UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 11, 1998
Commission File No. 1-11527
HOSPITALITY PROPERTIES TRUST
(Exact name of registrant as specified in charter)
Maryland 04-3262075
(State or other (IRS employer
jurisdiction of identification no.)
incorporation)
400 Centre Street, Newton, Massachusetts 02458
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: 617-964-8389
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Item 7. Financial Statements, Pro Forma Financial Insformation and Exhibits.
(c) Exhibits
1.1 Underwriting Agreement between Hospitality Properties Trust
and Merrill Lynch, Pierce, Fenner & Smith Incorporated, dated
November 11, 1998.
3.1 Hospitality Properties Trust Bylaws, as amended May 19, 1998.
8.1 Opinion of Sullivan & Worcester LLP.
23.1 Consent of Arthur Anderson LLP.
23.2 Consent of Ernst & Young LLP.
-2-
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HOSPITALITY PROPERTIES TRUST
By: /s/ Thomas M. O'Brien
Thomas M. O'Brien, Treasurer and
Chief Financial Officer
Date: November 11, 1998
Exhibit 1.1
2,750,000 Shares
HOSPITALITY PROPERTIES TRUST
(a Maryland real estate investment trust)
Common Shares of Beneficial Interest
UNDERWRITING AGREEMENT
November 11, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Hospitality Properties Trust, a Maryland real estate investment trust
(the "Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch," the "Underwriter," or
"you"), with respect to the sale by the Company and the purchase by you of
2,750,000 common shares of beneficial interest, par value $.01 per share (the
"Common Shares"), of the Company at a purchase price of $25.3175 per Common
Share and with respect to the grant by the Company to you of the option
described in Section 2 hereof to purchase all or any part of an additional
412,500 Common Shares to cover over-allotments. The aforesaid 2,750,000 Common
Shares (the "Initial Shares"), together with all or any part of the 412,500
Common Shares subject to the option described in Section 2 hereof (the "Option
Shares"), are collectively hereinafter called the "Shares."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S3 (No. 33343573) for the
registration of debt securities, preferred shares of beneficial interest,
depositary shares, common shares of beneficial interest and warrants under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"). Such
registration statement has been declared effective by the Commission on January
15, 1998 and the Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"), and the Company has filed such
post-effective amendments thereto as may be required and each such
post-effective amendment has been declared effective by the Commission. Such
registration statement (as so amended, if applicable) is referred to herein as
the "Registration Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the Shares, in the form first furnished
to the Underwriter by the Company for use in connection with the offering of the
Shares, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the date hereof; provided, further, that if the
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Company files a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"),
then, after such filing, all references to "Registration Statement" shall also
be deemed to include the Rule 462 Registration Statement. For purposes of this
Underwriting Agreement, all references to the Registration Statement and
Prospectus, or to any amendment or supplement to either of the foregoing shall
be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement or the
Prospectus shall be deemed to mean and include all such financial statements and
schedules and other information which is incorporated by reference in the
Registration Statement or the Prospectus, as the case may be, prior to the
execution of this Underwriting Agreement; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement or Prospectus, as the case may be, after
the execution of this Underwriting Agreement.
The 162 hotels described in the Prospectus as being currently owned by
the Company as of the date hereof are collectively referred to herein as the
"Current Hotels". The 5 hotels described in the Prospectus as being proposed to
be acquired by the Company as of the date hereof are collectively referred to
herein as the "Additional Hotels". The Current Hotels and the Additional Hotels
are collectively referred to herein as the "Hotels". It is understood that in
connection with the proposed acquisition of the Additional Hotels, the Company
has entered into purchase and sale agreements and agreements to lease (the
"Acquisition Agreements") contemplating consummation of a series of related
transactions (the "Acquisition Transactions") generally described in the
Prospectus Supplement referred to below under the captions "Summary", "Recent
Developments", "Use of Proceeds" and "The Company", pursuant to which the
Company shall (i) acquire the Additional Hotels, (ii) lease the Additional
Hotels to hotel operating companies pursuant to separate operating leases and
(iii) to the extent necessary to finance the pending acquisitions, borrow funds
under the $300 million aggregate principal amount credit facility that the
Company currently maintains with a syndicate of banks (as more fully described
in the Prospectus, the "Credit Facility") or a successor credit facility.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to you, as of the date hereof, as follows:
(1) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement (including any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the
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Commission for additional information has been complied with. In
addition, the Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement (including
any Rule 462(b) Registration Statement) and any post-effective
amendments thereto (including the filing of the Company's most recent
Annual Report on Form 10-K with the Commission (the "Annual Report on
Form 10-K")) became effective and as of the date hereof, the
Registration Statement (including any Rule 462(b) Registration
Statement) and any amendments thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. At the date of the
Prospectus and at the Closing Time as defined below, neither the
Prospectus nor any amendments and supplements thereto included or will
include an untrue statement of a material fact or omitted or will 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. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by you expressly for use in the Registration
Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and the Prospectus delivered to the Underwriter for use in
connection with the offering of the Shares will, at the time of such
delivery, be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date of
the Prospectus and at the Closing Time did not and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in
the Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
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(4) Financial Statements. The financial statements of the
Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be, at
the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries,
or such other entity, as the case may be, for the periods specified.
Such financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement and the
Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the
summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus. In addition, any pro
forma financial statements of the Company and its subsidiaries and the
related notes thereto included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those arising in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise and (C) except for regular dividends on the Company's common
stock or preferred stock, in amounts per share that are consistent with
past practice or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. The Company has been duly
organized and is validly existing as a real estate investment trust in
good standing under the laws of the State of Maryland and has power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under, or as contemplated under, this Underwriting
Agreement. The Company is duly qualified to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect.
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(7) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the 1933 Act) (each, a "Subsidiary"
and, collectively, the "Subsidiaries"), if any, has been duly organized
and is validly existing as a corporation or a real estate investment
trust, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation or formation, as the case may be, has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation or a real estate investment trust,
as the case may be, to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
would not result in a Material Adverse Effect. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the
issued and outstanding capital stock of each Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of any
Subsidiary was issued in violation of preemptive or other similar
rights of any securityholder of such Subsidiary.
(8) Capitalization. The authorized, issued and outstanding
shares of capital stock of the Company (except for 500 Common Shares,
250 of which are held by John A. Mannix and 250 of which are held by
David M. Lepore) have been duly authorized and validly issued by the
Company and are fully paid and non-assessable (except as otherwise
described in the Registration Statement), and none of such shares of
capital stock was issued in violation of preemptive or other similar
rights of any securityholde of the Company.
(9) Authorization of this Underwriting Agreement. This
Underwriting Agreement has been duly authorized, executed and delivered
by the Company.
(10) Authorization of the Shares. The Shares to be issued and
sold pursuant to this Agreement have been duly authorized and, when
issued and delivered to you against payment therefor as provided
hereunder, will have been validly issued and will be fully paid,
non-assessable (except as otherwise described in the Registration
Statement) and free of preemptive or similar rights; the Company has no
outstanding preferred shares of beneficial interest; there are no
outstanding subscriptions, rights, warrants, options calls, convertible
securities, commitments of sale or liens related to or entitling any
person to purchase or otherwise to acquire any Common Shares of, or
other ownership interest in, the Company, except as otherwise disclosed
in the Registration Statement or the Prospectus and except for awards
under the Company's Incentive Share Award Plan made in the ordinary
course of business; all outstanding Common Shares, except for shares
issued pursuant to the Company's Incentive Share Award Plan, are listed
on the New York Stock Exchange (the "NYSE") and the company knows of no
reason or set of facts which is likely to result in the delisting of
such Common Shares or the inability to list the Shares; and there are
no rights of holders of securities of the Company to the registration
of Common Shares or other securities that would require inclusion of
such Common Shares or other securities in the offering of the Shares.
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(11) Descriptions of the Shares. The Shares will conform in
all material respects to the statements relating thereto contained in
the Prospectus and will be in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(12) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its declaration of
trust, charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which it or any
of them may be bound, or to which any of the assets, properties or
operations of the Company or any of its subsidiaries is subject
(collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect. The execution,
delivery and performance of this Underwriting Agreement and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
hereby or thereby or in the Registration Statement and the Prospectus
and the consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and
sale of the Shares and the use of the proceeds from the sale of the
Shares as described under the caption "Use of Proceeds") and compliance
by the Company with its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any assets, properties or
operations of the Company or any of its subsidiaries pursuant to, any
Agreements and Instruments, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or
any of its subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(13) Absence of Labor Dispute. To the knowledge of the
Company, no labor problem exists or is imminent with employees of the
Company or any of its subsidiaries that could have a Material Adverse
Effect.
(14) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Company threatened, against or affecting the
Company or any of its subsidiaries which is required to be disclosed in
the Registration Statement and the Prospectus (other than as stated
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions
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contemplated under the Prospectus, this Underwriting Agreement, or the
performance by the Company of its obligations hereunder. The aggregate
of all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their
respective assets, properties or operations is the subject which are
not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(15) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(16) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company of this
Underwriting Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus or this Underwriting
Agreement, except such as may be required and will be obtained at or
prior to the Closing Time and such as may be required by the securities
or Blue Sky laws or real estate syndication laws of the various states
in connection with the offer and sale of the Shares and, in the case of
the performance thereof, except as are contemplated by the express
terms of such documents to occur after the Closing Time and except (x)
such as are otherwise described in the Prospectus and (y) such that the
failure to obtain would not have a Material Adverse Effect.
(17) Possession of Intellectual Property. The Company and each
of its subsidiaries owns, or possesses adequate rights to use, all
patents, trademarks, trade names, service marks, copyrights, licenses
and other rights necessary for the conduct of their respective
businesses as described in the Registration Statement and in the
Prospectus, and neither the Company nor any of its subsidiaries has
received any notice of conflict with, or infringement of, the asserted
rights of others with respect to any such patents, trademarks, trade
names, service marks, copyrights, licenses and other such rights (other
than conflicts or infringements that, if proven, would not have a
Material Adverse Effect), and neither the Company nor any of its
subsidiaries knows of any basis therefor.
(18) Possession of Licenses and Permits. To the best knowledge
of the Company, each lessee of the Current Hotels has, and as of the
Closing Time will have, all permits, licenses, approvals, certificates,
franchises and authorizations of governmental or regulatory authorities
("Approvals") as may be necessary to lease, operate or manage the
Current Hotels in the manner described in or contemplated by the
Prospectus, except for those Approvals the absence of which would not
have a Material Adverse Effect.
(19) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and
its subsidiaries and good title to all other properties owned by them,
in each case, free and clear of all mortgages,
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pledges, liens, security interests, claims, restrictions or
encumbrances of any kind, except (A) as otherwise stated in the
Registration Statement and the Prospectus, (B) in the case of personal
property located at certain Hotels, such as are subject to equipment
lease financing arrangements which have been entered into in the
ordinary course of business and have an aggregate outstanding balance
not in excess of $1 million or (C) those which do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries. All of the leases and subleases
material to the business of the Company and its subsidiaries considered
as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any of its subsidiaries
has received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary
of the continued possession of the leased or subleased premises under
any such lease or sublease.
(20) Investment Company Act. The Company is not, and upon the
issuance and sale of the Shares as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(21) Environmental Laws. The Company has received and reviewed
certain environmental reports on each Current Hotel's property, has
obtained certain representations and warranties relating to
environmental matters from the sellers of the Current Hotels set forth
in purchase agreements therefor and has conducted physical inspections
of each Current Hotel's property. Except as described in the
Prospectus, (i) the Company, and, to its knowledge, each Current
Hotel's property, is, and as of the Closing Time will be, in compliance
with all applicable federal, state and local laws and regulations
relating to the protection of human health and safety, the environment,
hazardous or toxic substances and wastes, pollutants and contaminants
("Environmental Laws"), (ii) the Company, or, to its knowledge, its
lessees have received, or as of the Closing Time will receive, all
permits, licenses or other approvals required under applicable
Environmental Laws to conduct the respective hotel businesses presently
conducted at each Current Hotel's property and (iii) the Company or, to
its knowledge, its lessees are, or as of the Closing Time will be, in
compliance with all terms and conditions of any such permit, license or
approval, except, in respect of clauses (i), (ii) and (iii), as
otherwise disclosed in the Prospectus or as would not, singly or in the
aggregate, have a Material Adverse Effect. To the best knowledge of the
Company, except as described in the Prospectus, there are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for
clean-up, remediation or closure of properties or compliance with
Environmental Laws and any potential liabilities to third parties)
that, as of the date hereof, would, or as of the Closing Time will,
singly or in the aggregate, have a Material Adverse Effect. The Company
has received and reviewed engineering reports on each Current Hotel's
property, has obtained certain representations and warranties from the
sellers of the Current Hotels set forth in purchase agreements therefor
and has conducted physical inspections of each Current
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Hotel's property. In respect of each Current Hotel, (i) each Current
Hotel is not in violation of any applicable building code, zoning
ordinance or other law or regulation, except where such violation of
any applicable building code, zoning ordinance or other law or
regulation would not, singly or in the aggregate, have a Material
Adverse Effect; (ii) the Company has not received notice of any
proposed material special assessment or any proposed change in any
property tax, zoning or land use laws or availability of water
affecting any Current Hotel that would have, singly or in the
aggregate, a Material Adverse Effect; (iii) except as disclosed in the
Prospectus, there does not exist any material violation of any
declaration of covenants, conditions and restrictions with respect to
any Current Hotel that would have, singly or in the aggregate, a
Material Adverse Effect, or any state of facts or circumstances or
condition or event which could, with the giving of notice or passage of
time, or both, constitute such a violation; and (iv) the improvements
comprising any portion of each Current Hotel (the "Improvements") are
free of any and all material physical, mechanical, structural, design
and construction defects that would have, singly or in the aggregate, a
Material Adverse Effect and the mechanical, electrical and utility
systems servicing the Improvements (including, without limitation, all
water, electric, sewer, plumbing, heating, ventilation, gas and air
conditioning) are in good condition and proper working order and are
free of defects that would have, singly or in the aggregate, a Material
Adverse Effect.
(22) REIT Qualification. The Company is organized in
conformity with the requirements for qualification, and, as of the date
hereof the Company operates, and as of Closing Time the Company will
operate, in a manner that qualifies the Company as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended
(the "Code"), and the rules and regulations thereunder, for 1998 and
subsequent years. The Company qualified as a real estate investment
trust under the Code for each of the taxable years ended December 31,
1995 through December 31, 1997.
(23) Possession of Insurance. The Company and its Current
Hotels are, and as of the Closing Time will be, insured in the manner
described in the Prospectus by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the businesses in which the Company is engaged and
proposes to engage and the Company has no reason to believe that it or
its tenants will not be able to renew such insurance coverage as and
when such coverage expires or to obtain similar coverage as may be
necessary to continue its business at economically viable rates. The
Company and/or its subsidiaries, as applicable, has obtained an ALTA
Extended Coverage Owner's Policy of Title Insurance or its local
equivalent (or an irrevocable commitment to issue such a policy) on all
of the Current Hotels owned by the Company or its subsidiaries and such
title insurance is in full force and effect.
(24) Acquisition Agreements. The Acquisition Agreements
pursuant to which the Company expects to acquire the Additional Hotels
(including any Additional Hotels which the Company may determine to
acquire after the Closing Time) are in full force and effect. The
Company intends and reasonably expects to consummate the acquisition
and lease of all Additional Hotels not owned or acquired by it as of
the Closing Time as expeditiously as possible after the Closing Time,
including as and when the construction of certain of such properties is
completed.
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(25) Absence of Indebtedness. At the Closing Time after giving
effect to repayment of amounts then outstanding under the Credit
Facility on or prior to such date, the Company will have no
indebtedness for money borrowed except (i) the Credit Facility, (ii)
the Company's 7% Senior Notes due 2008, (iii) the Company's 8 1/4%
Monthly Income Senior Notes due 2005, (iv) equipment financing
arrangements in respect of personal property located at certain Current
Hotels which have been entered into in the ordinary course of business
and have an aggregate outstanding balance not in excess of $1 million,
and (v) any indebtedness as to which you shall have given your prior
written consent.
(26) Good Standing of the Advisor. Except as otherwise
disclosed in the Prospectus, since the respective dates as of which
information is given in the Prospectus, there has been no material
adverse change in the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of REIT Management &
Research, Inc. (the "Advisor"), whether or not arising in the ordinary
course of business, that would have a Material Adverse Effect. The
Advisor (A) is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and (B) has the
requisite corporate power and authority to conduct its business as
described in the Prospectus and to own and operate its material
properties. The Advisory Agreement, dated as of January 1, 1998 (the
"Advisory Agreement"), between the Company and the Advisor, has been
duly authorized, executed and delivered by the parties thereto and
constitutes the valid agreement of the parties thereto, enforceable in
accordance with its terms, except as limited by (a) the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws relating to or affecting the rights or remedies
of creditors or (b) the effect of general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to you or to your counsel
in connection with the offering of the Shares shall be deemed a representation
and warranty by the Company to you as to the matters covered thereby on the date
of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Shares. Your commitment to purchase the Shares pursuant to the
terms hereof shall be deemed to have been made on the basis of the
representations, warranties and agreements herein contained and shall be subject
to the terms and conditions herein set forth.
(b) Over-allotment Option. In addition, on the basis of the
representations and warranties herein included and subject to the terms and
conditions herein set forth, the Company hereby grants an option to you to
purchase up to an additional 412,500 Shares at the purchase price set forth on
the first page of this Agreement. The option hereby granted will expire 30 days
after the date of this Agreement and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Shares upon
notice by you to the Company setting forth the number of Option Shares as to
which you are then exercising the option and the time, date and place of payment
and delivery for such Option Shares. Any such time and date of delivery (a "Date
of
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Delivery") shall be determined by you but shall not be later than seven full
business days, nor earlier than two full business days, after the exercise of
said option, nor in any event prior to Closing Time, unless otherwise agreed
upon by you and the Company.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Shares shall be made at the offices of Sullivan & Worcester LLP, Boston,
Massachusetts, or at such other place as shall be agreed upon by you and the
Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 P.M. (Eastern time) on any given day) business day following the date
of this Agreement, or such other time not later than ten business days after
such date as shall be agreed upon by you and the Company (such time and date of
payment and delivery being herein called "Closing Time"). In addition, in the
event that the over-allotment option described in (b) above is exercised by you,
payment of the underwriting price for and delivery of the Option Shares shall be
made at the above-mentioned office of Sullivan & Worcester LLP, or at such other
place as shall be agreed upon by you and the Company on each Date of Delivery as
specified in the notice to the Company. Payment shall be made to the Company by
wire transfer of immediately available funds to a bank account designated by the
Company, against delivery to you for the Shares to be purchased by you.
(d) Registration. The Shares shall be issued and registered in such
names as you shall request not later than one business day prior to the Closing
Time or the Date of Delivery, as the case may be. The Shares shall be made
available for inspection not later than 10:00 a.m. (Eastern Time) on the
business day prior to the Closing Time or the Date of Delivery, as the case may
be, at the office of The Depository Trust Company or its designated custodian.
SECTION 3. Covenants of the Company. The Company covenants with you as
follows:
(a) Immediately following the execution of this Agreement, the Company
will prepare a Prospectus Supplement setting forth the number of Shares covered
thereby and their terms not otherwise specified in the Prospectus, your name,
the price at which the Shares are to be purchased by you from the Company, and
such other information as you and the Company deem appropriate in connection
with the offering of the Shares; and the Company will promptly transmit copies
of the Prospectus Supplement to the Commission for filing pursuant to Rule
424(b) of the 1933 Act Regulations and will furnish to you as many copies of the
Prospectus (including such Prospectus Supplement) as you shall reasonably
request.
(b) Until the termination of the initial offering of the Shares, the
Company will notify you immediately, and confirm the notice in writing, (i) of
the effectiveness of any amendment to the Registration Statement, (ii) of the
transmittal to the Commission for filing of any supplement or amendment to the
Prospectus or any document to be filed pursuant to the 1934 Act, (iii) of the
receipt of any comments from the Commission with respect to the Shares, (iv) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus with respect to the Shares or for
additional information relating thereto, and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance of any such stop order
and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
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(c) Until the termination of the initial offering of the Shares, the
Company will give you notice of its intention to file or prepare any
posteffective amendment to the Registration Statement or any amendment or
supplement to the Prospectus (including any revised prospectus which the Company
proposes for use by you in connection with the offering of the Shares which
differs from the prospectus on file at the Commission at the time that the
Registration Statement becomes effective, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations),
will furnish you with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file any such amendment or supplement or use any such prospectus to
which your counsel shall reasonably object.
(d) The Company will deliver to you a conformed copy of the
Registration Statement as originally filed and of each amendment thereto filed
prior to the termination of the initial offering of the Shares (including
exhibits filed therewith or incorporated by reference therein and the documents
incorporated by reference into the Prospectus pursuant to Item 12 of Form S3).
(e) The Company will furnish to you, from time to time during the
period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus (as amended or supplemented)
as you may reasonably request for the purposes contemplated by the 1933 Act, the
1933 Act Regulations, the 1934 Act or 1934 Act Regulations.
(f) Until the termination of the initial offering of the Shares, if any
event shall occur as a result of which it is necessary, in the opinion of your
counsel, to amend or supplement the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at the time it is
delivered, the Company will either (i) forthwith prepare and furnish to you an
amendment of or supplement to the Prospectus or (ii) make an appropriate filing
pursuant to Section 13, 14 or 15 of the 1934 Act, in form and substance
reasonably satisfactory to your counsel, which will amend or supplement the
Prospectus so that it will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time it is delivered, not
misleading.
(g) The Company will endeavor in good faith, in cooperation with you,
to qualify the Shares for offering and sale under the applicable securities laws
and real estate syndication laws of such states and other jurisdictions of the
United States as you may designate; provided that, in connection therewith, the
Company shall not be required to qualify as a foreign corporation or trust or to
file any general consent to service of process. In each jurisdiction in which
the Shares have been so qualified the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for so long as required for the distribution of the
Shares.
(h) The Company will make generally available to its security holders
as soon as reasonably practicable, but not later than 90 days after the close of
the period covered thereby, an earning statement of the Company (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations) covering
a period of at least twelve months beginning not later than the first day of the
Company's fiscal quarter next following the effective date of the Registration
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Statement. "Earning statement", "make generally available" and "effective date"
will have the meanings contained in Rule 158 of the 1933 Act Regulations.
(i) The Company will use the net proceeds received by it from the sale
of the Shares in the manner specified in the Prospectus under the caption "Use
of Proceeds" in all material respects.
(j) The Company currently intends to continue to qualify as a "real
estate investment trust" under the Code, and use its best efforts to continue to
meet the requirements to qualify as a "real estate investment trust" under the
Code.
(k) The Company will timely file any document which it is required to
file pursuant to the 1934 Act prior to the termination of the offering of the
Shares.
(l) The Company will use its best efforts to effect the listing of the
Shares on the NYSE.
(m) The Company will not, during a period of 30 days from the date of
this Agreement, without your prior written consent. register, offer, sell,
contract to sell, grant any option to purchase or otherwise dispose of any
Common Shares or any securities convertible into or exercisable or exchangeable
for Common Shares, or warrants to purchase Common Shares, other than (i) the
Shares which are to be sold pursuant to this Agreement and (ii) Common Shares
issued or to be issued pursuant to the Company's Incentive Share Award Plan.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement, including (i)
the preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the Shares and any
certificates for the Shares to you, including any transfer taxes and any stamp
or other duties payable upon the sale, issuance or delivery of the Shares to
you, (iii) the fees and disbursements of the Company's counsel, accountants and
other advisors or agents, as well as their respective counsel, (iv) the
qualification of the Shares under state securities laws in accordance with the
provisions of Section 3(g) hereof, including filing fees and the reasonable fees
and disbursements of counsel in connection therewith and in connection with the
preparation, printing and delivery of any Blue Sky Survey, and any amendment
thereto, (v) the printing and delivery to you of copies of the Prospectus and
any amendments or supplements thereto, (vi) the fees and expenses incurred in
connection with the listing of the Shares on the NYSE, (vii) the filing fees
incident to, and the reasonable fees and disbursements of your counsel in
connection with, the review, if any, by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Shares and (viii) the
cost of providing any CUSIP or other identification numbers for the Shares.
(b) Termination of Agreement. If this Underwriting Agreement is
terminated by you in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse you for all of your outofpocket
expenses, including the reasonable fees and disbursements of your counsel.
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SECTION 5. Conditions of Underwriter's Obligations. Your obligations to
purchase and pay for the Shares pursuant to the terms hereof are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of its
subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of your counsel. A prospectus containing information relating to
the description of the Shares, the specific method of distribution and similar
matters shall have been filed with the Commission in accordance with Rule
424(b)(1), (2), (3), (4) or (5), as applicable.
(b) Opinion of Counsel for Company. At Closing Time, you shall have
received the favorable opinion, dated as of Closing Time, of Sullivan &
Worcester, LLP, counsel for the Company, in form and substance satisfactory to
your counsel, to the effect set forth in Exhibit A hereto. In rendering their
opinion, such counsel may rely on an opinion dated the Closing Time of Ballard
Spahr Andrews & Ingersoll LLP, as to matters governed by the laws of the State
of Maryland. In addition, in rendering thei opinion, such counsel may state that
their opinion as to laws of the State of Delaware is limited to the Delaware
General Corporation Law.
(c) Opinion of Special Maryland Counsel for Company. At Closing Time,
you shall have received the favorable opinion, dated as of Closing Time, of
Ballard Spahr Andrews & Ingersoll, LLP, special Maryland counsel for the
Company, in form and substance satisfactory to your counsel, to the effect as
your counsel may reasonably request.
(d) Opinion of Counsel for Underwriter. At Closing Time, you shall have
received the favorable opinion, dated as of Closing Time, of Brown & Wood LLP,
counsel for the Underwriter, with respect to the matters set forth in paragraphs
(7), (8), (9), (17), and (18) of Exhibit A and to the following effect: nothing
has come to their attention that would lead them to believe that the
Registration Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom, as to
which they make no statement), at the time the Registration Statement (including
any Rule 462(b) Registration Statement) or any post-effective amendment thereto
(including the filing of the Company's Annual Report on Form 10K with the
Commission) 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 Prospectus or any
amendment or supplement thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom, as to
which they make no statement), at the time the Prospectus was issued, at the
time any such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or
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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 giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York, the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to you and may
rely on an opinion dated the Closing time of Ballard, Spahr Andrews and
Ingersoll, LLP as to matters governed by the laws of the State of Maryland. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and you shall have received a
certificate of the President or a Vice President of the Company and of the chief
financial officer or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) are true and
correct with the same force and effect as though expressly made at and as of the
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted, are pending or, to the best of such officer's knowledge, are
threatened by the Commission.
(f) Advisor's Certificate. At Closing Time, there shall not have been,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of the Advisor, whether or not arising in the ordinary course of
business; and you shall have received, at Closing Time, a certificate of the
President or a Vice President of the Advisor evidencing compliance with this
subsection (f).
(g) Accountant's Comfort Letter. At the time of the execution of this
Underwriting Agreement, you shall have received from Arthur Andersen LLP a
letter dated such date, in form and substance satisfactory to you, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, you shall have received
from Arthur Andersen LLP a letter, dated as of Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to subsection
(g) of this Section 5, except that the specified date referred to shall be a
date not more than three business days prior to the Closing Time.
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(i) No Objection. If the Registration Statement or the offering of the
Shares has been filed with the NASD for review, the NASD shall not have raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) Additional Documents. At Closing Time, your counsel shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Shares as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Shares as herein contemplated shall be reasonably
satisfactory in form and substance to you and your counsel.
(k) Date of Delivery Documentation. In the event you exercise the
option described in Section 2 hereof to purchase all or any portion of the
Option Shares, the representations and warranties of the Company included herein
and the statements in any certificates furnished by the Company hereunder shall
be true and correct as of the Date of Delivery (except those which speak as of a
certain date, in which case as of such date), and you shall have received:
(i) A certificate of the President or a Vice President and of
the chief financial officer or chief accounting officer of the Company,
dated such Date of Delivery, confirming that their certificate
delivered at Closing Time pursuant to Section 5(e) hereof remain true
as of such Date of Delivery, except with respect to transactions as to
which you shall have given your prior written consent.
(ii) The favorable opinion of Sullivan & Worcester LLP,
counsel for the Company, in form and substance satisfactory to your
counsel, dated such Date of Delivery, relating to the Option Shares and
otherwise to the same effect as the opinion required by Section 5(b)
hereof.
(iii) Certificate of the President of the Advisor confirming
that his certificate delivered at Closing Time pursuant to Section 5(f)
hereof remains true as of such Date of Delivery.
(iv) The favorable opinion of Brown & Wood LLP, counsel for
the Underwriter, dated such Date of Delivery, relating to the Option
Shares and otherwise to the same effect as the opinion required by
Section 5(d) hereof.
(v) A letter from Arthur Andersen LLP, dated such Date of
Delivery, substantially the same in scope and substance as the letter
furnished to you pursuant to Section 5(h) hereof.
(l) Termination of this Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Underwriting Agreement may be terminated by you by notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
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SECTION 6. Indemnification.
(a) Indemnification of Underwriter. The Company agrees to indemnify and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and provided, further, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of the Underwriter, or the benefit of any person controlling the
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto and excluding
documents incorporated or deemed to be incorporated by reference therein) was
not sent or given by or on behalf of the Underwriter to such person asserting
any such losses, claims, damages or liabilities at or prior to the written
confirmation of the sale of such Shares to such person, if required by law so to
have been delivered, and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage or expense.
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(b) Indemnification of Company, Trustees and Officers. The Underwriter
agrees to indemnify and hold harmless the Company, its trustees, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. The indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such indemnified parties
and payment of all fees and expenses. The indemnified parties shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified parties unless (i) the employment of such counsel
shall have been specifically authorized in writing by the indemnifying party,
(ii) the indemnifying party shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any impleaded
parties) include both the indemnified parties and the indemnifying party and the
indemnified parties shall have been advised by such counsel that there may be
one or more legal defenses available to them which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified parties, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for the indemnified parties, which firm shall be designed in writing by
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred). No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
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(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriter, on the other hand, from the
offering of the Shares pursuant hereto or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
Underwriter, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriter, on the other hand, in connection with the offering of the Shares
pursuant hereto shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Shares (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriter, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of such Shares as set forth on such
cover.
The relative fault of the Company, on the one hand, and the
Underwriter, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
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Notwithstanding the provisions of this Section 7, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by the Underwriter and distributed
to the public were offered to the public exceeds the amount of any damages which
the Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or in certificates of officers of the Company or any of
its subsidiaries submitted pursuant hereto or thereto shall remain operative and
in full force and effect, regardless of any investigation made by or on behalf
of the Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of and payment fo Shares.
SECTION 9. Termination.
(a) You may terminate this Agreement, by notice to the Company, at any
time at or prior to Closing Time (i) if there has been, since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company or the Advisor,
whether or not arising in the ordinary course of business, which would make it,
in your reasonable judgment, impracticable or inadvisable to market the Shares
or enforce contracts for the sale of the Shares, (ii) if there has occurred any
material adverse change in the financial markets in the United States or any
outbreak of hostilities or escalation of existing hostilities or other calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the your reasonable judgment, impracticable or
inadvisable to market the Shares or enforce contracts for the sale of the
Shares, or (iii) if trading in the Company's Common Shares has been suspended by
the Commission, or if trading generally on either the New York Stock Exchange or
the American Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by Federal
or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except as
provided in Section 4, and provided further that Sections 6 and 7 hereof shall
survive such termination.
20
<PAGE>
SECTION 10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to you shall be
directed to Merrill Lynch, World Financial Center, North Tower, New York, New
York 102811201, attention of Tjarda van S. Clagett; and notices to the Company
shall be directed to it at 400 Centre Street, Newton, MA 02458, attention of
John G. Murray.
SECTION 11. Parties. This Underwriting Agreement shall inure to the
benefit of and be binding upon the Company and you and its and your respective
successors. Nothing expressed or mentioned in this Underwriting Agreement is
intended or shall be construed to give any person, firm or corporation, other
than you and the Company and its respective successors and the controlling
persons and officers and trustees referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Underwriting Agreement or any provision herein
contained. This Underwriting Agreement and all conditions and provisions hereof
are intended to be for the sole and exclusive benefit of the parties hereto and
their respective successors, and said controlling persons and officers and
trustees and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of the Shares from you shall be
deemed to be a successor by reason merely of such purchase.
12.GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
13.Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
21
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
HOSPITALITY PROPERTIES TRUST
By: /s/ Thomas M. O'Brien
Name: Thomas M. O'Brien
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Tjarda Clagett
Name: Tjarda Clagett
Title: Director
22
<PAGE>
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company is a real estate investment trust duly formed and
validly 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 Company has trust power and authority to own and lease its
properties and to conduct its business in all material respects as described in
the Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement.
(3) The Company is duly qualified to transact business and is in good
standing in each jurisdiction other than the State of Maryland in which the
ownership or leasing of its properties requires such qualification, except where
the failure to so qualify or be in good standing would not result in a Material
Adverse Effect.
(4) Each Subsidiary (a) is a real estate investment trust duly formed
and validly 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, (b) has the trust power and authority to own and lease its properties
and to conduct its business, in all material respects as described in the
Prospectus, and (c) is duly qualified to transact business and is in good
standing in each jurisdiction other than the State of Maryland in which the
ownership or leasing of its properties requires such qualification, except where
the failure to so qualify or be in good standing would not result in a Material
Adverse Effect.
(5) Except as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued, are fully paid and
non-assessable, and, to the best of our knowledge, are owned by the Company,
directly or through subsidiaries, free and clear of any adverse claim. None of
such shares of capital stock of any Subsidiary was issued in violation of
preemptive or other similar rights of any holder (other than the Company) of
capital stock of such Subsidiary.
(6) Except as otherwise set forth in the opinions expressed in
paragraph 4 of the opinion of Ballard Spahr Andrews & Ingersoll, LLP, set forth
as Exhibit 1 hereto, all the authorized, issued and outstanding shares of
capital stock have been duly authorized and validly issued by the Company and
are fully paid and non-assessable (except as otherwise described in the
Registration Statement), and none of such shares of capital stock was issued in
violation of preemptive or, to such counsel's knowledge, other similar rights of
any holder of capital stock of the Company.
(7) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
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(8)(A) The Shares have been duly authorized and, when issued and
delivered to you against payment therefor in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable (except as
otherwise described in the Registration Statement), and will be free of any
preemptive or, to such counsel's knowledge, other similar rights that entitle
any person (other than you, your successors and assigns) to acquire any Shares
upon the issuance thereof by the Company.
(9) The Shares conform in all material respects to the descriptions
thereof in the Prospectus.
(10)(a) The statements under the captions (i) "Recent Developments,"
"The Company -- Leases," "Management" and "Description of Shares" in the
Prospectus Supplement and (ii) "Description of Common Shares," "Limitation of
Liability; Shareholder Liability" and "Redemption; Trustees; Business
Combinations and Control Share Acquisitions" in the Prospectus, in each case as
of the date of the Prospectus, and (b) the statements under the captions (i)
"Items 1 and 2. Business and Properties -- The Company --Principal Lease
Features," "Items 1 and 2. Business and Properties -- Investment Advisor," "Item
5. Market for Registrant's Common Equity and Related Stockholder Matters," and
"Item 7. Management's Discussion and Analysis of Results of Operations and
Financial Condition -- Overview" and "Item 7. Management's Discussion and
Analysis of Results of Operations and Financial Condition -- Liquidity and
Capital Resources" in the Annual Report on Form 10-K, (ii) "Other Information --
Certain Relationships and Related Transactions" in the Company's Proxy Statement
relating to the May 19, 1998 Annual Meeting of Shareholders (incorporated by
reference in the Form 10-K), other than the last paragraph thereof, as to which
we express no opinion, and (iii) "Item 5. Other Events -- New Credit Facility"
in the Company's Current Report on Form 8-K dated April 15, 1998, and in each
case as of the date of filing of such Incorporated Document, insofar as such
statements constitute a summary of legal matters, documents or proceedings
referred to therein, fairly present in all material respects the information
called for with respect to such legal matters, documents and proceedings.
(11) The statements under the captions "Federal Income Tax and ERISA
Consequences" in the Prospectus Supplement, as of the date of the Prospectus,
and the statements under the captions "Federal Income Tax Considerations" and
"ERISA Plans, Keogh Plans and Individual Retirement Accounts" under the caption
"Items 1 and 2. Business and Properties" in the Annual Report on Form 10-K, as
of the date of filing of the Annual Report on Form 10-K, insofar as such
statements constitute a summary of legal matters or documents referred to
therein, fairly present in all material respects the information called for with
respect to such legal matters, documents and proceedings.
(12) To such counsel's knowledge, except as disclosed in the Prospectus
neither the Company nor any Subsidiary is in violation of its declaration of
trust or by-laws and no default by the Company or any of the Subsidiaries exists
in the due performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement and to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound or to
which any of the assets, properties or operations of
A-2
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the Company or any Subsidiary is subject, except for such violations or defaults
which would not result in a Material Adverse Effect.
(13) The execution, delivery and perfo rmance of the Underwriting
Agreement and the consummation of the transactions contemplated in the
Underwriting Agreement and in the Registration Statement and the Prospectus
(including the issuance and sale of the Shares and the use of the proceeds from
the sale of the Shares as described under the caption "Use of Proceeds" in the
Prospectus Supplement) and compliance by the Company with its obligations
thereunder do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or
Repayment Event under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the Company
or of any Subsidiary pursuant to, any material contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or any other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement and to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound or to which any of the assets,
properties or operations of the Company or any Subsidiary is subject, nor will
such action result in any violation of the provisions of the declaration of
trust or by-laws of the Company or any Subsidiary or in any material respect any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to such counsel, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations, in each case
except as disclosed in the Prospectus.
(14) To such counsel's knowledge, except as disclosed in the Prospectus
there is not pending or threatened any action, suit, proceeding, inquiry or
investigation to which the Company or any Subsidiary is a party or to which the
assets, properties or operations of the Company or any Subsidiary is subject,
before or by any court or government agency or body which would, if determined
adversely to the Company or such Subsidiary, result in a Material Adverse Effect
or materially and adversely affect the consummation of the transactions
contemplated under the Underwriting Agreement or the right or ability of the
Company to perform its obligations thereunder.
(15) To such counsel's knowledge, there is no contract or other
document which is required to be described in the Registration Statement or the
Prospectus that is not described therein or is required to be filed as an
exhibit to the Registration Statement which is not so filed.
(16) To such counsel's knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(17) The Registration Statement has been declared effective under the
1933 Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b). To such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been initiated or are pending or threatened by the Commission.
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(18) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than financial statements and other financial and statistical data and
schedules, as to which such counsel need not express any opinion), complied as
to form in all material respects with the requirements of the 1933 Act.
(19) Each Incorporated Document (other than financial statements and
other financial and statistical data and schedules, as to which such counsel
need not express any opinion) complied as to form in all material respects with
the 1934 Act when filed with the Commission.
(20) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any federal, Massachusetts,
Delaware or Maryland court or governmental authority or agency is necessary or
required for the due authorization, execution or delivery by the Company of the
Underwriting Agreement or for the performance by the Company of the transactions
contemplated under the Prospectus, or the Underwriting Agreement, other than
those which have already been made, obtained or rendered as applicable.
(21) The Company is not, and upon the issuance and sale of the Shares
as contemplated by the Underwriting Agreement and the application of the net
proceeds therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(22) The Company has qualified to be taxed as a real estate investment
trust pursuant to Sections 856-860 of the Code for each of the taxable years
ended December 31, 1995 through December 31, 1997, and the Company's current
anticipated investments and its current plan of operation will enable it to
continue to meet the requirements for qualification and taxation as a real
estate investment trust under the Code; actual qualification of the Company as a
real estate investment trust, however, will depend upon the Company's continued
ability to meet, and its meeting, through actual annual operating results and
distributions, the various qualification tests imposed under the Code.
(23) The Advisor is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has the requisite
corporate power and authority to conduct its business as described in the
Prospectus and to own and operate its material properties.
(24) The Advisory Agreement has been duly authorized, executed and
delivered by the parties thereto and constitutes the valid agreement of the
parties thereto, enforceable in accordance with its terms.
(25) No facts have come to such counsel's attention that would lead
them to believe that (x) the Registration Statement, as of the time it became
effective under the 1933 Act, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading or (y) the Prospectus, as
of the date of issuance thereof or at the date hereof, included or includes an
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the
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<PAGE>
statements therein, in the light of the circumstances under which they were
made, not misleading, except that such counsel need not express any views as to
the financial statements and other financial and statistical data and schedules
included in the Registration Statement or the Prospectus.
Such counsel need not express any opinion as to compliance with, or
filings with or authorizations, approvals, consents, licenses, orders,
registrations, qualifications or decrees under, state securities or "Blue Sky"
laws. Such counsel's opinions with respect to the validity or enforceability of
agreements may be qualified to the extent that the obligations, rights and
remedies of parties may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting generally creditors'
rights and remedies, and (ii) general principles of equity (regardless of
whether considered in a proceeding at law or in equity), and otherwise in a
manner acceptable to the Underwriter.
A-5
Exhibit 3.1
HOSPITALITY PROPERTIES TRUST
BYLAWS
Dated: May 12, 1995, As Amended May 19, 1998
<PAGE>
TABLE OF CONTENTS
ARTICLE I
TRUSTEES
Section 1.1 Qualifying Shares Not Required.......................... 1
Section 1.2 Quorum.................................................. 1
Section 1.3 Number and Term; Election............................... 1
Section 1.4 Place of Meeting........................................ 1
Section 1.5 Organizational Meeting.................................. 1
Section 1.6 Regular Meetings........................................ 1
Section 1.7 Special Meetings........................................ 1
Section 1.8 Adjourned Meetings...................................... 2
Section 1.9 Waiver of Notice........................................ 2
Section 1.10 Action Without Meeting.................................. 2
Section 1.11 Telephone Meetings...................................... 2
Section 1.12 Committee Rules......................................... 2
ARTICLE II
OFFICERS
Section 2.1 Enumeration............................................. 3
Section 2.2 Powers and Duties of the Chairman....................... 3
Section 2.3 Powers and Duties of the President...................... 3
Section 2.4 Powers and Duties of Vice-President..................... 3
Section 2.5 Duties of the Secretary................................. 4
(a) Minutes......................................... 4
(b) Books and Other Records......................... 4
(c) Share Register.................................. 4
(d) General Duties.................................. 4
Section 2.6 Duties of the Treasurer................................. 4
ARTICLE III
SHAREHOLDERS
Section 3.1 Effect of Quorum........................................ 4
Section 3.2 Place of Meeting........................................ 4
Section 3.3 Annual Meeting.......................................... 5
Section 3.4 Special Meetings........................................ 5
Section 3.5 Notice of Regular or Special Meetings................... 5
Section 3.6 Notice of Adjourned Meetings............................ 5
Section 3.7 Proxies................................................. 5
Section 3.8 Consent of Absentees.................................... 6
Section 3.9 Voting Rights........................................... 6
Section 3.10 Advance Notice for Nomination of
Trustees.............................................. 6
Section 3.11 Advance Notice for Transaction
of Business........................................... 8
<PAGE>
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ARTICLE IV
MISCELLANEOUS
Section 4.1 Record Dates and Closing of
Transfer Books........................................ 9
Section 4.2 Inspection of Bylaws.................................... 9
ARTICLE V
AMENDMENTS
Section 5.1 By Trustees............................................. 9
ARTICLE VI
DEFINITIONS
Section 6.1 Definitions............................................. 10
ARTICLE VII
FISCAL YEAR
Section 7.1 Fiscal Year............................................. 10
ARTICLE VIII
THE ADVISOR
Section 8.1 Employment of Advisor................................... 10
Section 8.2 Term.................................................... 11
Section 8.3 Other Activities of Advisor............................. 11
Section 8.4 Advisor Compensation.................................... 12
Section 8.5 Annual Total Operating Expenses......................... 13
Section 8.6 Definitions............................................. 14
<PAGE>
ARTICLE I
TRUSTEES
Section 1.1 Qualifying Shares Not Required. Trustees need not
be Shareholders of Hospitality Properties Trust (the "Trust").
Section 1.2 Quorum. A majority of the Trustees shall
constitute a quorum subject to the provisions of Section 2.6 of the Trust's
Declaration of Trust, as it may be amended from time to time (the
"Declaration").
Section 1.3 Number and Term; Election. The number and terms of
the Trustees shall be as provided in Section 2.1 of the Declaration. Trustees
shall be elected at annual meetings of Shareholders as provided in Section 2.1
of the Declaration. If Trustees are not so elected at an annual meeting or if
such meeting is not held, Trustees may be elected at a special meeting of
Shareholders.
Section 1.4 Place of Meeting. Meetings of the Trust ees shall
be held at the principal office of the Trust or at such place within or without
the State of Maryland as the President shall direct or as is fixed from time to
time by resolution of the Trustees. Whenever a place other than the principal
office is fixed by the President or by resolution as the place at which future
meetings are to be held, written notice thereof shall be sent to all Trustees a
reasonable time in advance of any meeting to be held at such place.
Section 1.5 Organizational Meeting. Immediately following each
Annual Meeting of Shareholders, a regular meeting of the Trustees shall be held
for the purpose of organizing, electing officers and transacting other business.
Notice of such meetings need not be given.
Section 1.6 Regular Meetings. Regular meetings of the Trustees
shall be held at the place determined pursuant to Section 1.4 on the dates, if
any, established at each organiza tional meeting of the Trustees and notice of
such regular meet ings of the Trustees is hereby dispensed with.
Section 1.7 Special Meetings. Special meetings of the Trustees
may be called at any time by the Chairman or President and shall be called by
request of any two (2) Trustees. Written notice of the time and place of a
special meeting shall be given
<PAGE>
to each Trustee, either personally or by sending a copy thereof by mail or by
facsimile or telex, charges prepaid, to the address of the Trustee appearing on
the books of the Trust or theretofore given by the Trustee to the Trust for the
purpose of notice. In case of personal service, such notice shall be so
delivered at least twenty-four (24) hours prior to the time fixed for the
meeting. If such notice is mailed, it shall be deposited in the United States
mail in the place in which the principal office of the Trust is located at least
seventy-two (72) hours prior to the time fixed for the holding of the meeting.
If sent by facsimile or telex, it shall be sent at least forty-eight (48) hours
prior to the time fixed for the holding of the meeting. If notice is not so
given by the Secretary, it may be given in the same manner by the Chairman,
President or the Trustees requesting the meeting.
Section 1.8 Adjourned Meetings. A quorum of the Trustees may
adjourn any Trustees' meeting to meet again at a stated day and hour. In the
absence of a quorum, a majority of the Trustees present may adjourn from time to
time to meet again at a stated day and hour prior to the time fixed for the next
regular meeting of the Trustees. The motion for adjournment shall be lodged with
the records of the Trust. Notice of the time and place of an adjourned meeting
need not be given to any Trustee present at the adjourned meeting if the time
and place is fixed at the meeting adjourned.
Section 1.9 Waiver of Notice. The transactions of any meeting
of the Trustees, however called and noticed or wherever held, shall be as valid
as though had at a meeting duly held after regular call and notice if a quorum
is present and if, either before or after the meeting, each of the Trustees not
present signs a written waiver of notice, a consent to the holding of such
meeting or an approval of the minutes thereof. All such waivers, consents or
approvals shall be lodged with the Trust records or made a part of the minutes
of the meeting.
Section 1.10 Action Without Meeting. Unless specifi cally
otherwise provided in the Declaration, any action required or permitted to be
taken by the Trustees may be taken without a meeting if a majority of the
Trustees (or a majority of the Independent Trustees as to any action which
requires such a majority) shall individually or collectively consent in writing
to such action. Such written consent or consents shall be lodged with the
records of the Trust and shall have the same force and
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<PAGE>
effect as the affirmative vote of such Trustees at a duly held meeting of the
Trustees at which a quorum was present.
Section 1.11 Telephone Meetings. The Trustees may meet by
means of a telephone conference circuit or similar communications equipment by
means of which all persons partici pating in the meeting shall be able to hear
one another and participate therein. Such meeting shall be deemed to have been
held at a place designated by the Trustees at the meeting. Participation in a
telephone conference meeting shall constitute presence in person at such
meeting.
Section 1.12 Committee Rules. Unless the Trustees otherwise
provide, each committee designated by the Trustees may adopt, amend and repeal
rules for the conduct of such committee's business. In the absence of a
provision by the Trustees or a provision in the rules of such committee to the
contrary, a majority of the entire authorized number of members of such
committee shall constitute a quorum for the transaction of business, the vote of
a majority of the members present at a meeting at the time of such vote if a
quorum is then present shall be the act of such committee, and in other respects
each committee shall conduct its business in the same manner as the Trustees
conduct their business pursuant to Article II of the Declaration and this
Article I of these Bylaws.
ARTICLE II
OFFICERS
Section 2.1 Enumeration. The officers of the Trust shall be a
President, a Secretary, a Treasurer, and such other officers as are elected by
the Trustees including, in their discretion, a Chairman, with such duties as are
assigned to them by the Trustees. Officers shall be elected by and shall hold
office at the pleasure of the Trustees.
Section 2.2 Powers and Duties of the Chairman. The Chairman,
if there shall be such an officer, shall, if present, preside at all meetings of
the Shareholders and the Trustees and may be the chief executive officer of the
Trust if the Trustees so elect.
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Section 2.3 Powers and Duties of the President. Subject to
such supervisory powers, if any, as may be given by the Trustees to the
Chairman, the President shall, subject to the control of the Trustees and the
supervision of the Chairman, have general supervision, direction and control of
the business of the Trust and its employees and shall exercise such general
powers of management as are usually vested in the office of president of a
corporation. In the absence of the Chairman, or if there be none, he shall
preside at all meetings of the Shareholders and/or Trustees and, unless the
Chairman has been designated as chief executive officer, shall be chief
executive officer of the Trust. He shall be, ex officio, a member of all
standing committees.
Section 2.4 Powers and Duties of Vice-President. Each
Vice-President, if any, designated by the Trustees shall be an administrative
officer of the Trust and have such duties as are designated by the President or
the Trustees.
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<PAGE>
Section 2.5 Duties of the Secretary. The Secretary shall:
(a) Minutes. Keep full and complete minutes of the meetings
(or actions in lieu thereof) of the Trustees, any committees of the Trustees and
the Shareholders and give notice, as required, of all such meetings;
(b) Books and Other Records. Maintain custody of and keep
the books of account and other records of the Trust except such as are in
custody of the Treasurer;
(c) Share Register. Maintain at the principal office of the
Trust a share register, showing the ownership and transfers of ownership of all
shares of the Trust, unless a transfer agent is employed to maintain and does
maintain such a share register; and
(d) General Duties. Generally, perform all duties which
pertain to his office and which are required by the Trustees.
An Assistant Secretary or Secretaries may be appointed to act
in the absence of the Secretary.
Section 2.6 Duties of the Treasurer. The Treasurer shall
perform all duties which pertain to his office and which are required by the
Trustees, including without limitation the receipt, deposit and disbursement of
funds belonging to the Trust.
An Assistant Treasurer or Treasurers may be appointed to act
in the absence of the Treasurer.
ARTICLE III
SHAREHOLDERS
Section 3.1 Effect of Quorum. Subject to the provisions of the
Declaration, the Shareholders present at a duly called or held meeting at which
a quorum is present may continue to do business until adjournment
notwithstanding the withdrawal of enough Shareholders so that the remaining
Shareholders constitute less than a quorum.
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<PAGE>
Section 3.2 Place of Meeting. Meetings of the Shareholders
shall be held at the principal office of the Trust or at such place within or
without the State of Maryland as is designated by the Trustees or the Chairman
or President, given either before or after the meeting and filed with the
Secretary of the Trust.
Section 3.3 Annual Meeting. A regular annual meeting of the
Shareholders shall be called by the Chairman or President within six months
after the end of each fiscal year, commencing with the fiscal year ending
December 31, 1995.
Section 3.4 Special Meetings. Special meetings of the
Shareholders may be held at any time for any purpose or purposes permitted by
the Declaration and shall be called as provided in Section 5.9 of the
Declaration.
Section 3.5 Notice of Regular or Special Meetings. Written
notice specifying the place, day and hour of any regular or special meeting, the
purposes of the meeting, and all other matters required by law shall be given to
each Shareholder of record entitled to vote, either personally or by sending a
copy thereof by mail, telegraph or telecopier, charges prepaid, to his address
appearing on the books of the Trust or theretofore given by him to the Trust for
the purpose of notice or, if no address appears or has been given, addressed to
the place where the principal office of the Trust is situated. It shall be the
duty of the Secretary to give notice of each Annual Meeting of the Shareholders
at least fifteen (15) days and not more than sixty (60) days before the date on
which it is to be held. Whenever an officer has been duly requested to call a
special meeting of Shareholders, it shall be his duty to fix the date and hour
thereof, which date shall be not less than twenty (20) days and not more than
sixty (60) days after the receipt of such request if the request has been
delivered in person or after the date of mailing the request, as the case may
be, and to give notice of such special meeting within ten (10) days after
receipt of such request. If the date of such special meeting is not so fixed and
notice thereof given within ten (10) days after the date of receipt of the
request, the date and hour of such meeting may be fixed by the Person or Persons
calling or requesting the meeting and notice thereof shall be given by such
Person or Persons not less than twenty (20) nor more than sixty (60) days before
the date on which the meeting is to be held.
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Section 3.6 Notice of Adjourned Meetings. It shall not be
necessary to give notice of the time and place of any adjourned meeting or of
the business to be transacted thereat other than by announcement at the meeting
at which such adjourn ment is taken, except that when a meeting is adjourned for
thirty (30) days or more, notice of the adjourned meeting shall be given as in
the case of an original meeting.
Section 3.7 Proxies. The appointment of a proxy or proxies for
any meeting of Shareholders entitled to vote shall be made by an instrument in
writing executed by the Shareholder or his duly authorized agent and filed with
such officer of the Trust as the Trustees shall have designated for such purpose
for verification prior to such meeting. Any proxy relating to the Trust's shares
of beneficial interest shall be valid until the expiration date therein or, if
no expiration is so indicated, for such period as is permitted pursuant to
Maryland law. At a meeting of Shareholders all questions concerning the
qualifica tion of voters, the validity of proxies, and the acceptance or
rejection of votes, shall be decided by the Secretary of the meeting unless
inspectors of election are appointed pursuant to Section 3.10 in which event
such inspectors shall pass upon all questions and shall have all other duties
specified in said section.
Section 3.8 Consent of Absentees. The transactions of any
meeting of Shareholders, either annual, special or adjourned, however called and
noticed, shall be as valid as though had at a meeting duly held after the
regular call and notice if a quorum is present and if, either before or after
the meeting, each Shareholder entitled to vote, not present in person or by
proxy, signs a written waiver of notice, a consent to the holding of such
meeting or an approval of the minutes thereof. All such waivers, consents or
approvals shall be lodged with the Trust records or made a part of the minutes
of the meeting.
Section 3.9 Voting Rights. If no date is fixed for the
determination of the Shareholders entitled to vote at any meeting of
Shareholders, only Persons in whose names Shares entitled to vote stand on the
share records of the Trust at the opening of business on the day of any meeting
of Shareholders shall be entitled to vote at such meeting.
Section 3.10 Advance Notice for Nomination of Trustees. Only
persons who are nominated in accordance with the
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following procedures shall be eligible for election as Trustees of the Trust.
Nominations of persons for election to the Board of Trustees may be made (a) by
or at the direction of the Board of Trustees (or any duly authorized committee
thereof) or (b) by any Shareholder of the Trust (i) who is a Shareholder of
record on the date of the giving of the notice provided for in this Section 3.10
and on the record date for the determination of Shareholders entitled to vote
upon such nominations and (ii) who complies with the notice procedures set forth
in this Section 3.10.
In addition to any other applicable requirements, for a
nomination to be made by a Shareholder, such Shareholder must have given timely
notice thereof in proper written form to the Secretary of the Trust.
To be timely, a Shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Trust (a) in the case of an annual meeting, not less than ninety (90) days nor
more than one hundred twenty (120) days prior to the anniversary date of the
immediately preceding annual meeting; provided, however, that in the event that
the meeting is called for a date more than ninety (90) days prior to such
anniversary date, notice by the Shareholder in order to be timely must be so
received not later than the close of business on the twentieth (20th) day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the annual meeting was made,
whichever first occurs; and (b) in the case of a special meeting of Shareholders
called for the purpose of electing Trustees, not later than the close of
business on the seventh (7th) day following the day on which notice of the date
of the special meeting was mailed or public disclosure of the date of the
special meeting was made, whichever first occurs.
To be in proper written form, a Shareholder's notice to the
Secretary must set forth (a) as to each person whom the Shareholder proposes to
nominate for election as a Trustee (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the Trust which are owned beneficially or of record by the person, (iv) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
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solicitations of proxies for election of Trustees pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder and (v) the consent of each nominee to
serve as a Trustee if so elected; and (b) as to the Shareholder giving the
notice (i) the name and record address of such Shareholder, (ii) the class or
series and number of shares of capital stock of the Trust which are owned
beneficially or of record by such Shareholder, (iii) a description of all
arrangements or under standings between such Shareholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such Shareholder, (iv) a
representation that such Shareholder intends to appear in person or by proxy at
the meeting, if there be a meeting, to nominate the persons named in its notice
and (v) any other information relating to such Shareholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of Trustees
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a Trustee if
elected.
No person shall be eligible for election as a Trustee of the
Trust unless nominated in accordance with the procedures set forth in this
Section 3.10. If the Chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the nomination was defective, and such defective nomination
shall be disregarded.
Section 3.11 Advance Notice for Transaction of Business. No
business may be transacted by the Shareholders at an annual or special meeting,
other than business that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Trustees
(or any duly authorized committee thereof), (b) otherwise properly brought
before the Shareholders by or at the direction of the Board of Trustees (or any
duly authorized committee thereof) or (c) otherwise properly brought before the
Shareholders by any Shareholder of the Trust (i) who is a Shareholder of record
on the date of the giving of the notice provided for in this Section 3.11 and on
the record date for the determination of Shareholders entitled to vote or
express consent
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therefor and (ii) who complies with the notice procedures set forth in this
Section 3.11.
In addition to any other applicable requirements, for business
to be properly brought before an annual or special meeting by a Shareholder
(other than a shareholder proposal included in the Trust's proxy statement
pursuant to Rule 14a-8 under the Exchange Act), such Shareholder must have given
timely notice thereof in proper written form to the Secretary of the Trust.
To be timely, a Shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Trust not less than ninety (90) days nor more than one hundred-twenty (120) days
prior to the anniversary date of the immediately preceding annual meeting;
provided, however, that in the event that the meeting is called for a date more
than ninety (90) days prior to such anniversary date, notice by the Shareholder
in order to be timely must be so received not later than the close of business
on the twentieth (20th) day following the day on which such notice of the date
of the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs; and (b) in the case of a
special meeting of Shareholders called (other than at the request of
Shareholders) for the purpose of transacting business, not later than the close
of business on the seventh (7th) day following the day on which notice of the
date of the special meeting was mailed or public disclosure of the date of the
special meeting was made, whichever first occurs.
To be in proper written form, a Shareholder's notice to the
Secretary must set forth as to each matter such Shareholder proposes to bring
before the Shareholders (i) a brief description of the business desired to be
brought before the Shareholders and the reasons therefor, (ii) the name and
record address of such Shareholder, (iii) the class or series and number of
shares of capital stock of the Trust which are owned beneficially or of record
by such Shareholder, (iv) a description of all arrangements or understandings
between such Shareholder and any other person or persons (including their names)
in connection with the proposal of such business by such Shareholder and any
material interest of such Shareholder in such business and (v) a representation
that such Shareholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting.
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No business shall be conducted by the Shareholders except
business brought before them in accordance with the procedures set forth in this
Section 3.11; provided, however, that, once business has been properly brought
before an annual or special meeting in accordance with such procedures, nothing
in this Section 3.11 shall be deemed to preclude discussion by any Shareholder
of any such business. If the Chairman of the meeting determines that business
was not properly brought before the meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the business was not
properly brought before the meeting, and such business shall not be transacted.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Record Dates and Closing of Transfer Books.
Pursuant to the Declaration, the Trustees may fix record dates for specified
purposes. If a record date is so fixed, only Shareholders of record on the date
so fixed shall be entitled to the rights to which the record date pertains.
Section 4.2 Inspection of Bylaws. The Trustees shall keep at
the principal office for the transaction of business of the Trust the original
or a copy of the Bylaws as amended or otherwise altered to date, certified by
the Secretary, which shall be open to inspection by the Shareholders at all
reasonable times during office hours.
ARTICLE V
AMENDMENTS
Section 5.1 By Trustees. Except for any change for which the
Declaration or these Bylaws require approval by more than a majority vote of the
Trustees, these Bylaws may be amended or repealed or new or additional Bylaws
may be adopted only by the vote or written consent of a majority of the
Trustees.
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ARTICLE VI
DEFINITIONS
Section 6.1 Definitions. All terms defined in the Declaration
shall have the same meaning when used in these Bylaws.
ARTICLE VII
FISCAL YEAR
Section 7.1 Fiscal Year. The fiscal year of the Trust shall be
the calendar year.
ARTICLE VIII
THE ADVISOR
Section 8.1 Employment of Advisor. The Trustees are not and
shall not be required personally to conduct the business of the Trust, and the
Trustees shall have the power to appoint, employ or contract with any person
(including one or more of themselves or any corporation, partnership, or trust
in which one or more of them may be Trustees, officers, stockholders, partners
or trustees) as the Trustees may deem necessary or proper for the transaction of
the business of the Trust. The Trustees may therefore employ or contract with
such person (herein referred to as the "Advisor") and may grant or delegate such
authority to the Advisor as the Trustees may in its sole discretion deem
necessary or desirable without regard to whether such authority is normally
granted or delegated by boards of trustees or boards of directors of business
corporations. The Advisor shall be required to use its best efforts to supervise
the operation of the Trust in a manner consistent with the investment policies
and objectives of the Trust.
The Trustees shall have the power to determine the terms and
compensation of the Advisor or any other person whom it may cause the Trust to
employ or with whom it may cause the Trust to contract for advisory services.
The Trustees may exercise broad discretion in allowing the Advisor to administer
and regulate the operations of the Trust, to act as agent for the Trust, to
execute documents on behalf of the Trustees and to make executive
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decisions which conform to general policies and general principles previously
established by the Trustees.
Section 8.2 Term. The Trustees shall not enter into any
advisory contract with the Advisor unless such contract has an initial term of
not more than one year, provides for annual renewal or extension thereafter,
provides for termination thereof by the Trustees without cause at any time upon
sixty (60) days' written notice by the Trustees, by affirmative vote or written
consent of a majority of the Trustees who are neither officers of the Trust nor
Affiliates of the Trust, the Advisor or Health and Retirement Properties Trust
(collectively, the "Independent Trustees") and provides for termination thereof
by the Advisor without cause at any time after the expiration of a period
specified in such contract (which period shall not be shorter than the original
term) without penalty upon sixty (60) days' written notice by the Advisor. In
the event of the termination of an advisory contract, the terminated Advisor
shall be required to cooperate with the Trust and take all reasonable steps
requested to assist the Trustees in making an orderly transition of the advisory
function. It shall be the duty of the Trustees annually to evaluate the
performance of the Advisor, and the Independent Trustees shall have a fiduciary
duty to the stockholders to supervise the relationship of the Trust with the
Advisor.
Section 8.3 Other Activities of Advisor. The Advisor shall not
be required to administer the Trust as its sole and exclusive function and may
have other business interests and may engage in other activities similar or in
addition to those relating to the Trust, including the rendering of advice or
services of any kind to other investors or any other persons (including other
real estate investment trusts) and the management of other investments. The
Trustees may request the Advisor to engage in certain other activities which
complement the Trust's investments, and the Advisor may receive compensation or
commissions therefor from the Trust or other persons.
Neither the Advisor nor any Affiliate of the Advisor shall be
obligated to present any particular investment opportunities to the Trust, even
if such opportunities are of a character such that, if presented to the Trust,
they could be taken by the Trust, and, subject to the foregoing, each of them
shall be protected in taking for its own account or recommending to others any
such particular investment opportunity.
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Notwithstanding the foregoing, the Advisor shall be required
to use its best efforts to present the Trust with a continuing and suitable
program consistent with the investment policies and objectives of the Trust and
with investments which are representative of, comparable with and on similar
terms as investments being made by Affiliates of the Advisor, or by the Advisor
for its own account or for the account of any person for whom the Advisor is
providing advisory services. In addition, the Advisor shall be required to, upon
the request of any Trustee, promptly furnish the Trustees with such information
on a confidential basis as to any investments within the investment policies of
the Trust made by Affiliates of the Advisor or by the Advisor for its own
account or for the account of any person for whom the Advisor is providing
advisory services.
Section 8.4 Advisor Compensation. The Trustees, including a
majority of the Independent Trustees, shall at least annually review generally
the performance of the Advisor in order to determine whether the compensation
which the Trust has contracted to pay to the Advisor is reasonable in relation
to the nature and quality of services performed and whether the provisions of
the advisory contract with the Advisor are being carried out. Each such
determination shall be based on such of the following and other factors as the
Trustees (including the Independent Trustees) deem appropriate and shall be
reflected in the minutes of the meetings of the Trustees:
(a) the size of the advisory fee in relation to the size,
composition and profitability of the portfolio of the Trust;
(b) the success of the Advisor in generating opportunities
that meet the investment objectives of the Trust;
(c) the rates charged to other REITs and to investors other
than REITs by advisors performing similar services;
(d) additional revenues realized by the Advisor and its
Affiliates through their relationship with the Trust, including loan
administration, underwriting or brokerage commissions and servicing,
engineering, inspection and other fees, whether paid by the Trust or by
others with whom the Trust does business;
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(e) the quality and extent of service and advice furnished by
the Advisor;
(f) the performance of the investment portfolio of the Trust,
including income, conservation or appreciation of capital, frequency of
problem investments and competence in dealing with distress situations;
and
(g) the quality of the portfolio of the Trust in relationship
to any investments generated by the Advisor for its own account.
Section 8.5 Annual Total Operating Expenses. Each advisory
contract with an Advisor shall provide that the Total Operating Expenses of the
Trust shall not exceed in any fiscal year the lower of:
(a) the greater of (i) two percent (2%) of the Average
Invested Real Estate Assets for such fiscal year or (ii) twenty-five
percent (25%) of the Net Income for such fiscal year (calculated before
the deduction therefrom of such Total Operating Expenses); or
(b) the lowest of any applicable operating expense limitations
that may be imposed by law or regulation in a state in which any
securities of the Trust are or will be qualified for sale or by a
national securities exchange on which any securities of the Trust are
or may be listed, as such limitations may be altered from time to time.
The Independent Trustees shall at least annually determine
whether the total fees and expenses of the Trust are reasonable in light of the
investment experience of the Trust, its Net Assets, its Net Income and the fees
and expenses of comparable REITs. Each such determination shall be reflected in
the minutes of meetings of the Trustees.
Within sixty (60) days after the end of any fiscal quarter of
the Trust ending on or after December 31, 1995 for which Total Operating
Expenses (for the twelve months then ended) exceed either of the expense
limitations provided in subparagraph (a) of this Section 8.5, the Trust shall
send to the stockholders a written disclosure of such fact, together with an
explanation of the factors, if any, which the Trustees (including a majority of
the Independent Trustees) have concluded were sufficiently
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unanticipated, unusual or nonrecurring to justify such higher Total Operating
Expenses.
Each advisory contract with the Advisor shall provide that, in
the event that Total Operating Expenses exceed any of the limitations provided
in this Section 8.5, then the Advisor shall refund to the Trust the amount by
which the aggregate annual Total Operating Expenses paid or incurred by the
Trust exceed the limitations herein provided; provided, however, that with
respect to the limitations provided in subparagraph (a) of this Section 8.5,
only so much of such excess need be refunded as the Trustees, including a
majority of the Independent Trustees, shall have found to be unjustified as
provided above.
Section 8.6 Definitions. For purposes of this Article, the
following terms shall have the definitions set forth hereafter:
(a) Average Invested Real Estate Assets. "Average Invested
Real Estate Assets" for any period shall mean the average of the
aggregate book value of the consolidated assets of the Company
invested, directly or indirectly, in equity interests in, and loans
secured by, real estate and personal property associated with such real
estate, before reserves for depreciation or bad debt or other similar
non-cash reserves, calculated by taking the average of such values at
the end of each month during such period.
(b) Average Total Operating Expenses. "Average Total Operating
Expenses" for any period shall mean the average of Total Operating
Expenses during such period.
(c) Net Income. "Net Income" for any period shall be
calculated on the basis of the Trust's audited financial statements and
shall mean total revenues applicable to such period, less the expenses
applicable to such period, other than additions to reserves for
depreciation or bad debts or other similar non-cash reserves.
(d) Total Operating Expenses. "Total Operating Expenses" shall
be calculated on the basis of the Trust's annual audited financial
statements and shall mean the aggregate annual expenses regarded as
ordinary operating expenses (including any compensation payable to the
Advisor), exclusive of the following:
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(i) interest payments and any other cost of borrowed money;
(ii) taxes on income and taxes and assessments on real property, if
any, and all other taxes applicable to the Trust;
(iii) legal, auditing, accounting, underwriting, brokerage, listing,
reporting, registration and other fees, and printing,
engraving and other expenses and taxes incurred in connection
with the issuance, distribution, transfer, trading,
registration and stock exchange listing of the Trust's
securities, including transfer agent's, registrar's and
indenture trustee's fees and charges;
(iv) expenses of organizing, restructuring, reorganizing or
terminating the Trust, or of revising, amending, converting or
modifying the Trust's organizational documents;
(v) expenses directly connected with the acquisition, disposition
and ownership of real estate interests or other property
(including the costs of foreclosure, insurance premiums, legal
services, brokerage and sales commissions, maintenance,
repair, improvement and local management of property), other
than expenses with respect thereto of employees of the
Advisor, to the extent that such expenses are to be borne by
the Advisor pursuant to the terms of the advisory contract;
(vi) non-cash provisions for depreciation, depletion and
amortization;
(vii) losses on the disposition of assets and provisions for such
losses; and
(viii) other extraordinary charges including, without limitation,
litigation costs.
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Exhibit 8.1
SULLIVAN & WORCESTER LLP
One Post Office Square
Boston, Massachusetts 02109
November 11, 1998
Hospitality Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Ladies and Gentlemen:
In connection with the registration by Hospitality Properties Trust, a
Maryland real estate investment trust (the "Company"), of its common shares of
beneficial interests, the following opinion is furnished to you to be filed with
the Securities and Exchange Commission (the "SEC") as Exhibit 8.1 to the
Company's Current Report on Form 8-K, to be filed within one week of the date
hereof, under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
We have acted as counsel for the Company in connection with its
Registration Statement on Form S-3, File No. 333-43573 (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Act"), and we
have examined originals or copies, certified or otherwise identified to our
satisfaction, of the Registration Statement, corporate records, certificates and
statements of officers and accountants of the Company and of public officials,
and such other documents as we have considered relevant and necessary in order
to furnish the opinion hereinafter set forth. Specifically, and without limiting
the generality of the foregoing, we have reviewed the Company's declaration of
trust, as amended and restated, the by-laws of the Company, the prospectus
supplement dated November 11, 1998 (the "Prospectus Supplement") to the final
prospectus dated January 15, 1998 (as supplemented by the Prospectus Supplement,
the "Prospectus") which forms a part of the Registration Statement, and the
Company's Annual Report on Form 10-K for the year ended December 31, 1997, filed
under the Exchange Act (the "Annual Report"). We have reviewed the sections of
the Annual Report captioned "Federal Income Tax Considerations" and "ERISA
Plans, Keogh Plans and Individual Retirement Accounts," as supplemented by the
section in the Prospectus Supplement captioned "Federal Income Tax and ERISA
Consequences." With respect to all questions of fact on which the opinion set
forth below is based, we have assumed the accuracy and completeness of and have
relied on the information set forth in the Prospectus and the
<PAGE>
Hospitality Properties Trust
November 11, 1998
Page 2
Annual Report, and in the documents incorporated therein by reference, and on
representations made to us by the officers of the Company.
The opinion set forth below is based upon the Internal Revenue Code of
1986, as amended, the Treasury Regulations issued thereunder, published
administrative interpretations thereof, and judicial decisions with respect
thereto, all as of the date hereof (collectively, the "Tax Laws"), and upon the
Employee Retirement Income Security Act of 1974, as amended, the Department of
Labor regulations issued thereunder, published administrative interpretations
thereof, and judicial decisions with respect thereto, all as of the date hereof
(collectively, the "ERISA Laws"). No assurance can be given that the Tax Laws or
the ERISA Laws will not change. In preparing the discussions with respect to Tax
Laws and ERISA Laws matters in the sections of the Annual Report captioned
"Federal Income Tax Considerations" and "ERISA Plans, Keogh Plans and Individual
Retirement Accounts," and in the section of the Prospectus Supplement captioned
"Federal Income Tax and ERISA Consequences," we have made certain assumptions
and expressed certain conditions and qualifications therein, all of which
assumptions, conditions and qualifications are incorporated herein by reference.
Based upon and subject to the foregoing, we are of the opinion that the
discussions with respect to Tax Laws and ERISA Laws matters in the sections of
the Annual Report captioned "Federal Income Tax Considerations" and "ERISA
Plans, Keogh Plans and Individual Retirement Accounts," as supplemented by the
discussion in the Prospectus Supplement captioned "Federal Income Tax and ERISA
Consequences," in all material respects are accurate and fairly summarize the
Tax Laws issues and ERISA Laws issues addressed therein, and hereby confirm that
the opinions of counsel referred to in said sections represent our opinions on
the subject matter thereof.
We hereby consent to the incorporation of this opinion by reference as
an exhibit to the Registration Statement and to the reference to our firm in the
Prospectus. In giving such consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the Act or
under the rules and regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP
Exhibit 23.1
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the use of our
report dated January 16, 1998 included in this registration statement (File No.
333-43573) and prospectus supplement and to the incorporation by reference in
this registration statement and prospectus supplement of our reports dated
January 16, 1998 included in Hospitality Properties Trust's Form 8-K dated
February 11, 1998 and our report dated February 27, 1998 included in Hospitality
Property Trust's Form 10-K for the year ended December 31, 1997, and to all
references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Washington, D.C.
November 11, 1998
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Prospectus Supplement to the Registration Statement (Form S-3 No. 333-43573) of
Hospitality Properties Trust for the registration of 2,750,000 Common Shares of
Beneficial Interest and to the incorporation by reference therein of our report
dated February 3, 1998, with respect to the combined financial statements of SC
Suites Summerfield Partnerships included in Hospitality Properties Trust's
Current Report on Form 8-K dated April 15, 1998, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
Wichita, Kansas
November 11, 1998
