Exhibit 1.1
EXECUTION
VERSION
HERSHA HOSPITALITY
TRUST
(a Maryland real estate
investment trust)
6,000,000 Common
Shares
($0.01 Par Value)
UNDERWRITING
AGREEMENT
May 13,
2008
UBS SECURITIES LLC
RAYMOND JAMES & ASSOCIATES, INC.
as Representatives of
the several Underwriters
c/o UBS SECURITIES
LLC
299 Park Avenue
New York, New York 10171-0006
c/o RAYMOND
JAMES & ASSOCIATES, INC.
880 Carillon
Parkway
St. Petersburg, Florida
33716
Ladies and Gentlemen:
Hersha Hospitality Trust, a Maryland real
estate investment trust (the “ Company ”),
proposes to issue and sell to the several underwriters listed on
Schedule A attached hereto (the “ Underwriters
”), an aggregate of 6,000,000 (the “ Firm Shares
”) of its common shares, $ 0.01 par value (the “
Common Shares ”) of the Company. In addition,
solely for the purpose of covering over-allotments, the Company
proposes to grant the Underwriters the option to purchase from the
Company up to an additional 900,000 of its Common Shares (the
“ Additional Shares ”). The Firm Shares
and the Additional Shares are hereinafter collectively referred to
as the “ Shares .” UBS Securities LLC and
Raymond James & Associates, Inc. have agreed to act
as representatives of the several Underwriters (in such capacity,
the “ Representatives ”) in connection with the
offering and sale of the Shares. The Shares are described in
the Prospectus, which is referred to below.
The
Company has prepared and filed, in accordance with the provisions
of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively, the “ Act
”), with the Securities and Exchange Commission (the “
Commission ”) a registration statement on
Form “S-3” (File No. 333-138038) (the “
registration statement ”), including a prospectus,
which registration statement incorporates by reference documents
which the Company has filed, or will file, in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder (collectively, the
“ Exchange Act ”). Amendments to such
registration statement, if necessary or appropriate, have been
similarly prepared and filed with the Commission in accordance with
the Act. Such registration statement, as so amended, has
become effective under the Act.
Except where the context otherwise requires,
“ Registration Statement ,” as used herein,
means the registration statement, as amended at the time of such
registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the
respective Underwriters (the “ Effective Time
”), including (i) all documents filed as a part thereof
or incorporated or deemed to be incorporated by reference therein,
(ii) any information contained or incorporated by reference in
a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act, to the extent such information
is deemed, pursuant to Rule 430B or Rule 430C under the
Act, to be part of the registration statement at the Effective
Time, and (iii) any registration statement filed to register
the offer and sale of Shares pursuant to
Rule 462(b) under the Act.
The
Company has furnished to the Representatives, for use by the
Underwriters and by dealers in connection with the offering of the
Shares, copies of one or more preliminary prospectus supplements,
and the documents incorporated by reference therein, relating to
the Shares. Except where the context otherwise requires,
“ Pre-Pricing Prospectus ,” as used herein,
means each such preliminary prospectus supplement, in the form so
furnished, including any basic prospectus (whether or not in
preliminary form) furnished to the Representatives by the Company
and attached to or used with such preliminary prospectus
supplement. Except where the context otherwise requires,
“ Basic Prospectus ,” as used herein, means any
such basic prospectus and any basic prospectus furnished to the
Representatives by the Company and attached to or used with the
Prospectus Supplement (as defined below).
Except where the context otherwise requires,
“ Prospectus Supplement ,” as used herein, means
the final prospectus supplement, relating to the Shares, filed by
the Company with the Commission pursuant to
Rule 424(b) under the Act on or before the second
business day after the date hereof (or such earlier time as may be
required under the Act), in the form furnished by the Company to
the Representatives for use by the Underwriters and by dealers in
connection with the offering of the Shares.
Except where the context otherwise requires,
“ Prospectus ,” as used herein, means the
Prospectus Supplement together with the Basic Prospectus attached
to or used with the Prospectus Supplement.
“ Permitted Free Writing
Prospectuses ,” as used herein, means the documents
listed on Schedule D attached hereto and each “road
show” (as defined in Rule 433 under the Act), if any,
related to the offering of the Shares contemplated hereby that is a
“written communication” (as defined in Rule 405
under the Act).
“ Disclosure Package ,” as
used herein, means any Pre-Pricing Prospectus or Basic Prospectus,
in either case together with any combination of one or more of the
Permitted Free Writing Prospectuses, if any.
Any
reference herein to the registration statement, the Registration
Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus shall be deemed to refer to and include the documents,
if any, incorporated by reference, or deemed to be incorporated by
reference, therein (the “ Incorporated Documents
”), including, unless the context otherwise requires, the
documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms “
amend ,” “ amendment ” or “
supplement ” with respect to the Registration
Statement, any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act on or after the initial
effective date of the Registration Statement, or the date of such
Basic Prospectus, such Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or such Permitted Free Writing
Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
As
used in this Agreement, “ business day ” shall
mean a day on which the New York Stock Exchange is open for
trading. The terms “herein,”
“hereof,” “hereto,”
“hereinafter” and similar terms, as used in this
Agreement, shall in each case refer to this Agreement as a whole
and not to any particular section, paragraph, sentence or other
subdivision of this Agreement. The term “or,” as
used herein, is not exclusive. For purposes of this
Agreement, all references to the Registration Statement, the
Pre-Pricing Prospectus, the Prospectus and any Permitted Free
Writing Prospectuses or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering Analysis and Retrieval
System (“ EDGAR ”), and such copy shall be
identical
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in
content to any Prospectus delivered to the Underwriters for use in
connection with the offering of the Shares.
The
Company, Hersha Hospitality Limited Partnership (the “
Partnership ”) and the Underwriters agree as
follows:
1.
Sale and Purchase . Upon the basis of the
representations and warranties and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell
to the Underwriters and the Underwriters, acting severally and not
jointly, agree to purchase from the Company the Firm Shares in the
respective amounts set forth on Schedule A hereto at a purchase
price of $9.405 per Share. The Company is advised by the
Representatives that the Underwriters intend (i) to make a
public offering of the Firm Shares as soon as the Representatives
deem advisable after this Agreement has been executed and delivered
and (ii) initially to offer the Firm Shares upon the terms set
forth in the Prospectus. The Representatives may from time to
time increase or decrease the public offering price after the
initial public offering to such extent as the Representatives may
determine.
In
addition, the Company hereby grants to the Underwriters the option
to purchase, and upon the basis of the representations and
warranties and subject to the terms and conditions herein set
forth, the Underwriters shall have the right to purchase from the
Company all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the
offering of the Firm Shares, at the same purchase price per share
to be paid by the Underwriters to the Company for the Firm
Shares. This option may be exercised by the Underwriters at
any time and from time to time on or before the thirtieth day
following the date of the Prospectus, by written notice to the
Company. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised, and
the date and time when the Additional Shares are to be delivered
(such date and time being herein referred to as the “
additional time of purchase ”); provided ,
however , that the additional time of purchase shall not be
earlier than the time of purchase (as defined below) nor
earlier than the second business day after the date on which the
option shall have been exercised nor later than the tenth business
day after the date on which the option shall have been
exercised.
2.
Payment and Delivery . Payment of the purchase price
for the Firm Shares shall be made to the Company by Federal Funds
wire transfer, against delivery to the Underwriters of Firm Shares
through the facilities of The Depository Trust Company (“
DTC ”) for the account of the Underwriters. Such
payment and delivery shall be made at 10:00 a.m., New York
City time, on May 16, 2008 (unless another time shall be
agreed to by the Representatives and the Company). The time
at which such payment and delivery are to be made is hereinafter
sometimes called “ the time of purchase .”
Electronic transfer of the Firm Shares shall be made to the
Underwriters at the time of purchase in such names and in such
denominations as they shall specify.
Payment of the purchase price for the
Additional Shares shall be made at the additional time of purchase
in the same manner and at the same office as the payment for the
Firm Shares. Electronic transfer of the Additional Shares
shall be made to the Representatives at the additional time of
purchase in such names and in such denominations as the
Representatives shall specify.
Deliveries of the documents described in
Section 6 hereof with respect to the purchase of the Shares
shall be made at the offices of Underwriters’ Counsel and the
address of its New York office, at 9:00 a.m., New York City
time, on the date of the closing of the purchase of the Firm Shares
or the Additional Shares, as the case may be.
3.
Representations and Warranties of the Company . Each
of the representations and warranties made herein with respect to
HHMLP (as defined below) are made to the best of the
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Company’s knowledge, after due
inquiry. The Company and the Partnership, jointly and
severally, represent and warrant to and agree with the Underwriters
that:
(a)
the Company meets the requirements for use of Form S-3 under
the Act. The Registration Statement has been filed with the
Commission and has been declared effective under the Act. The
Company has not received, and has no notice of, any order of the
Commission preventing or suspending the use of the Registration
Statement, or threatening or instituting proceedings for that
purpose. Any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been so described or filed. The
Prospectus Supplement has been or will be so prepared and will be
filed pursuant to Rule 424(b) of the Act on or before the
second business day following the date of this Agreement or on such
other day as the parties may mutually agree. Copies of the
Registration Statement and the Prospectus, any such amendments or
supplements and all documents incorporated by reference therein
that were filed with the Commission on or prior to the date of this
Agreement (including one fully executed copy of the Registration
Statement and each amendment thereto for the Underwriters) have
been delivered to the Underwriters and their counsel. The
Company has not distributed any offering material in connection
with the offering or sale of the Shares other than the Registration
Statement, the Prospectus or any other materials, if any, permitted
by the Act;
(b)
the Registration Statement complied when it became effective,
complies as of the date hereof and, as amended or supplemented, at
the time of purchase, each additional time of purchase, if any, and
at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, will comply, in all material respects, with the
requirements of the Act; the conditions to the use of Form S-3
in connection with the offering and sale of the Shares as
contemplated hereby have been satisfied; the Registration Statement
meets, and the offering and sale of the Shares as contemplated
hereby complies with, the requirements of Rule 415 under the
Act; the Registration Statement did not, as of the Effective Time,
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; each Pre-Pricing Prospectus
complied, at the time it was filed with the Commission, and
complies as of the date hereof, in all material respects with the
requirements of the Act; at no time during the period that begins
on the earlier of the date of such Pre-Pricing Prospectus or the
date such Pre-Pricing Prospectus was filed with the Commission and
ends at the time of purchase did or will any Pre-Pricing
Prospectus, as then amended or supplemented, 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, and
at no time during such period did or will any Pre-Pricing
Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free
Writing Prospectuses, if any, 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; each Basic Prospectus
complied or will comply, as of its date and the date it was or will
be filed with the Commission, complies as of the date hereof (if
filed with the Commission on or prior to the date hereof) and, at
the time of purchase, each additional time of purchase, if any, and
at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, will comply, in all material respects, with the
requirements of the Act; at no time during the period that begins
on the earlier of the date of such Basic Prospectus or the date
such Basic Prospectus was filed with the Commission and ends at the
time of purchase did or will any Basic Prospectus, as then amended
or supplemented, include an untrue statement of a
material
4
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, and at no time during such period did or will any Basic
Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free
Writing Prospectuses, if any, 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; each of the Prospectus
Supplement and the Prospectus will comply, as of the date that it
is filed with the Commission, the date of the Prospectus
Supplement, the time of purchase, each additional time of purchase,
if any, and at all times during which a prospectus is required by
the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection
with any sale of Shares, in all material respects, with the
requirements of the Act (in the case of the Prospectus, including,
without limitation, Section 10(a) of the Act); at no time
during the period that begins on the earlier of the date of the
Prospectus Supplement and the date the Prospectus Supplement is
filed with the Commission and ends at the later of the time of
purchase, the latest additional time of purchase, if any, and the
end of the period during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares did or will any Prospectus Supplement or the
Prospectus, as then amended or supplemented, 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; at no
time during the period that begins on the date of such Permitted
Free Writing Prospectus and ends at the time of purchase did or
will any Permitted Free Writing Prospectus 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;
provided , however , that the Company makes no
representation or warranty in this Section 3(b) with
respect to any statement contained in the Registration Statement,
any Pre-Pricing Prospectus, the Prospectus or any Permitted Free
Writing Prospectus in reliance upon and in conformity with
information concerning an Underwriter and furnished in writing by
or on behalf of such Underwriter through the Representatives to the
Company expressly for use in the Registration Statement, such
Pre-Pricing Prospectus, the Prospectus or such Permitted Free
Writing Prospectus; each Incorporated Document, at the time such
document was filed with the Commission or at the time such document
became effective, as applicable, complied, in all material
respects, with the requirements of the Exchange Act and did 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;
(c)
the documents incorporated by reference in the Registration
Statement, the Prospectus or any amendment or supplement thereto,
that were or are filed prior to the time of purchase, when they
became or become effective under the Act or were or are filed with
the Commission under the Act or the Exchange Act, as the case may
be, conformed or will conform in all material respects with the
requirements of the Act and the Exchange Act, as applicable, and
did 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, in light of the circumstances under
which they were made, not misleading;
(d)
prior to the execution of this Agreement, the Company has not,
directly or indirectly, offered or sold any Shares by means of any
“prospectus” (within the meaning of the Act) or used
any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other
than the Pre-Pricing Prospectus and the Permitted Free Writing
Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any
5
Permitted Free Writing
Prospectus except in compliance with Rules 164 and 433 under
the Act; assuming that such Permitted Free Writing Prospectus is
accompanied or preceded by the most recent Pre-Pricing Prospectus
or the Prospectus, as the case may be, and that such Permitted Free
Writing Prospectus is so sent or given after the Registration
Statement was filed with the Commission (and after such Permitted
Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the Commission),
the sending or giving, by any Underwriter, of any Permitted Free
Writing Prospectus will satisfy the provisions of Rule 164 or
Rule 433 (without reliance on subsections (b), (c) and
(d) of Rule 164); the Pre-Pricing Prospectus dated
May 12, 2008 is a prospectus that, other than by reason of
Rule 433 or Rule 431 under the Act, satisfies the
requirements of Section 10 of the Act, including a price range
where required by rule; neither the Company nor the Underwriters
are disqualified, by reason of subsection (f) or (g) of
Rule 164 under the Act, from using, in connection with the
offer and sale of the Shares, “free writing
prospectuses” (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; the Company is
not an “ineligible issuer” (as defined in Rule 405
under the Act) as of the eligibility determination date for
purposes of Rules 164 and 433 under the Act with respect to
the offering of the Shares contemplated by the Registration
Statement; the parties hereto agree and understand that the content
of any and all “road shows” (as defined in
Rule 433 under the Act) related to the offering of the Shares
contemplated hereby is solely the property of the
Company;
(e)
the Prospectus delivered to the Underwriters for use in connection
with this offering will be identical to the versions of the
Prospectus created to be transmitted to the Commission for filing
via EDGAR, except to the extent permitted by Regulation
S-T;
(f)
no stop order of the Commission preventing or suspending the use of
any Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing Prospectus
or the effectiveness of the Registration Statement has been issued
and no proceedings for such purpose have been instituted or, to the
Company’s knowledge, are contemplated by the
Commission;
(g)
as of the dates thereof, the Company had an authorized and
outstanding capitalization as set forth in the Registration
Statement, the Pre-Pricing Prospectus and the Prospectus under the
heading “Capitalization” in the column entitled
“Actual” (and any similar sections or information, if
any, contained in any Permitted Free Writing Prospectuses); as of
the date of this Agreement, the Company has 41,228,289 Common
Shares and 2,400,000 Preferred Shares outstanding; and all of the
issued and outstanding shares of capital stock or other securities,
including the Common Shares (as of the time of purchase) of
the Company have been duly authorized and validly issued and are
fully paid and non-assessable, have been issued in compliance with
all federal and state securities laws and were not issued in
violation of any preemptive right, resale right, right of first
refusal or similar right;
(h)
the Company is and at each Closing Date will be the sole general
partner of the Partnership; as of the date hereof, the Company owns
approximately 85.2% of the units in the Partnership, and the
limited partners of the Partnership own, in the aggregate,
approximately 14.8% of the units in the Partnership;
(i)
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, with full corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus and the Permitted Free
6
Writing Prospectuses,
to execute and deliver this Agreement and to issue, sell and
deliver the Shares as contemplated herein;
(j)
the Company is duly qualified to do business as a foreign entity
and is in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified and
in good standing would not, individually or in the aggregate, have
a material adverse effect on the business, properties, financial
condition, or results of operation or prospects of the Company and
the Subsidiaries (as defined below) taken as a whole (a
“ Material Adverse Effect ”);
(k)
the Company has no subsidiaries (as defined in the Act) other
than the subsidiaries provided on Schedule B (collectively, the
“ Subsidiaries ”); the Company owns, directly or
indirectly, the interests in each of the Subsidiaries as provided
on Schedule B; other than the interests in the Subsidiaries and the
development loans made in the ordinary course of business (as
described in the Company’s Annual Report on Form 10-K
for the year ended December 31, 2007, the Company’s
Quarterly Report for the quarterly period ended March 31,
2008, the Disclosure Package and the Prospectus), the Company does
not own, directly or indirectly, any shares of stock or any other
equity or long-term debt securities of any corporation or have any
equity interest in any firm, partnership, limited liability
company, joint venture, association or other entity; complete and
correct copies of the organizational documents of the Company, the
Partnership and the Subsidiaries and all amendments thereto have
been delivered to the Representatives, and no changes therein will
be made subsequent to the date hereof and prior to the time of
purchase, except as necessary to consummate the transactions
contemplated by this Agreement; each Subsidiary has been duly
organized and is validly existing as a corporation, limited
liability company, limited partnership or trust in good standing
under the laws of the jurisdiction of its organization, with full
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement,
the Pre-Pricing Prospectus, the Prospectus and the Permitted Free
Writing Prospectuses, if any; each Subsidiary is duly qualified to
do business as a foreign entity and is in good standing in each
jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse
Effect; all of the outstanding shares of capital stock or other
securities of each of the Subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable and, except
as disclosed in the Prospectus, the ownership interest of the
Company in each Subsidiary are owned by the Company subject to no
security interest, other encumbrance or adverse claims; except as
disclosed in the Prospectus, no options, warrants or other rights
to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or
ownership interests in the Subsidiaries are outstanding; and no
waivers, consents or approvals of the holders of any class or
series of preferred units of partnership interest need to be
obtained in connection with the issuance and sale of the Shares,
except for those that have been obtained and delivered in writing
to the Representatives before the date hereof;
(l)
the Partnership has been duly organized and is validly existing as
a limited partnership in good standing under the laws of the
Commonwealth of Virginia, with full partnership power and authority
to own, lease and operate its properties and conduct its business
as described in the Registration Statement and the Prospectus and
to execute and deliver this Agreement;
(m)
the Partnership is duly qualified to do business as a foreign
entity and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of
its
7
business requires such
qualification, except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, have a
Material Adverse Effect;
(n)
Hersha Hospitality Management, L.P. (“ HHMLP ”)
has been duly organized and is validly existing as a limited
partnership under the laws of the Commonwealth of Pennsylvania with
all requisite partnership power and authority to conduct its
business as now conducted and as proposed to be conducted, and to
own, lease and operate its properties, as described in the
Registration Statement and Prospectus, and is qualified to do
business and is in good standing as a foreign limited partnership
in each other jurisdiction in which the failure so to qualify could
reasonably be expected to have a Material Adverse Effect.
HHMLP is not in violation of any provision of its partnership
agreement or other governing documents and is not in default or in
breach of, and does not know of the occurrence of any event that
with the giving of notice or the lapse of time or both would
constitute a default under or breach of, any term or condition of
any material agreement or instrument to which it is a party or by
which any of its properties is bound, except as disclosed in the
Registration Statement and Prospectus. No consent, approval,
authorization or order from any court, governmental agency or body
is required in connection with the consummation by HHMLP of the
transactions contemplated herein and in the Registration Statement
and Prospectus, except such as may be required by the Act, the
Exchange Act, and applicable state securities or blue sky
laws;
(o)
the Shares have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and non-assessable and free of
statutory and contractual preemptive rights, resale rights, rights
of first refusal and similar rights;
(p)
the capital stock of the Company, including the Shares, and the
units of the Partnership conform in all material respects to the
description thereof contained in the Registration Statement, the
Pre-Pricing Prospectus, the Prospectus and the Permitted Free
Writing Prospectuses, if any, the certificates for the Shares are
in due and proper form and the holders of the Shares will not be
subject to personal liability by reason of being such
holders;
(q)
this Agreement has been duly authorized, executed and delivered by
the Company and the Partnership;
(r)
neither the Company, the Partnership nor any of the Subsidiaries is
in breach or violation of or in default under (nor has any event
occurred which with notice, lapse of time or both would result in
any breach or violation of, constitute a default under or give the
holder of any indebtedness (or a person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness
under) (i) its respective charter or by-laws, or (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract
or other agreement or instrument to which the Company, the
Partnership or any of the Subsidiaries is a party or by which any
of them or any of their properties may be bound or affected, except
with respect to (ii) as individually or in the aggregate would
not have a Material Adverse Effect, and the execution, delivery and
performance of this Agreement, the issuance and sale of the Shares
and the consummation of the transactions contemplated hereby will
not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach or
violation of or constitute a default under) the charter or by-laws
of the Company or the organizational documents of the Partnership
or any of the Subsidiaries, or any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the
8
Company, the
Partnership or any of the Subsidiaries is a party or by which any
of them or any of their respective properties may be bound or
affected, or any federal, state, local or foreign law, regulation
or rule or any decree, judgment or order applicable to the
Company, the Partnership or any of the Subsidiaries;
(s)
during the period of at least the last 24 calendar months prior to
the date of this Agreement, the Company has timely filed with the
Commission all documents and other material required to be filed
pursuant to Sections 13, 14 and 15(d) under the Exchange
Act. During the period of at least the last 36 calendar
months preceding the filing of the Registration Statement, the
Company has filed all reports required to be filed pursuant to
Sections 13, 14 and 15(d) under the Exchange Act. As of
the date of this Agreement, the aggregate market value of the
Company’s voting stock held by nonaffiliates of the Company
was equal to or greater than $150 million;
(t)
no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares or the
consummation by the Company or the Partnership of the transactions
contemplated hereby other than registration of the Shares under the
Act, which has been or will be effected, and any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriters or under the rules and regulations of the New
York Stock Exchange or the Financial Industry Regulatory Authority
(the “ FINRA ”);
(u)
except as set forth in the Registration Statement, each Pre-Pricing
Prospectus and the Prospectus, (i) no person has the right,
contractual or otherwise, to cause (a) the Company to issue or
sell Common Shares or shares of any other capital stock or other
equity interests of the Company, or (b) the Partnership to
issue or sell to it any units or other equity interests of the
Partnership, (ii) no person has any preemptive rights, resale
rights, rights of first refusal or other rights to purchase any
Common Shares or shares of any other capital stock or other equity
interests of the Company, and (iii) except for the
Underwriters, no person has the right to act as an underwriter or
as a financial advisor to the Company in connection with the offer
and sale of the Shares, in the case of each of the foregoing
clauses (i), (ii) and (iii), whether as a result of the filing
or effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise; except as provided on
Schedule C, no person has the right, contractual or otherwise, to
cause the Company to register under the Act any Common Shares or
shares of any other capital stock or other equity interests of the
Company, or to include any such shares or interests in the
Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated
thereby or otherwise;
(v)
each of the Company, the Partnership, HHMLP and the Subsidiaries
has all necessary licenses, authorizations, franchises, consents
and approvals and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule, and has
obtained all necessary authorizations, consents and approvals from
other persons, in order to conduct its respective business, except
where the failure to so have, file or obtain would not have a
Material Adverse Effect; neither the Company, the Partnership nor
any of the Subsidiaries is in violation of, or in default under, or
has received notice of any proceedings relating to revocation or
modification of, any such license, authorization, consent or
approval or any federal, state, local or foreign law, regulation or
rule or any decree, order or judgment applicable to the
Company, the Partnership or any of the Subsidiaries, except where
such violation, default, revocation or modification would not,
individually or in the aggregate, have a Material Adverse
Effect;
9
(w)
all legal or governmental proceedings, affiliate transactions,
off-balance sheet transactions, contracts, licenses, agreements,
leases or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement have been so described or
filed as required;
(x)
there are no actions, suits, claims, investigations or proceedings
pending or threatened or, to the Company’s or
Partnership’s knowledge, contemplated to which the Company,
the Partnership, HHMLP or any of the Subsidiaries or any of their
respective directors or officers is or would be a party or of which
any of their respective properties is or would be subject at law or
in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency, except any such action, suit, claim, investigation or
proceeding which would not result in a judgment, decree or order
having, individually or in the aggregate, a Material Adverse Effect
or preventing consummation of the transactions contemplated
hereby;
(y)
all agreements to which the Company, the Partnership and their
respective Subsidiaries are a party, and all agreements between or
among the Company, the Partnership or their respective affiliates,
on the one hand, and HHMLP, on the other hand, are legal, valid,
and binding obligations of the Company, the Partnership, HHMLP and
their respective Subsidiaries enforceable in accordance with their
respective terms, except where the failure to be legal, valid,
binding and enforceable would not, individually or in the
aggregate, have a Material Adverse Effect, and except to the extent
enforceability may be limited by (i) bankruptcy, insolvency,
moratorium, liquidation, reorganization, or similar laws affecting
creditors’ rights generally, regardless of whether such
enforceability is considered in equity or at law, (ii) general
equity principles and (iii) the public policy regarding the
enforceability of indemnification or contribution
provisions;
(z)
KPMG LLP, PricewaterhouseCoopers LLP and Reznick Group, PC, whose
reports on the consolidated financial statements of the Company,
the Partnership and the Subsidiaries were filed with the Commission
and incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectus and the Prospectus, as of the date of such
reports, were independent registered accountants as required by the
Act;
(aa)
the audited financial statements included or incorporated in the
Registration Statement, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, together with
the related notes and schedules, are accurate in all material
respects and present fairly the consolidated financial position of
the Company, the Partnership and the Subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows
of the Company, the Partnership and the Subsidiaries for the
periods specified and have been prepared in compliance with the
requirements of the Act and in conformity with generally accepted
accounting principles applied on a consistent basis during the
periods involved; any pro forma financial statements or data
included or incorporated in the Registration Statement, the
Pre-Pricing Prospectus, the Prospectus and the Permitted Free
Writing Prospectuses, if any, comply with the requirements of
Regulation S-X of the Act, and the assumptions used in the
preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate
to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to
the historical amounts in the compilation of those statements and
data; the other financial and statistical data set forth in the
Registration Statement, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, are accurately
presented and prepared on a basis consistent with the financial
statements and books and records of the Company; there are no
financial
10
statements (historical
or pro forma) that are required to be included in the
Registration Statement, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, that are not
included as required; and the Company, the Partnership and the
Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations),
not disclosed in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus and the Permitted Free Writing
Prospectuses, if any;
(bb)
subsequent to the respective dates as of which information is given
in the Registration Statement, the Pre-Pricing Prospectus, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
there has not been (i) any material adverse change, or any
development reasonably expected to result in a material adverse
change, in the business, properties, management, financial
condition or results of operations of the Company, the Partnership,
and the Subsidiaries, taken as a whole, or HHMLP, (ii) except
as contemplated by the Pre-Pricing Prospectus, the Disclosure
Package and the Prospectus, any transaction which is material to
the Company, the Partnership and the Subsidiaries taken as a whole,
(iii) except as disclosed in the Pre-Pricing Prospectus, the
Disclosure Package and the Prospectus, any obligation, direct or
contingent (including any off-balance sheet obligations), incurred
by the Company, the Partnership, HHMLP or the Subsidiaries, which
is material to the Company, the Partnership and the Subsidiaries
taken as a whole, or HHMLP, (iv) except as disclosed in the
Pre-Pricing Prospectus, the Disclosure Package and the Prospectus,
any material change in the capital stock, ownership interests or
outstanding indebtedness of the Company, the Partnership or the
Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the
Company;
(cc)
the Company has obtained for the benefit of the Underwriters the
agreement (a “ Lock-Up Agreement ”), in the form
set forth as Exhibit A hereto, of each of the
individuals listed on Schedule C;
(dd)
the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an “investment company”
or an entity “controlled” by an “investment
company,” as such terms are defined in the Investment Company
Act of 1940, as amended;
(ee)
the Company, the Partnership and each of the Subsidiaries has good
and marketable title to all property (real and
personal) described the Registration Statement
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