<PAGE>
As filed with the Securities and Exchange Commission on February 5, 1998
Registration Statement No. 333-45329
================================================================================
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
----------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
AMERICAN GENERAL HOSPITALITY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Maryland 75-2648842
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
5605 MacArthur Boulevard
Suite 1200
Irving, Texas 75038
(Address, Including Zip Code and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
Steven D. Jorns
Chairman, Chief Executive Officer and President
5605 MacArthur Boulevard
Suite 1200
Irving, Texas 75038
(Name Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
copy to:
Peter M. Fass, Esq.
Steven L. Lichtenfeld, Esq.
Leslie H. Loffman, Esq.
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Approximate date of commencement of proposed sale to public: From time to
time after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is an estimate of the approximate amount of the fees
and expenses (other than underwriting commissions and discounts) payable by the
Registrant in connection with the issuance and distribution of the shares of
Common Stock.
Securities and Exchange Commission, registration fee.. 21,724
Printing and mailing expenses......................... 10,000
Accountant's fees and expenses........................ 5,000
Blue Sky fees and expenses............................ 5,000
Legal fees............................................ 110,000
Miscellaneous expenses................................ 48,276
-------
Total................................... 200,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The MGCL permits a Maryland corporation to include in its charter a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages except for liability
resulting from (a) actual receipt of an improper benefit or profit in money,
property or services or (b) active and deliberate dishonesty established by a
final judgment as being material to the cause of action. The Charter of the
Company contains such a provision which eliminates such liability to the maximum
extent permitted by Maryland law.
The Charter of the Company obligates it, to the maximum extent permitted by
Maryland law, to indemnify and to pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to any person (or the estate of any
person) who is or was a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding whether or not by or
in the right of the Company, and whether civil, criminal, administrative,
investigative or otherwise, by reason of the fact that such person is or was a
director or officer of the Company, or is or was serving at the request of the
Company as a director, officer, trustee, partner, member, agent or employee of
another corporation, partnership, limited liability company, association, joint
venture, trust or other enterprise. The Charter also permits the Company to
indemnify and advance expenses to any person who served a predecessor of the
Company in any of the capacities described above and to any employee or agent of
the Company or a predecessor of the Company.
The MGCL requires a Maryland corporation (unless its charter provides
otherwise, which the Company's Charter does not) to indemnify a director or
officer who has been successful, on the merits or otherwise, in the defense of
any Maryland proceeding to which he is made a party by reason of his service in
that capacity. The MGCL permits a corporation to indemnify its present and
former directors and officers, among others, against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is established that (a) the
act or omission of the director or officer was material to the matter giving
rise to the proceeding and (i) was committed in bad faith or (ii) was the result
of active and deliberate dishonesty, (b) the director or officer actually
received an improper personal benefit in money, property or services or (c) in
the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful. However, a Maryland
corporation may not indemnify for an adverse judgment in a suit by or in the
right of the corporation. In addition, the MGCL requires the Company, as a
condition to advancing expenses, to obtain (a) a written affirmation by the
director or officer of his good faith belief that he has met the standard of
conduct necessary for indemnification by the Company as authorized by the
II-1
<PAGE>
Bylaws and (b) a written statement by or on his behalf to repay the amount paid
or reimbursed by the Company if it shall ultimately be determined that the
standard of conduct was not met.
The Company has purchased director and officer liability insurance for the
purpose of providing a source of funds to pay any indemnification described
above.
ITEM 16. EXHIBITS
2.1 -- Common Stock Purchase Agreement for 688,837 shares of common stock by
and between American General Hospitality Corporation, ABKB/LaSalle
Securities Limited Partnership, as agent for and for the benefit of
certain clients, dated September 9, 1997 (filed as Exhibit 2.1 on the
Registrant's Form 8-K (File No. 1-11903) and incorporated herein by
reference).
2.2 -- Common Stock Purchase Agreement for 1,982,868 shares of common stock
by and between American General Hospitality Corporation, ABKB/LaSalle
Securities Limited Partnership and LaSalle Advisors Limited
Partnership, as agent for and for the benefit of certain clients, dated
September 9, 1997 (filed as Exhibit 2.2 on the Registrant's Form 8-K
(File No. 1-11903) and incorporated herein by reference).
4.1 -- Form of Share Certificate (filed as Exhibit 4.1 to the Registrant's
Registration Statement on Form S-11 (File No. 333-4568) and
incorporated herein by reference).
5.1 -- Opinion of Battle Fowler LLP.
8.1 -- Opinion of Battle Fowler LLP as to Tax Matters.
8.2 -- Opinion of Coopers & Lybrand L.L.P. as to Texas Franchise Tax Matters.
23.1 -- Consent of Battle Fowler LLP (included in Exhibits 5.1 and 8.1).
23.2 -- Consent of Coopers & Lybrand L.L.P. as to its opinion on Texas
Franchise Tax Matters (included in Exhibit 8.2).
23.3 -- Consent of Coopers & Lybrand L.L.P.
*24.1 -- Power of Attorney (included on signature page hereto).
_________________
* Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered
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<PAGE>
would not exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in the form of
a prospectus pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offering therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referred to in Item 15 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer, or controlling person of the Registrant in the successful defense of
any action, suit, or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question as to whether such indemnification by it is against public policy
as expressed in the act, and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Irving, State of Texas, on the 5th day
of February, 1998.
AMERICAN GENERAL HOSPITALITY CORPORATION
a Maryland corporation (Registrant)
By: *
---------------------------------------------
Steven D. Jorns
Chairman of the Board, Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities indicated on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board, Chief Executive February 5, 1998
- ------------------------------- Officer, President and Director
- ------
Steven D. Jorns
/s/ Kenneth E. Barr Executive Vice President, Chief February 5, 1998
- ------------------------------- Financial Officer, Secretary,
Kenneth E. Barr Treasurer and Principal Accounting
Officer
* Director February 5, 1998
- -------------------------------
H. Cabot Lodge III
* Director February 5, 1998
- -------------------------------
James R. Worms
* Director February 5, 1998
- -------------------------------
James McCurry
* Director February 5, 1998
- -------------------------------
Kent R. Hance
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
*By: /s/ Kenneth E. Barr February 5, 1998
- ------------------------
Kenneth E. Barr
Attorney-in-Fact
</TABLE>
II-5
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF BATTLE FOWLER LLP]
February 5, 1998
Board of Directors
American General Hospitality Corporation
5605 MacArthur Blvd.
Suite 1200
Irving, Texas 75038
Re: American General Hospitality Corporation
Registration Statement on Form S-3
-----------------------------------------
Gentlemen:
We are acting as counsel for American General Hospitality Corporation,
a Maryland corporation (the "Company"), in connection with its Registration
Statement on Form S-3, and any amendments thereto (the "Registration
Statement"), as filed with the Securities and Exchange Commission, with respect
to the registration of up to 2,671,705 shares (the "Shares") of Common Stock,
$0.01 par value per share (the "Common Stock") by the Company, pursuant to the
above-referenced Registration Statement, and all amendments thereto (the
"Registration Statement") which were issued by the Company to certain investment
funds and separate accounts advised by ABKB/LaSalle Securities Limited
Partnership and/or LaSalle Advisors Limited Partnership.
In rendering this opinion, we have relied upon, among other things,
our examination of such records of the Company and certificates of its officers
and of public officials as we have deemed necessary for the purpose of the
opinion expressed below.
In addition, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all
<PAGE>
Battle Fowler Page 2
February 5, 1998
documents submitted to us as certified or photostatic copies. As to various
questions of fact material to this opinion, we have relied, to the extent we
deem reasonably appropriate, upon representations or certificates of officers or
directors of the Company and upon documents, records and instruments furnished
to us by the Company, without independently checking or verifying the accuracy
of such documents, records and instruments furnished to us by the Company.
We do not express any opinion as to the laws of other states or
jurisdictions other than the laws of the State of New York and the federal law
of the United States. With respect to matters of Maryland law, we have relied
exclusively on the opinion of Ballard Spahr Andrews & Ingersoll, LLP, Maryland
counsel to the Company, a copy of which is attached hereto as Exhibit A. No
---------
opinion is expressed as to the effect that the law of any other jurisdiction may
have upon the subject matter of the opinions expressed herein under conflicts of
law principles, rules and regulations or otherwise.
Based upon the foregoing and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
1. The Company is a corporation duly incorporated and existing under
and by virtue of the laws of the State of Maryland and is in good standing with
the State Department of Assessments and Taxation of Maryland.
2. The Shares have been duly authorized and are validly issued, fully
paid and nonassessable.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the use
of our name under the caption "Legal Matters" in the Prospectus included therein
and any prospectus supplement related thereto. In giving this consent, we do
not admit that we are within the category of persons whose consent is required
by Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations promulgated thereunder by the Securities and Exchange Commission.
Very truly yours,
BATTLE FOWLER LLP
<PAGE>
EXHIBIT 8.1
[LETTERHEAD OF BATTLE FOWLER LLP]
(212) 856-7000
(212) 339-9150
February 5, 1998
American General Hospitality Corporation
5605 MacArthur Boulevard, Suite 1200
Irving, Texas 75038
Gentlemen:
We have acted as counsel to American General Hospitality Corporation,
a Maryland corporation (the "Company"), in connection with the preparation of a
registration statement (the "Registration Statement") filed with the Securities
and Exchange Commission on January 30, 1998 (No. 333-45329), as amended through
the date hereof, with respect to the offering and sale (the "Offering") of up to
2,671,705 shares of common stock, $.01 par value, of the Company (of which
902,200 shares of common stock may be sold from time to time by ABKB/LaSalle
Securities Limited Partnership and 1,769,505 may be sold from time to time by
LaSalle Advisors Capital Management, Inc.) , the Company's contribution of
substantially all of the net proceeds of the Offering to its wholly-owned
subsidiaries, AGH GP, Inc., a Nevada corporation ("AGH GP"), and AGH LP, Inc., a
Nevada corporation ("AGH LP"), and the contribution by AGH GP and AGH LP of such
net proceeds to American General Hospitality Operating Partnership, L.P., a
Delaware limited partnership (the "Operating Partnership"). You have requested
our opinion on certain federal income tax matters in connection with the
Offering.
The Operating Partnership currently owns equity interests in 39 hotels
and intends to acquire interests in additional hotels in the future
(collectively the "Hotels"). The Operating Partnership owns, and will own, some
of the Hotels directly and owns, and will own, the remaining Hotels through
limited liability companies, joint ventures or subsidiary partnerships
(collectively, the "Subsidiary Partnerships"). The Operating Partnership or the
Subsidiary Partnerships, as the case may be, leases or will lease each of the
<PAGE>
BATTLE FOWLER PAGE 2
American General Hospitality Corporation February 5, 1998
Hotels to AGH Leasing, L.P. (the "Lessee"), pursuant to substantially similar
operating leases (the "Leases"). American General Hospitality, Inc., a Texas
corporation, operates or will operate substantially all of the Hotels pursuant
to management agreements (the "Management Agreements") between it and the
Lessee.
In connection with the opinions rendered below, we have examined the
following:
1. the Company's Articles of Amendment and Restatement, as filed with
the Secretary of State of Maryland;
2. the Company's Amended and Restated Bylaws;
3. the Registration Statement, including the prospectus contained as
part of the Registration Statement (the "Prospectus");
4. the Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, dated as of July 31, 1996 (the "Operating Partnership
Agreement"), among AGH GP, as general partner, AGH LP, as the initial limited
partner, and several other limited partners;
5. the partnership agreements, operating agreements and joint
venture agreements (together with the Operating Partnership Agreement, the
"Partnership Agreements") of the Subsidiary Partnerships;
6. the Leases between the Operating Partnership or the Subsidiary
Partnerships and the Lessee;
7. the Lease Master Agreement between the Operating Partnership, the
Subsidiary Partnerships and the Lessee;
8. the Management Agreements between American General Hospitality,
Inc. and the Lessee; and
9. such other documents as we have deemed necessary or appropriate
for purposes of this opinion.
In connection with the opinions rendered below, we have assumed
generally that:
1. each of the documents referred to above has been duly authorized,
executed, and delivered; is authentic, if an original, or
<PAGE>
BATTLE FOWLER PAGE 3
American General Hospitality Corporation February 5, 1998
is accurate, if a copy; and has not been amended;
2. during each taxable year, including its short taxable year ending
December 31, 1996, the Company has operated and will continue to operate in such
a manner that will make the representations contained in the Representation
Letter, dated January 29, 1998 and executed by the executive vice-president of
the Company (the "Representation Letter"), true for such years;
3. the Company will not make any amendments to its organizational
documents or the Partnership Agreements, after the date of this opinion that
would affect Company's qualification as a real estate investment trust (a
"REIT") for any taxable year;
4. each limited partner (a "Limited Partner") of the Operating
Partnership (other than AGH LP) that is a corporation or other entity has valid
legal existence; and
5. each Limited Partner (other than AGH LP) has full power,
authority, and legal right to enter into and perform the terms of the Operating
Partnership Agreement and the transactions contemplated thereby.
In connection with the opinions rendered below, we also have relied
upon the correctness of the representations contained in the Representation
Letter.
For purposes of our opinions, we made no independent investigation of
the facts contained in the documents and assumptions set forth above, the
representations set forth in the Representation Letter, or the Prospectus. No
facts have come to our attention, however, that would cause us to question the
accuracy and completeness of such facts or documents in a material way.
In addition, to the extent that any of the representations provided to
us in the Representation Letter is with respect to matters set forth in the
Internal Revenue Code of 1986, as amended (the "Code"), or the Treasury
regulations thereunder (the "Regulations"), we have reviewed with the
individuals making such representation the relevant portion of the Code and the
applicable Regulations and are
<PAGE>
BATTLE FOWLER PAGE 4
American General Hospitality Corporation February 5, 1998
reasonably satisfied that such individuals understand such provisions and are
capable of making such representations.
Based on the documents and assumptions set forth above, the
representations set forth in the Representation Letter, and the discussion in
the Prospectus under the caption "Federal Income Tax Considerations" (which is
incorporated herein by reference), we are of the opinion that:
(a) commencing with the Company's short taxable year ending December
31, 1996, the Company has qualified to be taxed as a REIT pursuant to
sections 856 through 860 of the Code, and the Company's method of operation
has enabled it and will enable it to meet the requirements for
qualification and taxation as a REIT under the Code;
(b) the descriptions of the law and the legal conclusions contained in
the Prospectus under the caption "Federal Income Tax Considerations" are
correct in all material respects, and the discussion contained therein
fairly summarizes the federal tax considerations that are material to a
holder of the Common Shares; and
(c) the Operating Partnership and the Subsidiary Partnerships will be
treated for federal income tax purposes as partnerships and not as
associations taxable as corporations or as publicly traded partnerships.
We will not review on a continuing basis the Company's compliance with the
documents or assumptions set forth above, or the representations set forth in
the Representation Letter. Accordingly, no assurance can be given that the
actual results of the Company's operations for any given taxable year will
satisfy the requirements for qualification and taxation as a REIT.
The foregoing opinions are based on current provisions of the Code and
the Regulations, published administrative interpretations thereof, and published
court decisions. The Internal Revenue Service has not issued Regulations or
administrative interpretations with respect to various provisions of the Code
relating to REIT qualification. No assurance can be given that the law will not
change in a way that will prevent the Company from qualifying as a REIT, or the
Operating Partnership or the Subsidiary Partnerships from being classified as
partnerships for federal income tax purposes.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the references to Battle Fowler LLP
under the captions "Federal Income Tax Considerations" and "Legal Matters" in
the Prospectus.
The foregoing opinions are limited to the federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
federal tax matters or to any issues arising under the tax laws of any state or
locality. We undertake no obligation to update the opinions expressed herein
after the date of this letter. This opinion letter is solely for the
information and use of the addressees, and may not be relied upon for any
purpose by any other person other than the stockholders of the Company, without
our express written consent.
Very truly yours,
/s/ Battle Fowler LLP
<PAGE>
EXHIBIT 8.2
February 5, 1998
American General Hospitality Corporation
5605 MacArthur Blvd., Suite 1200
Irving Texas 75038
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Gentlemen:
Coopers & Lybrand L.L.P. (the "FIRM") has acted as special tax consultant
to American General Hospitality Corporation, a Maryland corporation
("COMPANY"), in connection with the preparation of the registration statement
(the "REGISTRATION STATEMENT") originally filed with the Securities and
Exchange Commission on January 30, 1998 (No. 333-45329), as amended through the
date hereof, with respect to (i) the offering and sale (the "OFFERING") of up
to 2,671,705 shares of its common stock of which 902,200 shares of common stock
may be sold from time to time by ABKB/LaSalle Securities Limited Partnership
and 1,769,505 shares of common stock may be sold from time to time by LaSalle
Advisors Capital Management, Inc.; (ii) the contribution of substantially all
of the net proceeds of the Offering to Company's wholly-owned subsidiaries, AGH
GP, Inc., a Nevada corporation ("GP CORPORATION"), and AGH LP, Inc., a Nevada
corporation ("LP CORPORATION"); and (iii) the subsequent contribution of those
proceeds by GP Corporation and LP Corporation to American General Hospitality
Operating Partnership, L.P., a Delaware limited partnership ("OPERATING
PARTNERSHIP"). You have requested our opinion as to the application of the
Texas franchise tax to Company, GP Corporation, LP Corporation, Operating
Partnership, the LLCs, the Subsidiary LLC and the Subsidiary Partnerships (as
hereinafter defined). The Company has received a ruling from the Comptroller of
Public Accounts of the State of Texas (the "COMPTROLLER") with respect to the
matters addressed herein.
Section I of this letter (the "OPINION LETTER") and the Registration
Statement, including the prospectus contained as part of the Registration
Statement (the "PROSPECTUS"), contain the facts upon which the Firm's opinion
is based. Section II of this Opinion Letter contains the opinion. Section III
of this Opinion Letter contains limitations on the opinion.
I. FACTS
<PAGE>
Company owns all of the stock of GP Corporation and LP Corporation. GP
Corporation is the sole general partner of Operating Partnership. LP
Corporation is a limited partner in Operating Partnership. Operating
Partnership currently owns or will acquire interests in certain hotels and
associated personal property (the "HOTELS") either directly or through its
ownership of interests in certain subsidiary partnerships (the "SUBSIDIARY
PARTNERSHIPS") or a limited liability company (the "SUBSIDIARY LLC"). Operating
Partnership will be the sole limited partner of the Subsidiary Partnerships.
One of three limited liability companies in which Company and Operating
Partnership are the sole members will be the sole general partner in each
Subsidiary Partnership (individually, an "LLC" and together, the "LLCs").
Operating Partnership and one of the LLCs will be the sole members of
Subsidiary LLC. Operating Partnership, Subsidiary LLC or the Subsidiary
Partnerships, as the case may be, will lease each of the Hotels to AGH Leasing,
L.P. (the "LESSEE") pursuant to substantially similar operating leases.
American General Hospitality Inc. (the "MANAGER") will operate the Hotels
pursuant to management agreements with the Lessee. Neither Company, GP
Corporation, LP Corporation, the LLCs, Operating Partnership, Subsidiary LLC
nor the Subsidiary Partnerships will own any interest in the Lessee or the
Manager.
II. OPINION
We have reviewed all authorities as of the date hereof relevant to the
application of the Texas franchise tax to Company, GP Corporation, LP
Corporation, the LLCs, Operating Partnership, Subsidiary LLC and the Subsidiary
Partnerships. Based upon our analysis of the foregoing authorities and subject
to the limitations set forth in Section III, the Firm is of the opinion as of
the date hereof that:
1. The description of the Texas franchise tax considerations and
consequences set forth in the Prospectus under the heading "Federal Income Tax
Considerations - Other Tax Considerations - State and Local Taxes" accurately
summarizes the Texas franchise tax matters discussed therein.
2. LP Corporation is not subject to the Texas franchise tax.
3. Operating Partnership and the Subsidiary Partnerships are not subject to
the Texas franchise tax.
4. Company, GP Corporation, each of the LLCs and Subsidiary LLC are subject
to the Texas franchise tax.
5. Company will not owe any Texas franchise tax unless it has gross
receipts apportionable to Texas.
6. GP Corporation will owe Texas franchise tax based on the greater of (a)
.25% of its taxable capital apportionable to Texas or (b) 4.5% of its taxable
earned surplus apportionable to Texas.
<PAGE>
7. GP Corporation's gross receipts for purposes of the earned surplus
component of the franchise tax will be based solely upon its share of Operating
Partnership's gross receipts (including Operating Partnership's share of the
Subsidiary Partnerships' gross receipts). For this purpose, gross receipts of
Operating Partnership and the Subsidiary Partnerships will be apportioned as if
they had been received directly by GP Corporation.
8. GP Corporation's gross receipts for purposes of the taxable capital
component of the franchise tax will be based solely on its share of Operating
Partnership's net profit. For this purpose, net profit of Operating Partnership
will be apportioned in accordance with the commercial domicile of Operating
Partnership, unless such gross receipts can be presented properly on a gross
basis for generally accepted accounting principles and GP Corporation uses such
method.
9. Each LLC and Subsidiary LLC will owe Texas franchise tax based on the
greater of (a) .25% of its taxable capital apportionable to Texas or (b) 4.5%
of its taxable earned surplus apportionable to Texas.
10. Each LLC's gross receipts for purposes of the earned surplus component
of the franchise tax will be based solely upon its share of the gross receipts
of the Subsidiary Partnership(s) in which it is the general partner and, with
respect to the LLC that is a member in the Subsidiary LLC, certain items
attributable to Subsidiary LLC. For this purpose, each Subsidiary Partnership's
gross receipts will be apportioned as if they had been received directly by the
relevant LLC and the items attributable to Subsidiary LLC will be apportioned
with respect to its state of organization.
11. Each LLC's gross receipts for purposes of the taxable capital component
of the franchise tax will be based solely on its share of the net profit of the
Subsidiary Partnership(s) in which it is the general partner and, with respect
to the LLC that is a member in the Subsidiary LLC, certain items attributable
to Subsidiary LLC. For this purpose, net profit of the Subsidiary Partnerships
will be apportioned in accordance with the commercial domicile of each
Subsidiary Partnership, unless such gross receipts can be presented properly on
a gross basis for generally accepted accounting principles and the relevant LLC
uses such method and the items attributable to Subsidiary LLC will be
apportioned with respect to its state of organization.
III. LIMITATIONS
1. Except as otherwise indicated, the opinions set forth in Section II are
based upon the Texas Tax Code and the rules promulgated thereunder, judicial
decisions and current administrative rulings and practices of the Comptroller,
all as in effect on the date of this Opinion Letter. These authorities may be
amended or revoked at any time. Any such changes may or may not be retroactive
with respect to transactions entered into or contemplated prior to the
effective date thereof and could significantly alter the conclusions reached in
this Opinion Letter. There is no assurance that legislative, judicial or
administrative changes will not occur in the future or that any such changes
will not (i) subject LP Corporation, Operating Partnership or the Subsidiary
Partnerships to the Texas franchise tax; or (ii) cause the Texas franchise tax
liability
<PAGE>
of the Company, GP Corporation, the LLCs or Subsidiary LLC to materially
increase. The Firm assumes no obligation to update or modify this Opinion
Letter to reflect any developments that may occur after the date hereof.
2. As to certain facts material to our opinion, we have assumed the
accuracy of the representations contained in the Certificate signed by an
officer of Company and attached hereto as Exhibit A, both as of the date
-------
thereof and as of the effective date of the Offering. We also have assumed that
Operating Partnership and each Subsidiary Partnership has been validly formed
as a limited partnership under the laws of the state in which it was organized.
For purposes of our opinion, we made no independent investigation and will not
monitor compliance with the facts contained herein or in the Prospectus, the
assumptions set forth herein or the representations set forth in the
Certificate.
3. The opinion set forth in Section II is not binding on the Comptroller or
the courts and is dependent upon the accuracy and completeness of the facts set
forth in Section I and the Prospectus and the accuracy of the assumptions set
forth in the preceding paragraph (the "ASSUMPTIONS"). The Firm has relied upon
these facts and Assumptions and any inaccuracy in the Assumptions ar any
inaccuracy or incompleteness in the Firm's understanding of those facts could
adversely affect the opinion stated in Section II.
4. In connection with the opinion set forth in Section II, the Firm
examined copies or originals, certified or otherwise identified, of such
documents and records as it has deemed necessary or advisable for purposes of
the opinion set forth in Section II. The Firm has assumed that all signatures
on all documents presented to it are genuine, that all documents submitted to
it as originals or copies are accurate, that all information submitted to it
was accurate and complete and that all persons executing and delivering
originals or copies of documents examined by it were competent to execute and
deliver such documents.
5. The Firm is expressing its opinion only as of the date hereof and only
as to those matters expressly set forth in Section II. No opinion should be
inferred as to any other matters including, but not limited to, any federal tax
matters, any matters arising under the tax laws of any state, locality or
jurisdiction other than the State of Texas or any Texas state tax other than
the franchise tax.
6. This Opinion Letter is issued solely for the benefit of the addressees
and the stockholders of the Company and may not be relied upon for any purpose
by any other person without our express written consent. We hereby consent to
the filing of this opinion as an exhibit to the Registration Statement. We also
consent to the references to Coopers & Lybrand L.L.P. in the Prospectus under
the caption "Federal Income Tax Considerations - State and Local Taxes" and
under the caption "Experts" as having provided an opinion to Battle Fowler LLP.
In giving this consent, we do not admit that we are in the category of persons
whose consent is required by Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations promulgated thereunder by the Securities
and Exchange Commission.
Respectfully submitted,
-----------------------------
COOPERS & LYBRAND L.L.P.
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm and to the incorporation by
reference in the Registration Statements on Form S-3 (File Nos. 333-33007 and
333-36127) and on Form S-8 (File Nos.333-08845 and 333-08841) of American
General Hospitality Corporation as amended of our reports (i) dated January 25,
1997, of our audit of the consolidated financial statements and financial
statement schedule of American General Hospitality Corporation as of December
31, 1996, and for the period from July 31, 1996 through December 31, 1996; dated
February 21, 1997, of our audit of AGH Leasing, L.P. as of December 31, 1996 and
for the period from July 31, 1996 through December 31, 1996; and dated September
19, 1996, of our audits of the combined financial statements and financial
statement schedule of AGH Predecessor Hotels as of December 30, 1994, December
29, 1995 and July 30, 1996 and for the period from December 30, 1993 through
December 31, 1993, each of the two years in the period ended December 29, 1995
and for the period from December 30, 1995 through July 30, 1996, which reports
are included on Form 10-K; (ii) dated March 17, 1997, of our audit of the
combined financial statements and financial statement schedule of the AKL
Acquisition Hotels, which report is included on Form 8-K dated March 28, 1997;
(iii) dated June 16, 1997, of our audits of the combined financial statements
and financial statement schedule of the MUI Acquisition Hotels, which report is
included on Form 8-K/A dated August 4, 1997; (iv) dated December 19, 1997, of
our audits of the combined financial statements of Prime Portfolio Acquisition
Hotels except for Note 7 as to which the date is January 9, 1998; dated October
22, 1997, of our audit of the financial statements of Holiday Inn O'Hare
International Hotel; dated January 15, 1998, of our audit of the combined
financial statements of FSA Portfolio Acquisition Hotels; and dated November 3,
1997 of our audit of the combined financial statements of Potomac Portfolio
Acquisition Hotels which reports are included on Form 8-K dated January 8, 1998.
We also consent to the reference to our firm under the caption of "Experts".
Dallas, Texas
February 5, 1998
