," "petroleum products" and
"medical wastes" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations
with respect to environmental protection.
(ak) Neither the Company nor any subsidiary is, or will be as a result
of the offer and sale of the Offered Securities hereunder,
16
an "investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of
the Commission thereunder.
2. Representations, Warranties and Agreements of the Selling
Stockholders. Each of the Selling Stockholders severally represents, warrants
and agrees that:
(a) The Selling Stockholder has, and immediately prior to the First
Delivery Date the Selling Stockholder will have, good and valid
title to the Offered Securities to be sold by the Selling
Stockholder hereunder on such date, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such
shares and payment therefor pursuant hereto, good and valid title
to such shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several Underwriters.
(b) The Selling Stockholder has full right, power and authority to
enter into this Agreement, the Power of Attorney and the Custody
Agreement; the execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement by the
Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage deed of trust, loan agreement or other
agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which
any of the property or assets of the Selling Stockholder is
subject, nor will such actions result in any violation of any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Selling
Stockholder or the property or assets of the Selling Stockholder;
and, except for the registration of the Offered Securities under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection
with the purchase and distribution of the Offered Securities by
the Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of
the transactions contemplated hereby.
17
(c) The Registration Statement and the Prospectus and any further
amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, do not and will not, as of the
applicable effective date (as to the Registration Statement and
any amendment thereto) and as of the applicable filing date (as
to the Prospectus and any amendment or supplement thereto)
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided that the
representations and warranties in this subsection shall only
apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity
with information relating to the Selling Stockholder furnished in
writing to the Company or the Underwriters by the Selling
Stockholder expressly for use in the Registration Statement or
Prospectus.
(d) The Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
shares of the Offered Securities.
[FOR DEBT SECURITIES USE -- 3. Public Offering. The Company is
advised by the Manager that the Underwriters propose to make a public offering
of their respective portions of the Offered Securities as soon after this
Agreement has been entered into as in the Manager's judgment is advisable. The
terms of the public offering of the Offered Securities is set forth in the
Prospectus.]
[FOR DEBT SECURITIES USE -- 4. Purchase and Delivery. Payment for
the Offered Securities shall be made by certified or official bank check or
checks payable to the order of the Company in New York Clearing House funds
(same day funds) at the time and place set forth in the Underwriting Agreement,
upon delivery to the Manager for the respective accounts of the several
Underwriters of the Offered Securities, registered in such names and in such
denominations as the Manager shall request in writing not less than two full
business days prior to the date of deliver, with any transfer taxes payable in
connection with the transfer of the Offered Securities to the Underwriter duly
paid.
[FOR STOCK USE -- 3. Purchase of the Offered Securities by the
Underwriters. On the basis of the representations and warranties contained in,
and subject to the terms and conditions of, this Agreement, the Company agrees
to sell ________ shares of the Firm Stock and the Selling Stockholders agree to
sell the
18
number of shares of the Firm Stock set opposite [its/his/her] name in Schedule 2
hereto, severally and not jointly, to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the number of shares
of the Firm Stock set opposite that Underwriter's name in Schedule 1 hereto.
Each Underwriter shall be obligated to purchase from the Company, and from the
Selling Stockholders, that number of shares of the Firm Stock which represents
the same proportion of the number of shares of the Firm Stock to be sold by the
Company, and by the Selling Stockholders, as the number of shares of the Firm
Stock set forth opposite the name of such Underwriter in Schedule 1 represents
of the total number of shares of the Firm Stock to be purchased by all of the
Underwriters pursuant to this Agreement. The respective purchase obligations of
the Underwriters with respect to the Firm Stock shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to _______ shares of Option Stock. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 4 hereof. Shares of Option Stock shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Firm Stock set opposite the name of such Underwriters in
Schedule 1 hereto. The respective purchase obligations of each Underwriter with
respect to the Option Stock shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Stock other than in 100 share
amounts. The price of both the Firm Stock and any Option Stock shall be $____
per share.
[IF THE COMPENSATION PAYABLE TO THE UNDERWRITERS IS SEPARATELY STATED
AS AN UNDERWRITING COMMISSION, RATHER THAN AN UNDERWRITING DISCOUNT, INSERT --
As compensation to the Underwriters for their commitments hereunder, the Company
and each Selling Stockholder, will, on the applicable Delivery Date (as that
term is defined in Section 4), pay to the Representatives, for the accounts of
the several Underwriters, an amount equal to $___ per share for the Stock to be
delivered by the Company and the Selling Stockholders hereunder on such Delivery
Date.]
The Company and the Selling Stockholder shall not be obligated to
deliver any of the Offered Securities to be delivered on the First Delivery Date
or the Second Delivery Date (as hereinafter defined), as the case may be, except
upon payment for all the Offered Securities to be purchased on such Delivery
Date as provided herein.
[FOR STOCK USE -- 4. Delivery of and Payment for the Offered
Securities. Delivery of and payment for the Firm Stock shall be made at the
offices of ____________ at 10:00 A.M., New York City time, on the
[third][fourth] full business day following the date of this Agreement or at
such other date or place as shall be determined by agreement between the
Representatives and the Company. This
19
date and time are sometimes referred to as the "First Delivery Date." On the
First Delivery Date, the Company and the Selling Stockholder shall deliver or
cause to be delivered certificates representing the Firm Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company and the Selling Stockholder of the purchase price by
wire transfer of federal (same-day) funds to an account or accounts previously
designated in writing to __________ by the Company and the Selling Stockholders.
Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Firm Stock shall be registered in
such names and in such denominations as the Representatives shall request in
writing not less than two full business days prior to the First Delivery Date.
For the purpose of expediting the checking and packaging of the certificates for
the Firm Stock, the Company and the Selling Stockholders shall make the
certificates representing the Firm Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement the option granted in Section 3 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Representatives, when the shares of Option
Stock are to be delivered; provided, however, that this date and time shall not
be earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are sometimes
referred to as the "Second Delivery Date" and the First Delivery Date and the
Second Delivery Date are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by wire transfer of federal
(same-day) funds to an account or accounts previously designated in writing to
______________ by the Company Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the Option Stock
shall be registered in such names and in such denominations as the
Representatives shall request in the aforesaid written notice.
20
For the purpose of expediting the checking and packaging of the certificates for
the Option Stock, the Company shall make the certificates representing the
Option Stock available for inspection by the Representatives in New York, New
York, not later than 2:00 P.M., New York City time, on the business day prior to
the Second Delivery Date.]
[IF THE COMPENSATION PAYABLE TO THE UNDERWRITERS IS SEPARATELY STATED
AS AN UNDERWRITING COMMISSION, RATHER THAN AN UNDERWRITING DISCOUNT, INSERT --
On each Delivery Date, the Company and each Selling Stockholder will pay, or
cause to be paid, the commission payable on such Delivery Date to the
Underwriters under the last paragraph of Section 3 by certified or official bank
check or checks payable in New York Clearing House (next-day) funds.]
5. Offering of Offered Securities by the Underwriters. Upon
authorization by the Representatives of the release of the [FOR DEBT SECURITIES
USE -- Offered Securities] [FOR STOCK USE -- Firm Stock], the several
Underwriters propose to offer the [FOR DEBT SECURITIES USE -- Offered
Securities] [FOR STOCK USE -- Firm Stock] for sale upon the terms and conditions
set forth in the Prospectus. Each U.S. Underwriter agrees that, except to the
extent permitted by the Agreement Between U.S. Underwriters and International
Managers, it will not offer or sell any of the Offered Securities outside of the
United States.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than Commission's close
of business on the second business day following the execution
and delivery of this Agreement or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Securities
Act; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the last
Delivery Date except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to
furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Stock; to advise the
21
Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
the Prospectus, of the suspension of the qualification of the
Offered Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or
for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel
for the Underwriters a signed copy of the Registration Statement
as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and
exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto
(in each case excluding exhibits other than this Agreement [IF AN
OFFERING OF DEBT SECURITIES OR CONVERTIBLE EXCHANGEABLE PREFERRED
STOCK, INSERT -- , the Indenture] [IF AN OFFERING OF DEBT
SECURITIES OR PREFERRED STOCK, INSERT -- , the computation of the
ratio of earnings to fixed charges] and the computation of per
share earnings), (ii) each Preliminary Prospectus, the Prospectus
and any amended or supplemented Prospectus and (iii) any document
incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if the delivery of a prospectus is required at any
time after the Effective Time in connection with the offering or
sale of the Offered Securities or any other securities relating
thereto and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary to amend or supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
22
with the Securities Act or the Exchange Act, to notify the
Representatives and, upon their request, to file such document
and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or
omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested
by the Commission;
(e) To the extent practicable, prior to filing with the Commission
any amendment to the Registration Statement or supplement to the
Prospectus, any document incorporated by reference in the
Prospectus or any Prospectus pursuant to Rule 424 of the Rules
and Regulations, and to the extent not practicable, immediately
thereafter, to furnish a copy thereof to the Representatives and
counsel for the Underwriters and to consult with the
Representatives prior to the filing;
(f) As soon as practicable after the Effective Date, but in any event
not later than 410 or, if the fourth quarter following the fiscal
quarter that includes the Effective Date is the last fiscal
quarter of the Company's fiscal year, 455 days after the end of
the Company's current fiscal quarter, to make generally available
to the Company's security holders and to deliver to the
Representatives an earning statement of the Company and its
subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158);
(g) Until the earlier of the expiration of the period of five years
following the Effective Date and the date on which the Company
ceases to be subject to the reporting requirements of the
Exchange Act, to furnish to the Representatives copies of all
materials furnished by the Company to its shareholders and all
public reports and all reports and financial statements furnished
by the Company to the principal national securities exchange upon
which the Common Stock may be listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission
thereunder;
23
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Offered
Securities [IF AN OFFERING OF CONVERTIBLE PREFERRED STOCK OR
CONVERTIBLE DEBT SECURITIES, INSERT -- and the Common Stock
issuable upon conversion of the Stock] [IF AN OFFERING OF
CONVERTIBLE EXCHANGEABLE PREFERRED STOCK, INSERT -- , the
Debentures issuable in exchange for the Stock and the Common
Stock issuable upon conversion of the Stock or the Debentures]
for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Offered Securities,
provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(i) Except as described in the Prospectus, for a period of 180 days
from the date of the Prospectus, not to, directly or indirectly,
offer for sale, sell or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the
future of) any shares of Common Stock (other than the Offered
Securities and shares issued pursuant to employee benefit plans,
qualified stock option plans or other employee compensation plans
existing on the date hereof or pursuant to currently outstanding
options, warrants or rights), or sell or grant options, rights or
warrants with respect to any shares of Common Stock (other than
the grant of options pursuant to option plans existing on the
date hereof), without the prior written consent of
______________; and to cause each of CapStar Executive Investors
I, L.L.C., CapStar Executive Investors II, L.L.C., CapStar GP
Corp., CapStar Hotels, Inc., Latham Hotels, Inc., New CapStar
Group I, L.L.C., New CapStar Group II, L.L.C., Paul W. Whetsell,
David E. McCaslin John Emery, John E. Plunket, Michael T. George,
D. Scott Livchak and Robert Gauthier to furnish to the
Representatives, prior to the First Delivery Date, a letter or
letters, in form and substance satisfactory to counsel for the
Underwriters, pursuant to which each such person shall agree not
to, directly or indirectly, offer for sale, sell or otherwise
dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any shares of Common
Stock for a period of 180 days
24
from the date of the Prospectus, without the prior written
consent of ______________;
[FOR STOCK USE --- (j) Prior to the Effective Date, to apply for the
listing of the Offered Securities on the New York Stock Exchange,
Inc. and to use its best efforts to complete that listing,
subject only to official notice of issuance and evidence of
satisfactory distribution, prior to the First Delivery Date;
[IF AN OFFERING OF CONVERTIBLE PREFERRED STOCK, INSERT -- (k) To use
its best efforts to complete the listing of the Common Stock
issuable upon conversion of the Stock [IF AN OFFERING OF
CONVERTIBLE EXCHANGEABLE PREFERRED STOCK, INSERT -- or
Debentures] on the [New York][American] Stock Exchange,
Inc.][National Market System] prior to the initial issuance of
such Common Stock;]
(l) To apply the net proceeds from the sale of the Offered Securities
being sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the Investment
Company Act of 1940 and the rules and regulations of the
Commission thereunder.
7. Further Agreements of the Selling Stockholders. Each of the
Selling Stockholders severally agrees:
(a) For a period of 180 days from the date of the Prospectus, not to,
directly or indirectly, offer for sale, sell or otherwise dispose
of (or enter into any transaction or device which is designed to,
or could be expected to, result in the disposition by any person
at any time in the future of) any shares of Common Stock (other
than the Offered Securities), without the prior written consent
of ______________
(b) That the Offered Securities to be sold by the Selling
Stockholders hereunder are subject to the interest of the
Underwriters, that the custody arrangements made, or to be made,
by, or on behalf of, the Selling Stockholders in respect of such
Offered Securities are to that extent irrevocable, and that the
obligations of the Selling Stockholders hereunder shall not be
terminated by any act of the Selling Stockholders, by operation
of law or the occurrence of any other event.
25
(c) To deliver to the Representatives prior to the First Delivery
Date a properly completed and executed United States Treasury
Department Form W-9.
8. Expenses. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Offered Securities and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of producing and
distributing this Agreement and any other related documents in connection with
the offering, purchase, sale and delivery of the stock; (e) the fees (including
reasonable attorneys' fees) and expenses incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
sale of the Offered Securities; (f) any applicable listing or other fees; (g)
the fees and expenses of qualifying the Offered Securities under the securities
laws of the several jurisdictions as provided in Section 6(h) and of preparing,
printing and distributing a Blue Sky Memorandum (including related fees and
expenses of counsel to the Underwriters); (h) any fees charged by rating
agencies for the rating of the Offered Securities; and (i) all other costs and
expenses incident to the performance of the obligations of the Company and the
Selling Stockholder under this Agreement; provided that, except as provided in
this Section 8 and in Section 13 the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Offered Securities which they may sell and the expenses of advertising
any offering of the Offered Securities made by the Underwriters.
9. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Selling Stockholder contained herein, to the performance by the Company
and the Selling Stockholder of their obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 6(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information
in the Registration Statement or the Prospectus or otherwise
shall have been complied with.
26
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to such Delivery Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains
an untrue statement of a fact which, in the opinion of Hogan &
Hartson L.L.P., counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(c) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the First Delivery Date, there shall not
have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) of the Securities Act.
(d) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Offered
Securities, the Registration Statement and the Prospectus, and
all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory
in all material respects to counsel for the Underwriters, and the
Company and the Selling Stockholder shall have furnished to such
counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(e) Paul, Weiss, Rifkind, Wharton and Garrison shall have furnished
to the Representatives their written opinion, as counsel to the
Company, addressed to the Underwriters and dated such Delivery
Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company and each of its subsidiaries have been
duly formed and are validly existing as corporations, limited
partnerships or limited liability companies, as the case may be,
in good standing under the laws of their respective jurisdictions
of organization, are duly qualified to do business and are in
good standing as foreign corporations, limited partnerships or
limited liability companies, as the case may be, in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses (as set
forth in certificates of officers of the Company upon which such
counsel is relying
27
without independent investigation) requires such qualification
and have all corporate, partnership or limited liability company,
as the case may be, power and authority necessary to own or hold
their respective properties and conduct the businesses in which
they are engaged as described in the Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company (including the shares of Offered Securities
being delivered on such Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus;
and any shares of Common Stock, any shares of Preferred Stock,
any Debt Securities and any Warrants (other than the Offered
Securities to be offered and sold by the Company to the
Underwriters hereunder) that are outstanding were offered and
sold in transactions exempt from the registration requirements of
the Securities Act and in compliance with all applicable
provisions of the General Corporation Law of the State of
Delaware (the "Delaware Corporation Law") and all of the issued
shares of capital stock, partnership interests or limited
liability company membership interests, as the case may be, of
each subsidiary of the Company (other than Leperq Atlanta
Renaissance Partners, L.P. (the "Atlanta Partnership")) have been
duly and validly authorized and issued and (except for
partnership interests of general partners and except to the
extent the limited liability company agreements governing the
respective limited liability companies provide otherwise) are
fully paid, non-assessable and are owned directly or indirectly
by the Company, to such counsel's knowledge free and clear of all
liens, encumbrances, or claims except for liens in favor of
Bankers Trust Company and/or any of its affiliates to secure
indebtedness; with respect to the general and limited partnership
interests of the Atlanta Partnership held by the Company, such
interests are owned directly or indirectly by the Company, to
such counsel's knowledge free and clear of all liens,
encumbrances, or claims except for liens in favor of Lehman
Brothers Holdings, Inc. and/or any of its affiliates to secure
indebtedness;
(iii) Except as set forth in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any unissued
shares of the Offered Securities to be issued and sold by the
Company to the Underwriters hereunder pursuant to the
28
Company's charter or by-laws or any agreement or other instrument
known to such counsel;
(iv) Except as set forth in the Prospectus, there are no
preemptive or other rights to subscribe for or to purchase, nor
any restriction upon the voting or transfer of, any of the
partnership interests in the Operating Partnership pursuant to
the Operating Partnership's Agreement of Limited Partnership, as
amended, or, to such counsel's knowledge, any agreement or other
instrument to which the Company is a party;
(v) To the best of such counsel's knowledge, based
solely on a review of such counsel's internal litigation docket,
and other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject which
could be expected to have a Material Adverse Effect; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vi) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein 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 is pending or
threatened by the Commission;
(vii) The Registration Statement and the Prospectus and
any further amendments or supplements thereto made by the Company
prior to such Delivery Date (other than the financial statements
and related schedules and statistical data therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and
the Rules and Regulations;
(viii) To the best of such counsel's knowledge, there are
no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations
29
which have not been described or filed as exhibits to the
Registration Statement;
(ix) This Agreement has been duly authorized, executed
and delivered by the Company;
(x) The amended and restated Agreement of Limited
Partnership of the Operating Partnership has been duly
authorized, executed and delivered by the Company and CapStar Sub
and constitutes the valid and binding agreement of each such
party, enforceable against each such party in accordance with its
terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and
except as may be subject to general principles of equity
(regardless of whether such agreement is considered in a
proceeding in equity or at law), and except as rights to
indemnity and contribution thereunder may be limited by
applicable law and public policy;
(xi) The issue and sale of the shares of Offered
Securities being delivered on such Delivery Date by the Company
and the compliance by the Company and the Operating Partnership
with all of the provisions of this Agreement [FOR DEBT SECURITIES
USE -- , the Indenture and the Debt Securities,] and the
consummation of the transactions contemplated hereby [, and
thereby,] will not conflict with or result in a material breach
or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel
to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its
subsidiaries is subject which breach is reasonably likely to have
a Material Adverse Effect, nor will such actions result in any
violation of the provisions of the charter, by-laws, limited
partnership agreement or operating agreement of the Company or
any of its subsidiaries or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body of the United States, the State of New York or
established pursuant to the Delaware Corporation Law having
jurisdiction over the Company or any of its subsidiaries or any
of their properties or assets; except for the registration of the
Offered Securities under the Securities Act
30
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and distribution of the Offered Securities by the Underwriters,
no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this
Agreement [FOR DEBT SECURITIES USE -- , the Indenture and the
Debt Securities] by the Company and the consummation of the
transactions contemplated hereby, [and thereby];
(xii) Except as set forth in the Prospectus, to the best
of such counsel's knowledge, there are no contracts, agreements
or understandings between the Company and any person granting
such person the right (other than rights which have been waived
or satisfied) to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act;
(xiii) Neither the Company nor any of its subsidiaries is
an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended;
(xiv) The Operating Partnership will be treated as a
partnership, and not as an "association" or "publicly traded
partnership" taxable as a corporation, for federal income tax
purposes; and
(xv) The statements under the captions "Description of
Capital Stock," "Description of Debt Securities" and "Description
of Warrants" in the Prospectus, and "Certain Relationships and
Related Transactions" incorporated into the Prospectus, insofar
as such statements constitute a summary of legal matters,
documents or proceedings referred to therein are correct in all
material respects.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the State of New York and
the Delaware Corporation Law and that such counsel is not
31
admitted in the State of Delaware; and (ii) in giving the
opinions referred to in Section 9(e)(i) (solely with regard to
organization and qualification of the Company's subsidiaries),
Section 9(e)(ii) (solely with regard to capital stock,
partnership interests or limited liability company membership
interests, as the case may be, of subsidiaries of the Company
being duly and validly authorized and issued and fully paid and
non-assessable), state that they are relying on an opinion or
opinions of other counsel as to such matters, provided that the
Underwriters shall have received such opinion or opinions, in
form and substance satisfactory to Underwriter's counsel, of
other counsel reasonably acceptable to Underwriters' counsel.
Such counsel shall also have furnished to the Representatives a
written statement, addressed to the Underwriters and dated such
Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that (x) in connection with the
preparation of the Registration Statement and the Prospectus,
such counsel have participated in conferences with certain
officers and other representatives of the Company, at which the
contents of the Registration Statement and the Prospectus and
related matters were discussed, and (y) based on such
participation, no facts have come to the attention of such
counsel which lead them to believe that the Registration
Statement (except for financial statements and schedules and
other statistical data included therein or omitted therefrom, as
to which such counsel need make no statement), as of the
Effective Date, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading, or that the Prospectus (except for financial
statements and schedules and other statistical data included
therein or omitted therefrom, as to which such counsel need make
no statement) contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
The foregoing statement may be qualified by a statement to the
effect that such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except
for the statements made in the Prospectus under the caption
"Description of Capital Stock," insofar as such statements relate
to the Offered Securities and concern legal matters.
32
(f) The counsel for the Selling Stockholders shall have furnished to
the Representatives its written opinion, as counsel to the
Selling Stockholder, addressed to the Underwriters and dated the
First Delivery Date, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) Each of the Selling Stockholders has full right,
power and authority to enter into this Agreement, the Power of
Attorney and the Custody Agreement; the execution, delivery and
performance of this Agreement, the Power of Attorney and the
Custody Agreement by each of the Selling Stockholders and the
consummation by each the Selling Stockholders of the transactions
contemplated hereby and thereby will not (i) conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to
which any Selling Stockholder is a party or by which any Selling
Stockholder is bound or to which any of the property or assets of
any Selling Stockholder is subject or (ii) constitute a violation
of any statute, or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over any Selling
Stockholder or the property or assets of any Selling Stockholder.
Except for the registration of the Offered Securities under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection
with the purchase and distribution of the Offered Securities by
the Underwriters, no consent, approval, authorization, or order
of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of this Agreement by any Selling
Stockholder and the consummation by the Selling Stockholders of
the transactions contemplated hereby;
(ii) This Agreement has been duly authorized, executed
and delivered by, or on behalf of, the Selling Stockholders and
constitutes valid and binding agreements of the Selling
Stockholders, enforceable in accordance with their respective
terms, except as rights to indemnification and contribution may
be limited by applicable securities laws (such counsel may except
from the opinion in this clause the application of bankruptcy,
insolvency, moratorium or similar laws affecting creditors'
rights generally and may limit such opinion with respect to the
availability of equitable remedies and the
33
enforceability of provisions providing for indemnification and
contribution for violations of securities laws);
(iii) Good and valid title to the Offered Securities to be
sold by the Selling Stockholders under this Agreement, free and
clear of all liens, encumbrances, equities or claims, has been
transferred to each of the several Underwriters.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the State of _____ and the
Revised Limited Uniform Partnership Act of Delaware and that such
counsel is not admitted in the State of Delaware and (ii) in
rendering the opinion in Section 9(f)(iii) above, rely upon a
certificate of the Selling Stockholder in respect of matters of
fact as to ownership of and liens, encumbrances, equities or
claims on the shares of Offered Securities sold by the Selling
Stockholder, provided that such counsel shall furnish copies
thereof to the Representatives and state that it believes that
both the Underwriters and it are justified in relying upon such
certificate.
(g) The Representatives shall have received from Hogan & Hartson
L.L.P., counsel for the Underwriters, such opinion or opinions,
dated such Delivery Date, with respect to the issuance and sale
of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose
of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the Representatives
shall have received from KPMG Peat Marwick a letter, in form and
substance satisfactory to the Representatives, addressed to the
Underwriters and dated the date hereof (i) confirming that they
are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as
of the date hereof (or, with respect to matters involving changes
or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date
not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by
34
accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(i) At the time of execution of this Agreement, the Representatives
shall have received from _____________ a letter in form and
substance satisfactory to the Representatives, addressed to the
Underwriters and dated the date hereof (i) confirming that they
are independent public accountants within the meaning of the
Securities Act and are in compliance with Rule 2-01 of Regulation
S-X of the Commission, (ii) stating, as of the date hereof (or,
with respect to matters involving changes or developments since
the respective dates as of which specified financial information
is in the Prospectus, as of a date not more than five days prior
to the date hereof), the conclusions and findings of such firm
with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(j) With respect to the letters of KPMG Peat Marwick and ___________
referred to in clauses (h) and (i) hereof and delivered to the
Representatives concurrently with the execution of this Agreement
(the "initial letters"), the Company shall have furnished to the
Representatives letters (the "bring-down letters") of such
accountants, addressed to the Underwriters and dated such
Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down
letters (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date
not more than five days prior to the date of the bring-down
letters), the conclusions and findings of such firms with respect
to the financial information and other matters covered by the
initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(k) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chairman of the
Board, its President or a Vice President and its chief financial
officer stating that:
35
(i) The representations, warranties and agreements of
the Company in Section 1 are true and correct as of such Delivery
Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Sections 9(a) and 9(m)
have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B)
since the Effective Date no event has occurred which should have
been set forth in a supplement or amendment to the Registration
Statement or the Prospectus.
(l) The Selling Stockholders (or the Custodian) shall have furnished
to the Representatives on the First Delivery Date certificates,
dated the First Delivery Date, signed by, or on behalf of, each
of the Selling Stockholders (or the Custodian) stating that the
representations, warranties and agreements of the Selling
Stockholder contained herein are true and correct as of the First
Delivery Date and that the Selling Stockholders have complied
with all agreements contained herein to be performed by the
Selling Stockholders at or prior to the First Delivery Date.
(m) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus or (ii) since such
date there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering
or the delivery of the Offered
36
Securities being delivered on such Delivery Date on the terms and
in the manner contemplated in the Prospectus.
(n) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the
American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in
the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by Federal or
state authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been
a declaration of a national emergency or war by the United States
or (iv) there shall have occurred such a material adverse change
in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in
the United States shall be such) as to make it, in the judgment
of a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the public offering
or delivery of the Offered Securities being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(o) There shall be issued and outstanding with respect to each of the
Owned Hotels (as defined in the Prospectus) an ALTA form of
owner's title insurance policy (or local equivalent with respect
to those Owned Hotels located in jurisdictions where an ALTA form
of owner's title insurance is not available) insuring the fee
simple estate of the applicable subsidiary of the Company in the
Owned Hotel owned by such subsidiary in an amount at least equal
to the acquisition price of such Owned Hotel and each such title
insurance policy will continue to be in full force and effect
immediately following the consummation of the Offering.
[FOR COMMON STOCK USE -- (p) The New York Stock Exchange, Inc. shall
have approved the Offered Securities for listing, subject only to
official notice of issuance and evidence of satisfactory
distribution.]
(q) The Representatives shall have received the written opinion or
opinions or other certification in form and substance acceptable
37
to Underwriter's counsel, of other counsel reasonably acceptable
to Underwriter's counsel to the effect that with regard to the
Owned Hotels (as defined in the Prospectus), the Company and/or
its subsidiaries hold all state food, beverage and liquor
licenses necessary or required for such corporations,
partnerships and limited liability companies to conduct their
business as currently conducted in each state.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company and the Operating Partnership, jointly and severally,
shall indemnify and hold harmless each Underwriter, its officers
and employees and each person, if any, who controls any
Underwriter within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, but not limited to,
any loss, claim, damage, liability or action relating to
purchases and sales of Offered Securities), to which that
Underwriter, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained (A) in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any amendment
or supplement thereto or (B) in any blue sky application or other
document prepared or executed by the Company (or based upon any
written information furnished by the Company) specifically for
the purpose of qualifying any or all of the Offered Securities
under the securities laws of any state or other jurisdiction (any
such application, document or information being hereinafter
called a "Blue Sky Application"), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection
with, or relating in any manner to, the Offered Securities or the
offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage,
38
liability or action arising out of or based upon matters covered
by clause (i) or (ii) above (provided that the Company and the
Operating Partnership shall not be liable under this clause (iii)
to the extent that it is determined in a final judgment by a
court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct),
and shall reimburse each Underwriter and each such officer,
employee or controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company and the
Operating Partnership shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, or in any
Blue Sky Application, in reliance upon and in conformity with
written information concerning such Underwriter furnished to the
Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein [FOR DEBT
SECURITIES ADD -- , or the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee]. The foregoing indemnity agreement is in addition to
any liability which the Company or the Operating Partnership may
otherwise have to any Underwriter or to any officer, employee or
controlling person of that Underwriter.
(b) The Selling Stockholders, jointly and severally, shall indemnify
and hold harmless each Underwriter, its officers and employees,
and each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Offered
Securities), to which that Underwriter, officer, employee or
controlling person may become subject, under the Securities Act
or otherwise, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any
Preliminary Prospectus or the Prospectus (or any amendment or
39
supplement thereto) in reliance upon and in conformity with
written information relating to the Selling Stockholders
furnished to the Company or the Underwriters expressly for use in
the Registration Statement (or any amendment thereto), or any
Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto). The foregoing indemnity agreement is in
addition to any liability which the Selling Stockholders may
otherwise have to any Underwriter or any officer, employee or
controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of
its directors (including any person who, with his or her consent,
is named in the Registration Statement as about to become a
director of the Company), the Selling Stockholders and each
person, if any, who controls the Company within the meaning of
the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any
Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or (B) in
any Blue Sky Application or (ii) the omission or alleged omission
to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information concerning such Underwriter furnished to the
Company through the Representatives by or on behalf of that
Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the
40
Company, the Selling Stockholders or any such director, officer,
employee or controlling person.
(d) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 10, notify
the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure
to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the
extent it has been materially prejudiced by such failure and,
provided further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 10. If
any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and,
to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party
under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation;
provided, however, that the Representatives shall have the right
to employ counsel to represent jointly the Representatives and
those other Underwriters and their respective officers, employees
and controlling persons who may be subject to liability arising
out of any claim in respect of which indemnity may be sought by
the Underwriters against the Company, the Operating Partnership
or the Selling Stockholders under this Section 10 if, in the
reasonable judgment of the Representatives, it is advisable for
the Representatives and those Underwriters, officers, employees
and controlling persons to be jointly represented by separate
counsel, and in that event the fees and expenses of one such
separate counsel shall be paid by the Company, the Operating
Partnership and the Selling Stockholders. No indemnifying party
shall (i) without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim,
41
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,
or (ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be
unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or
judgment.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c) in respect
of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of
such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, the
Operating Partnership and the Selling Stockholder on the one hand
and the Underwriters on the other from the offering of the
Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of
the Company, the Operating Partnership, and the Selling
Stockholder on the one hand and the Underwriters on the other
with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company, the Operating
Partnership, and the Selling Stockholders on the one hand and the
Underwriters on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds
from the offering of the Offered Securities purchased under this
Agreement (before deducting expenses) received by the Company,
the Operating Partnership, and the Selling Stockholders, on the
one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the shares of the
42
Offered Securities purchased under this Agreement, on the other
hand, bear to the total gross proceeds from the offering of the
shares of the Offered Securities under this Agreement, in each
case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact
relates to information supplied by the Company, the Operating
Partnership, the Selling Stockholders or the Underwriters, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement
or omission. For purposes of the preceding two sentences, the
net proceeds deemed to be received by the Company shall be deemed
to be also for the benefit of the Operating Partnership and
information supplied by the Company shall also be deemed to have
been supplied by the Operating Partnership. The Company, the
Operating Partnership, the Selling Stockholders and the
Underwriters further agree that it would not be just and
equitable if contributions pursuant to this Section were to be
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in
this Section shall be deemed to include, for purposes of this
Section 10(e), any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 10(e), no Underwriter shall be
required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities
underwritten by it and distributed to the public was offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason
of-any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 10(e) are several in
proportion to their respective underwriting obligations and not
joint.
43
(f) The Underwriters severally confirm and the Company acknowledges
that the statements with respect to the public offering of the
Offered Securities by the Underwriters set forth on the cover
page of, the legend concerning over-allotments on the inside
front cover page of and the concession and reallowance figures
appearing under the caption "Underwriting" in, the Prospectus are
correct and constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf
of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
11. Defaulting Underwriters. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Offered Securities which the defaulting Underwriter agreed but failed to
purchase on such Delivery Date in the respective proportions which the number of
shares of the Firm Stock set opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total number of shares of the Firm
Stock set opposite the names of all the remaining non-defaulting Underwriters in
Schedule 1 hereto; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any of the Offered Securities on
such Delivery Date if the total number of shares of the Offered Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of shares of the Offered Securities to be
purchased on such Delivery Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the number of shares of the
Offered Securities which it agreed to purchase on such Delivery Date pursuant to
the terms of Section 3. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the
Offered Securities to be purchased on such Delivery Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the shares which the defaulting Underwriter or Underwriters
agreed but failed to purchase on such Delivery Date, this Agreement (or, with
respect to the Second Delivery Date, the obligation of the Underwriters to
purchase, and of the Company to sell, the Option Stock) shall terminate without
liability on the part of any non-defaulting Underwriter or the Company or the
Selling Stockholders, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Sections 8 and 13. As used in
this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 11, purchases Firm Stock which a
defaulting Underwriter agreed but failed to purchase.
44
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company and the Selling Stockholders for damages
caused by its default. If other underwriters are obligated or agree to purchase
the Offered Securities of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
12. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company and the Selling Stockholders prior to delivery of and payment for the
Firm Stock if, prior to that time, any of the events described in Sections 9(m)
or 9(n), shall have occurred or if the Underwriters shall decline to purchase
the Offered Securities for any reason permitted under this Agreement.
13. Reimbursement of Underwriters' Expenses. If (a) the Company or
the Selling Stockholders shall fail to tender the Offered Securities for
delivery to the Underwriters by reason of any failure, refusal or inability on
the part of the Company or the Selling Stockholders to perform any agreement on
its part to be performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the Company or the Selling
Stockholders is not fulfilled, the Company and the Selling Stockholders will
reimburse the Underwriters for all reasonable out-of-pocket expenses (including
fees and disbursements of counsel) incurred by the Underwriters in connection
with this Agreement and the proposed purchase of the Offered Securities, and
upon demand the Company and the Selling Stockholders shall pay the full amount
thereof to the Representatives. If this Agreement is terminated pursuant to
Section 11 by reason of the default of one or more Underwriters, neither the
Company nor the Selling Stockholders shall be obligated to reimburse any
defaulting Underwriter on account of those expenses.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to ______________, __________, _______,
_____ _____, Attention: Syndicate Department (Fax:
___-___-____), with a copy, in the case of any notice pursuant to
Section 10(d), to the Director of Litigation, Office of the
General Counsel, ______________, _________________________,
_________, __, _____;
(b) if to the Company or to the Operating Partnership, shall be
delivered or sent by mail, telex or facsimile transmission to the
45
address of the Company set forth in the Registration Statement,
Attention: Paul W. Whetsell (Fax: 202-965-4445);
(c) if to the Selling Stockholder, shall be delivered or sent by
mail, telex or facsimile transmission to _____________,
________________, _________________, ________________, (Fax:
_______), with a copy to ______________ ,________________________
, _____________________ , ______________ (Fax: ______________ );
provided, however, that any notice to an Underwriter pursuant to Section 10(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
the Selling Stockholders shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
______________ on behalf of the Representatives and the Company and the
Underwriters shall be entitled to act and rely upon any request, consent, notice
or agreement given or made on behalf of such Selling Stockholders by the
Custodian.
15. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, the
Selling Stockholders and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Company and the Selling Stockholders contained in this Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
any Underwriter within the meaning of Section 15 of the Securities Act and (B)
the indemnity agreement of the Underwriters contained in Section 10(c) of this
Agreement shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 15, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Operating Partnership, the Selling
Stockholders and the Underwriters contained in this Agreement or made by or on
behalf on them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Offered Securities and shall remain in full
force and effect,
46
regardless of any investigation made by or on behalf of any of them or any
person controlling any of them.
17. Definition of the Terms "Business Day" and "Subsidiary." For
purposes of this Agreement, (a) "business day" means any day on which York Stock
Exchange, Inc. is open for trading and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations.
18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the state of New York without regard to the
principles of conflicts of laws thereof.
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
47
If the foregoing correctly sets forth the agreement Operating
Partnership among the Company, the Operating Partnership, the Selling
Stockholders and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CapStar Hotel Company
By:___________________________________
Paul W. Whetsell, President and Chief
Executive Officer
CapStar Management Company, L.P.
By:___________________________________
CapStar GP Corp., its general partner
By:___________________________________
Paul W. Whetsell, President
______________________________________
The Selling Stockholders
By:___________________________________
, Attorney-in-Fact
By:___________________________________
Accepted:
______________
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By ______________
By:_____________________________
Authorized Representative
48
[FOR STOCK USE ONLY]
SCHEDULE 1
NUMBER OF
UNDERWRITERS SHARES
Total
49
[FOR SECONDARY OFFERING ONLY]
SCHEDULE 2
Name of Selling Stockholder Number of Shares
Total
50
[FOR DEBT SECURITIES ONLY]
UNDERWRITING AGREEMENT
August , 1997
CapStar Hotel Company
1010 Wisconsin Avenue, N.W.
Suite 650
Washington, DC 20007
Dear Sirs:
We (the "Representative") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that CapStar Hotel
Company, a Delaware corporation (the "Company"), proposes to issue and sell
[CURRENCY AND PRINCIPAL AMOUNT] aggregate initial offering price of [FULL TITLE
OF DEBT SECURITIES] (the "Debt Securities"). The Debt Securities are also
referred to herein as the "Offered Securities." The Debt Securities will be
issued pursuant to the provisions of an Indenture dated as of __________ __ ,
1997 (the "Indenture") between the Company and _____________ , as Trustee (the
"Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of Debt
Securities, plus accrued interest, if any, from [DATE OF OFFERED SECURITIES] to
the date of payment and delivery:
PRINCIPAL AMOUNT OF
NAME DEBT SECURITIES
Total
The Underwriters will pay for the Offered Securities upon delivery at
the offices of ___________________________ , ______________ at 10:00 a.m., New
York time on ____________ __ , 1997, or at such time, not later than 5:00 p.m.,
(New York time) on _____________ __ , 1997, and place, as shall be designated by
the Representatives. The time and date of such payment and delivery are
hereinafter referred to as the Delivery Date.
51
The Offered Securities shall have the terms set forth in the
Prospectus dated _________ __ , 1997, and the Prospectus Supplement date
_________ __ , 1997, including the following:
TERMS OF DEBT SECURITIES
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________ __ , 19__ and __________ __ , 19__
commencing _________ __ , 19__ (Interest accrues from ____________ __
, 19__)
Form and Denomination:
[Other terms:]
All provisions contained in the document entitled CapStar Hotel
Company Underwriting Agreement Standard Provisions (Debt Securities) dated
September __, 1997, a copy of which is attached hereto, are herein incorporated
by reference in their entirety and shall be deemed to be a part of this
Agreement to the same as if such provisions had been set forth in full herein,
except that if (i) any terms defined in such document is otherwise defined
herein, the definition set forth herein shall control, (ii) all references in
such document to a type of security that is not an Offered Security shall not be
deemed to be a part of this Agreement, and (iii) all references in such document
to a type of agreement that has not been entered into in connection with the
transactions contemplated hereby shall not be deemed to be a part of this
Agreement.
52
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
Acting severally on behalf of themselves
and the several Underwriters named herein
By: _____________________________
By: _____________________________
Name:
Title:
Accepted, ____________ __ , 1997
CapStar Hotel Company
By: _____________________________
Paul Whetsell
President and Chief Executive Officer
53