FELCOR LODGING TRUST INCORPORATED
5,400,000 Depositary Shares
Each Representing 1/100 of a Share of
8% Series C Cumulative Redeemable Preferred Stock
Underwriting Agreement
New York, New York
March 8, 2005
Morgan Stanley & Co. Incorporated
A.G. Edwards & Sons, Inc.
Deutsche Bank Securities Inc.
As Representatives of the several Underwriters,
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
FelCor Lodging Trust Incorporated, a corporation organized under the
laws of the State of Maryland (the "Company"), proposes to sell to the several
underwriters named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, 5,400,000 depositary shares
(the "Depositary Shares"), each representing 1/100 of a share of 8% Series C
Cumulative Redeemable Preferred Stock, $0.01 par value, of the Company (the
"Preferred Stock"). The Depositary Shares will be issued by SunTrust Bank
(formerly SunTrust Bank, Atlanta), as Depositary (the "Depositary"), under a
Deposit Agreement to be dated as of April 7, 2005, among the Company, the
Depositary and the holders from time to time of the Depositary Receipts (as
defined below) issued thereunder (the "Deposit Agreement"). The Depositary
Shares will be evidenced by depositary receipts issued pursuant to the Deposit
Agreement (the "Depositary Receipts"). The Preferred Stock, the Depositary
Shares and the Depositary Receipts are collectively referred to herein as the
"Securities." To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives, as used herein, shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall mean
either the singular or plural as the context requires. Any reference herein to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3,
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospec-
tus or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. Certain terms used herein are defined in Section 18
hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a registration
statement on file number 333-46357 on Form S-3, including a related basic
prospectus, for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission one
of the following: (1) after the Effective Date of such registration
statement, a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b), (2) prior to the Effective Date of
such registration statement, an amendment to such registration statement
(including the form of final prospectus supplement) or (3) a final
prospectus supplement in accordance with Rules 415 and 424(b). In the case
of clause (1), the Company has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be included
in such registration statement and the Final Prospectus. As filed, such
final prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the Exchange Act
and the respective rules thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and, on the Effective Date, the Final Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date and any settlement
date, the Final Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information fur-
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nished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) The Registration Statement has become effective under the Act;
no order preventing or suspending the use of any Final Prospectus has been
issued and no proceeding for that purpose has been instituted or
threatened by the Commission or the securities authority of any state or
other jurisdiction. No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or threatened or, to the
best knowledge of the Company, contemplated by the Commission or the
securities authority of any state or other jurisdiction and any request on
the part of the Commission for additional information has been complied
with.
(d) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Final Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder.
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Maryland
with all requisite corporate power and authority to own and lease its
properties and to conduct its business as described in the Final
Prospectus. The Company has been duly qualified or registered to do
business and is in good standing as a foreign corporation in each other
jurisdiction in which the ownership or leasing of its properties or the
nature or conduct of its business as described in the Final Prospectus
requires such qualification, except where the failure to do so would not
have a material adverse effect on the condition, financial or otherwise,
business, prospects, net worth or results of operations of the Company,
the Operating Partnership and the entities listed on Schedule II hereto
(the "Subsidiaries"), taken as a whole (a "Material Adverse Effect").
Except for the Subsidiaries, the Company does not own, control, or have an
equity interest in, directly or indirectly, any corporation, association
or other entity. The Company, the Operating Partnership or a Subsidiary,
as applicable, owns the percentage equity interests of each of the
Subsidiaries as reflected on Schedule II hereto. All of such equity
interests have been duly and validly authorized and issued and, except for
general partnership interests, are fully paid and non-assessable and are
so owned free and clear of any pledge, lien, charge, encumbrance, security
interests, preemptive right or other claims, except as set forth in such
entity's governing documents or otherwise reflected on Schedule II hereto.
(f) The Operating Partnership has been duly formed and is validly
existing as a limited partnership in good standing under the Delaware
Revised Uniform Limited Partnership Act (the "Delaware Act") with all
requisite partnership power and authority to own and lease its properties
and to conduct its business as described in the Final Prospectus. Each
Subsidiary (other than the Operating Partnership) has been duly formed and
is validly existing as a corporation, business trust, limited partnership
or limited liability company in good standing under the laws of its
respective jurisdiction of forma-
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tion. Each Subsidiary has been duly qualified or registered to do business
and is in good standing as a foreign corporation, business trust,
partnership or limited liability company, as the case may be, in each
other jurisdiction in which the ownership or leasing of its properties or
the nature or conduct of its business as now conducted requires such
qualification or registration, except where the failure to do so would not
have a Material Adverse Effect. The Company is, and at the Closing Date
will be, the sole general partner of the Operating Partnership, and at the
Closing Date will own, directly or indirectly, at least a 95% interest in
the Operating Partnership.
(g) The Company has all requisite corporate right, power and
authority to enter into this Agreement, to execute and file articles
supplementary relating to the classification of authorized shares of
Securities (the "Articles Supplementary"), to enter into the other
documents to be entered into in connection with the transactions
contemplated hereby, to issue, sell and deliver the Securities as provided
in the Final Prospectus and to consummate the transactions contemplated in
the Final Prospectus.
(h) This Agreement and the Articles Supplementary have been duly
authorized, executed and delivered by the Company.
(i) The Deposit Agreement has been duly authorized, and when
executed and delivered by the Company (and assuming the due authorization
by the Depositary), will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity.
(j) The Second Amended and Restated Agreement of Limited
Partnership of the Operating Partnership, as amended or supplemented (the
"Partnership Agreement"), has been duly and validly executed by the
Company on behalf of itself and all of the other partners in the Operating
Partnership. The Subsidiaries that are parties to the Management
Agreements have the requisite power and authority to enter into the
Management Agreements and to perform their obligations thereunder. Each
such agreement has been duly authorized, executed and delivered by the
Company, the Operating Partnership and the Subsidiaries, as applicable.
(This Agreement, the Deposit Agreement, the Articles Supplementary, the
Partnership Agreement and the Management Agreements sometimes are
hereinafter referred to collectively as the "Operative Documents").
(k) Each consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing by or with any
governmental agency or body necessary for the valid authorization,
issuance, sale and delivery of the Securities, the execution, delivery and
performance of this Agreement, the Deposit Agreement and the Articles
Supplementary and the consummation by the Company of the transactions
contemplated hereby and thereby has been made or obtained and is in full
force and effect; provided, however, that the Articles Supplementary has
not been filed, but will be filed with the Maryland Department of
Assessments and Taxation at or before the Closing Date.
(l) Neither the issuance, sale and delivery by the Company of the
Securities, nor the execution, delivery and performance of this Agreement,
the Deposit Agreement
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or the Articles Supplementary and the other documents to be entered into
in connection with the transactions contemplated hereby and thereby by the
Company nor the consummation of the transactions contemplated hereby or
thereby or in the Final Prospectus will conflict with or result in a
breach or violation of any of the terms and provisions of, or (with or
without the giving of notice or the passage of time or both) constitute a
default under, any of the Operative Documents, the charter (as amended by
the Articles Supplementary), articles or certificate of incorporation,
bylaws, certificate of limited partnership or partnership agreement,
certificate of formation or limited liability company agreement, as the
case may be, of the Company, the Operating Partnership or any Subsidiary;
any indenture, mortgage, deed of trust, loan agreement, note, lease or
other agreement or instrument to which any of the Company, the Operating
Partnership or any Subsidiary is a party or to which they, any of them,
any of their respective properties or other assets or any Hotel is
subject, except that any violation of the "Ownership Limit," as defined in
the Company's articles of amendment and restatement, because of the
issuance of the Securities, has been waived, or will be waived prior to
the Closing Date, by the Company's board of directors as permitted by such
instrument and except such conflicts, breaches, violations or defaults
that would not have a Material Adverse Effect; or any applicable statute,
judgment, decree, order, rule or regulation of any court or governmental
agency or body applicable to any of the foregoing or any of their
respective properties, except such breaches or violations that would not
have a Material Adverse Effect; or result in the creation or imposition of
any lien, charge, claim or encumbrance upon any property or asset of any
of the foregoing, except such liens, charges, claims or encumbrances that
would not have a Material Adverse Effect.
(m) The Depositary Shares and the Preferred Stock have been
validly authorized by the Company. When the shares of Preferred Stock and
the Depositary Receipts evidencing the Depositary Shares representing
interests in such Preferred Stock are issued and delivered against payment
therefor as provided in this Agreement and the Deposit Agreement, the
Preferred Stock will be duly and validly issued, fully paid and
nonassessable. The deposit of the Preferred Stock by the Company with the
Depositary pursuant to the Deposit Agreement has been duly authorized and,
when the Depositary Shares are issued and delivered in accordance with the
terms of this Agreement, the Depositary Shares will represent legal and
valid interests in the Preferred Stock as provided in the Deposit
Agreement. Assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary, each Depositary Share will represent
the interest described in the Final Prospectus in a validly issued,
outstanding, fully paid and nonassessable share of Preferred Stock.
Assuming due execution and delivery of the Depositary Receipts by the
Depositary pursuant to the Deposit Agreement, the Depositary Receipts will
entitle the holders thereof to the benefits provided therein and in the
Deposit Agreement. There are no statutory or other preemptive rights of
shareholders with respect to any of the Securities. No person or entity
holds a right to require or participate in the registration under the Act
of the Securities pursuant to the Registration Statement other than those
persons who have expressly waived such rights. No person or entity has a
right of participation or first refusal with respect to the sale of the
Securities by the Company. The form of certificates evidencing the
Preferred Stock will comply as of the
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Closing Date with all applicable requirements of Maryland law. The
Depositary Receipts will be as of the Closing Date in due and proper form.
(n) The Company's authorized, issued and outstanding capital stock
is as disclosed in the Final Prospectus. All of the issued shares of
capital stock of the Company have been duly authorized and validly issued,
are fully paid and nonassessable and conform to the description of the
Common Stock, the Securities and the Series A Preferred Stock, as the case
may be, contained in the Final Prospectus. The Securities conform to the
description thereof contained in the Final Prospectus. None of the issued
and outstanding shares of capital stock of the Company has been issued or
is owned or held in violation of any preemptive rights of shareholders.
The Company has no other issued and outstanding capital stock. Except as
disclosed in the Final Prospectus, and except for any grants of options or
restricted stock made in the ordinary course of business under the
Company's restricted stock and stock option plans, there is no outstanding
option, warrant or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any shares of capital stock of
the Company or any security convertible into or exchangeable for capital
stock of the Company.
(o) All offers and sales of the Company's capital stock prior to
the date hereof were at all relevant times duly registered under the Act
or exempt from the registration requirements of the Act by reason of
Sections 3(b), 4(2) or 4(6) thereof and were duly registered or were
issued pursuant to an available exemption from the registration
requirements of the applicable state securities or blue sky laws.
(p) All of the issued Units have been duly and validly authorized
and issued and are fully paid. None of the issued Units has been issued or
is owned or held in violation of any preemptive right. The Units to be
issued to the Company at the Closing Date have been duly and validly
authorized by the Operating Partnership. At the Closing Date, such Units
will be validly issued and fully paid. All of the outstanding Units have
been issued, offered and sold in compliance with all applicable laws
(including, without limitation, federal and state securities laws). The
Units to be issued to the Company at the Closing Date will be issued,
offered and sold in compliance with all applicable laws (including,
without limitation, federal and state securities laws).
(q) The financial statements included or incorporated by reference
in the Registration Statement and Final Prospectus together with related
schedules and notes (and any amendment or supplement thereto), present
fairly the consolidated financial position of the Company and its
consolidated Subsidiaries, as of the dates indicated, and the results of
operations, cash flows and shareholder's equity of the Company and its
consolidated Subsidiaries for the periods specified, all in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods specified. No other financial statements or
schedules are required by Form S-3 or otherwise to be included or
incorporated by reference in the Registration Statement or the Final
Prospectus.
(r) PricewaterhouseCoopers LLP, who has examined and is reporting
upon the audited financial statements and schedules relating to the
Company included or incorporated by reference in the Registration
Statement and the Final Prospectus, is and was,
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during the periods covered by their report included or incorporated by
reference in the Registration Statement and the Final Prospectus,
independent public accountants within the meaning of the Act.
(s) Since December 31, 2004, neither the Company nor the Operating
Partnership has sustained any material loss or interference with its
business from fire, explosion, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor dispute
or arbitrators' or court or governmental action, order or decree; and,
since the respective dates as of which information is given in the Final
Prospectus, and except as otherwise stated in the Final Prospectus, there
has not been (i) any material change in the capital stock or partnership
interests, as applicable, long-term debt, obligations under capital leases
or short-term borrowings of either the Company or the Operating
Partnership, (ii) any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the business, prospects, net worth or
results of operations of either the Company, the Operating Partnership and
their respective Subsidiaries, taken as a whole, from that set forth in
the Final Prospectus, (iii) any liability or obligation, direct or
contingent, incurred or undertaken by either the Company or the Operating
Partnership which is material to the business or condition (financial or
other) of such entity, except for liabilities or obligations incurred in
the ordinary course of business, (iv) any declaration or payment of any
dividend or distribution of any kind on or with respect to the capital
stock or partnership interests, as applicable, of either the Company or
the Operating Partnership, except for the declaration of distributions on
preferred units of the Operating Partnership and of dividends on the
preferred stock of the Company for the quarters ended December 31, 2004 or
(v) any transaction that is material to either the Company or the
Operating Partnership except transactions in the ordinary course of
business or as otherwise disclosed in the Final Prospectus.
(t) The Operating Partnership and its Subsidiaries have good and
indefeasible title in fee simple to the Hotels and the improvements
thereon free and clear of all liens, encumbrances, claims, security
interests, restrictions and defects except (i) those Hotels that are
leased from third parties as identified in the Final Prospectus, (ii) such
as are identified in the Final Prospectus, (iii) such matters reflected in
the owner's title insurance policies relating to such properties and (iv)
such as do not materially adversely affect the value of the properties,
taken as a whole, or the use proposed to be made of the properties, taken
as a whole, by the Operating Partnership and its Subsidiaries. Except as
disclosed in the Final Prospectus, neither the Company nor the Operating
Partnership owns or leases any real property as lessee other than pursuant
to leases which individually or in the aggregate are not material to the
business, financial condition or results of operations of the Company and
the Operating Partnership. Except as disclosed in the Final Prospectus, no
person other than the Operating Partnership has an option or right of
first refusal to purchase all or part of any Hotel or any interest therein
other than certain options and rights of first refusal contained in the
ground lease relating to the Embassy Suites in Kansas City, Missouri or
partnership agreements to which the Operating Partnership or its
Subsidiaries are parties. Each of the Hotels complies with all applicable
codes, laws and regulations (including, without limitation, building and
zoning codes,
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laws and regulations and laws relating to access to the Hotels), except if
and to the extent disclosed in the Final Prospectus and except for such
failures to comply that would not have a Material Adverse Effect. Neither
the Company nor the Operating Partnership has knowledge of any pending or
threatened condemnation proceedings, zoning change, or other proceeding or
action that will in any manner affect the size of, use of, improvements
on, construction on or access to the Hotels, except such proceedings or
actions that would not have a Material Adverse Effect.
(u) None of the Company, the Operating Partnership or any
Subsidiary is in violation of its respective charter, articles or
certificate of incorporation, bylaws, certificate of limited partnership,
partnership agreement, certificate of formation or limited liability
company agreement, as the case may be, except such as in the aggregate do
not now have and will not in the future have a Material Adverse Effect; no
default exists, and no event has occurred, nor state of facts exists,
which, with notice or after the lapse of time to cure or both, would
constitute a default in the due performance and observance of any
obligation, agreement, term, covenant, consideration or condition
contained in any indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument to which any such entity is a party
or to which any such entity or any of its properties is subject, except
such as in the aggregate do not now have and will not in the future have a
Material Adverse Effect. None of the Company, the Operating Partnership or
any Subsidiary is in violation of, or in default with respect to, any
statute, rule, regulation, order, judgment or decree, except as may be
properly described in the Final Prospectus or such as in the aggregate do
not now have and will not in the future have a Material Adverse Effect.
(v) Except as described in the Final Prospectus, there is not
pending or, to the knowledge of either the Company or the Operating
Partnership, threatened, any action, suit, proceeding, inquiry or
investigation against either the Company, the Operating Partnership or any
Subsidiary or any of their respective officers and directors or to which
the properties, assets or rights of any such entity are subject, before or
brought by any court or governmental agency or body or board of
arbitrators, which could result in any material adverse change in the
condition, financial or otherwise, business, prospects, or results of
operations of such entities taken as a whole or which could materially and
adversely affect the consummation of the transactions contemplated by the
Final Prospectus.
(w) The descriptions in the Registration Statement and the Final
Prospectus of the contracts, leases and other legal documents therein
described present fairly the information required to be shown, and there
are no contracts, leases, or other documents of a character required to be
described in the Registration Statement or the Final Prospectus or to be
filed as exhibits to the Registration Statement which are not described or
filed as required. To the knowledge of the Company and the Operating
Partnership, there are no statutes or regulations applicable to either the
Company, the Operating Partnership or any Subsidiary or certificates,
permits or other authorizations from governmental regulatory officials or
bodies required to be obtained or maintained by either the Company, the
Operating Partnership or any Subsidiary of a character required to be
disclosed in the Registration Statement or the Final Prospectus which have
not been so disclosed and properly
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described therein. All agreements between the Company, the Operating
Partnership and any Subsidiary, respectively, and third parties expressly
referenced in the Final Prospectus are legal, valid and binding
obligations of the Company, the Operating Partnership and such Subsidiary,
respectively, enforceable against such parties in accordance with their
respective terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting creditors' rights and by general
equitable principles.
(x) Except as described in the Final Prospectus, either the
Company, the Operating Partnership or a Subsidiary owns, possesses or has
obtained or has taken all necessary action to obtain (and will obtain) all
material permits, licenses, franchises, certificates, consents, orders,
approvals and other authorizations of governmental or regulatory
authorities or other entities as are necessary to own or lease, as the
case may be, and to operate its respective properties and to carry on its
business, except where the failure to obtain would not have a Material
Adverse Effect. None of the Company, the Operating Partnership or any
Subsidiary has received any notice of proceedings relating to revocation
or modification of any such licenses, permits, franchises, certificates,
consents, orders, approvals or authorizations, except such notice with
respect to licenses, permits, franchises, certificates, consents, orders,
approvals or authorizations, the revocation or modification of which would
not have a Material Adverse Effect.
(y) Except as described in the Final Prospectus, the Company, the
Operating Partnership and the Subsidiaries own or possess or have the
right to acquire (and will acquire) adequate licenses or other rights to
use all patents, trademarks, service marks, trade names, copyrights,
software and design licenses, trade secrets, manufacturing processes,
other intangible property rights and know-how (collectively "Intangibles")
necessary to entitle the Company, the Operating Partnership and the
Subsidiaries to conduct their respective businesses as presently
conducted, except where failure to own, possess or acquire would not have
a Material Adverse Effect, and neither the Company, the Operating
Partnership nor any of the Subsidiaries has received notice of
infringement or of conflict with (and knows of no such infringement of or
conflict with) asserted rights of others with respect to any Intangibles
which could have a Material Adverse Effect.
(z) The Company's, the Operating Partnership's and each
Subsidiary's system of internal accounting controls taken as a whole is
sufficient to meet the broad objectives of internal accounting control
insofar as those objectives pertain to the prevention or detection of
errors or irregularities in amounts that would be material in relation to
the Company's or the Operating Partnership's financial statements; and, to
the knowledge of the Company, neither the Company nor the Operating
Partnership, nor any employee or agent thereof, has made any payment of
funds of either the Company or the Operating Partnership, as the case may
be, or received or retained any funds, and no funds of either the Company
or the Operating Partnership as the case may be, have been set aside to be
used for any payment, in each case in violation of any law, rule or
regulation.
(aa) Each of the Company, the Operating Partnership and each
Subsidiary (to the extent not consolidated with the Company or the
Operating Partnership) has filed on a
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timely basis all federal, state, local and foreign tax returns required to
be filed through the date hereof and each such tax return is true and
correct in all material respects, except where the failure to so have
filed would not have a Material Adverse Effect; each such entity has
timely paid all taxes due and payable through the date hereof, whether or
not shown on a tax return; and no tax deficiency has been asserted against
any such entity, nor does any such entity know of any tax deficiency which
is likely to be asserted against any such entity and which if determined
adversely to any such entity, could have a Material Adverse Effect. All
tax liabilities are adequately provided for on the respective books of
such entities.
(bb) The Company, the Operating Partnership, and the Subsidiaries
each maintain insurance (issued by insurers of recognized financial
responsibility) of the types and in the amounts generally deemed adequate
for their respective businesses and, to the knowledge of the Company
consistent with insurance coverage maintained by similar companies in
similar businesses, including, but not limited to, insurance covering real
and personal property owned or leased by the Company, the Operating
Partnership and the Subsidiaries against theft, damage, destruction, acts
of vandalism, and all other risks customarily insured against, all of
which insurance is in full force and effect.
(cc) To the knowledge of the Company no general labor problem
exists or is imminent with the employees of the Company. The Company,
including the Operating Partnership and the Subsidiaries, has no more than
70 employees.
(dd) Each of the Company, the Operating Partnership, and their
officers, directors or affiliates has not taken and will not take,
directly or indirectly, any action designed to, or that might reasonably
be expected to, cause or result in or constitute the stabilization or
manipulation of any security of the Company or to facilitate the sale or
resale of the Securities.
(ee) The Depositary Shares are registered, or will be registered at
or before the Closing Date, pursuant to Section 12(b) of the Exchange Act,
and upon issuance the Depositary Shares will be listed on the New York
Stock Exchange.
(ff) The Company has not incurred any liability for a fee,
commission or other compensation on account of the employment of a broker
or finder in connection with the transactions contemplated by this
Agreement other than as contemplated hereby or as described in the
Registration Statement and the Final Prospectus.
(gg) Except as otherwise disclosed in the Final Prospectus, neither
the Company, the Operating Partnership, nor any Subsidiary nor, to the
knowledge of the Company any entity from whom the Operating Partnership or
applicable Subsidiary acquired the Hotels has authorized or conducted or
has knowledge of the generation, transportation, storage, presence, use,
treatment, disposal, release, or other handling of any hazardous
substance, hazardous waste, hazardous material, hazardous constituent,
toxic substance, pollutant, contaminant, asbestos, radon, polychlorinated
biphenyls ("PCBs"), petroleum product or waste (including crude oil or any
fraction thereof), natural gas, liquefied gas, synthetic gas or other
material defined, regulated, controlled, or subject to any
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remediation requirement under any environmental law (collectively,
"Hazardous Materials"), on, in, under, or affecting any real property
currently leased or owned (or proposed to be leased or owned) or by any
means controlled by either the Company or the Operating Partnership,
including the Hotels (the "Real Property"), except as in material
compliance with applicable laws and except as would not result in a
Material Adverse Effect; to the knowledge of the Company and the Operating
Partnership, the Real Property and the Company's and the Operating
Partnership's operations with respect to the Real Property are in
compliance with all federal, state and local laws, ordinances, rules,
regulations and other governmental requirements relating to pollution,
control of chemicals, management of waste, discharges of materials into
the environment, health, safety, natural resources, and the environment
(collectively, "Environmental Laws"), and the Company and the Operating
Partnership have complied with, and are in compliance with, all licenses,
permits, registrations, and government authorizations necessary to operate
under all applicable Environmental Laws, except where such noncompliance
does not now have and will not have in the future a Material Adverse
Effect. Except as otherwise disclosed in the Final Prospectus, neither the
Company nor the Operating Partnership has received any written or oral
notice from any governmental entity or any other person, and there is no
pending (to the knowledge of the Company) or threatened claim, litigation,
or any administrative agency proceeding that alleges (i) a violation of
any Environmental Laws by either the Company or the Operating Partnership;
(ii) alleges that either the Company or the Operating Partnership is a
liable party or a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section
9601, et seq., or any state superfund law; (iii) has resulted in or could
result in the attachment of an environmental lien on any of the Real
Property; or (iv) alleges that either the Company or the Operating
Partnership is liable for any contamination of the environment,
contamination of the Real Property, damage to natural resources, property
damage, or personal injury based on their activities or the activities of
their predecessors or third parties (whether at the Real Property or
elsewhere) involving Hazardous Materials, whether arising under the
Environmental Laws, common law principles, or other legal standards.
(hh) The Company is organized in conformity with the requirements
for qualification as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"), and the Company's
method of operation enables it to meet the requirements for taxation as a
real estate investment trust under the Code. The Company has qualified and
continues to qualify and has taken all necessary action to be treated,
effective beginning with the year ended December 31, 1994, as a REIT under
the Code, and the Company's organization and current proposed method of
operation will enable it to continue to qualify as a REIT for its taxable
year ending December 31, 2004, and in the future. The Operating
Partnership and all other subsidiary partnerships, joint ventures and
limited liability companies (excluding taxable REIT subsidiaries) have
been since their respective formations, and continue to be, treated as
partnerships or disregarded entities for federal income tax purposes and
not as corporations or associations or publicly traded partnerships
taxable as corporations.
-11-
(ii) Neither the Company, the Operating Partnership nor any
Subsidiary is, will become as a result of the transactions contemplated
hereby, or will conduct its respective business in a manner in which any
such entity would become, an "investment company," or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
(jj) No real estate appraisal firm which prepared appraisals of the
Hotels, nor any environmental engineering firm which prepared Phase I
environmental assessment reports with respect to the Hotels, was employed
for such purpose on a contingent basis or has any substantial interest in
either the Company, the Operating Partnership, or any Subsidiary.
(kk) The Operating Partnership is not currently prohibited,
directly or indirectly, from making distributions to the Company, from
repaying to the Company any loans or advances to the Operating
Partnership, or from transferring any of the Operating Partnership's
property or assets to the Company, except as disclosed in the Final
Prospectus.
(ll) The Company has not, directly or indirectly since the filing
of the Registration Statement sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Securities.
(mm) Each of the Company and the Subsidiaries are in compliance
with all applicable laws, rules, regulations, ordinances, directions,
judgments, decrees and orders, foreign and domestic, except where failure
to be in compliance could not reasonably be expected to have a Material
Adverse Effect.
(nn) There is and has been no failure on the part of the Company
and any of the Company's directors or officers, in their capacities as
such, in any material respects, to comply with any provision of the
Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the "Sarbanes Oxley Act"), including Section 402
related to loans and Sections 302, 404 and 906 related to certifications.
Any certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$25.00 per share, the amount of the Depositary Shares set forth opposite such
Underwriter's name in Schedule I hereto.
(b) As compensation for the services of the Underwriters in
connection with the transactions contemplated by this Agreement, the Company
hereby agrees to pay to the Un-
-12-
derwriters on the Closing Date in immediately available funds by wire transfer
to a bank account or accounts directed by the Representative $4,252,500 in the
aggregate.
3. Delivery and Payment. Delivery of and payment for the
Depositary Shares shall be made at 10:00 A.M., New York City time, on April 7,
2005, or at such time on such later date not more than five Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 10 hereof (such date and time of delivery and payment for
the Depositary Shares being herein called the "Closing Date").
Depositary Receipts for the Depositary Shares shall be in definitive
form and registered in such names and in such denominations as you shall request
in writing not later than one full business day prior to the Closing Date. The
Depositary Receipts evidencing the Depositary Shares shall be delivered to you,
through the facilities of the Depository Trust Company unless the
Representatives shall otherwise instruct, on the Closing Date for the respective
accounts of the several Underwriters, with any transfer taxes payable in
connection with the transfer of the Depositary Shares to the Underwriters duly
paid, against payment of the Purchase Price therefor.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Depositary Shares for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or
any Preliminary Final Prospectus) to the Basic Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed in
a form reasonably approved by the Representatives with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the
Representatives (1) when the Registration Statement, if not effective at
the Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order sus-
-13-
pending the effectiveness of the Registration Statement or the institution
or threatening of any proceeding for that purpose and (6) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order
or the suspension of any such qualification and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Final Prospectus to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its Subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Final Prospectus and the Final Prospectus
and any supplement thereto as the Representatives may reasonably request.
The Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay
any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject.
(f) The Company will not, without the prior written consent of
Morgan Stanley & Co. Incorporated, offer, sell, contract to sell, pledge,
or otherwise dispose of,
-14-
(or enter into any transaction which is designed to, or might reasonably
be expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise) by
the Company or any affiliate of the Company or any person in privity with
the Company or any affiliate of the Company) directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any shares
of the Securities or other preferred stock, depositary shares or
depositary receipts ranking pari passu with the Securities or publicly
announce an intention to effect any such transaction, for a period of 30
days after the date of the Underwriting Agreement.
(g) The Company will comply, in all material respects, with all
applicable securities and other applicable laws, rules and regulations,
including, without limitation, the Sarbanes Oxley Act, and to use its best
efforts to cause the Company's directors and officers, in their capacities
as such, to comply, in all material respects, with such laws, rules and
regulations, including, without limitation, the provisions of the Sarbanes
Oxley Act.
(h) The Company will not take, directly or indirectly, any action
designed to or that might constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(i) The Company will use the net proceeds received by it from the
sale of the Securities in the manner specified in the Final Prospectus
under "Use of Proceeds."
(j) The Company will use its best efforts to effect the listing of
the Depositary Shares on the New York Stock Exchange.
6. Fees and Expenses. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company shall pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the issuance and sale of the Securities and all
other fees or expenses in connection with the preparation of the Registration
Statement, any Final Preliminary Prospectus, the Final Prospectus and all
amendments and supplements thereto, including all printing costs associated
therewith, and the delivering of copies thereof to the Underwriters, in the
quantities herein above specified; (ii) all costs and expenses related to the
transfer and delivery of the Depositary Shares to the Underwriters, including
any transfer or other taxes payable thereon; (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection with the
offer and sale of the Securities under state securities laws and all expenses in
connection with the qualification of the Securities for offer and sale under
state securities laws as provided in Section 5(e) hereof, including filing fees
and the reasonable fees and disbursements of counsel to the Underwriters in
connection with such qualification and in connection with the Blue Sky or legal
investment memorandum; (iv) the registration of the Depositary Shares under the
Exchange Act and the listing of the Depositary Shares on the New York Stock
Exchange; (v) any filing required to be made with the National Association of
Securities Dealers, Inc. (including filing fees
-15-
and the reasonable fees and expenses of counsel for the Underwriters relating to
such filing); (vi) the cost of the preparation, issuance and delivery of the
Securities; (v) the costs and charges of any depositary, registrar or transfer
agent; and (vii) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section 6. It is understood, however, that except as provided in this
Section 6, Section 8 and Section 11 below, the Underwriters will pay all of its
costs and expenses, including fees and disbursements of its counsel, transfer
taxes payable on resale of any of the Depositary Shares by it and any
advertising expenses connected with any offers it may make.
7. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Depositary Shares shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the Execution Time and the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 P.M. New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to 3:00
P.M. New York City time on such date or (ii) 9:30 A.M. New York City time
on the Business Day following the day on which the public offering price
was determined, if such determination occurred after 3:00 P.M. New York
City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have requested and caused Jenkens &
Gilchrist, a Professional Corporation, counsel for the Company and the
Operating Partnership, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under Maryland law with
all requisite corporate power and authority to own and lease its
properties and to conduct its business as described in the Final
Prospectus. The Company has been duly qualified or registered to do
business and is in good standing as a foreign corporation in the
states of Arizona, California, Colorado, Delaware, Florida, Georgia,
Illinois, Kentucky, Louisiana, Massachusetts, Minnesota, Missouri,
Nebraska, New Jersey, New York, North Carolina, Ohio, Oklahoma,
Pennsylvania, South Carolina, Tennessee and Texas. To such counsel's
knowledge, there are no other jurisdictions in which the ownership
or leasing of the Company's properties or the nature or conduct of
its business requires such qualification or registration, except
where the
-16-
failure to do so would not have a Material Adverse Effect. To such
counsel's knowledge, the Operating Partnership or the Company, as
applicable, directly or indirectly, owns the percentage equity
interests of each of the Subsidiaries as reflected on Schedule II to
the Underwriting Agreement. All of the equity interests reflected on
Schedule II to the Underwriting Agreement have been duly and validly
authorized and issued and, except for general partnership interests,
are to such counsel's knowledge fully paid and non-assessable and
are so owned free and clear of any pledge, lien, charge,
encumbrance, security interests, preemptive right or other claims,
except as set forth in such entity's governing documents or on
Schedule II.
(ii) The Operating Partnership has been duly formed and is
validly existing under the Delaware Revised Uniform Limited
Partnership Act (the "Delaware Act") with all requisite partnership
power and authority to own and lease its properties and to conduct
its business as described in the Final Prospectus. The Operating
Partnership has been duly qualified or registered to do business and
is in good standing as a foreign limited partnership in the states
of Arizona, California, Colorado, Florida, Georgia, Illinois,
Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Missouri,
Nebraska, New Jersey, New York, North Carolina, Ohio, Oklahoma,
Pennsylvania, South Carolina, Tennessee and Texas. To such counsel's
knowledge, there are no other jurisdictions in which the ownership
or leasing of the Operating Partnership's properties or the nature
or conduct of its business requires such qualification or
registration, except where such failure would not have a Material
Adverse Effect. The Company is the sole general partner of the
Operating Partnership and owns, directly or indirectly, at least a
95% interest in the Operating Partnership.
(iii) Each Significant Subsidiary has been duly formed and is
validly existing as a limited partnership or limited liability
company in good standing under the laws of its respective
jurisdiction of formation. Each such Significant Subsidiary has all
requisite partnership or limited liability company power and
authority to own and lease its properties and conduct its business
as presently conducted.
(iv) The Company has all requisite corporate right, power and
authority to enter into, deliver and perform the Underwriting
Agreement, the Deposit Agreement and the Articles Supplementary, to
issue, sell and deliver the Securities as provided in the Final
Prospectus and to consummate the transactions contemplated in the
Final Prospectus.
(v) The Underwriting Agreement, the Deposit Agreement and
the Articles Supplementary have been duly authorized, executed and
delivered by the Company.
(vi) Each consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing by or with
any governmental agency or body necessary for the valid
authorization, issuance, sale and delivery of the Se-
-17-
curities, the execution, delivery and performance of the
Underwriting Agreement and the Deposit Agreement and the
consummation by the Company of the transactions contemplated by the
Final Prospectus has been made or obtained and is in full force and
effect, except such (i) as may be necessary under state securities
or real estate syndication laws or by the NASD in connection with
the purchase and distribution of the Securities by the Underwriters,
as to which such counsel need express no opinion, or (ii) solely as
the same may relate to the Operative Documents, the lack of which
would not have a Material Adverse Effect.
(vii) Neither the issuance, sale and delivery of the
Securities, nor the execution, delivery and performance of this
Agreement, the Deposit Agreement and the other documents to be
entered into in connection with the transaction contemplated hereby
and thereby by the Company, nor the consummation of the transactions
contemplated hereby or thereby or in the Final Prospectus, will
violate any of the terms and provisions of, or constitute a default
under, any of the Operative Documents, the charter (as amended by
the Articles Supplementary), articles or certificates of
incorporation, bylaws, certificate of limited partnership,
partnership agreement, certificate of formation or limited liability
company agreement, as the case may be, of the Company, the Operating
Partnership or any Subsidiary; or, to the knowledge of such counsel,
under any indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument filed as an exhibit to any
required reports, schedules, forms, statements or other documents
filed by the Company or the Operating Partnership with the
Commission (collectively, the "SEC Reports"), except that any
violation of the "Ownership Limit," as defined in the Company's
articles of amendment and restatement, because of the issuance of
the Preferred Stock has been waived by the Company's board of
directors as permitted by such instrument and except for violations
or defaults under agreements or instruments which have since been
terminated, cured or otherwise satisfied or such violations or
defaults as would not have a Material Adverse Effect; or, to the
knowledge of such counsel, violate any applicable statute, judgment,
decree, order, rule or regulation of any court or governmental
agency or body of the United States of America or the State of Texas
(provided that no opinion is given with respect to laws regulating
alcoholic beverages), except for violations as would not have a
Material Adverse Effect; or, to the knowledge of such counsel,
result in the creation or imposition of any lien, charge, claim or
encumbrance upon any property or asset of any of the foregoing,
except for liens, charges, claims or encumbrances which are created
by the Operative Documents or which have since been terminated,
cured or otherwise would not have a Material Adverse Effect.
(viii) The Depositary Shares and the Preferred Stock have been
validly authorized by the Company. When the Preferred Stock and the
Depositary Receipts evidencing the Depositary Shares representing
interests in such Preferred Stock are issued and delivered against
payment therefor as provided in the Underwriting Agreement and the
Deposit Agreement, the Preferred Stock will be duly and validly
issued, fully paid and nonassessable. The deposit of the Pre-
-18-
ferred Stock by the Company with the Depositary pursuant to the
Deposit Agreement has been duly authorized and, when the Depositary
Shares are issued and delivered in accordance with the terms of the
Underwriting Agreement, the Depositary Shares will represent legal
and valid interests in the Preferred Stock as provided in the
Deposit Agreement. Assuming due authorization, execution and
delivery of the Deposit Agreement by the Depositary, each Depositary
Share will represent the interest described in the Final Prospectus
in a validly issued, outstanding, fully paid and nonassessable share
of Preferred Stock. Assuming due execution and delivery of the
Depositary Receipts by the Depositary pursuant to the Deposit
Agreement, the Depositary Receipts will entitle the holders thereof
to the benefits provided therein and in the Deposit Agreement. To
such counsel's knowledge, no person or entity has a right of
participation or first refusal with respect to the sale of the
Depositary Shares by the Company. The form of certificates
evidencing the Preferred Stock comply in all material respects with
all applicable requirements of Maryland law. The Depositary Receipts
are in due and proper form.
(ix) All offers and sales of the Company's capital stock
prior to the date hereof were at all relevant times duly registered
under the Act or exempt from the registration requirements of the
Act by reason of Sections 3(b), 4(2) or 4(6) thereof, and (with the
exception of shares of Common Stock, Series A Preferred Stock and
Series B Preferred Stock registered under the Act, as to which such
counsel need not opine) were duly registered or the subject of an
available exemption from the registration requirements of the
applicable state securities or blue sky laws.
(x) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Final Prospectus. All of the issued
shares of capital stock of the Company have been duly authorized and
validly issued, fully paid and nonassessable. The Securities conform
to the description thereof contained in the Final Prospectus. To the
knowledge of such counsel, except as disclosed in the Final
Prospectus, and except for any grants of options or restricted stock
made in the ordinary course of business under the Company's
restricted stock and stock option plans, there is no outstanding
option, warrant or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any shares of capital
stock of the Company or any security convertible into or
exchangeable for capital stock of the Company.
(xi) All of the issued Units have been duly and validly
authorized and issued and are fully paid. None of the issued Units
have been issued or is owned or held in violation of any preemptive
rights. The Units to be issued to the Company at the Closing Date
have been duly and validly authorized by the Operating Partnership.
When issued and delivered against payment thereof as provided in the
Partnership Agreement, such Units will be duly and validly issued
and fully paid. All of the outstanding Units have been issued,
offered and sold in compliance with all applicable laws (including,
without limitation, federal and state se-
-19-
curities laws). The Units to be issued to the Company at the Closing
Date will be issued, offered and sold in compliance with all
applicable laws (including, without limitation, federal and state
securities laws).
(xii) The Company, the Operating Partnership and each
Significant Subsidiary is not in violation of its respective
charter, articles or certificates of incorporation, bylaws,
certificate of limited partnership, partnership agreement,
certificate of formation or limited liability company agreement, as
the case may be.
(xiii) To such counsel's knowledge, except as described in the
Final Prospectus, there is not pending or threatened, any action,
suit, proceeding, inquiry or investigation against either the
Company, the Operating Partnership or any Significant Subsidiary or
any of their respective officers and directors or to which the
properties, assets or rights of any such entity are subject, which,
if determined adversely to any such entity, would individually or in
the aggregate have a Material Adverse Effect.
(xiv) There are no contracts, leases or other documents known
to such counsel of a character required to be described in the
Registration Statement or the Final Prospectus or to be filed as
exhibits to the Registration Statement which are not described or
filed as required. To the knowledge of such counsel, there are no
statutes or regulations of the United States of America or the State
of Texas (provided that no opinion is given with respect to laws
regulating alcoholic beverages) applicable to the Company or the
Operating Partnership or certificates, permits or other
authorizations from governmental regulatory officials or bodies
required to be obtained or maintained by such entity, known to such
counsel, of a character required to be disclosed in the Registration
Statement or Final Prospectus which have not been so disclosed and
properly described therein.
(xv) The Depositary Shares have been approved for listing on
the New York Stock Exchange, subject only to official notice of
issuance.
(xvi) The Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or is
pending or contemplated under the Act. Other than financial
statements and other financial and operating information data and
schedules contained therein, as to which counsel need express no
opinion, the Registration Statement, the Final Prospectus and any
amendment or supplement thereto appear on their face to conform as
to form in all material respects with the requirements of Form S-3
under the Act. To the knowledge of such counsel, the conditions for
use of a registration statement on Form S-3 set forth in the General
Instructions to Form S-3 have been satisfied with respect to the
Company and the transactions contemplated by the Underwriting
Agreement.
(xvii) The Company's and the Operating Partnership's SEC
Reports (other than financial statements and related schedules and
statistical data, as to
-20-
which such counsel need express no opinion) appear on their face to
be responsive in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission under
the Exchange Act.
(xviii) Neither the Company, the Operating Partnership nor any
Significant Subsidiary is, or solely as a result of the consummation
of the transactions contemplated hereby will become, an "investment
company," or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as
amended.
(xix) The statements in the Final Prospectus under the caption
"Description of Series C Preferred Stock and Depositary Shares"
fairly summarize the matters referred to therein.
In addition, such counsel shall have participated in the preparation
of the Registration Statement and the Final Prospectus and participated in
discussions with certain officers and employees of the Company, representatives
of the independent accountants who examined the financial statements of the
Company included or incorporated by reference in the Registration Statement and
the Final Prospectus, and you and your representatives. While such counsel shall
have not independently verified and are not passing upon, and does not assume
any responsibility for, the accuracy, completeness or fairness of the
information contained in the Registration Statement and the Final Prospectus
(including any of the documents incorporated by reference therein except as set
forth in opinion (xix) above), on the basis of such participation and review,
nothing has come to such counsel's attention that would lead such counsel to
believe that the Registration Statement (it being understood that we express no
comment with respect to the financial statements and schedules, including the
notes thereto, or any other financial or statistical data that is found in or
derived from the internal accounting or other records of the Company included or
incorporated by reference in the Registration Statement or the Final
Prospectus), at the time such Registration Statement became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus (it being understood that we express no
comment with respect to the financial statements and schedules, including the
notes thereto, or any other financial or statistical data that is found in or
derived from the internal accounting or other records of the Company included or
incorporated by reference in the Registration Statement or the Final
Prospectus), as of its date, or at the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering their opinion as aforesaid, such counsel may rely upon
an opinion or opinions, each dated the Closing Date, of other counsel retained
by them, the Company or the Operating Partnership as to laws of any jurisdiction
other than the United States and jurisdictions in which they are admitted,
provided that (1) each such local counsel is acceptable to the Un-derwriters,
(2) a copy of each such opinion is delivered to the Un-
-21-
derwriters and is in form and substance satisfactory to them and their counsel,
and (3) counsel shall state in their opinion that they believe that they and the
Underwriters are justified in relying thereon. In addition, in rendering the
foregoing opinion, such counsel may rely on, as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company,
the Operating Partnership and the Subsidiaries and certificates or other written
statements of officers or departments of various jurisdictions, having custody
of documents respecting the existence or good standing of the Company, the
Operating Partnership and the Subsidiaries provided that copies of all such
opinions, statements or certificates shall be delivered to the Underwriters.
(c) The Company shall have requested and caused Hunton & Williams LLP,
REIT counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to the
effect that:
(i) The Company is organized in conformity with the requirements
for qualification as a real estate investment trust ("REIT"), pursuant to
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended
(the "Code"), and the Company's current and proposed method of operation
enables it to meet the requirements for qualification and taxation as a
REIT under the Code.
(ii) The Company qualified and continues to qualify, and has taken
all necessary action to be treated, effective beginning with the year
ended December 31, 1994, as a REIT under the Code.
(iii) The Operating Partnership has been since its formation in
1994, and continues to be, treated as a partnership for federal income tax
purposes and not as a corporation or an association or a publicly traded
partnership or other entity taxable as a corporation.
(iv) Each Subsidiary partnership (which term does not include any
TRS) has been since its formation, and continues to be, treated for
federal income tax purpose either as a partnership or as a disregarded
entity and not as a corporation or an association or as a publicly traded
partnership or other entity taxable as a corporation.
(v) The statements in the Final Prospectus under the caption
"Federal Income Tax Consequences of Our Status as a REIT," insofar as such
statements constitute a summary of the U.S. federal laws referred to
therein, are accurate and fairly summarize in all material respects the
U.S. federal tax laws referred to therein.
In rendering the foregoing opinion, counsel may rely, as to matters
of fact, to the extent they deem proper, on certificates of responsible officers
of the Company and the Operating Partnership and certificates or other written
statements of officers or departments of various jurisdictions, having custody
of documents respecting the existence or good standing of the Company and the
Operating Partnership provided that copies of all
-22
such opinions, statements or certificates shall be delivered to counsel for the
Underwriters.
(d) The Representatives shall have received from Cahill Gordon & Reindel
LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and sale
of the Securities, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the President
or Executive Vice President and the principal financial or accounting officer of
the Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final
Prospectus, any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive
of any supplement thereto), there has been no material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus (exclusive
of any supplement thereto).
(f) The Company shall have requested and caused PricewaterhouseCoopers
LLP to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance reasonably satisfactory to the
Representatives, confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective applicable rules and
regulations adopted by the Commission thereunder and containing statements and
information of the type ordinarily included in accountants' "comfort letters"
with respect to the financial statements and financial information included or
incorporated by reference in the Registration Statement and Final Prospectus.
-23-
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) The Depositary Shares shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the Representatives.
(j) Prior to the Closing Date, the Company shall have filed the
Articles Supplementary with the Department of Assessments and Taxation.
(k) On or prior to the Closing Date, the Representative shall have
received the Deposit Agreement executed by the Company and such agreement
shall be in full force and effect at all times from and after the Closing
Date.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 7 shall be
delivered at the office of Cahill Gordon & Reindel LLP, counsel for the
Underwriters, at 80 Pine Street, New York, NY 10005, on the Closing Date.
8. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied,
because of any termination pursuant to Section 11 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Morgan Stanley & Co. Incorporated on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to
-24-
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting," (i) the list of Underwriters
and their respective participation in the sale of the Securities, (ii) the
sentences related to concessions and reallowances and (iii) the paragraph
related to stabilization, syndicate covering transactions and penalty bids in
any Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
-25-
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or,
(b) or (c) of this Section 9 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by
-26-
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
10. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 10, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
11. Termination. The Underwriters may terminate this Agreement by
notice given to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) there has been any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, the Operating Partnership and any
of the Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business; (ii) trading generally shall have been suspended or
materially limited on, or by, as the case may be, any of the New York Stock
Exchange and the Nasdaq National Market; (iii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market; (iv) a material disruption in securities settlement, payment or
clearance services in the United States or other relevant jurisdiction shall
have occurred; (v) any moratorium on commercial banking activities shall have
been declared by Federal or New York State; or (vi) there shall have occurred
any outbreak or escalation of hostilities, or any change in financial markets,
currency exchange rates or controls or any calamity or crisis
-27-
that, in your judgment, is material and adverse and which, singly or together
with any other event specified in this clause (vi), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or delivery of the
Securities on the terms and in the manner contemplated in the Final Prospectus.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 9 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Morgan Stanley & Co. Incorporated General Counsel
(fax no.: (212) 507-2409) and confirmed to the General Counsel, Morgan Stanley &
Co. Incorporated at 1585 Broadway, New York, New York, 10036, Attention: General
Counsel (with copy to William M. Hartnett, Cahill Gordon & Reindel LLP, 80 Pine
Street, New York, New York 10005); or, if sent to the Company, will be mailed,
delivered or telefaxed to 545 East John Carpenter Freeway, Suite 1300, Irving,
Texas 75062, attention: Lawrence Robinson (with copy to Robert Dockery, Jenkens
& Gilchrist, P.C., 1445 Ross Avenue, Suite 3200, Dallas, Texas 75202).
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation
hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
-28-
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus and, in each case, the
documents incorporated therein by reference.
"Hotels" shall mean each of the 148 hotels the Operating
Partnership, directly or indirectly, currently own interest in as
described in the Final Prospectus.
"Management Agreement" shall mean separate management agreements
pursuant to which third parties operate and manage the 148 Hotels.
"Operating Partnership" shall mean FelCor Lodging Limited
Partnership, a Delaware limited partnership.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
-29-
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
"Series A Preferred Stock" shall mean the $1.95 Series A Cumulative
Convertible Preferred Stock of the Company.
"Series B Preferred Stock" shall mean the 9% Series B Cumulative
Redeemable Preferred Stock of the Company.
"Significant Subsidiaries" shall mean FelCor Hotel Asset Company,
L.L.C., FelCor/CSS Hotels, L.L.C., each a Delaware limited liability
company, and FelCor/CSS Holdings, L.P., a Delaware limited partnership.
"Units" shall mean the units of partnership interest in the
Operating Partnership owned, directly or indirectly, by the Company.
-30-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
FELCOR LODGING TRUST INCORPORATED
By: ______________________________
Name:
Title:
S-1
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
MORGAN STANLEY & CO. INCORPORATED
A.G. EDWARDS & SONS, INC.
DEUTSCHE BANK SECURITIES INC.
By: MORGAN STANLEY & CO. INCORPORATED
_____________________________________
Name:
Title:
SCHEDULE I
NUMBER OF
DEPOSITARY SHARES
UNDERWRITERS TO BE PURCHASED
- ------------ -----------------
Morgan Stanley & Co. Incorporated......................... 3,510,000
A.G. Edwards & Sons, Inc.................................. 945,000
Deutsche Bank Securities Inc.............................. 945,000
---------
Total.................. 5,400,000
SCHEDULE II
LIST OF THE SUBSIDIARIES OF FELCOR LODGING TRUST INCORPORATED
STATE AND FORM OF
NAME ORGANIZATION OWNERSHIP INTEREST
- ------------------------------ --------------------------------- ---------------------------------
FelCor Nevada Holdings, L.L.C. Nevada; Limited Liability Company 100% owned by FelCor
Special Remote I, Inc. Delaware; Corporation 100% owned by FelCor
FelCor Holdings Trust Massachusetts; Business Trust 100% owned by FelCor Nevada
Holdings, L.L.C.
FelCor Lodging Limited Partnership Delaware; Limited Partnership 2.9% GP interest owned by FelCor;
93% LP interest owned by FelCor
Nevada
FelCor/CSS Hotels, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/CSS Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by FelCor/CSS
Hotels; 99% LP interest owned by
FelCor LP
FelCor/St. Paul Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by FelCor/CSS
Hotels; 99% LP interest owned by
FelCor LP
FelCor/Charlotte Hotel, L.L.C. Delaware; Limited Liability Company 50% owned by FelCor/CSS Hotels
FelCor/Indianapolis Hotel, L.L.C. Delaware; Limited Liability Company 50% owned by FelCor/CSS Hotels
E.S. Charlotte Limited Partnership Minnesota; Limited Partnership 2% GP interest owned by
FelCor/Charlotte; 49% LP interest
owned by FelCor LP
E.S. North, an Indiana Limited Partnership Indiana; Limited Partnership 2% GP interest owned by
FelCor/Indianapolis; 49% LP
interest owned by FelCor LP
FCH/PSH, L.P. Pennsylvania; Limited Partnership 1% GP interest owned by FelCor/CSS
Hotels; 99% LP interest owned by
FelCor LP
FelCor Lodging Holding Company, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP; special
0% interest owned by Special
Remote I, Inc.
FelCor Lodging Company, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor Lodging
Holding Company, L.L.C.
FelCor Hotel Operating Company, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
STATE AND FORM OF
NAME ORGANIZATION OWNERSHIP INTEREST
- ------------------------------------------ ----------------------------------- ----------------------------------------
FelCor Pennsylvania Company, L.L.C. Delaware; Limited Liability Company 100% owned by FHOC
FelCor Hospitality Holding Company, Delaware; Limited Liability Company 100% owned by FHOC
L.L.C.
FelCor Hospitality Company, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor Hospitality
Holding Company, L.L.C.
FelCor Hotel Asset Company, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FHAC Nevada Holdings, L.L.C. Nevada; Limited Liability Company 100% owned by FHAC
FHAC Texas Holdings, L.P. Texas; Limited Partnership 1% GP interest owned by FHAC and
99% LP interest owned by FHAC
Nevada Holdings, L.L.C.
FelCor HHCL Company, L.L.C. Delaware; Limited Liability Company 100% owned by FHAC
FelCor Hotels GenPar, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor HHCL
FelCor Hotels LimPar, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor HHCL
HHHC GenPar, L.P. Delaware; Limited Partnership 1% GP interest owned by FelCor
GenPar, and 99% LP interest owned
by FelCor LimPar
FelCor Hotel Company, Ltd. Texas; Limited Partnership 87% GP interest owned by HHHC
GenPar, L.P.and 13% LP interest
owned by FelCor LimPar
FelCor Hotels GenPar II, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor Hotel Company
FelCor Hotel Company II, Ltd. Texas; Limited Partnership 1% GP interest owned by FelCor
Hotels GenPar II, L.L.C. and 99% LP
interest owned by FelCor Hotel
Company
FelCor Chat-Lem, L.L.C. Delaware; Limited Liability Company 100% owned by FHAC
HI Chat-Lem/Iowa - New Orleans Venture Louisiana; General Partnership 50% owned by FelCor Chat-Lem,
L.L.C.
FelCor Philadelphia Center, L.L.C. Delaware; Limited Liability Company 100% owned by FHAC
FelCor Marshall Motels, L.L.C. Delaware; Limited Liability Company 100% owned by FHAC
Center City Hotel Associates Pennsylvania; Limited Partnership 1% GP interest owned by FelCor
Philadelphia Center, L.L.C. and 99% LP
interest owned by FelCor Marshall Motels,
L.L.C.
-2-
STATE AND FORM OF
NAME ORGANIZATION OWNERSHIP INTEREST
- ------------------------------------------ ----------------------------------- -----------------------------------------
FelCor Hotels Financing II, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
FelCor Hotels Financing I, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor Hotels
Financing II, L.L.C.
FelCor Hotels Investments I, Ltd. Texas; Limited Partnership 1% GP interest owned by FelCor
Financing I and 99% LP interest
owned by FelCor TRS
FelCor Hotels Investments II, Ltd. Texas; Limited Partnership 1% GP interest owned by FelCor Financing
I and 99% LP interest owned by FelCor TRS
FelCor Salt Lake, L.L.C. Delaware; Limited Liability Company 100% owned by FHAC
FelCor St. Louis Company, L.L.C. Delaware; Limited Liability Company 100% owned by FHAC
FelCor Canada Holding GP, L.L.C. Delaware; Limited Liability Company 100% owned by FHAC
FelCor Canada Holding, L.P. Delaware; Limited Partnership 1% GP interest owned by FelCor
Canada Holding GP, L.L.C. and 99%
LP interest owned by FHAC
FelCor Canada Co. Nova Scotia; Unlimited Liability 100% owned by FelCor Canada
Holding, L.P.
Company
FelCor Omaha Hotel Company, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor Country Villa Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor Omaha
FelCor Moline Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor Omaha
FelCor Eight Hotels, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
EPT Meadowlands Limited Partnership Delaware; Limited Partnership 1% GP interest owned by FelCor Eight
Hotels; 49% LP interest owned by
FelCor LP
EPT Kansas City Limited Partnership Delaware; Limited Partnership 1% GP interest owned by FelCor Eight
Hotels; 49% LP interest owned by
FelCor LP
EPT San Antonio Limited Partnership Delaware; Limited Partnership 1% GP interest owned by FelCor Eight
Hotels; 49% LP interest owned by
FelCor LP
EPT Austin Limited Partnership Delaware; Limited Partnership 1% GP interest owned by FelCor Eight
Hotels; 49% LP interest owned by
FelCor LP
-3-
STATE AND FORM OF
NAME ORGANIZATION OWNERSHIP INTEREST
- ------------------------------------------ ----------------------------------- ------------------------------------
EPT Overland Park Limited Partnership Delaware; Limited Partnership 1% GP interest owned by FelCor Eight
Hotels; 49% LP interest owned by
FelCor LP
EPT Atlanta - Perimeter Center Limited Delaware; Limited Partnership 1% GP interest owned by FelCor Eight
Partnership Hotels; 49% LP interest owned by
FelCor LP
EPT Raleigh Limited Partnership Delaware; Limited Partnership 1% GP interest owned by FelCor Eight
Hotels; 49% LP interest owned by
FelCor LP
EPT Covina Limited Partnership Delaware; Limited Partnership 1% GP interest owned by FelCor Eight
Hotels; 49% LP interest owned by
FelCor LP
Promus/FCH Condominium Company, Delaware; Limited Liability Company 50% owned by KPDC
L.L.C.
Promus/FCH Development Company, Delaware; Limited Liability Company 50% owned by FelCor LP
L.L.C.
Promus/FelCor San Antonio Venture Texas; General Partnership 50% GP interest owned by FelCor LP
Promus/FelCor Parsippany Venture New Jersey; General Partnership 50% GP interest owned by FelCor LP
MHV Joint Venture Texas; General Partnership 50% GP interest owned by FelCor LP
Promus/FelCor Lombard Venture Illinois; General Partnership 50% GP interest owned by FelCor LP
Promus/FelCor Hotels, L.L.C. Delaware; Limited Liability Company 1% owned by Promus/FelCor
Manager, Inc.; 99% owned by EPT
Atlanta, EPT Austin, EPT Covina,
EPT Overland Park, EPT Raleigh,
EPT San Antonio, Lombard JV, MHV
JV and Parsippany JV
Kingston Plantation Development Corp. Delaware; Corporation 100% owned by FelCor TRS
Promus/FelCor Manager, Inc. Delaware; Corporation 50% owned by KPDC
FelCor/New Orleans Annex, L.L.C. Delaware; Limited Liability Company 100% owned by KPDC
Brighton at Kingston Plantation, L.L.C. Delaware; Limited Liability Company 50% owned by KPDC
Margate Towers at Kingston Plantation, Delaware; Limited Liability Company 100% owned by KPDC
L.L.C.
FCH/DT Hotels, L.L.C. Delaware; Limited Liability Company 90% owned by FelCor LP
-4-
STATE AND FORM OF
NAME ORGANIZATION OWNERSHIP INTEREST
- ------------------------------------------ ----------------------------------- -------------------------------------
FCH/DT Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by FCH/DT
Hotels; 89.1% LP interest owned by
FelCor LP
FCH/DT BWI Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by FCH/DT Hotels;
99% LP interest owned by
FCH/DT Holdings, LP
FelCor/LAX Hotels, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/LAX Holdings, L.P. Delaware; Limited Partnership 1% GP Interest owned by FelCor/LAX
Hotels; 99% LP interest owned by
FelCor LP
Los Angeles International Airport Hotel Texas; Limited Partnership 50% GP interest owned by
Associates, a Texas limited partnership FelCor/LAX Holdings, L.P. and 48%
LP interest owned by FelCor/LAX
Hotels
Park Central Joint Venture Texas; General Partnership 60% owned by FelCor LP
FelCor Airport Utilities, L.L.C. Delaware; Limited Liability Company 100% owned by FHAC
FelCor/MM Hotels, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/MM Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by FelCor/MM
Hotels, L.L.C. and 99% LP interest
owned by FelCor LP
FelCor/Tysons Corner Hotel Company, LLC Delaware; Limited Liability Company 100% owned by FelCor LP
Tysons Corner Hotel Company, L.L.C. Delaware; Limited Liability Company 50% owned by FelCor/Tysons Corner
Hotel Company, L.L.C.
FelCor/MM S-7 Hotels, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/MM S-7 Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by FelCor/MM
S-7 Hotels, L.L.C. and 99% LP
interest owned by FelCor LP
FelCor/CMB Buckhead Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/CMB Corpus Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/CMB Corpus Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by
FelCor/CMB Corpus Hotel, L.L.C.
and 99% LP interest owned by FelCor
LP
FelCor/CMB Deerfield Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
-5-
STATE AND FORM OF
NAME ORGANIZATION OWNERSHIP INTEREST
- ------------------------------------------ ---------------------------------- -----------------------------------
FelCor/CMB Marlborough Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/CMB New Orleans Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/CMB Orsouth Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/CMB Orsouth Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by
FelCor/CMB Orsouth Hotel, L.L.C.
and 99% LP interestowned by FelCor
LP
FelCor/CMB Piscataway Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/CMB SSF Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor/CSS
Holdings, L.P.
FelCor/CMB SSF Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by
FelCor/CMB SSF Hotel, L.L.C. and
99% LP interest owned by
FelCor/CSS Holdings, L.P.
FCH/IHC Hotels, L.P. Delaware; Limited Partnership 0.5% GP interest owned by FHAC and
49.955% LP interest owned by FelCor
LP
FCH/IHC Dallas Holdings, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/IHC
FCH/IHC Dallas Hotels, L.P. Delaware; Limited Partnership 1% GP interest owned by FCH/IHC
Dallas Holdings, L.L.C. and 99% LP
interest owned by FCH/IHC
FCH/IHC I-10 Holdings, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/IHC
FCH/IHC I-10 Hotels, L.P. Delaware; Limited Partnership 1% GP interest owned by FCH/IHC I-
10 Holdings, L.L.C. and 99% LP
interest owned by FCH/IHC
FCH/IHC Atlanta Hotels, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/IHC
FCH/IHC Scottsdale Hotels, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/IHC
FCH/IHC Houston Holdings, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/IHC
FCH/IHC Houston Hotels, L.P. Delaware; Limited Partnership 1% GP interest owned by FCH/IHC
Houston Holdings, L.L.C. and 99% LP
interest owned by FCH/IHC
-6-
STATE AND FORM OF
NAME ORGANIZATION OWNERSHIP INTEREST
- ------------------------------------------ ----------------------------------- -----------------------------------
FCH/HHC Hotels, L.L.C. Delaware; Limited Liability Company 50% Class B interest owned by Great
Plains Investments, L.L.C. and 50%
Class B interest owned by FelCor
Omaha Hotel Company, L.L.C.
FelCor/JPM Lodging Co., L.L.C.* Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/JPM Holdings, L.L.C.* Delaware; Limited Liability Company 100% owned by FelCor/JPM
Lodging Co., L.L.C.
FelCor/JPM Hotels, L.L.C.* Delaware; Limited Liability Company 100% owned by FelCor/JPM
Holdings, L.L.C.
FelCor/JPM Atlanta ES Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/JPM Atlanta CP Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/JPM LBV Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/JPM Boca Raton Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/JPM Brunswick Hotel, L.L.C. Delaware, Limited Liability Company 100% owned by FelCor LP
FCH/DT BWI Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/DT BWI
Holdings, L.P.
FelCor/JPM BWI Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/DT BWI
Hotel, L.L.C.
FelCor/JPM Denver Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/DT
Holdings, L.P.
FelCor/JPM Wilmington Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/DT
Holdings, L.P.
FelCor/JPM Austin Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/DT
Holdings, L.P.
FelCor/JPM Austin Holdings, L.P. Delaware; Limited Partnership 1% GP owned by FelCor/JPM Austin
Hotel, L.L.C. and 99% LP interest
owned by FCH/DT Holdings, L.P.
FelCor/JPM Austin HI Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/JPM Austin HI Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by FelCor/JPM
Austin HI Hotels, L.L.C. and 99% LP
interest owned by FelCor LP
FelCor/JPM Phoenix Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
-7-
STATE AND FORM OF
NAME ORGANIZATION OWNERSHIP INTEREST
- ------------------------------------------ ----------------------------------- -----------------------------------
FelCor/JPM Mandalay Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/JPM Nashville Hotel, L.L.C. Delaware, Limited Liability Company 100% owned by FelCor LP
FelCor/JPM Orlando Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/JPM Orlando I-Drive Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor/JPM Troy Hotel, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/DT
Holdings, L.P.
FelCor TRS I, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
FelCor TRS Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by FelCor TRS
I, L.L.C. and 99% LP interest owned
by FelCor LP
FelCor TRS II, Inc. Delaware; Corporation 100% owned by FelCor LP
DJONT Operations, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
DJONT Leasing, L.L.C. Delaware; Limited Liability Company 100% voting interest owned by
DJONT
DJONT/EPT Manager, Inc. Delaware; Corporation 100% owned by DJONT
DJONT/EPT Leasing, L.L.C. Delaware; Limited Liability Company 1% owned by DJONT/EPT Manager,
Inc. and 99% owned by DJONT
FCH/DT Leasing, L.L.C. Delaware; Limited Liability Company 100% voting interest and 50%
economic interest owned by DJONT
FCH/DT Leasing II, L.L.C. Delaware; Limited Liability Company 100% voting interest and 50%
economic interest owned by DJONT
FCH/SH Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by DJONT
FCH/SH Leasing II, L.L.C. Delaware; Limited Liability Company 100% voting interest and 50%
economic interest owned by DJONT
DJONT/CMB Buckhead Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
DJONT/CMB FCOAM, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
DJONT/CMB Deerfield Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
DJONT/CMB Corpus Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
DJONT/CMB SSF Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
-8-
STATE AND FORM OF
NAME ORGANIZATION OWNERSHIP INTEREST
- ------------------------------------------ ----------------------------------- ------------------------------------
DJONT/CMB Orsouth Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
DJONT/CMB New Orleans Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
DJONT/CMB Piscataway Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
BHR Operations, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
FCH/JVEIGHT Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by BHR
FCH/IHC Leasing, L.P. Delaware; Limited Partnership 0.5% GP interest owned by
FCH/JVEIGHT Leasing, L.L.C. and
49.955% LP interest owned by BHR
FCH/IHC Atlanta Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/IHC Leasing
FCH/IHC Scottsdale Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/IHC Leasing
FCH/IHC I-10 Leasing GP, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/IHC Leasing
FCH/IHC I-10 Leasing, L.P. Delaware; Limited Partnership 1% GP interest owned by FCH/IHC I-
10 Leasing GP, L.L.C. and 99% LP
interest owned by FCH/IHC Leasing
FCH/IHC Houston Leasing GP, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/IHC Leasing
FCH/IHC Houston Leasing, L.P. Delaware; Limited Partnership 1% GP interest owned by FCH/IHC
Houston Leasing GP, L.L.C. and 99%
LP interest owned by FCH/IHC
Leasing
FCH/IHC Dallas Leasing GP, L.L.C. Delaware; Limited Liability Company 100% owned by FCH/IHC Leasing
FCH/IHC Dallas Leasing, L.P. Delaware; Limited Partnership 1% GP interest owned by FCH/IHC
Dallas Leasing GP, L.L.C. and 99%
LP interest owned by FCH/IHC
Leasing
FCH/HHC Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by BHR
BHR Hotels Finance, Inc. Delaware; Corporation 1% GP interest owned by BHR Hotels
Finance, Inc.; 99% LP interest owned
by BHR
BHR Lodging Tenant Company Delaware; Corporation 100% owned by BHR
BHR Canada Tenant Company Nova Scotia; Unlimited Liability 100% owned by BHR
Company
-9-
STATE AND FORM OF
NAME ORGANIZATION OWNERSHIP INTEREST
- ------------------------------------------ ----------------------------------- ------------------------------------
BHR Salt Lake Tenant Company, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor LP
BHR Texas Leasing GP, L.L.C. Delaware; Limited Liability Company 100% owned by BHR Operations,
L.L.C.
BHR Texas Leasing, L.P. Delaware; Limited Partnership 1% GP interest owned by BHR Texas
Leasing GP, L.L.C. and 99% LP
interest owned by BHR Operations,
L.L.C.
DJONT/JPM Tenant Co., L.L.C.* Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Holdings, L.L.C.* Delaware; Limited Liability Company 100% owned by DJONT/JPM Tenant
Co., L.L.C.
DJONT/JPM Leasing, L.L.C.* Delaware; Limited Liability Company 100% owned by DJONT/JPM
Holdings, L.L.C.
DJONT/JPM Austin Tenant Co., L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Austin Leasing, L.P. Delaware; Limited Partnership 1% GP interest owned by
DJONT/JPM Austin Tenant
Co., L.L.C. and 99% LP interest held
by FelCor TRS Holdings, L.P.
DJONT/JPM Austin HI Tenant Co., L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Austin HI Leasing, L.P. Delaware; Limited Partnership 1% GP interested owned by
DJONT/JPM Austin HI Tenant Co.
and 99% LP interest held by FelCor
TRS Holdings, L.P.
DJONT/JPM Atlanta CP Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Atlanta ES Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Boca Raton Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Brunswick Leasing, L.L.C. Delaware, Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Denver Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
-10-
STATE AND FORM OF
NAME ORGANIZATION OWNERSHIP INTEREST
- ------------------------------------------ ----------------------------------- ---------------------------------
DJONT/JPM LBV Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Phoenix Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Mandalay Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM BWI Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Orlando Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Orlando I-Drive Leasing, Delaware; Limited Liability Company 100% owned by FelCor TRS
L.L.C. Holdings, L.P.
DJONT/JPM Troy Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
DJONT/JPM Wilmington Leasing, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor TRS
Holdings, L.P.
Myrtle Beach Hotels, L.L.C. Delaware; Limited Liability Company 100% owned by FelCor L.P.
TRS/DT Hotel, L.L.C. Delaware; Limited Liability Company 90% owned by FelCor TRS Holdings,
L.P. and 10% owned by DTR FCH
Holdings, Inc.
TRS/DT Holdings, L.P. Delaware; Limited Partnership 1% GP interest owned by TRS/DT
Hotel, L.L.C., 89.9% LP interest
owned by FelCor TRS Holdings, L.P.
and 9.9% LP interest owned by DTR
FCH Holdings, Inc.
Grande Palms, L.L.C. Delaware; Limited Liability Company 100% owned by Kingston Plantation
Development Corp.
* An equity interest in this entity has been pledged to secure indebtedness.
-11-