-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HeBgvHxUk6tQ+AUaQhlq49MYmPowpFIWjcK0a9RJWynjYnVuZbGg7TPfx7fq/qnR bK4aVqxSEWZnoO7AGTVKvA== 0000891836-04-000262.txt : 20040709 0000891836-04-000262.hdr.sgml : 20040709 20040709171601 ACCESSION NUMBER: 0000891836-04-000262 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 15 FILED AS OF DATE: 20040709 GROUP MEMBERS: GOLDMAN, SACHS & CO. GROUP MEMBERS: W9/WHSHC, L.L.C. I GROUP MEMBERS: WH ADVISORS, L.L.C. IX GROUP MEMBERS: WH ADVISORS, L.L.C. VII GROUP MEMBERS: WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP IX GROUP MEMBERS: WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VII GROUP MEMBERS: WHSHC, L.L.C. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: STRATEGIC HOTEL CAPITAL INC CENTRAL INDEX KEY: 0001057436 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 331082757 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-79938 FILM NUMBER: 04908666 BUSINESS ADDRESS: STREET 1: 77 W WACKER DR STE 4600 CITY: CHICAGO STATE: IL ZIP: 60601 BUSINESS PHONE: 3126585000 MAIL ADDRESS: STREET 1: 77 WEST WACKER DRIVE STREET 2: STE 4600 CITY: CHICAGO STATE: IL ZIP: 60601 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/ CENTRAL INDEX KEY: 0000886982 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 134019460 STATE OF INCORPORATION: DE FISCAL YEAR END: 1128 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D 1 sc0121.txt SCHEDULE 13D UNITED STATES SECURITIES EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------------------------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 Strategic Hotel Capital, Inc. --------------------- (Name of Issuer) Common Stock, par value $.01 per share --------------------------- (Title of Class of Securities) 86272T106 --------------------- (CUSIP Number) Roger S. Begelman The Goldman Sachs Group, Inc. 85 Broad Street New York, New York 10004 Telephone: (212) 902-1000 -------------------- (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications) June 29, 2004 -------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. (Continued on following pages) - --------------------- CUSIP NO. 86272T106 13D - --------------------- - -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS: WHSHC, L.L.C. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS: OO - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] PURSUANT TO ITEMS 2(d) OR 2(e) - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: NUMBER OF 0 Shares SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER: OWNED BY 2,521,862 Shares EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER: PERSON 0 Shares WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 2,521,862 Shares - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,521,862 PERSON - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.7% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: OO - -------------------------------------------------------------------------------- 2 - --------------------- CUSIP NO. 86272T106 13D - --------------------- - -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS: Whitehall Street Real Estate Limited Partnership VII - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS: AF - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] PURSUANT TO ITEMS 2(d) OR 2(e) - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: NUMBER OF 0 Shares SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER: OWNED BY 2,521,862 Shares EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER: PERSON 0 Shares WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 2,521,862 Shares - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,521,862 PERSON - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.7% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: PN - -------------------------------------------------------------------------------- 3 - --------------------- CUSIP NO. 86272T106 13D - --------------------- - -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS: WH Adivsors, L.L.C. VII - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS: AF - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] PURSUANT TO ITEMS 2(d) OR 2(e) - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: NUMBER OF 0 Shares SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER: OWNED BY 2,521,862 Shares EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER: PERSON 0 Shares WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 2,521,862 Shares - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,521,862 PERSON - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.7% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: OO - -------------------------------------------------------------------------------- 4 - --------------------- CUSIP NO. 86272T106 13D - --------------------- - -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS: W9/WHSHC, L.L.C. I - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS: OO - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] PURSUANT TO ITEMS 2(d) OR 2(e) - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: NUMBER OF 0 Shares SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER: OWNED BY 2,357,316 Shares EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER: PERSON 0 Shares WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 2,357,316 Shares - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,357,316 PERSON - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.2% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: OO - -------------------------------------------------------------------------------- 5 - --------------------- CUSIP NO. 86272T106 13D - --------------------- - -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS: Whitehall Street Real Estate Limited Partnership IX - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS: AF - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] PURSUANT TO ITEMS 2(d) OR 2(e) - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: NUMBER OF 0 Shares SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER: OWNED BY 2,357,316 Shares EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER: PERSON 0 Shares WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 2,357,316 Shares - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,357,316 PERSON - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.2% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: PN - -------------------------------------------------------------------------------- 6 - --------------------- CUSIP NO. 86272T106 13D - --------------------- - -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS: WH Advisors, L.L.C. IX - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS: AF - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] PURSUANT TO ITEMS 2(d) OR 2(e) - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: NUMBER OF 0 Shares SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER: OWNED BY 2,357,316 Shares EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER: PERSON 0 Shares WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 2,357,316 Shares - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 2,357,316 PERSON - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.2% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: OO - -------------------------------------------------------------------------------- 7 - --------------------- CUSIP NO. 86272T106 13D - --------------------- - -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS: Goldman, Sachs & Co. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS: AF - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [X] PURSUANT TO ITEMS 2(d) OR 2(e) - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: New York - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: NUMBER OF 0 Shares SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER: OWNED BY 4,879,178 Shares EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER: PERSON 0 Shares WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 4,879,178 Shares - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 4,879,178 PERSON - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.9% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: PN/BD/IA - -------------------------------------------------------------------------------- 8 - --------------------- CUSIP NO. 86272T106 13D - --------------------- - -------------------------------------------------------------------------------- 1. NAMES OF REPORTING PERSONS: The Goldman Sachs Group, Inc. - -------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS: AF - -------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] PURSUANT TO ITEMS 2(d) OR 2(e) - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware - -------------------------------------------------------------------------------- 7. SOLE VOTING POWER: NUMBER OF 0 Shares SHARES --------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER: OWNED BY 4,879,178 Shares EACH --------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER: PERSON 0 Shares WITH --------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 4,879,178 Shares - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING 4,879,178 PERSON - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN [ ] SHARES - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 16.9% - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: HC/CO - -------------------------------------------------------------------------------- 9 ITEM 1. SECURITY AND ISSUER This statement on Schedule 13D relates to the Common Stock, par value $.01 per share (the "Common Stock"), of Strategic Hotel Capital, Inc. (the "Company"), a Maryland corporation. The address of the principal executive offices of the Company is 77 West Wacker Drive, Suite 4600, Chicago, IL 60601. ITEM 2. IDENTITY AND BACKGROUND This Schedule 13D is being filed by WHSHC, L.L.C. ("WHSHC LLC"), W9/WHSHC, L.L.C. I ("W9 LLC"), Whitehall Street Real Estate Limited Partnership VII ("Whitehall Real Estate VII"), Whitehall Street Real Estate Limited Partnership IX ("Whitehall Real Estate IX"), WH Advisors, L.L.C. VII ("WH Advisors VII"), WH Advisors, L.L.C. IX ("WH Advisors IX"), Goldman, Sachs & Co. ("Goldman Sachs") and The Goldman Sachs Group, Inc. ("GS Group", together with WHSHC LLC, W9 LLC, Whitehall Real Estate VII, Whitehall Real Estate IX, WH Advisors VII, WH Advisors IX and Goldman Sachs, the "Reporting Persons")1 with respect to the Common Stock of the Company. Goldman Sachs and GS Group may be deemed, for purposes of this Statement, to beneficially own shares of Common Stock through WH Advisors VII and WH Advisors IX. Goldman Sachs and GS Group may also be deemed to beneficially own from time to time shares of Common Stock acquired in ordinary course trading activities by Goldman Sachs. The business address of each Reporting Person is 85 Broad Street, New York, New York 10004. Each of WHSHC LLC and W9 LLC is a Delaware limited liability company that was formed for the purpose of investing in debt and equity interests in the Company's accounting predecessor, Strategic Hotel Capital, L.L.C. ("SHC LLC"). Whitehall Real Estate VII is a Delaware limited partnership that was formed for the purpose of investing in debt and equity interests in real estate assets and businesses. WH Advisors VII, a Delaware limited liability company, acts as the sole general partner of Whitehall Real Estate VII. Whitehall Real Estate IX is a Delaware limited partnership that was formed for the purpose of investing in debt and equity interests in real estate assets and businesses. WH Advisors IX, a Delaware limited liability company, acts as the sole general partner of Whitehall Real Estate IX. Goldman Sachs, a New York limited partnership, is an investment banking firm and a member of the New York Stock Exchange, Inc. and other national exchanges. Goldman Sachs is wholly-owned, directly and indirectly, by GS Group. GS Group is a Delaware corporation and holding company that (directly or indirectly through subsidiaries or affiliated companies or both) is a leading investment banking organization. GS Group is the sole owner of each of WH Advisors VII and WH Advisors IX. The name, business address, present principal occupation or employment and citizenship of (i) each director of GS Group are set forth in Schedule I hereto and are incorporated herein by reference, (ii) name, position and present principal occupation of each director and executive officer of WH Advisors VII and WH Advisors IX are set forth in Schedule II hereto and are incorporated herein by reference and (iii) each member of the Whitehall Investment Committee of Goldman Sachs, which exercises the authority of Goldman Sachs in managing - ---------- 1 Neither the present filing nor anything contained herein shall be construed as an admission that WHSHC LLC, W9 LLC, Whitehall Real Estate VII, Whitehall Real Estate IX, WH Advisors VII, WH Advisors IX, Goldman Sachs or GS Group constitute a "person" for any purpose other than Section 13(d) of the Securities Exchange Act of 1934, as amended, or that WHSHC LLC, W9 LLC, Whitehall Real Estate VII, Whitehall Real Estate IX, WH Advisors VII, WH Advisors IX, Goldman Sachs or GS Group constitute a "group" for any purpose. 10 each of WH Advisors VII and WH Advisors IX, are set forth in Schedule III hereto and are incorporated herein by reference. During the past five years, none of the Reporting Persons, or, to the knowledge of each of the Reporting Persons, any of the persons listed on Schedules I, II or III hereto, (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) except as set forth on Schedule IV hereto, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws. This Item 2 is qualified in its entirety by reference to Schedules I, II, III and IV which are attached hereto and incorporated into this Item by reference. The Reporting Persons have entered into a Joint Filing Agreement, dated as of July 9, 2004, a copy of which is attached hereto as Exhibit 7. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION WHSHC LLC and W9 LLC acquired from the Company an aggregate of 4,879,178 shares of Common Stock on June 29, 2004 in connection with the initial public offering of the Company (the "IPO"). Specifically, WHSHC LLC acquired 2,521,862 shares of Common Stock and W9 LLC acquired 2,357,316 shares of Common Stock in exchange for an equal number of membership units ("SHC Funding Units") in the operating partnership of the Company, Strategic Hotel Funding, L.L.C. ("SHC Funding"). These exchanges were made pursuant to the terms of the Structuring and Contribution Agreement, dated as of February 13, 2004 (the "Structuring and Contribution Agreement"), by and among SHC Funding, SHC LLC, Whitehall Real Estate VII, Whitehall Real Estate IX and other parties thereto. The Structuring and Contribution Agreement is incorporated herein by reference. Each of WHSHC LLC and W9 LLC received the SHC Funding Units for no consideration through a distribution of a portion of its pro rata share of the SHC Funding Units held by SHC LLC as a result of transactions (the "Formation and Structuring Transactions") described under the caption "Formation and Structuring Transactions" in the Company's final prospectus dated June 23, 2004 (File No. 333-112846, the "Final Prospectus"). As of June 29, 2004, Goldman Sachs and GS Group may be deemed to beneficially own 4,879,178 shares of Common Stock through (i) WH Advisors VII, the sole general partner of Whitehall Real Estate VII, which is the sole managing member of WHSHC LLC which acquired 2,521,862 shares of Common Stock as described above, and (ii) WH Advisors IX, the sole general partner of Whitehall Real Estate IX, which is the sole managing member of W9 LLC, which acquired 2,357,316 shares of Common Stock as described above. Schedule V reflects the transactions effected by Goldman Sachs during the 60 days prior to and including June 29, 2004, all of which were effected in the ordinary course of business. The aggregate consideration (exclusive of commissions) for the Common Stock purchased during such period was $5,250. None of the persons listed on Schedules I, II or III hereto has contributed any funds or other consideration towards the acquisition of the Common Stock, except insofar as they may be general or limited partners of, or own membership interests in, certain of the Reporting Persons and have made capital contributions to such Reporting Persons, as the case may be. ITEM 4. PURPOSE OF TRANSACTIONS WHSHC LLC and W9 LLC acquired the Common Stock in connection with the Company's IPO for investment purposes. The shares of Common Stock which may be deemed to be held by Goldman Sachs, other than shares which may be deemed beneficially owned through WH Advisors VII and WH Advisors IX, were acquired in the ordinary course of business of Goldman Sachs. 11 As of the date of this statement, none of the Reporting Persons, or to the knowledge and belief of the Reporting Persons, any of the persons listed on Schedules I, II or III hereto, has any present plan or proposals which would relate to or would result in any transaction event or action enumerated in paragraphs (a) through (j) of Item 4 of Schedule 13D, other than the following: 1. As set forth in the Structuring and Contribution Agreement, WHSHC LLC and W9 LLC may acquire up to an additional 880,838 shares of Common Stock from the Company upon the exchange of SHC Funding Units that WHSHC LLC and W9 LLC will receive in a pro rata distribution from SHC LLC, for no consideration, if the holders of securities that are expected to be redeemed by SHC LLC and its affiliates after 60 days do not elect to convert those securities into membership units in SHC LLC. 2. WHSHC LLC and W9 LLC are exploring possibilities whereby each would exchange up to a maximum of 100,000 shares of Common Stock to persons who are executive officers of the Company or its affiliates in exchange for such persons' existing ownership interests in SHC LLC. The foregoing discussion is qualified in its entirety by reference to the Structuring and Contribution Agreement, which is filed as an exhibit hereto and is incorporated by reference in its entirety to this Item 4. Each of the Reporting Persons expects to evaluate on an ongoing basis the Company's financial condition, business, operations and prospects, the market price of the Common Stock, conditions in the securities markets generally, general economic and industry conditions and other factors. Accordingly, each Reporting Person reserves the right to change its plans and intentions at any time, as it deems appropriate. In particular, any one or more of the Reporting Persons (and their respective affiliates) may purchase additional shares of Common Stock or other securities of the Company or may sell or transfer shares of Common Stock beneficially owned by them from time to time in public or private transactions and/or may enter into privately negotiated derivative transactions with institutional counterparties to hedge the market risk of some or all of their positions in the shares of Common Stock or other securities and/or may cause any of the Reporting Persons to distribute in kind to their respective partners or members, as the case may be, shares of Common Stock or other securities. Any such transactions may be effected at any time or from time to time subject to (i) the restrictions contained in the Lock-Up Agreements (described in Item 6 below) and (ii) any applicable limitations imposed on the sale of any of their Company securities by the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act") or other applicable law. To the knowledge of each Reporting Person, each of the persons listed on Schedules I, II or III hereto may make similar evaluations from time to time or on an ongoing basis and reserves the same rights. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) Based on information provided to the Reporting Persons by the Company, there were 26,254,034 shares of Common Stock outstanding as of the close of business on June 29, 2004, the closing date of the IPO. The percentages of Common Stock reported in Row (13) of the cover pages to this Schedule 13D and described below reflect the issuance of an additional 2,640,000 shares of Common Stock on July 9, 2004 as a result of the underwriters' exercise of an option to purchase additional shares pursuant to Section 2 of the Underwriting Agreement (described in Item 6 below). As of June 29, 2004, WHSHC LLC beneficially owned an aggregate of 2,521,862 shares of Common Stock, representing in the aggregate approximately 8.7% of the outstanding Common Stock. As of June 29, 2004, Whitehall Real Estate VII, as the sole managing member of WHSHC LLC, may be deemed to have beneficially owned an aggregate of 2,521,862 shares of Common Stock beneficially owned by WHSHC LLC, representing in the aggregate approximately 8.7% of the outstanding Common Stock. As of June 29, 2004, WH Advisors VII, as the sole general partner of Whitehall Real Estate VII, may be deemed to have beneficially owned an aggregate of 2,521,862 shares of Common Stock beneficially owned by WHSHC LLC, representing in the aggregate approximately 8.7% of the outstanding Common Stock. 12 As of June 29, 2004, W9 LLC beneficially owned an aggregate of 2,357,316 shares of Common Stock, representing in the aggregate approximately 8.2% of the outstanding Common Stock. As of June 29, 2004, Whitehall Real Estate IX, as the sole managing member of W9 LLC, may be deemed to have beneficially owned an aggregate of 2,357,316 shares of Common Stock beneficially owned by W9 LLC, representing in the aggregate approximately 8.2% of the outstanding Common Stock. As of June 29, 2004, WH Advisors IX, as the sole general partner of Whitehall Real Estate IX, may be deemed to have beneficially owned an aggregate of 2,357,316 shares of Common Stock beneficially owned by W9 LLC, representing in the aggregate approximately 8.2% of the outstanding Common Stock. As of June 29, 2004, Goldman Sachs and GS Group may be deemed to have beneficially owned an aggregate of 4,879,178 shares of Common Stock beneficially owned by WHSHC LLC and W9 LLC as described above, such shares representing in the aggregate approximately 16.9% of the outstanding Common Stock. None of the shares of Common Stock reported in rows (11) and (13) of the cover pages to this Schedule 13D are shares as to which there is a right to acquire exercisable within 60 days. None of the Reporting Persons or, to the knowledge of the Reporting Persons, any of the persons listed on Schedules I, II or III hereto, beneficially owned any shares of Common Stock as of June 29, 2004, other than as set forth herein. (b) Rows (7) through (10) of the cover pages to this Schedule 13D set forth (i) the number of shares of Common Stock as to which there is sole power to vote or direct the vote or to dispose or direct the disposition and (ii) the number of shares of Common Stock as to which there is shared power to vote or direct the vote or to dispose or direct the disposition. Each Reporting Person hereby disclaims beneficial ownership of any shares of Common Stock held by any other Reporting Person. (c) Except with respect to (a) the acquisition of shares of Common Stock by WHSHC LLC and W9 LLC as described herein and (b) transactions effected by Goldman Sachs in its capacity as an underwriter in the IPO (as further described in Item 6), Schedule V sets forth the transactions in the shares of Common Stock which have been effected during the 60 days prior to and including June 29, 2004, all of which were effected in the ordinary course of business of Goldman Sachs. The transactions in the shares of Common Stock, described in Schedule V, were effected either on the New York Stock Exchange or in the over-the-counter market. The aggregate consideration (exclusive of commissions) for the Common Stock purchased during such period was $5,250. Except with respect to (a) the acquisition of shares of Common Stock by WHSHC LLC and W9 LLC as described herein and (b) transactions effected by Goldman Sachs in its capacity as an underwriter in the IPO, and except as set forth in Schedule V, no transactions in the shares of Common Stock were effected by the Reporting Persons, or, to the knowledge of any of the Reporting Persons, any of the persons listed on Schedules I, II or III hereto during the 60 days prior to and including June 29, 2004. (d) No other person is known by any Reporting Person to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of Common Stock beneficially owned by any Reporting Person. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER STRUCTURING AND CONTRIBUTION AGREEMENT Whitehall Real Estate VII and Whitehall Real Estate IX are parties to the Structuring and Contribution Agreement. Pursuant to the Structuring and Contribution Agreement, Whitehall Real Estate VII and Whitehall Real 13 Estate IX have agreed to exchange all SHC Funding Units that they receive in distributions from SHC LLC for shares of Common Stock. UNDERWRITING AGREEMENT In connection with the IPO, an Underwriting Agreement, dated June 23, 2004 (the "Underwriting Agreement"), was entered into by the Company, SHC Funding and Goldman Sachs, as representatives of the several underwriters listed in Schedule I thereto (the "Underwriters"). The Underwriting Agreement provides for the Underwriters' purchase from the Company of 17,600,000 shares of Common Stock and the Underwriters' option to purchase up to an additional 2,640,000 shares of Common Stock at the same purchase price for the purpose of covering over-allotments. The Underwriters exercised the over-allotment option in full on July 7, 2004. The initial public offering price in the IPO was $14.00 per share. Under the Underwriting Agreement, the Underwriters purchased the Common Stock net of an underwriting discount of $0.98 per share. The Underwriting Agreement contains standard terms and conditions for a public offering including customary representations and warranties and indemnity provisions. LOCK-UP AGREEMENTS In connection with the IPO, WHSHC LLC and W9 LLC have each agreed that, during the period beginning on the date of and continuing to and including the date 180 days after June 23, 2004, the date of the Final Prospectus, they will not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock or any options or warrants to purchase any shares of Common Stock (or securities convertible into or exchangeable for or that represent the right to receive shares of Common Stock), other than (i) any shares of Common Stock acquired in the open market following the consummation of the IPO if (and only if) any disposition of such shares would not trigger any requirement to file with the Securities and Exchange Commission a Schedule 13D pursuant to Regulation 13d-1 under the Securities Exchange Act of 1934, as amended; (ii) as a bona fide gift or gifts, provided that the donee or donees thereof receiving in excess of 1,000 of the shares agree to be bound in writing by the restrictions set forth in the Lock-Up Agreement, (iii) to any trust, limited partnership or similar vehicle for the direct or indirect benefit of it or its immediate family, provided that the trustee of the trust, the general partner of the limited partnership or the person holding the similar position in another vehicle agrees to be bound in writing by the restrictions set forth in the Lock-Up Agreement, and provided further that any such transfer shall not involve a disposition for value, (iv) to persons who are executive officers of the Company or its affiliates in exchange for their ownership interests in SHC LLC (up to a maximum of 100,000 shares of Common Stock), or (v) with the prior written consent of Goldman Sachs on behalf of the Underwriters. REGISTRATION RIGHTS AGREEMENT WHSHC LLC and W9 LLC are parties to a Registration Rights Agreement dated June 29, 2004 (the "Registration Rights Agreement"). Pursuant to the terms of the Registration Rights Agreement, subject to the Lock-up Agreements with the Underwriters described above, prior to June 29, 2005 and for such additional period during which the Company fails to file or maintain a shelf registration statement, each of WHSHC LLC and W9 LLC and other parties to the Registration Rights Agreement have the right, subject to certain limitations, on two separate occasions, to request that the Company effect a registration of shares of Common Stock owned by the requesting party. The Company may postpone the initial filing of that registration for up to 90 days if that filing would jeopardize a material financing, acquisition or similar transaction. Upon receipt of a request to register shares, the Company and each non-requesting party will have a 30-day option to acquire the shares sought to be registered at the then fair market value thereof as determined by the Company's board of directors, subject to the right of the requesting party to withdraw its request for registration. If the Company is obligated to pursue a registration, it may be obligated to include shares of holders exercising piggy-back registration rights. Beginning on June 30, 2005, the Company is required to use its reasonable efforts to file and maintain a registration statement for the resale of shares owned by each of WHSHC LLC and W9 LLC and other parties to the Registration Rights Agreement and certain of their affiliates, subject to certain limitations. Each stockholder eligible to have shares registered under the shelf registration statement will be entitled to resell shares pursuant to that registration statement, subject to availability. The Company may postpone, on one occasion only as to each shelf registration to which a party is entitled, each filing of a registration statement and each proposed sale under a shelf registration for up to 90 days if such registration would adversely affect a material financing, acquisition or similar transaction. The Company may grant 14 certain holders of its shares of Common Stock piggy-back registration rights permitting them, subject to availability, to participate in the demand and shelf registrations described above. The person requesting any demand or shelf registration will be responsible for paying all underwriting discounts, commissions or fees, fees of placement agents, expenses of printing and distributing any registration statement and prospectus and the fees and expenses of counsel for the person requesting registration. The Company is obligated to pay all other fees and expenses, including applicable federal and state filing fees. VOTING AGREEMENT WHSHC LLC and W9 LLC are parties to a Voting Agreement dated as of June 8, 2004 (the "Voting Agreement"). Pursuant to the Voting Agreement, in connection with each meeting of the stockholders of the Company at which directors of the Company are to be elected, each of WHSHC LLC and W9 LLC have agreed to affirmatively vote all of its shares of capital stock of the Company acquired upon the IPO and over which it has voting power or control in favor of Laurence Geller, provided that he has been duly nominated as a director, so long as (i) it (or any affiliate that is under its control or a successor or affiliate) owns or controls at least 5% of the voting power to elect directors of the Company; provided, however, if it determines in good faith that to vote for Mr. Geller would likely be a breach of its fiduciary obligations to any of its beneficial owners, then it will not be obligated to vote the shares in favor of Mr. Geller. The foregoing descriptions of the Structuring and Contribution Agreement, Underwriting Agreement, Lock-Up Agreements, Registration Rights Agreement and Voting Agreement are qualified in their entirety by reference to the Structuring and Contribution Agreement, Underwriting Agreement, Lock-Up Agreements, Registration Rights Agreement and Voting Agreement, which are filed as exhibits hereto, each of which is incorporated by reference in their entirety into this Item 6. Except as described herein, none of the Reporting Persons or, to the knowledge of each of the Reporting Persons, any of the persons listed on Schedules I, II or III hereto is a party to any contract, arrangement, understanding or relationship with respect to any securities of the Company. 15 ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit Description - ------------ ------------------------------------------------------------------ 1. Structuring and Contribution Agreement, dated as of February 13, 2004, by and among SHC Funding, Strategic Hotel Capital, L.L.C. ("SHC LLC"), Whitehall Street Real Estate Limited Partnership VII, Whitehall Street Real Estate Limited Partnership IX and other parties thereto (incorporated by reference to Exhibit 10.2 to the registration statement on Form S-11 (File No. 333-112846) filed by the Company)). 2. Underwriting Agreement, dated as of June 23, 2004, among Strategic Hotel Capital, Inc. Strategic Hotel Funding, L.L.C. and the underwriters named therein. 3. Lock-Up Agreement, dated as of June 23, 2004, between Goldman, Sachs & Co., as representative of the several underwriters named in Schedule I to the underwriting agreement and WHSHC, L.L.C. 4. Lock-Up Agreement, dated as of June 23, 2004, between Goldman, Sachs & Co., as representative of the several underwriters named in Schedule I to the underwriting agreement and W9/WHSHC, L.L.C. I. 5. Registration Rights Agreement, dated as of June 29, 2004, among Strategic Hotel Capital, Inc., WHSHC, L.L.C., W9/WHSHC, L.L.C. I and the other parties thereto. 6. Voting Agreement, dated as of June 8, 2004, among Laurence Geller, Strategic Hotel Capital, Inc., WHSHC, L.L.C. and W9/WHSHC, L.L.C. I. 7. Joint Filing Agreement. 8. Power of Attorney, dated December 12, 2003, relating to The Goldman Sachs Group, Inc. 9. Power of Attorney, dated November 19, 2003, relating to Goldman, Sachs & Co. 10. Power of Attorney, dated June 24, 2004, relating to WH Advisors, L.L.C. VII 11. Power of Attorney, dated June 24, 2004, relating to WH Advisors, L.L.C. IX 12. Power of Attorney, dated June 24, 2004, relating to Whitehall Street Real Estate Limited Partnership VII 13. Power of Attorney, dated June 24, 2004, relating to Whitehall Street Real Estate Limited Partnership IX 14. Power of Attorney, dated June 24, 2004, relating to WHSHC, L.L.C. 15. Power of Attorney, dated June 24, 2004, relating to W9/WHSHC, L.L.C. I 16 SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: July 9, 2004 THE GOLDMAN SACHS GROUP, INC. By: /s/ Roger S. Begelman ------------------------------------- Name: Roger S. Begelman Title: Attorney-in-Fact GOLDMAN, SACHS & CO. By: /s/ Roger S. Begelman ------------------------------------- Name: Roger S. Begelman Title: Attorney-in-Fact WH ADVISORS, L.L.C. VII By: /s/ Roger S. Begelman ----------------------------------- Name: Roger S. Begelman Title: Attorney-in-Fact WH ADVISORS, L.L.C. IX By: /s/ Roger S. Begelman ------------------------------------- Name: Roger S. Begelman Title: Attorney-in-Fact WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VII By: /s/ Roger S. Begelman ------------------------------------- Name: Roger S. Begelman Title: Attorney-in-Fact WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP IX By: /s/ Roger S. Begelman ------------------------------------- Name: Roger S. Begelman Title: Attorney-in-Fact WHSHC, L.L.C. By: /s/ Roger S. Begelman ------------------------------------- Name: Roger S. Begelman Title: Attorney-in-Fact W9/WHSHC, L.L.C. I By: /s/ Roger S. Begelman ------------------------------------- Name: Roger S. Begelman Title: Attorney-in-Fact 17 EXHIBIT INDEX Exhibit Description - ------------ ------------------------------------------------------------------ 1. Structuring and Contribution Agreement, dated as of February 13, 2004, by and among SHC Funding, Strategic Hotel Capital, L.L.C. ("SHC LLC"), Whitehall Street Real Estate Limited Partnership VII, Whitehall Street Real Estate Limited Partnership IX and other parties thereto (incorporated by reference to Exhibit 10.2 to the registration statement on Form S-11 (File No. 333-112846) filed by the Company)). 2. Underwriting Agreement, dated as of June 23, 2004, among Strategic Hotel Capital, Inc. Strategic Hotel Funding, L.L.C. and the underwriters named therein. 3. Lock-Up Agreement, dated as of June 23, 2004, between Goldman, Sachs & Co., as representative of the several underwriters named in Schedule I to the underwriting agreement and WHSHC, L.L.C. 4. Lock-Up Agreement, dated as of June 23, 2004, between Goldman, Sachs & Co., as representative of the several underwriters named in Schedule I to the underwriting agreement and W9/WHSHC, L.L.C. I. 5. Registration Rights Agreement, dated as of June 29, 2004, among Strategic Hotel Capital, Inc., WHSHC, L.L.C., W9/WHSHC, L.L.C. I and the other parties thereto. 6. Voting Agreement, dated as of June 8, 2004, among Laurence Geller, Strategic Hotel Capital, Inc., WHSHC, L.L.C. and W9/WHSHC, L.L.C. I. 7. Joint Filing Agreement. 8. Power of Attorney, dated December 12, 2003, relating to The Goldman Sachs Group, Inc. 9. Power of Attorney, dated November 19, 2003, relating to Goldman, Sachs & Co. 10. Power of Attorney, dated June 24, 2004, relating to WH Advisors, L.L.C. VII 11. Power of Attorney, dated June 24, 2004, relating to WH Advisors, L.L.C. IX 12. Power of Attorney, dated June 24, 2004, relating to Whitehall Street Real Estate Limited Partnership VII 13. Power of Attorney, dated June 24, 2004, relating to Whitehall Street Real Estate Limited Partnership IX 14. Power of Attorney, dated June 24, 2004, relating to WHSHC, L.L.C. 15. Power of Attorney, dated June 24, 2004, relating to W9/WHSHC, L.L.C. I 18 SCHEDULE I ---------- The name of each director of The Goldman Sachs Group, Inc. is set forth below. The business address of each person listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004. Each person is a citizen of the United States of America except for Lord Browne of Madingley, who is a citizen of the United Kingdom and Claes Dahlback, who is a citizen of Sweden. The present principal occupation or employment of each of the listed persons is set forth below. Name Present Principal Occupation - -------------------------------------------------------------------------------- Henry M. Paulson, Jr. Chairman and Chief Executive Officer of The Goldman Sachs Group, Inc. Lloyd C. Blankfein President and Chief Operating Officer of The Goldman Sachs Group, Inc. Lord Browne of Madingley Group Chief Executive of BP plc John H. Bryan Retired Chairman and Chief Executive Officer of Sara Lee Corporation Claes Dahlback Nonexecutive Chairman of Investor AB William W. George Retired Chairman and Chief Executive Officer of Medtronic, Inc. James A. Johnson Vice Chairman of Perseus, L.L.C. Lois D. Juliber Chief Operating Officer of Colgate-Palmolive Company Edward M. Liddy Chairman of the Board, President and Chief Executive Officer of The Allstate Corporation Ruth J. Simmons President of Brown University 19 SCHEDULE II ----------- The name, position and present principal occupation of each director and executive officer of WH Advisors, L.L.C. VII, the sole general partner of Whitehall Street Real Estate Limited Partnership VII, which is the sole managing member of WHSHC, L.L.C., and the name, position and present principal occupation of each director and executive officer of WH Advisors, L.L.C. IX, the sole general partner of Whitehall Street Real Estate Limited Partnership IX, which is the sole managing member of W9/WHSHC, L.L.C. I, are set forth below. The business address of each director and executive officer listed below is 85 Broad Street, New York, New York 10004, except as follows: The business address of Brian Collyer, Thomas D. Ferguson, Todd P. Giannoble, Larry J. Goodwin, Helen Hyde Hallaron, Patrick J. Tribolet, Michael M. Watts, Aaron D. Wetherill and Todd A. Williams is 100 Crescent Court, Suite 1000, Dallas, TX 75201. The business address of Philippe Camu, Giovanni Cutaia, Tracy Deblieck, Nathalie L. Dimitrov, James R. Garman, Benoit Herault, Zubin P. Irani, Brian P. Niles, Paul A. Obey, Penny A. Petrow, Jean A. De Pourtales, Richard H. Powers and Edward M. Siskind is 133 Fleet Street, London EC4A 2BB, England. The business address of Yves Checoury and Jon J. Franco is 2, rue de Thann, 75017, Paris, France. The business address of Kavin C. Bloomer is Shibuya Cross Tower, 24F, 15-1, Shibuya 2-chome, Shibuya-ku, Tokyo Japan. Each director and executive officer listed below is a citizen of the United States, except as follows: Kavin C. Bloomer is a citizen of Thailand. Philippe L. Camu is a citizen of Belgium. Brian Collyer and Brahm S. Cramer are citizens of Canada. Zubin P. Irani is citizen of India. Yves Checoury and Benoit Herault are citizens of France. James R. Garman and Paul A. Obey are citizens of the United Kingdom. Nathalie L. Dimitrov and Jean A. De Pourtales and citizens of both France and the United Kingdom. Name Position Present Principal Occupation - -------------------------------------------------------------------------------- Rothenberg, Stuart M. Manager/Director/ Managing Director of Vice President Goldman, Sachs & Co. Bloomer, Kavin C. Vice President Vice President of Goldman Sachs Japan Realty Ltd. Brooks, Adam J. Vice President Vice President of Goldman, Sachs & Co. Burban, Elizabeth M. Vice President/ Vice President of Assistant Secretary Goldman, Sachs & Co. Camu, Philippe Vice President Managing Director of Goldman Sachs International Checoury, Yves Vice President Vice President of Goldman Sachs Paris Inc. et Cie Collyer, Brian Vice President Vice President of Goldman, Sachs & Co. Cramer, Brahm S. Manager/Vice President/ Managing Director of Assistant Secretary Goldman, Sachs & Co. 20 Cutaia, Giovanni Vice President Vice President of Goldman Sachs International Deblieck, Tracy Vice President Vice President of Goldman Sachs International Dimitrov, Nathalie L. Vice President Vice President of Goldman Sachs International Ferguson, Thomas D. Vice President Vice President of Goldman, Sachs & Co. Franco, Jon J. Vice President Vice President of Goldman Sachs Paris Inc. Garman, James R. Vice President Vice President of Goldman Sachs International Giannoble, Todd P. Vice President Vice President of Goldman, Sachs & Co. Goodwin, Larry J. Vice President Managing Director of Goldman, Sachs & Co. Herault, Benoit Vice President/ Managing Director of Assistant Secretary Goldman Sachs International Hyde Hallaron, Helen Vice President Vice President of Goldman, Sachs & Co. Iorio, Steven J. Vice President Vice President of Goldman, Sachs & Co. Irani, Zubin P. Vice President Managing Director of Goldman Sachs International Karr, Jerome S. Vice President/ Vice President of Assistant Secretary Goldman, Sachs & Co. Kava, Alan S. Manager/ Managing Director of Vice President Goldman, Sachs & Co. Langer, Jonathan A. Vice President/ Managing Director of Assistant Secretary Goldman, Sachs & Co. Lapidus, Roy I. Vice President Vice President of Goldman, Sachs & Co. Mandis, Vivian Vice President Vice President of Goldman, Sachs & Co. Metz, Justin E. Vice President Vice President of Goldman, Sachs & Co. Naughton, Kevin D. Vice President/ Managing Director of Secretary/Treasurer Goldman, Sachs & Co. Niles, Brian P. Vice President Vice President of Goldman Sachs International Obey, Paul A. Vice President/ Vice President of Assistant Secretary Goldman Sachs International 21 Petrow, Penny A. Vice President Vice President of Goldman Sachs International De Pourtales, Jean A. Vice President Managing Director of Goldman Sachs International Powers, Richard H. Vice President/ Managing Director of Assistant Secretary Goldman Sachs International Scesney, Josephine Manager/Vice President/ Managing Director of Assistant Treasurer Goldman, Sachs & Co. Siskind, Edward M. Vice President/ Managing Director of Assistant Treasurer Goldman, Sachs & Co. Tribolet, Patrick M. Vice President Vice President of Goldman, Sachs & Co. Tsai, Teresa Vice President/ Vice President of Assistant Secretary Goldman, Sachs & Co. Watts, Michael M. Vice President Vice President of Goldman, Sachs & Co. Weidman, Peter A. Vice President Vice President of Goldman, Sachs & Co. Weiss, Mitchell S. Assistant Treasurer/ Vice President of Assistant Secretary Goldman, Sachs & Co. Wetherill, Aaron D. Vice President Vice President of Goldman, Sachs & Co. Williams, Todd A. Vice President/ Managing Director of Assistant Secretary/ Goldman, Sachs & Co. Assistant Treasurer Zucker, Lauren J. Vice President Vice President of Goldman, Sachs & Co. 22 SCHEDULE III ------------ The name and principal occupation of each member of the Whitehall Investment Committee of Goldman, Sachs & Co., which exercises the authority of Goldman, Sachs & Co. in managing each of WH Advisors, L.L.C. VII and WH Advisors, L.L.C. IX, are set forth below. The business address of each member listed below is 85 Broad Street, New York, New York 10004, except as follows: The business address of Richard H. Powers and Edward M. Siskind is 133 Fleet Street, London EC4A 2BB, England. The business address of Todd A. Williams is 100 Crescent Court, Suite 1000, Dallas, TX 75201. The business address of Toshinobu Kasai is Roppongi Hills Mori Tower, 47th floor, 10-1, Roppongi 6-chome, Minato-ku, Tokyo 106-6147, Japan. Each member listed below is a citizen of the United States, except as follows: Brahm S. Cramer is a citizen of Canada. Toshinobu Kasai is a citizen of Japan. Name Present Principal Occupation - -------------------------------------------------------------------------------- Cramer, Brahm S. Managing Director of Goldman, Sachs & Co. Feldman, Steven M. Managing Director of Goldman, Sachs & Co. Friedman, Richard A. Managing Director of Goldman, Sachs & Co. Jonas, Andrew J. Managing Director of Goldman, Sachs & Co. Kasai, Toshinobu Managing Director of Goldman Sachs (Japan) Ltd. Naughton, Kevin D. Managing Director of Goldman, Sachs & Co. Powers, Richard H. Managing Director of Goldman Sachs International Rosenberg, Ralph F. Managing Director of Goldman, Sachs & Co. Rothenberg, Stuart M. Managing Director of Goldman, Sachs & Co. Siskind, Edward M. Managing Director of Goldman Sachs International Stecher, Esta E. Managing Director of Goldman, Sachs & Co. Viniar, David A. Managing Director of Goldman, Sachs & Co. Williams, Todd A. Managing Director of Goldman, Sachs & Co. 23 SCHEDULE IV ------------ On April 6, 2000, in connection with an industry-wide investigation by the Securities and Exchange Commission (the "SEC") relating to the pricing of government securities in advance refunding transactions, Goldman, Sachs & Co. ("Goldman Sachs") joined in a global settlement resolving the SEC investigation as well as a related qui tam lawsuit purportedly brought on behalf of the United States entitled United States ex rel. Lissack v. Goldman, Sachs & Co., et al., 95 Civ. 1363 (S.D.N.Y.)(BSJ). Pursuant to the settlement, without admitting or denying the findings, Goldman Sachs consented to the issuance of an SEC administrative order (SEA Rel. No. 42640) which, among other things, found that Goldman Sachs had violated Sections 17(a)(2) and (3) of the Securities Act of 1933 in connection with such pricing of government securities, required Goldman Sachs to cease and desist from violating such provisions, and ordered Goldman Sachs to make payments totaling approximately $5.1 Million to the U.S. Treasury and $104,000 to two municipalities. Under the global settlement, the qui tam lawsuit was dismissed with prejudice, and the Internal Revenue Service agreed not to challenge the tax-free nature of the refundings by virtue of the pricing of such securities. In November 2002, the SEC, the National Association of Securities Dealers ("NASD") and the New York Stock Exchange, Inc. ("NYSE") alleged that five broker dealers, including Goldman Sachs, violated Section 17(a) of the Exchange Act and Rule 17a-4 hereunder, NYSE Rules 440 and 342 and NASD Rules 3010 and 3110 by allegedly failing to preserve electronic mail communications for three years and/or to preserve electronic mail communications for the first two years in an accessible place, and by allegedly having inadequate supervisory systems and procedures in relation to the retention of electronic mail communications. Without admitting or denying the allegations, the five broker dealers, including Goldman Sachs, consented to censure by the SEC, NASD and NYSE and to the imposition of a cease-and-desist order by the SEC and Goldman Sachs paid a total fine of $1,650,000 ($550,000 each to the SEC, NASD and NYSE). Goldman Sachs also undertook to review its procedures regarding the preservation of electronic mail communications for compliance with the federal securities laws and regulations and the rules of the NASD and NYSE, and to confirm within a specified period of time that it has established systems and procedures reasonably designed to achieve compliance with those laws, regulations and rules. On April 28, 2003, without admitting or denying liability, ten investment banking firms including Goldman Sachs, entered into global settlements with the SEC, the NYSE, the NASD and certain states to resolve the investigations relating to equity research analyst conflicts of interest. Goldman Sachs was charged with violating NYSE Rules 342, 401, 472 and 475, and NASD Conduct Rules 2110, 2210 and 3010. Goldman Sachs also agreed to a censure by the NYSE and the NASD and to pay a total of $110,000,000 and to adopt a set of industry-wide reforms of its research and investment banking businesses and to adopt certain restrictions on the allocations of "hot" IPO shares. The terms of the global settlement were entered in an order by a federal court in the Southern District of New York on October 31, 2003 (Civil Action Number 03CV2944). On September 4, 2003, Goldman Sachs and the SEC settled administrative proceedings relating to certain trading in U.S. Treasury securities by Goldman Sachs on the morning of October 31, 2001. The Staff of the SEC alleged that Goldman Sachs violated (i) Section 15(c)(1) and Rule 15c1-2 of the Exchange Act as a result of certain trading in U.S. Treasury bonds over an eight minute period on October 31, 2001; and (ii) Section 15(f) of the Exchange Act by failing to maintain policies and procedures specifically addressed to the 24 possible misuse of non-public information obtained from outside consultants. Under the Offer of Settlement submitted by Goldman Sachs and accepted by the SEC, without admitting or denying the SEC's allegations, Goldman Sachs consented to the entry of an Order that, among other things, (i) censured Goldman Sachs; (ii) directed Goldman Sachs to cease and desist from committing or causing any violations of Section 15(c)(1)(A) & (C) and 15(f) and Rule 15c1-2 of the Exchange Act; (iii) ordered Goldman Sachs to pay disgorgement and prejudgment interest in the amount of $1,742,642, and a civil monetary penalty of $5 million; and (iv) directed Goldman Sachs to conduct a review its policies and procedures and to adopt, implement and maintain policies and procedures consistent with the Order and that review. Goldman Sachs also undertook to pay $2,562,740 in disgorgement and interest relating to certain trading in U.S. Treasury bond futures during the same eight minute period. 25 SCHEDULE V ---------- Purchases Sales Price Trade Date Settlement Date - -------------------------------------------------------------------------------- 375 14.00 06/23/04 06/29/04 375 14.00 06/24/04 06/29/04 EX-99.2 2 ex_2.txt EXHIBIT 2: UNDERWRITING AGREEMENT EXHIBIT 2 STRATEGIC HOTEL CAPITAL, INC. COMMON STOCK, PAR VALUE $0.01 PER SHARE -------------- UNDERWRITING AGREEMENT ---------------------- June 23, 2004 Goldman, Sachs & Co., As representative of the several Underwriters named in Schedule I hereto, c/o Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 Ladies and Gentlemen: Strategic Hotel Capital, Inc., a Maryland corporation (the "Company"), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of 17,600,000 shares (the "Firm Shares") and, at the election of the Underwriters, up to 2,640,000 additional shares (the "Optional Shares") of Common Stock, par value $0.01 per share ("Stock"), of the Company. The Firm Shares and the Optional Shares that the Underwriters elect to purchase pursuant to Section 2 hereof are herein collectively called the "Shares." At the Time of Delivery (as hereinafter defined), the Company and Strategic Hotel Funding, L.L.C., a Delaware limited liability company (the "Operating Company"), will complete a series of transactions described in the Prospectus (as hereinafter defined) under the captions "Prospectus Summary-Summary of the Formation and Structuring Transactions", "Prospectus Summary-Benefits of the Formation and Structuring Transactions" and "Formation and Structuring Transactions" (such transactions, the "Formation Transactions"). As part of the Formation Transactions, (i) the Company will contribute the net proceeds from the public offering of the Shares to the Operating Company in exchange for units of interest in the Operating Company ("OC Units") and (ii) the Operating Company will issue OC Units to the Company. 1. The Company represents and warrants to, and agrees with, each of the Underwriters that: (a) a registration statement on Form S-11 (File No. 333-112846) (the "Initial Registration Statement") in respect of the Shares has been filed with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto, to you for each of the other Underwriters, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Securities Act"), and the rules and regulations thereunder (the "Securities Act Regulations") which became effective upon filing, no other document with respect to the Initial Registration Statement has heretofore been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the Securities Act Regulations is hereinafter called a "Preliminary Prospectus"; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and including the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the Securities Act to be part of the Initial Registration Statement at the time it was declared effective, each as amended at the time such part of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the "Registration Statement;" and such final prospectus, in the form first filed pursuant to Rule 424(b) under the Securities Act, is hereinafter called the "Prospectus"); (b) no order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the Securities Act Regulations, 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 the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein; (c) the Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Securities Act and the Securities Act Regulations and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein; (d) neither the Company nor any of its subsidiaries (collectively, the "subsidiaries" and each a "subsidiary") that are listed or that are required to be listed pursuant to the requirements of Form S-11 in Exhibit 21 to the Registration Statement (the "Significant Subsidiaries"), including the Operating Company, has sustained since the date of the latest audited financial statements included in the Prospectus any material loss or interference with its 2 business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been (i) any change in the capital stock or members' equity, as applicable, or long-term debt of the Company or any of its subsidiaries or (ii) any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' or members' equity, as applicable, or results of operations of the Company and its subsidiaries, taken as a whole (a "Material Adverse Effect"), other than as set forth or contemplated in the Prospectus; (e) upon consummation of the Formation Transactions, the Company and its subsidiaries will have good and marketable title in fee simple to, or a valid leasehold interest in, all real property described in the Prospectus as owned by them (the "Real Property"), and good and marketable title to all personal property owned by them (or to be owned upon the consummation of the Formation Transactions) that are material to the business of the Company, in each case free and clear of all liens, encumbrances and defects except such as are described in the Prospectus or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property, buildings and equipment held under lease by the Company and its subsidiaries and described in the Prospectus are held by them under valid, subsisting and enforceable leases (such leases, the "Company Leases") with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries; (f) upon completion of the Formation Transactions, the Company or its subsidiaries will have either (i) an owner's or leasehold title insurance policy, from a nationally recognized title insurance company licensed to issue such policy, on any Real Property located in the United States or Mexico (the "North American Properties"), as the case may be, by the Company or its subsidiaries, that insures the fee or leasehold interest, as the case may be, in the North American Properties, which policies include only commercially reasonable exceptions, and with coverages in amounts at least equal to amounts that are generally deemed in the Company's industry to be commercially reasonable in the markets where the Company's properties are located, or (ii) one or more lender's title insurance policies insuring the lien of the mortgages encumbering the North American Properties with coverages, in the aggregate, equal to the maximum aggregate principal amount of indebtedness incurred by the Company or its subsidiaries and secured by the North American Properties; (g) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of Maryland, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; (h) the Operating Company has been duly organized and is validly existing as a limited liability company, in good standing under the laws of Delaware, with power and authority (limited liability company and other) to own its properties and conduct its business as described in the Prospectus; 3 (i) Each of the Company and its subsidiaries has been duly qualified as a foreign entity for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (j) as of the Time of Delivery, (x) each corporate subsidiary of the Company that is a Significant Subsidiary (a "Corporate Significant Subsidiary") and each limited liability company in which the Company or one of its subsidiaries is a managing member that is a Significant Subsidiary (an "LLC Significant Subsidiary") has been duly incorporated or organized, as the case may be, and is validly existing as a corporation or limited liability company, as the case may be, in good standing under the laws of its jurisdiction of incorporation or organization, as the case may be, with the power (corporate or limited liability company, as the case may be) and authority to own its properties and conduct its business as described in the Prospectus and (y) all of the issued shares of capital stock of each Corporate Significant Subsidiary and all of the membership interests in each LLC Significant Subsidiary have been duly and validly authorized and issued, are fully paid and are non-assessable and (except for membership interests in SHCI Santa Monica Beach Hotel, L.L.C.) will be owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims except as described in the Prospectus or as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (k) the Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and the Shares conform to the description of the Stock contained in the Prospectus; (l) the Shares to be issued and sold by the Company to the Underwriters hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued and fully paid and non-assessable and will conform to the description of the Stock contained in the Prospectus; (m) except as disclosed in the Prospectus, there are no outstanding (i) securities or obligations of the Company or any of its subsidiaries convertible into or exchangeable for any capital stock, partnership interests, membership interests or other equity interests, as the case may be, in the Company or any of its Significant Subsidiaries, or (ii) obligations of the Company or any of its subsidiaries to issue any such securities or obligations; (n) except as disclosed in the Prospectus, there are no persons with registration or other similar rights to have any equity or debt securities, including securities that are convertible into or exchangeable for equity securities, registered pursuant to the Registration Statement or otherwise registered by the Company under the Securities Act; (o) the issue and sale of the Shares to be sold by the Company and compliance by the Company with all of the provisions of this Agreement and the agreements attached as Exhibits 10.1, 10.2, 10.5, 10.6, 10.7, 10.8, 10.9, 10.11 and 10.12 to the Registration Statement (the "Other Transaction Documents") and the consummation of the Formation Transactions and all other 4 transactions herein contemplated by the Company or the Operating Company (to the extent a party thereto) will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any Company Lease, indenture, mortgage, deed of trust, loan agreement, operating agreement, property management agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or bylaws of the Company, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or its subsidiaries or any of their properties, except in the case of clauses (i) and (iii) for such conflicts, breaches, defaults or violations as would not, individually or in the aggregate, reasonably be expected to (x) result in a Material Adverse Effect, or (y) adversely affect the validity, performance or consummation of the transactions contemplated by this Agreement; (p) no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Shares and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters; (q) neither the Company nor any of its Significant Subsidiaries is in (i) violation of its organizational documents, or (ii) default in the performance or observance of any obligation, agreement, covenant or condition contained in any Company Lease, indenture, mortgage, deed of trust, loan agreement, operating agreement, property management agreement or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except in the case of clause (ii) to the extent that such default would not, individually or in the aggregate, reasonably be expected to (x) result in a Material Adverse Effect, or (y) adversely affect the validity, performance or consummation of the transactions contemplated by this Agreement; (r) the execution, delivery and performance of the Structuring and Contribution Agreement, dated as of February 13, 2004 (the "Contribution Agreement"), by and among the Operating Company, Strategic Hotel Capital, L.L.C., and the other parties thereto and the consummation of the transactions contemplated thereby, do not and will not: (A) conflict with, or result in any breach of, or constitute a default under nor constitute any event which (with notice, lapse of time, or both) would constitute a breach of or default under (i) any provisions of the charter or bylaws or other organizational documents of Strategic Hotel Capital, L.L.C., Strategic Hotel Capital Limited Partnership or SHCI Santa Monica Beach Hotel, L.L.C. (each, a "Transferor"), (ii) any provision of any license, lease, indenture, mortgage, deed of trust, loan, credit, operating agreement, property management agreement or other agreement or instrument to which a Transferor is a party or by which any of such Transferor or its properties or assets may be bound or affected, (iii) any law or regulation binding upon or applicable to a Transferor any of its properties or assets or (iv) any decree, judgment or order applicable to a Transferor; or (B) result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or assets of a Transferor, except in each case described in clauses (A)(i) through (iv) and (B) of this sentence for such conflicts, breaches, defaults and violations as would not, individually or in the aggregate, reasonably be expected to (x) result in a Material Adverse Effect 5 or (y) adversely affect the validity, performance or consummation of the transactions contemplated by this Agreement; the Contribution Agreement has been duly authorized, executed and delivered by each Transferor and is a legal, valid and binding agreement of such Transferor enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general principles of equity, and except that enforceability of the indemnification provisions set forth therein may be limited by U.S. federal or state securities laws or public policy considerations in respect thereof; (s) each of the Company and the Operating Company has the power and authority to enter into and perform this Agreement, and to the extent a party thereto, the Other Transaction Documents and to consummate the transactions contemplated herein and therein; this Agreement and Other Transaction Documents have been duly authorized, executed and delivered by the Company (to the extent a party thereto) and the Operating Company (to the extent a party thereto), and are legal, valid and binding agreements of the Company (to the extent a party thereto) and the Operating Company (to the extent a party thereto), enforceable in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by general equitable principles, and except to the extent that the indemnification and contribution provisions may be limited by U.S. federal or state securities laws and public policy considerations in respect thereof; (t) each of the Company and its subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any U.S. federal, state or local law, regulation or rule, and has obtained all necessary authorizations, consents and approvals from other persons, required in order to conduct its business as described in the Prospectus, except to the extent that any failure to have any such licenses, authorizations, consents or approvals, to make any such filings or to obtain any such authorizations, consents or approvals would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; neither the Company nor any of its subsidiaries is in violation of, in default under, or has received any notice regarding a possible violation, default or revocation of any such license, authorization, consent or approval or any U.S. federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any subsidiary, other than any such violations, defaults, or revocations that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (u) the statements set forth in the Prospectus under the caption "Underwriting," insofar as they purport to describe the provisions of the U.S. laws and documents referred to therein, are accurate, complete and fair in all material respects; (v) the statements set forth in the Prospectus under the captions "Risk Factors - Tax and Employee Benefit Plan Risks" and "U.S. Federal Income Tax Considerations," insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and complete and fairly summarize the federal income tax considerations that are likely to be material to a holder of Shares; 6 (w) the statements set forth in the Prospectus under the caption "Description of Stock," insofar as they purport to constitute a summary of the terms of the Stock, are accurate, complete and fair; (x) when the Shares have been issued and duly delivered against payment therefor as contemplated by this Agreement, the Underwriters will acquire good and marketable title to the Shares, free and clear of any pledge, lien, encumbrance, security interest or other claim; (y) the issuance and sale of the Shares by the Company are not subject to preemptive or other similar rights arising by operation of law under the organizational documents of the Company; (z) other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (aa) neither the Company nor the Operating Company is and, after giving effect to the offering and sale of the Shares, will be an "investment company," as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"); (bb) Deloitte & Touche LLP, who have certified certain financial statements of the Company and its subsidiaries, are independent public accountants as required by the Securities Act and the Securities Act Regulations; (cc) the Shares have been approved for listing on the New York Stock Exchange (the "Exchange"), subject to official notice of issuance; (dd) the Company has not taken, and will not take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares in violation of applicable law; (ee) the form of certificate used to represent the Stock complies in all material respects with (i) all applicable statutory requirements, (ii) any applicable requirements of the organizational documents of the Company, and (iii) the requirements of the Exchange; (ff) the Company will properly and timely elect to be taxed as a real estate investment trust (a "REIT") under the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the "Code") commencing with the taxable year ending December 31, 2004, and the Company will be organized and operated in conformity with the requirements for qualification as a REIT under the Code and the proposed method of operation of the Company and its subsidiaries will enable the Company to meet the requirements for qualification and taxation as a REIT under the Code; the Operating Company is treated as a partnership for U.S. federal income tax purposes and not as a corporation or association taxable 7 as a corporation; and the Company intends to continue to qualify as a REIT under the Code for all subsequent years, and the Company does not know of any event that could reasonably be expected to cause the Company to fail to qualify as a REIT under the Code at any time; (gg) except as described in the Prospectus, there are no outstanding loans, advances or guarantees of indebtedness by the Company or any of its subsidiaries to or for the benefit of any of the officers or directors of the Company or any of the officers or directors of any of its subsidiaries or any of the members of the families of any of them; (hh) the issuance of the OC Units described in the Prospectus has been duly authorized and upon issuance, in accordance with the Limited Liability Company Agreement of the Operating Company, the OC Units described in the Prospectus will be validly issued; (ii) upon completion of the offering of the Shares and the Formation Transactions, the Company will be the holder of OC Units in the amount and percentage described in the Prospectus and the Company will hold the sole managing member interest in the Operating Company; and (jj) the Company has obtained Phase I Environmental Audits with respect to the North American Properties and a Building Survey Report with respect to the Inter.Continental Prague dated June 2003 (the "Building Survey Report") and, except as otherwise disclosed in the Prospectus or in the Phase I Environmental Audits, the Building Survey Report and other environmental documents previously delivered to the Underwriters (the "Audits") and except to an extent that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect: (i) neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any other owners of the Real Property at any time or any other party has at any time, handled, stored, treated, transported, manufactured, spilled, leaked, or discharged, dumped, transferred or otherwise disposed of or dealt with, Hazardous Materials (as hereinafter defined) on, to or from any Real Property, other than by any such action taken in material compliance with all applicable Environmental Statutes (as hereinafter defined) or by the Company, any of its subsidiaries or any other party in connection with the ordinary use of residential, retail or commercial properties owned by the Company or any subsidiary; (ii) the Company and its subsidiaries do not intend to use the Real Property or any subsequently acquired properties for the purpose of handling, storing, treating, transporting, manufacturing, spilling, leaking, discharging, dumping, transferring or otherwise disposing of or dealing with Hazardous Materials other than by any such action taken in compliance with all applicable Environmental Statutes or by the Company, any of its subsidiaries or any other party in connection with the ordinary use of residential, retail or commercial properties owned by the Company or any subsidiary; (iii) the Company does not know of any seepage, leak, discharge, release, emission, spill, or dumping of Hazardous Materials from the Real Property into waters on or adjacent to the Real Property or from the Real Property onto any real property owned or occupied by any other party, or onto lands from which Hazardous Materials might seep, flow or drain into such waters other than in substantial compliance with Environmental Statutes; (iv) the Company has not received any notice of, and has no knowledge of, any occurrence or circumstance which, with notice or passage of time or both, would give rise to a claim under or pursuant to any U.S. federal, state or local environmental statute or regulation or under common law, pertaining to Hazardous Materials on or originating from any of the Real Property or arising 8 out of the conduct of the Company, including without limitation a claim under or pursuant to any Environmental Statute (as hereinafter defined); and (v) neither the Real Property is included nor, to the Company's knowledge, is proposed for inclusion on the National Priorities List issued pursuant to CERCLA (as hereinafter defined) by United States Environmental Protection Agency (the "EPA") or, to the Company's knowledge, proposed for inclusion on any similar list or inventory issued pursuant to any other Environmental Statute or issued by any other Governmental Authority. As used herein, "Hazardous Materials" shall include, without limitation, any flammable explosives, radioactive materials, hazardous materials, hazardous wastes, toxic substances, or related materials, asbestos or any hazardous material as defined by any U.S. federal, state or local environmental law, ordinance, rule or regulation including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601-9675 ("CERCLA"), the Hazardous Materials Transportation Act, as amended, 49 U.S.C. Sections 1801-1819, the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Sections 6901-6992K, the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001-11050, the Toxic Substances Control Act, 15 U.S.C. Sections 2601-2671, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136-136y, the Clean Air Act, 42 U.S.C. Sections 7401-7642, the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. Sections 1251-1387, the Safe Drinking Water Act, 42 U.S.C. Sections 300f-330j-26, and the Occupational Safety and Health Act, 29 U.S.C. Sections 651-678, as any of the above statutes may be amended from time to time, and in the regulations promulgated pursuant to each of the foregoing (individually, an "Environmental Statute") or by any Governmental Authority. 2. (a) Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price per share of $13.02, the number of Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Shares as provided below, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth in clause (a) of this Section 2, that portion of the number of Optional Shares as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Optional Shares by a fraction the numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Shares that all of the Underwriters are entitled to purchase hereunder. (b) The Company hereby grants to the Underwriters the right to purchase at their election up to 2,640,000 Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering sales of shares in excess of the number of Firm Shares, provided that the purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Firm Shares but not payable on the Optional Shares. Any such election to purchase Optional Shares 9 may be exercised only by written notice from you to the Company, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined in Section 4 hereof) or, unless you and the Company otherwise agree in writing, no earlier than two or later than ten business days after the date of such notice. 3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for sale upon the terms and conditions set forth in the Prospectus. 4. (a) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in such authorized denominations and registered in such names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior notice to the Company shall be delivered by or on behalf of the Company to Goldman, Sachs & Co., through the facilities of The Depository Trust Company ("DTC"), for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of federal (same-day) funds to the account specified by the Company to Goldman, Sachs & Co. at least forty-eight hours in advance. The Company will cause the certificates representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004 (the "Designated Office"). The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York time, on June 29, 2004 or such other time and date as Goldman, Sachs & Co. and the Company may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified by Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the Underwriters' election to purchase such Optional Shares, or such other time and date as Goldman, Sachs & Co. and the Company may agree upon in writing. Such time and date for delivery of the Firm Shares is herein called the "First Time of Delivery," such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the "Second Time of Delivery," and each such time and date for delivery is herein called a "Time of Delivery." (b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 7 hereof, including the cross-receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 7(m) hereof, will be delivered at the offices of Sullivan & Cromwell LLP (the "Closing Location"), and the Shares will be delivered at the Designated Office, all at such Time of Delivery. A meeting will be held at the Closing Location at 3:00 p.m., New York City time, on the New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close. 10 5. The Company agrees with each of the Underwriters: (a) to prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of business on the second New York Business Day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to make no further amendment or any supplement to the Registration Statement or Prospectus which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with copies thereof; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or Prospectus or suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of such order; (b) promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; (c) prior to 10:00 A.M., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such period to amend or supplement the Prospectus in order to comply with the Securities Act, to notify you and upon your request to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance, and in case any Underwriter is required to deliver a prospectus in connection with sales of any of the 11 Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Securities Act; (d) to make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Securities Act Regulations (including, at the option of the Company, Rule 158); (e) during the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus (the "Lock-up Period"), not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any securities of the Company that are substantially similar to the Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities (other than (i) pursuant to the 2004 Incentive Plan, the Employee Stock Purchase Plan and employee stock option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the Time of Delivery, (ii) in order to liquidate the ownership interests in Strategic Hotel Capital, L.L.C. held by certain employees of the Company and the Operating Company through the Geller Family Limited Partnership, the Strategic Hotel Capital Employee Investment Partnership or SHC Employee Blocking Corp., and (iii) the issuance of shares of Stock in connection with any acquisition, provided that the aggregate market value of all such shares may not exceed 10% of the market capitalization of the Company as of the Time of Delivery, and provided further that the holder(s) of any such shares shall not be permitted to sell or otherwise dispose of such shares during the Lock-up Period), without your prior written consent; (f) to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders' equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to its stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail; (g) unless otherwise publicly available in electronic format on the website of the Company or the Commission, during a period of three years from the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholders generally, and to deliver to you (i) as soon as they are publicly available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional non- 12 confidential information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission); (h) to use the net proceeds received by it from the sale of the Shares pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds;" (i) to use its best efforts to list, subject to notice of issuance, the Shares on the Exchange; (j) to file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities Act; (k) to continue to use its best efforts to meet the requirements to qualify as a REIT under the Code and to cause the Operating Company to continue to use its best efforts to meet the requirements to qualify as a partnership under the Code, in each case unless otherwise determined by the Company's Board of Directors; and (l) if the Company elects to rely upon Rule 462(b), to file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and at the time of filing to either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act. 6. The Company covenants and agrees with the several Underwriters that (a) the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Shares under the Securities Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iii) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; and (iv) all fees and expenses in connection with listing the Shares on the Exchange; and (b) the Company will pay or cause to be paid: (i) the cost of preparing stock certificates; (ii) the cost and charges of any transfer agent or registrar; and (iii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that except as provided in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make. 13 7. The obligations of the Underwriters hereunder as to the Shares to be delivered at each Time of Delivery shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company are, at and as of such Time of Delivery, true and correct, the condition that the Company and the Operating Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions: (a) the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the Securities Act Regulations in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; (b) Willkie Farr & Gallagher LLP, counsel for the Underwriters, shall have furnished to you their written opinion and letter, each dated such Time of Delivery, in the form attached as Exhibit A hereto; (c) the General Counsel of the Company shall have furnished to you her written opinion, dated such Time of Delivery, in the form attached as Exhibit B hereto; (d) Sullivan & Cromwell LLP, counsel for the Company, shall have furnished to you their written opinion and letter, each dated such Time of Delivery, in the form attached as Exhibit C hereto; (e) Venable LLP, special Maryland counsel for the Company, shall have furnished to you their written opinion, dated such Time of Delivery, in the form attached as Exhibit D hereto; (f) on the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Deloitte & Touche LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in the form attached as Exhibit E hereto; (g) (i) neither the Company nor any of its Significant Subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have been any change in the capital stock or members' equity, as applicable, or long-term debt of the Company or any of its subsidiaries or any change, 14 or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' or members' equity, as applicable, or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (h) on or after the date hereof (i) no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities; (i) on or after the date hereof there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the Exchange; (ii) a suspension or material limitation in trading in the Company's securities on the Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus; (j) the Shares at such Time of Delivery shall have been duly listed, subject to notice of issuance, on the Exchange; (k) the National Association of Securities Dealers, Inc. shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements; (l) the Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of Prospectuses on the New York Business Day next succeeding the date of this Agreement; (m) the Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company reasonably satisfactory to you as to the accuracy of the representations and warranties of the Company, herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, and as to such other matters as you may reasonably request, and the Company shall have furnished or caused 15 to be furnished certificates as to the matters set forth in subsections (a) and (g) of this Section; (n) the Company shall have received lock-up agreements from each officer and director, Strategic Value Investors, LLC, The Prudential Insurance Company of America, Prudential Investment Management, Inc., PIC Realty Corporation, Prudential Assets, LLC, (SHC/Olayan) Redemption Vehicle, LLC, SVI (SHC/Houston) Redemption Vehicle, LLC, Whitehall Street Real Estate Limited Partnership VII and Whitehall Street Real Estate Limited Partnership IX in the form attached as Exhibits F-1 and F-2 hereto, and such lock-up agreements shall be in full force and effect; and (o) the Company shall have obtained the written consent from each of the owners of the following marks to use such marks in the Prospectus to the extent such written consents are required by the management agreements with the owners: Embassy Suites(R), Four Seasons(R), Hilton(R), Hyatt(R), Inter.Continental(R), Loews(R) and Marriott(R). 8. (a) The Company and the Operating Company each, jointly and severally, will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company and the Operating Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Goldman, Sachs & Co. expressly for use therein. (b) Each Underwriter will indemnify and hold harmless the Company and the Operating Company against any losses, claims, damages or liabilities to which the Company and the Operating Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and in conformity with written information furnished to the Company by such Underwriter through Goldman, Sachs & Co. expressly for use therein; and will reimburse the 16 Company and the Operating Company for any legal or other expenses reasonably incurred by the Company and the Operating Company in connection with investigating or defending any such action or claim as such expenses are incurred. (c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action 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. (d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or 17 alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of 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 Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. (e) The obligations of the Company under this Section 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Securities Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company) and to each person, if any, who controls the Company within the meaning of the Securities Act. 9. (a) If any Underwriter shall default in its obligation to purchase the Shares which it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Shares on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Shares, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Shares on such terms. In the event that, within the respective prescribed periods, you notify the Company that you have so arranged for the purchase of such Shares, or the Company notifies you that it has so arranged for the purchase of such Shares, you or the Company shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Shares. 18 (b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate number of all of the Shares to be purchased at such Time of Delivery, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the Company to sell the Optional Shares) shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 10. The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Shares. Anything herein to the contrary notwithstanding, the indemnity agreement of the Company in subsection (a) of Section 8 hereof, the representations and warranties in subsections (b) and (c) of Section 1 hereof and any representation or warranty as to the accuracy of the Registration Statement or the Prospectus contained in any certificate furnished by the Company pursuant to Section 7 hereof, insofar as they may constitute a basis for indemnification for liabilities (other than payment by the Company of expenses incurred or paid in the successful defense of any action, suit or proceeding) arising under the Securities Act, shall not extend to the extent of any interest therein of a controlling person or partner of an Underwriter who is a director, officer or controlling person of the Company when the Registration Statement has become effective or who, with his or her consent, is named in the Registration Statement as about to become a director of the Company, except in each case to the extent that an interest of such character shall have been determined by a court of appropriate jurisdiction as not against public policy as expressed in the Securities Act. Unless in the opinion of counsel for the Company the matter has been settled by controlling precedent, the Company will, if a claim for 19 such indemnification is asserted, submit to a court of appropriate jurisdiction the question of whether such interest is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 11. If this Agreement shall be terminated pursuant to Section 9 hereof, the Company shall not be under any liability to any Underwriter except as provided in Sections 6 and 8 hereof; but, if for any other reason any Shares are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company shall then be under no further liability to any Underwriter except as provided in Sections 6 and 8 hereof. 12. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly or by Goldman, Sachs & Co. on behalf of you as the representative. All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters, shall be delivered or sent by mail, telex or facsimile transmission to you as the representative in care of Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, Attention: Registration Department; if to the Company, shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: General Counsel; provided, however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters' Questionnaire or telex constituting such Questionnaire, which address will be supplied to the Company by you on request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof. 13. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Sections 8 and 10 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 14. Time shall be of the essence of this Agreement. As used herein, the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business. 15. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. 16. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. 20 17. The Company is authorized, subject to applicable law, to disclose any and all aspects of this potential transaction that are necessary to support any U.S. federal income tax benefits expected to be claimed with respect to such transaction, and all materials of any kind (including tax opinions and other tax analyses) related to those benefits, without the Underwriters imposing any limitation of any kind. If the foregoing is in accordance with your understanding, please sign and return to us one copy for each of the Company, the Operating Company and Goldman, Sachs & Co. plus one for each counsel, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters, the Operating Company and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company and the Operating Company for examination, upon request, but without warranty on your part as to the authority of the signers thereof. 21 Very truly yours, STRATEGIC HOTEL CAPITAL, INC. By: /S/ LAURENCE S. GELLER --------------------------------- Name: Laurence S. Geller Title: President and Chief Executive Officer STRATEGIC HOTEL FUNDING, L.L.C. By: Strategic Hotel Capital, L.L.C., its sole member By: /S/ LAURENCE S. GELLER ------------------------------------ Name: Laurence S. Geller Title: Chairman, President and Chief Executive Officer Accepted as of the date hereof GOLDMAN, SACHS & CO. By: /S/ GOLDMAN, SACHS & CO. ------------------------------------ (Goldman, Sachs & Co.) On behalf of each of the Underwriters 22 SCHEDULE I
TOTAL NUMBER OF NUMBER OF FIRM SHARES TO OPTIONAL BE PURCHASED SHARES TO BE --------------- PURCHASED IF MAXIMUM UNDERWRITER OPTION ----------- EXERCISED ------------ Goldman, Sachs & Co. ........................................... 5,860,800 879,120 Deutsche Bank Securities Inc. .................................. 5,860,800 879,120 Banc of America Securities LLC ................................. 1,425,600 213,840 Credit Suisse First Boston LLC ................................. 1,425,600 213,840 Wachovia Capital Markets, LLC .................................. 1,425,600 213,840 Raymond James & Associates, Inc. ............................... 721,600 108,240 Chatsworth Securities LLC ...................................... 176,000 26,400 Calyon Securities (USA) Inc. ................................... 176,000 26,400 KeyBanc Capital Markets, A Division of McDonald Investments Inc. ............................................... 176,000 26,400 JMP Securities LLC ............................................. 176,000 26,400 Utendahl Capital Partners, L.P. ................................ 176,000 26,400 ---------- --------- Total ..................................................... 17,600,000 2,640,000 ========== =========
EX-99.3 3 ex_3.txt EXHIBIT 3: LOCK-UP AGREEMENT EXHIBIT 3 STRATEGIC HOTEL CAPITAL, INC. LOCK-UP AGREEMENT June 23, 2004 Goldman, Sachs & Co., As representative of the several Underwriters named in Schedule I to the Underwriting Agreement c/o Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 Re: Strategic Hotel Capital, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned understands that you, as representative (the "Representative"), propose to enter into an Underwriting Agreement on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the "Underwriters"), with Strategic Hotel Capital, Inc., a Maryland corporation (the "Company"), providing for a public offering of the Common Stock, par value $0.01 per share, of the Company (the "Shares") pursuant to a Registration Statement on Form S-11 to be filed with the Securities and Exchange Commission (the "SEC"). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning from the date hereof and continuing to and including the date 180 days after the date of the final Prospectus covering the initial public offering of the Shares (the "IPO"), the undersigned will not offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock of the Company, or any options or warrants to purchase any shares of Common Stock of the Company, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock of the Company, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the SEC (collectively the "Undersigned's Shares"); provided, however, that the foregoing restriction shall not apply to any Shares acquired in the open market following the consummation of the IPO if (and only if) any disposition of such Shares would not trigger any requirement upon the undersigned to file with the Securities and Exchange Commission a Schedule 13D pursuant to Regulation 13d-1 under the Securities Exchange Act of 1934, as amended. The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Undersigned's Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned's Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares. Notwithstanding the foregoing, the undersigned may transfer the Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee or donees thereof receiving in excess of 1,000 of the Undersigned's Shares agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, limited partnership or similar vehicle for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust, the general partner of the limited partnership or the person holding the similar position in another vehicle agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, (iii) to persons who are executive officers of the Company or its affiliates in exchange for their ownership interests in Strategic Hotel Capital, L.L.C. (up to a maximum of 100,000 Shares), or (iv) with the prior written consent of Goldman, Sachs & Co. on behalf of the Underwriters. For purposes of this Lock-Up Agreement, any transfer by the undersigned of the Undersigned's Shares pursuant to clause (ii) above in consideration for an ownership interest in such limited partnership, trust or similar vehicle shall be deemed to not involve a disposition for value. In addition, for purposes of this Lock-Up Agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. In addition, notwithstanding the foregoing, if the undersigned is a corporation, limited liability company or limited partnership, the undersigned may transfer the Undersigned's Shares to any wholly-owned subsidiary or parent entity (which may be organized as a corporation, limited liability company or limited partnership) of the undersigned; provided, however, that in any such case, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding such securities subject to the provisions of this Agreement and there shall be no further transfer of such securities except in accordance with this Agreement, and provided further that any such transfer shall not involve a disposition for value. For purposes of this Lock-Up Agreement, any transfer by the undersigned of the Undersigned's Shares pursuant to the immediately preceding sentence in consideration for an ownership interest in such wholly-owned subsidiary or parent entity shall be deemed to not involve a disposition for value. The undersigned will have, as of the Time of Delivery (as defined in the Underwriting Agreement), and, except as contemplated by clause (i), (ii), (iii), or (iv) above, for the duration of this Lock-Up Agreement will continue to have, good and marketable title to the Undersigned's Shares, free and clear of all liens, encumbrances, and claims whatsoever. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent and registrar against the transfer of the Undersigned's Shares except in compliance with the foregoing restrictions. 2 The undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned's heirs, legal representatives, successors, and assigns. Very truly yours, WHSHC, L.L.C. ------------------------------------------ Exact Name of Shareholder By: Whitehall Street Real Estate Limited Partnership VII By: WH Advisors, L.P. VII, its General Partner By: WH Advisors, Inc. VII, General Partner By: /S/ TODD GIANNOBLE ------------------------ Name: Todd Giannoble Title: Vice President Authorized Signature EX-99.4 4 ex_4.txt EXHIBIT 4: LOCK-UP AGREEMENT EXHIBIT 4 STRATEGIC HOTEL CAPITAL, INC. LOCK-UP AGREEMENT June 23, 2004 Goldman, Sachs & Co., As representative of the several Underwriters named in Schedule I to the Underwriting Agreement c/o Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 Re: Strategic Hotel Capital, Inc. - Lock-Up Agreement Ladies and Gentlemen: The undersigned understands that you, as representative (the "Representative"), propose to enter into an Underwriting Agreement on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the "Underwriters"), with Strategic Hotel Capital, Inc., a Maryland corporation (the "Company"), providing for a public offering of the Common Stock, par value $0.01 per share, of the Company (the "Shares") pursuant to a Registration Statement on Form S-11 to be filed with the Securities and Exchange Commission (the "SEC"). In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning from the date hereof and continuing to and including the date 180 days after the date of the final Prospectus covering the initial public offering of the Shares (the "IPO"), the undersigned will not offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any shares of Common Stock of the Company, or any options or warrants to purchase any shares of Common Stock of the Company, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock of the Company, whether now owned or hereinafter acquired, owned directly by the undersigned (including holding as a custodian) or with respect to which the undersigned has beneficial ownership within the rules and regulations of the SEC (collectively the "Undersigned's Shares"); provided, however, that the foregoing restriction shall not apply to any Shares acquired in the open market following the consummation of the IPO if (and only if) any disposition of such Shares would not trigger any requirement upon the undersigned to file with the Securities and Exchange Commission a Schedule 13D pursuant to Regulation 13d-1 under the Securities Exchange Act of 1934, as amended. The foregoing restriction is expressly agreed to preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Undersigned's Shares even if such Shares would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned's Shares or with respect to any security that includes, relates to, or derives any significant part of its value from such Shares. Notwithstanding the foregoing, the undersigned may transfer the Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee or donees thereof receiving in excess of 1,000 of the Undersigned's Shares agree to be bound in writing by the restrictions set forth herein, (ii) to any trust, limited partnership or similar vehicle for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust, the general partner of the limited partnership or the person holding the similar position in another vehicle agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, (iii) to persons who are executive officers of the Company or its affiliates in exchange for their ownership interests in Strategic Hotel Capital, L.L.C. (up to a maximum of 100,000 Shares), or (iv) with the prior written consent of Goldman, Sachs & Co. on behalf of the Underwriters. For purposes of this Lock-Up Agreement, any transfer by the undersigned of the Undersigned's Shares pursuant to clause (ii) above in consideration for an ownership interest in such limited partnership, trust or similar vehicle shall be deemed to not involve a disposition for value. In addition, for purposes of this Lock-Up Agreement, "immediate family" shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. In addition, notwithstanding the foregoing, if the undersigned is a corporation, limited liability company or limited partnership, the undersigned may transfer the Undersigned's Shares to any wholly-owned subsidiary or parent entity (which may be organized as a corporation, limited liability company or limited partnership) of the undersigned; provided, however, that in any such case, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding such securities subject to the provisions of this Agreement and there shall be no further transfer of such securities except in accordance with this Agreement, and provided further that any such transfer shall not involve a disposition for value. For purposes of this Lock-Up Agreement, any transfer by the undersigned of the Undersigned's Shares pursuant to the immediately preceding sentence in consideration for an ownership interest in such wholly-owned subsidiary or parent entity shall be deemed to not involve a disposition for value. The undersigned will have, as of the Time of Delivery (as defined in the Underwriting Agreement), and, except as contemplated by clause (i), (ii), (iii), or (iv) above, for the duration of this Lock-Up Agreement will continue to have, good and marketable title to the Undersigned's Shares, free and clear of all liens, encumbrances, and claims whatsoever. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent and registrar against the transfer of the Undersigned's Shares except in compliance with the foregoing restrictions. 2 The undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned's heirs, legal representatives, successors, and assigns. Very truly yours, W9/WHSHC, L.L.C. ----------------------------------------- Exact Name of Shareholder By: Whitehall Street Real Estate Limited Partnership IX, Managing Member By: WH Advisors, L.P. IX, General Partner By: Whitehall IX/X, Inc. Managing Member By: /S/ TODD GIANNOBLE ---------------------- Name: Todd Giannoble Title: Vice President Authorized Signature EX-99.5 5 ex_5.txt EXHIBIT 5: REGISTRATION RIGHTS AGREEMENT EXHIBIT 5 REGISTRATION RIGHTS AGREEMENT (PRINCIPAL INVESTORS) THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made and entered into as of June 29, 2004, among Strategic Hotel Capital, Inc., a Maryland corporation (the "Company"), WHSHC, L.L.C., a Delaware limited liability company ("Whitehall 7"), W9/WHSHC, L.L.C. I, a Delaware limited liability company ("Whitehall 9"; and, together with Whitehall 7, "Whitehall"), The Prudential Insurance Company of America, a New Jersey corporation ("Prudential Insurance"), PIC Realty Corporation, a Delaware corporation ("PIC"; and, together with Prudential Insurance, "Prudential"), and Strategic Value Investors, LLC, a Delaware limited liability company ("SVI"). WHEREAS, Strategic Hotel Capital, L.L.C., a Delaware limited liability company ("SHC LLC"), Whitehall, Prudential and SVI are parties to a Transfer and Registration Rights Agreement dated as of October 31, 1999 (the "SHC LLC Agreement"); WHEREAS, concurrently with the execution of this Agreement, the Company will effect an initial public offering of shares of its common stock ("IPO"); and WHEREAS, the parties desire to provide each Investor (as defined herein) with certain registration rights substantially analogous to those under the SHC LLC Agreement. NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree as follows: 1. DEFINITIONS. As used in this Agreement, the following terms shall have the following respective meanings: "Affiliate": with regard to a Person, a Person that controls, is controlled by, or is under common control with, such original Person. For purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "affiliated," "controlling" and controlled" have meanings correlative to the foregoing. "Closing Price": the reported last sale price of a unit of a security, on a given day, regular way, or, in case no such sale takes place on such day, the average of the reported closing bid and asked prices regular way, in each case on the New York Stock Exchange Composite Tape, or, if the security is not listed or admitted to trading on such exchange, on the American Stock Exchange Composite Tape, or, if the security is not listed or admitted to trading on such exchange, the principal national securities exchange on which the security is listed or admitted to trading, or, if the security is not listed or admitted to trading on any national securities exchange, the closing sales price, or, if there is no closing sales price, the average of the closing bid and asked prices, in the Nasdaq Stock Market, Inc., or, if not so reported, as reported by the National Quotation Bureau, Incorporated, or any successor thereof, or, if not so reported, the average of the closing bid and asked prices as furnished by any member of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose, or, if no 1 such prices are furnished, the fair market value of the security as determined in good faith by the board of directors of the Company, which determination shall be based upon recent issuances or current offerings pursuant to bona fide private offerings of the same class of security by the Company; provided, however, that any determination of the "Closing Price" of any security hereunder shall be based on the assumption that such security is freely transferable without registration under the Securities Act. "Commission": the Securities and Exchange Commission or any other applicable Federal agency at the time administering the Securities Act. "Company": as defined in the preamble, and shall include, where the context requires any Person into which the Company is merged or with which the Company is consolidated. "Demand Registration": an effective registration pursuant to a request made by an Investor pursuant to Section 2.1. "Exchange Act": the Securities Exchange Act of 1934, as amended. "First Effective Date": the effective date of the First Registration Statement in the event of a Proration. "First Registration Statement": in the event of a Proration, the registration statement initially filed in which all securities sought to be included were not so included. "Investor": means each of Whitehall and Prudential including each member of the Whitehall Group and the SVI Group; provided that if (i) any member of the SVI Group liquidates all of its assets by distributing such assets to its members, investors or beneficial owners ("distributees") and (ii) there is no Shelf Registration or other effective registration statement that would permit such member of the SVI Group to distribute Securities that are not subject to restrictions on transfer under the Exchange Act or the Securities Act to such distributees then such distributees shall be included in the definition of "Investor" hereunder. "Membership Units": any membership interests in Strategic Hotel Funding, L.L.C., a Delaware limited liability company. "Overhang Risk": a substantial risk that the sale of some or all of the Shares sought to be sold will substantially reduce the proceeds or price per unit to be derived from such sale. "Person": an individual, partnership, corporation, company (including a limited liability company), trust or unincorporated organization, or a government or agency or political subdivision thereof. "Proration": any reduction pursuant to Section 2.1(b) in the number of securities to be included in a Demand Registration. "Requesting Investor": as defined in Section 2.1. "Resale Rules": as defined in Section 4.3. 2 "Rockmark Registration Rights Agreement": the Registration Rights Agreement of even date herewith between the Company, the Investors identified on the signature pages thereto, and Rockmark Corporation, as Investor Representative. "Saleable Amount": the greatest number of securities which would not create an Overhang Risk. "Securities": the Shares and the Membership Units owned by any Investor. "Securities Act": the Securities Act of 1933, as amended. "Selling Period": for purposes of a Proration pursuant to a Demand Registration, the period beginning with the First Effective Date and ending 90 days after the First Effective Date (unless a shorter period is agreed to by the managing underwriter for such offering). "Shares": the shares of common stock of the Company and any other securities that subsequently may be issued or issuable by the Company upon conversion or exchange of any convertible or exchangeable securities (including any Membership Units) or as a result of a stock split or dividend or other similar transaction involving the Shares by the Company and any securities into which the Shares may thereafter be changed or exchanged as a result of the reincorporation of the Company or merger, consolidation, recapitalization or other similar transaction. "Shelf Registration": an effective registration under Rule 415 of the Securities Act pursuant to Section 3.1. "Shelf Takedown": as defined in Section 3.1. "SVI Group": Prudential, together with SVI, any direct or indirect wholly-owned subsidiary of Prudential Financial, Inc. and any "Redemption Vehicle" of SVI or Strategic Value Investors International, LLC, a Delaware limited liability company, that is managed by Prudential or any of its affiliates, as "Redemption Vehicle" is defined in the Investment Advisory Agreement, dated as of October 7, 1997, by and among SVI and the parties thereto, as amended and as in effect on March 19, 2003, and the Operating Agreement of Strategic Value Investors International, LLC, dated as of October 7, 1997, as amended and as in effect on March 19, 2003. "Unincluded Securities": any securities sought to be registered but which are not registered due to a Proration. "Violation": as defined in Section 4.2(a). "Whitehall Group": Whitehall and any entity that is an Affiliate of Whitehall (if and for so long as such entity remains and Affiliate). 2. DEMAND REGISTRATION. 2.1 Demand Registration. Subject to any limitations set forth in Section 2.1(d) and to any applicable standstill agreement to which the Company and any Investor is a party, from and after the date hereof and until June 29, 2005 (and for such additional period during which the Company fails to file or maintain a Shelf Registration pursuant to Article 3), each Investor may 3 request (a "Requesting Investor") registration of all or any portion of its Shares. The request shall state that the Investor intends to dispose of such securities through a registered public offering. The Company will effect the registration of such Shares under the Securities Act, in accordance with the remaining provisions of this Article 2. (a) Company's Ability to Postpone. The Company shall have the privilege to postpone the filing of a registration statement under this Section 2.1 for a reasonable period of time (not exceeding 90 days) if the Company furnishes the Requesting Investor with a certificate signed by the Chairman of the Board or the Chief Executive Officer of the Company stating that, in its good faith judgment, the Company's board of directors has determined that effecting the registration at such time would adversely affect a material financing, acquisition, disposition of assets or shares, merger or other comparable transaction or would require the Company to make public disclosure of information the public disclosure of which would have a material adverse effect upon the Company. The Company shall only be entitled to exercise its rights under this Section 2.1(a) on one occasion during any 12-month period as to any Investor. (b) Overhang Risk. If the managing underwriter for the Requesting Investor (and the other Investors pursuant to Section 2.3) advises that the number of Shares sought to be included in such registration would create an Overhang Risk, then the number of securities to be registered by the Investors participating in such registration shall be reduced to the number of Shares recommended by the managing underwriter as set forth in Section 2.1(e) below. (c) Required Inclusion in Underwritten Offering. If a Demand Registration is an underwritten offering, the Requesting Investor shall (together with the Company as provided in Section 2.4(g) and the other Investors), enter into an underwriting agreement in customary and usual form with the underwriter or underwriters selected for such underwriting by the Requesting Investor. (d) Number of Demand Registrations. Each of Whitehall 7 and Prudential Insurance shall be entitled to two Demand Registrations (such Demand Registrations being assignable to, and divisible among, any Person who is an "Investor" as defined in this Agreement), provided that such Investor continues to own at least $50 million of Securities (based on the Closing Price) on the date the registration is requested; provided, however, that in the event of a Proration, each Investor shall be entitled to one additional Demand Registration (which shall not be subject to such $50 million requirement). In the event of a Proration: (i) upon the expiration of the Selling Period, the Company shall be obligated to file an additional registration statement (which registration statement shall contain a current prospectus) relating to the Unincluded Securities; (ii) the Company shall use its reasonable efforts to effect the registration of the Unincluded Securities as promptly as practicable thereafter; and (iii) an Investor may withdraw its Unincluded Securities from such additional registration without cost or penalty at any time prior to the effective date of such additional registration statement. (e) Limitation. If the number of securities to be registered in any Demand Registration is to be reduced as described in Section 2.1(b), then the amount of securities to be offered by the participating Investors shall be allocated pro rata among all 4 participating Investors on the basis of the number of securities such Investors have requested to be included in such Demand Registration. (f) Black-Out Period. During the period beginning on either (x) the effective date of a Demand Registration or (y) the effective date of a registration statement filed pursuant to the exercise of registration rights granted to other holders of securities of the Company and ending 90 days thereafter (unless a shorter period is agreed to by the managing underwriter for such offering), each Investor agrees that it will not request that the Company register any of its Shares pursuant to this Article 2; provided, however, that the Company may only utilize clause (y) above to postpone an Investor's right to require the Company to file a registration statement under Section 2.1 on one occasion only as to each Demand Registration. 2.2 Option to Acquire. In the event that the Company has received a request for a Demand Registration from an Investor pursuant to Section 2.1, the Company or any non-Requesting Investor (in proportion to their percentage ownership of Shares) shall have the option, for a period of 30 days from the date of the Requesting Investor's request, to acquire all of the Shares sought to be included in a Demand Registration at a per share price equal to the average Closing Price of the Shares during the 20-day period beginning 10 days prior to receipt of the Investor's request and ending 10 days thereafter. The Requesting Investor shall have the absolute right to withdraw its request for a Demand Registration at any time prior to the expiration of such 20-day period. In the event that the Company or the non-requesting Investors elect not to purchase all of the Shares covered by the Investor's request, the Company shall proceed with the registration of the Shares pursuant to this Article 2. 2.3 Participation Rights of Other Investors. Whenever the Company shall be requested by an Investor pursuant to Section 2.1 to effect the registration of any of its Shares under the Securities Act, and the Company or a non-requesting Investor shall not have exercised its rights under Section 2.2, the Company shall: (a) promptly (but not later than 10 days after such request) give written notice of such proposed registration to the other Investors (which notice shall inform Investors that they have 15 days to notify the Company that they wish to participate in such registration and which notice shall also be sent to each investor pursuant to the Rockmark Registration Rights Agreement); (b) as expeditiously as possible (but not later than 45 days after such request) file a registration statement under the Securities Act with respect to: (1) those Shares which the Company has been requested to register pursuant to Section 2.1; and (2) all other Shares (subject to Section 2.1(e)) held by the other Investors (including the investors requesting inclusion pursuant to Section 2.3(a)) included by such Investors in written request to the Company for registration thereof within 15 days after the Company has given written notice to such Investors; and 5 (c) use its reasonable efforts to effect such registration as quickly as practicable. 2.4 Registration Procedures. If and whenever the Company is required by any of the provisions of this Article 2 to effect the registration of any of the Shares under the Securities Act, the Company will (except as otherwise provided in this Agreement) use its reasonable efforts to as expeditiously as possible: (a) prepare and file with the Commission a registration statement with respect to such securities and use its reasonable efforts to cause such registration statement to become effective and remain effective for as long as shall be necessary to complete the distribution of the Shares so registered; (b) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement whenever the Investors shall desire to sell or otherwise dispose of the same; (c) furnish to the Investors such numbers of copies of a summary prospectus or other prospectus, including a preliminary prospectus or any amendment or supplement to any prospectus, in conformity with the requirements of the Securities Act, and such other documents, as the Investors may reasonably request in order to facilitate the public sale or other disposition of the securities covered by such registration statement; (d) use its reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as the Investors shall request, and do any and all other acts and things reasonably requested by the Investors to assist them to consummate the public sale or other disposition in such jurisdictions of the securities owned by the Investors, except that the Company shall not for any such purpose be required to qualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified or to file therein any general consent to service of process; (e) otherwise use its reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, beginning with the first fiscal quarter beginning after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act; (f) use its reasonable efforts to list such securities on any securities exchange or interdealer quotation system on which any shares of the Company are then listed, if the listing or quotation of such securities is then permitted under the rules of such exchange or interdealer quotation system; (g) enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter or underwriters of such 6 underwritten offering, including, without limitation, to obtain an opinion of counsel to the Company and a "comfort letter" from the independent public accountants to the Company in the usual and customary form for such underwritten offering; (h) notify the Investors, at any time when a prospectus relating thereto covered by such registration statement is required to be delivered under the Securities Act, of the happening of any event of which it has knowledge as a result of which the prospectus included in such registration statement, as then in effect, contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; (i) with respect to a single Demand Registration by each Investor, make the Company's executive officers available for a total of five business days to participate in "road show" presentations in New York City, Boston, Philadelphia, Baltimore, Washington D.C. and Chicago and, with respect to any other Demand Registrations by an Investor, make the Company's executive officers available at the Company's principal executive offices to discuss the affairs of the Company at times that may be mutually and reasonably agreed upon; and (j) upon the request of any Investor, take any and all other actions which may be reasonably necessary to complete the registration and thereafter to complete the distribution of the Shares so registered. 3. SHELF REGISTRATION RIGHTS. 3.1 Shelf Registration. Beginning on June 30, 2005, the Company shall file and use its reasonable efforts to continuously maintain a registration statement relating to the resale of the Investors' Shares pursuant to Rule 415 under the Securities Act. Any Investor shall be entitled, upon 15 days' prior written notice to the Company and each other Investor, to sell such number of Shares as are then registered pursuant to such registration statement (each, a "Shelf Takedown"). The selling Investor shall also give the Company and each other Investor prompt written notice of the consummation of such Shelf Takedown. No Investor shall have the right to cause the Company to register its Shares under this Section 3.1 if the number of Shares requested to be so registered may be immediately sold pursuant to the Resale Rules. (a) Company's Ability to Postpone. The Company shall have the privilege to postpone, on one occasion only as to each Shelf Registration to which a party is entitled, each filing of a registration statement under this Section 3.1 and each proposed Shelf Takedown by an Investor under an effective Shelf Registration, for a reasonable period of time (not exceeding 90 days) if the Company furnishes the Investor with a certificate signed by the Chairman of the Board or the Chief Executive Officer of the Company stating that, in its good faith judgment, the Company's board of directors has determined that effecting the registration at such time would adversely affect a material financing, acquisition, disposition of assets or stock, merger or other comparable transaction or would require the Company to make public disclosure of information the public disclosure of which would have a material adverse effect upon the Company; provided, however, that notwithstanding anything herein to the contrary, the Company shall only be 7 entitled to exercise its rights under this Section 3.1(a) on one occasion during any 12-month period as to any Investor. (b) Overhang Risk. If a Shelf Takedown is an underwritten offering and the managing underwriter for the Requesting Investor (and the other Investors pursuant to Section 3.2) advises that the number of Shares sought to be included in such underwritten Shelf Takedown would create an Overhang Risk, then the number of securities to be registered by the Investors participating in such registration shall be reduced to the number of Shares recommended by the managing underwriter as set forth in Section 3.1(d) below. (c) Required Inclusion in Underwritten Offering. If a Shelf Takedown is an underwritten offering, the Requesting Investor shall (together with the Company as provided in Section 3.3(g) and the other Investors), enter into an underwriting agreement in customary and usual form with the underwriter or underwriters selected for such underwriting by the Requesting Investor. (d) Limitation. If the number of securities proposed to be sold in a Shelf Takedown is to be reduced as described in Section 3.1(b), then the amount of securities to be offered by the participating Investors shall be allocated pro rata among the all participating Investors on the basis of the number of securities such Investors have requested to be included in such Shelf Takedown. 3.2 Participation Rights of Other Investors. Whenever the Company shall be requested by an Investor pursuant to Section 3.1 to effect the Shelf Takedown of any of its Shares under the Securities Act, the Company shall: (a) promptly (but not later than 5 days after such request) give written notice of such proposed Shelf Takedown to the other Investors (which notice shall inform Investors that they have 5 days to notify the Company that they wish to participate in such Shelf Takedown and which notice shall also be sent to each investor pursuant to the Rockmark Registration Rights Agreement); and (b) use its reasonable efforts to include all other Shares (subject to Section 3.1(d)) held by the other Investors requesting inclusion pursuant to Section 3.2(a) included in such Shelf Takedown. 3.3 Registration Procedures. If and whenever the Company is required by any of the provisions of this Article 3 to use its reasonable efforts to effect the registration of any of the Shares pursuant to Rule 415 under the Securities Act, the Company shall: (a) prepare and file with the Commission a registration statement with respect to such securities and use its reasonable efforts to cause such registration statement to become effective and remain effective for as long as shall be necessary to complete the distribution of the Shares so registered; (b) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for so long as shall be necessary to 8 complete the distribution of the Shares so registered and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such registration statement whenever the Investor shall desire to sell or otherwise dispose of the same; (c) furnish to the Investor such numbers of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement, including any preliminary prospectus, and any amendments or supplement thereto, and such other documents, as the Investor may reasonably request in order to facilitate the sale or other disposition of the Shares owned by the Investor; (d) use its reasonable efforts to register and qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as the Investor shall reasonably request, and do any and all other acts and things reasonably requested by the Investor to assist the Investor to consummate the sale or other disposition in such jurisdictions of the securities owned by the Investor, except that the Company shall not for any such purpose be required to qualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified or to file therein any general consent to service of process; (e) otherwise use its reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, beginning with the first fiscal quarter beginning after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act; (f) use its reasonable efforts to list such securities on any securities exchange or interdealer quotation system on which any stock of the Company is then listed, if the listing or quotation of such securities is then permitted under the rules of such exchange or interdealer quotation system; (g) if the Investor intends to dispose of its securities through an underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter or underwriters of such underwritten offering, including, without limitation, to obtain an opinion of counsel to the Company and a "comfort letter" from the independent public accountants to the Company in the usual and customary form for such underwritten offering; (h) notify the Investor, at any time when a prospectus relating to such registration statement is required to be delivered under the Securities Act, of the happening of any event of which it has knowledge as a result of which the prospectus included in such registration statement, as then in effect, contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; (i) with respect to a single Shelf Takedown in the form of an underwritten offering by each Investor, make the Company's executive officers available for a total of 9 five business days to participate in "road show" presentations in New York City, Boston, Philadelphia, Baltimore, Washington D.C. and Chicago and, with respect to any other underwritten Shelf Takedowns by an Investor, make the Company's executive officers available at the Company's principal executive offices to discuss the affairs of the Company at times that may be mutually and reasonably agreed upon; and (j) upon the request of the Investor, take any and all other actions which may be reasonably necessary to complete the registration and thereafter to complete the distribution of the Shares so registered. 3.3 Dribble Out. From and after the time that an Investor's Shares are registered under an effective registration statement under this Article 3, such Investor shall not in any calendar quarter sell, transfer or assign through the facilities of any exchange or quotation system on which the Shares are then listed or quoted a number of Shares to another Person if the aggregate number of Shares so sold, transferred or assigned in such calendar quarter would exceed 5% of the Shares of the Company then outstanding. The foregoing provisions of this Section 3.3 shall not restrict a block (as defined pursuant to Rule 10b-18(a)(5) under the Exchange Act) sale of the Investor's Shares, the transfer of Shares to an Affiliate or any sale of Shares by the Investor pursuant to an underwritten offering. 3.4 Black-Out Period. During the period beginning on the date of each subsequently filed prospectus or prospectus supplement with respect to a Shelf Takedown in the form of an underwritten offering and ending 90 days thereafter (unless a shorter period is agreed to by the managing underwriter for such offering), each Investor agrees that it will not request that the Company register any of its Shares pursuant to this Article 3. The Company may postpone, on one occasion only, each filing of a registration statement under this Article 3 if registration rights granted pursuant to any other holders of securities of the Company have been exercised and the distribution thereto not completed. The period during which the Company may postpone such filing shall commence on the date such registration rights have been commenced and shall terminate 90 days after the effective date of such registration statement; provided, however, that the Company may only utilize this provision to postpone an Investor's right to require the Company to file a registration statement under this Article 3 on one occasion as to each Shelf Registration. 4. PROVISIONS APPLICABLE TO REGISTRATION RIGHTS. 4.1 Expenses. (a) Except as set forth in Section 4.1(b), the expenses specified in the following sentence incurred in any Shelf Registration or Demand Registration (or any attempted Shelf Registration or Demand Registration that is not consummated) of an Investor's Shares under this Agreement shall be paid by the Investor. The expenses referred to in the preceding sentence shall be limited to underwriters' discounts or commissions or fees or fees of placement agents, the expenses of printing and distributing the registration statement and the prospectus used in connection therewith and any amendment or supplement thereto, fees and disbursements of counsel for the Investor. (b) All other expenses incurred in any Shelf Registration or Demand Registration (or any attempted Shelf Registration or Demand Registration that is not 10 consummated) shall be paid by the Company, including, without limitation, (i) the expenses of its internal counsel (and/or, if the Company chooses, its outside counsel) including fees and expenses related to the preparation of the registration statement and the prospectus used in connection therewith and any amendment or supplement thereto, (ii) any necessary accounting expenses, including any special audits which shall be necessary to comply with governmental requirements in connection with any such registration, including the expense related to any comfort letters and (iii) expenses of complying with the securities or blue sky laws of any jurisdictions. 4.2 Indemnification. In the event any Investor's Shares are included in a registration statement under Article 2 or Article 3: (a) Indemnity by Company. Without limitation of any other indemnity provided to an Investor, to the extent permitted by law, the Company will indemnify and hold harmless each Investor, the Affiliates, officers, directors and partners of each Investor, each underwriter (as defined in the Securities Act), and each Person, if any, who controls an Investor or underwriter (within the meaning of the Securities Act), against any losses, claims, damages, liabilities and expenses (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof) arise out of or are based upon any of the following statements, omissions or violations (collectively a "Violation"): (i) any untrue statement or alleged untrue statement of a material fact contained in such registration statements (including any preliminary prospectus or final prospectus contained therein or any amendments or supplements thereto), (ii) the omission or alleged omission to state therein 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, or (iii) any other violation or alleged violation by the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state securities law, and the Company will reimburse each Investor and its Affiliates, officers, directors or partners, underwriter and controlling person for any reasonable legal or other expenses incurred by them in connection with investigating or defending any such loss, claim, damage, liability, expense or action; provided, however, that the Company shall not be liable to any Investor in any such case for any such loss, claim, damage, liability, expense or action to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such registration by such Investor or any Affiliate, officer, director, partner or controlling person thereof. (b) Indemnity by Investors. In connection with any registration statement in which any Investor is participating, the participating Investor(s) will furnish to the Company in writing such reasonably necessary information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the extent permitted by law, will indemnify the Company, its directors and officers and each Person who controls the Company (within the meaning of the Securities Act or Exchange Act) against any losses, claims, damages, liabilities and expenses resulting from any Violation, but only to the extent that such Violation is contained in any information or affidavit so furnished in writing to the Company by such Investor stated to be specifically for use in such registration statement or prospectus (the 11 furnishing of such reasonably necessary information or affidavit by the Investor being a condition precedent to the Company's obligation to cause the registration statement to become effective); provided, that the obligation to indemnify will be several and not joint with any other Person and will be limited to the net amount received by the Investor from the sale of Shares, pursuant to such registration statement. (c) Notice; Right to Defend. Promptly after receipt by an indemnified party under this Section 4.2 of notice of the commencement of any action (including any governmental action), such indemnified party will, if a claim in respect thereof is to be made against any indemnifying party under this Section 4.2, deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying party shall have the right to participate in, and, if the indemnifying party agrees in writing that it will be responsible for any costs, expenses, judgments, damages and losses incurred by the indemnified party with respect to such claim, jointly with any other indemnifying party similarly noticed, to assume the defense thereof with counsel mutually satisfactory to the parties; provided, however, that an indemnified party shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnifying party, if the indemnified party reasonably believes that representation of such indemnified party by the counsel retained by the indemnifying party would be inappropriate due to actual or potential differing interests between such indemnified party and any other party represented by such counsel in such proceeding. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall relieve such indemnifying party of any liability to the indemnified party under this Section 4.2 only if and to the extent that such failure is prejudicial to its ability to defend such action, and the omission so to deliver written notice to the indemnifying party will not relieve it of any liability that it may have to any indemnified party other than under this Section 4.2. (d) Contribution. If the indemnification provided for in this Section 4.2 is held by a court of competent jurisdiction to be unavailable to an indemnified party with respect to any loss, liability, claim, damage or expense referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the indemnified party on the other hand in connection with the statements or omissions which resulted in such loss, liability, claim, damage or expense as well as any other relevant equitable considerations. The relative fault of the indemnifying party and the indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. Notwithstanding the foregoing, the amount an Investor shall be obligated to contribute pursuant to this Section 4.2(d) shall be limited to an amount equal to the proceeds to the Investor of the Shares sold pursuant to the registration statement which gives rise to such obligation to contribute (less the aggregate amount of any damages which the Investor has otherwise been required to pay in respect of such loss, 12 claim, damage, liability or action or any substantially similar loss, claim, damage, liability or action arising from the sale of such Shares). (e) Survival of Indemnity. The indemnification provided by this Section 4.2 shall be a continuing right to indemnification and shall survive the registration and sale of any securities by any Person entitled to indemnification hereunder and the expiration or termination of this Agreement. 4.3 Rule 144. In order to permit each Investor to sell the Shares it holds, if it so desires, from time to time pursuant to Rule 144 promulgated by the Commission or any successor to such rule or any other rule or regulation of the Commission that may at any time permit each Investor to sell its Shares to the public without registration ("Resale Rules"), the Company will: (a) comply with all rules and regulations of the Commission applicable in connection with use of the Resale Rules; (b) make and keep adequate and current public information available, as those terms are understood and defined in the Resale Rules, at all times; (c) file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; (d) furnish to each Investor so long as it owns any Shares, forthwith upon request (i) a written statement by the Company that it has complied with the reporting requirements of the Resale Rules, the Securities Act and the Exchange Act, (ii) a copy of the most recent annual or quarterly report of the Company and any other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested in availing an Investor of any rule or regulation of the Commission which permits the selling of any such Shares without registration; and (e) take any action (including cooperating with each Investor to cause the transfer agent to remove any restrictive legend on certificates evidencing the Shares) as shall be reasonably requested by the Investor or which shall otherwise facilitate the sale of Shares from time to time by the Investor pursuant to the Resale Rules. 4.4 Investor Status and Responsibilities. Each Investor acknowledges the limitations that may be imposed upon the Investor under Section 10 of the Exchange Act and the rules and regulations thereunder in connection with the Investor's sale or transfer of Shares and agrees to sell or transfer any such shares only subject to any such applicable limitations. 4.5 Limitations on Other Registration Rights. Except as otherwise set forth in this Agreement, the Company shall not, without the prior written consent of each Investor include in any registration in which an Investor has a right to participate pursuant to this Agreement any securities of any Person. 4.6 Piggyback Registration Rights. Nothing contained in this Agreement shall confer upon any holder of securities of the Company any right to include any or all of such holder's securities in a registration statement filed by the Company under the Securities Act for the sale of 13 such securities for the Company's own account or in any registration statement filed on behalf of another Investor pursuant to Article 3. 5. MISCELLANEOUS. 5.1 Amendment. This Agreement may be amended, modified or supplemented but only in writing signed by each of the parties hereto. 5.2 Notices. Any notice, request, instruction or other document to be given hereunder by a party hereto shall be in writing and shall be deemed to have been given, (a) when received if given in person or by courier or a courier service, (b) on the date of transmission if sent by telex, facsimile or other wire transmission or (c) three Business Days after being deposited in the U.S. mail, certified or registered mail, postage prepaid: If to the Company, addressed as follows: Strategic Hotel Capital, Inc. 77 West Wacker Drive Chicago, Illinois 60601 Attention: General Counsel Facsimile No.: (312) 658-5000 with a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, New York 10004 Attention: Robert W. Downes Facsimile No.: (212) 558-3588 If to Whitehall 7 or Whitehall 9, addressed as follows: c/o Whitehall Street Real Estate Limited Partnership 85 Broad Street New York, New York 10004 Attention: David M. Weil Facsimile No.: (212) 357-5505 with a copy to: Sullivan & Cromwell LLP 125 Broad Street New York, New York 10004 Attention: Joseph C. Shenker Facsimile No.: (212) 558-3588 If to Prudential or SVI, addressed as follows: The Prudential Insurance Company of America 14 8 Campus Drive, 4th Floor Parsippany, New Jersey 07054 Attention: SVI Portfolio Manager Facsimile No.: (973) 683-1797 with a copy to: Goodwin, Procter LLP 599 Lexington Avenue, 40th Floor New York, New York 10022 Attention: Robert S. Insolia Facsimile No.: (212) 355-3333 or to such other individual or address as a party hereto may designate for itself by notice given as herein provided. 5.3 Waivers. The failure of a party hereto at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by a party of any condition or of any breach of any term, covenant, representation or warranty contained in this Agreement shall be effective unless in writing, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term, covenant, representation or warranty. 5.4 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 5.5 Interpretation. The headings preceding the text of Articles and Sections included in this Agreement and the headings to Exhibits and Schedules attached to this Agreement are for convenience only and shall not be deemed part of this Agreement or be given any effect in interpreting this Agreement. The use of the masculine, feminine or neuter gender herein shall not limit any provision of this Agreement. The use of the terms "including" or "include" shall in all cases herein mean "including, without limitation" or "include, without limitation," respectively. Underscored references to Articles, Sections, Subsections, Exhibits or Schedules shall refer to those portions of this Agreement. 5.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 5.7 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Except as otherwise specifically provided in this Agreement, no assignment of any rights or obligations shall be made by any party without the written consent of each of SVI and Whitehall. Notwithstanding the foregoing, each of the members of the Whitehall Group and each of the members of the SVI Group shall be entitled to assign its rights under this Agreement to any Investor (as such term is defined herein). 15 5.8 No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and no provision of this Agreement shall be deemed to confer upon any third parties any remedy, claim, liability, reimbursement, cause of action or other right. 5.9 Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions hereof shall not be affected thereby, and there shall be deemed substituted for the provision at issue a valid, legal and enforceable provision as similar as possible to the provision at issue. 5.10 Entire Understanding. This Agreement sets forth the entire agreement and understanding of the parties hereto with respect to the matters set forth herein and supersedes any and all prior agreements, arrangements and understandings among the parties. 5.11 Specific Performance. Each of the parties acknowledges that the obligations undertaken by it pursuant to this Agreement are unique and that the other parties will not have an adequate remedy at law if it shall fail to perform any of its obligations hereunder, and each party therefore confirms that the right of each other party hereto to specific performance of the terms of this Agreement is essential to protect the rights and interests of such parties. Accordingly, in addition to any other remedies that the parties may have at law or in equity, each party shall have the right to have all obligations, covenants, agreements and other provisions of this Agreement specifically performed by each other party, and shall have the right to obtain preliminary and permanent injunctive relief to secure specific performance and to prevent a breach or contemplated breach of this Agreement by each other party. 5.12 Reorganization. In connection with any merger, consolidation, sale of all or substantially all of the Company's assets, the Company will use its best efforts to take such actions, or to cause the other party to such transaction to take such actions, to ensure that the parties hereto have, immediately after consummation of such transaction, substantially the same rights in respect of such other Person or the Company, as applicable, as they may have immediately prior to consummation of such transaction in respect of the Company under this Agreement. * * * * * 16 IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date and year first above written. STRATEGIC HOTEL CAPITAL, INC. By: /S/ DAVID E. SIMS ----------------------------------------- Name: David E. Sims Title: Senior Vice President WHSHC, L.L.C. By: Whitehall Street Real Estate Limited Partnership VII By: WH Advisors, L.L.C. VII, general partner By: /S/ TODD GIANNOBLE ------------------------------------ Name: Todd Giannoble Title: Vice President W9/WHSHC, L.L.C. I By: Whitehall Street Real Estate Limited Partnership IX By: WH Advisors, L.L.C. IX, general partner By: /S/ TODD GIANNOBLE ------------------------------------ Name: Todd Giannoble Title: Vice President 17 THE PRUDENTIAL INSURANCE COMPANY OF AMERICA By: Prudential Investment Management, Inc., Its Attorney-in-Fact By: /S/ ROBERT M. FALZON ------------------------------------ Name: Robert M. Falzon Title: Vice President PIC REALTY CORPORATION By: Prudential Investment Management, Inc., its Attorney-in-Fact By: /S/ ROBERT M. FALZON ------------------------------------ Name: Robert M. Falzon Title: Vice President STRATEGIC VALUE INVESTORS, LLC By: Prudential Investment Management, Inc. its Attorney-in-fact By: /S/ ROBERT M. FALZON ------------------------------------ Name: Robert M. Falzon Title: Vice President 18 EX-99.6 6 ex_6.txt EXHIBIT 6: VOTING AGREEMENT EXHIBIT 6 EXECUTION COPY VOTING AGREEMENT THIS VOTING AGREEMENT (this "Agreement") is entered into as of June 8, 2004 and effective upon the closing of the initial public offering of Common Stock (as defined herein) of the Company (as defined below), by and among Laurence Geller ("Geller"), Strategic Hotel Capital, Inc., a Maryland corporation (the "Company"), WHSHC, L.L.C., a Delaware limited liability company and W9/WHSHC, L.L.C. I, a Delaware limited liability company (each of the foregoing, excluding Geller, a "Stockholder" and together the "Stockholders"). WHEREAS, Geller is a member of the board of directors of the Company; WHEREAS, Geller and the Company have entered into an Employment Agreement, dated of even date herewith ("Employment Agreement") providing, among other terms, for the nomination of Geller to the board of directors of the Company from term to term; WHEREAS, the Company is undertaking an initial public offering of shares of common stock, par value $0.01 per share ("Common Stock"); and WHEREAS, Geller and the Stockholders desire to provide herein for certain matters relating to the corporate governance of the Company. NOW, THEREFORE, in consideration of the covenants set forth herein, and for other good and valuable consideration, intending to be legally bound hereby, the parties agree as follows: 1. Voting Agreement. In connection with each meeting of the stockholders of the Company at which directors of the Company are to be elected, so long as this Agreement is in effect and Geller has been duly nominated as a director, each Stockholder agrees to affirmatively Vote all of such Stockholder's shares of capital stock of the Company acquired by the Stockholders upon the initial public offering by the Company and over which such Stockholder has voting power or control ("Covered Shares") in favor of Geller; provided, however, if any Stockholder determines in good faith that to Vote for Geller would likely be a breach of such Stockholder fiduciary obligations to beneficial owners of any of the Stockholders, then such Stockholder will not be obligated to Vote the Covered Shares of the Stockholders in favor of Geller. The failure of Geller to be elected as a director of the Company at any election where Geller is nominated and the Stockholders failed to Vote in favor of Geller pursuant to the prior sentence (including as a result of the proviso in the prior sentence) shall constitute a "Constructive Termination" under the Employment Agreement. The foregoing sentence shall be Geller's sole remedy under this Agreement. For purposes of this Agreement, "Vote" shall include voting in person or by proxy in favor of or against any action, otherwise consenting or withholding consent in respect of any action or taking other action in favor of or against any action. 2. Termination. All rights and obligations hereunder shall terminate at the earlier of (i) such time as the Stockholders (or any affiliate that is under the control of a Stockholder or a successor to such Stockholder or affiliate) own or control such number of Covered Shares representing less than 5% of the voting power to elect directors of the Company; or (ii) the termination of the Employment Agreement. Further, with respect to any Covered Shares (i) that are sold by a Stockholder either on the open market or otherwise (other than to an affiliate that is under the control of a Stockholder), or (ii) in which any person has a security interest and forecloses on such security interest ("Foreclosing Person"), neither the Stockholders nor any purchaser of Covered Shares from the Stockholders or Foreclosing Person will have any obligations under this Agreement with respect to voting the Covered Shares acquired by such purchaser or Foreclosing Person. 3. Miscellaneous. 3.1. Modification and Waiver. No amendment or modification of the terms or provisions of this Agreement shall be binding unless the same shall be in writing and duly executed by each of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provisions hereof. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof. 3.2. Entire Agreement. This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. Any previous agreement or understandings between the parties hereto regarding the subject matter hereof are merged into and superseded by this Agreement. 3.3. Severability. In case any provision in this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 3.4. No Implied Rights. Nothing herein, express or implied, is intended to or shall be construed to confer upon or give to any person, firm, corporation or legal entity, other than the parties hereto, any interest, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby. 2 3.5. GOVERNING LAW. THIS AGREEMENT AND ALL DISPUTES AND CONTROVERSIES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE LAWS OF ANY OTHER JURISDICTION THAT MIGHT BE APPLIED BECAUSE OF THE CONFLICTS OF LAWS PRINCIPLES OF THE STATE OF NEW YORK. 3.6. Successors and Assigns. The provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. 3.7. Notices. All notices and other communications under this Agreement shall be in writing, and shall be deemed to have been duly given on the date of delivery if delivered personally or on the third business day after mailing or if mailed to the party to whom notice is to be given by first class mail, registered or certified, postage prepaid, return receipt requested, and addressed as follows (until any such address is changed by notice duly given): (a) If to Geller, to him at the following address: Strategic Hotel Capital, Inc. 77 West Wacker Drive, Suite 4600 Chicago, Illinois 60601 (b) If to the Company, to it at the following address: Strategic Hotel Capital, Inc. 77 West Wacker Drive, Suite 4600 Chicago, Illinois 60601 Att: General Counsel___________________ (c) If to WHSHC, L.L.C., to it at the following address: Whitehall Street Real Estate Limited Partnership VII c/o 85 Broad Street New York, New York 10004 (d) If to W9/WHSHC, L.L.C. I, to it at the following address: Whitehall Street Real Estate Limited Partnership IX c/o 85 Broad Street New York, New York 10004 3 3.8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. [signatures follow] IN WITNESS WHEREOF, the Stockholders and Geller have executed and delivered this Agreement, or a counterpart hereof, as of the date first written above. LAURENCE GELLER By: /s/ Laurence S. Geller ----------------------------- STRATEGIC HOTEL CAPITAL, INC., By: /s/ David E. Sims ----------------------------- Name: David E. Sims Title: Senior Vice President THE STOCKHOLDERS: WHSHC, L.L.C. By: Whitehall Street Real Estate Limited Partnership VII By: WH Advisors, L.L.C. VII, general partner By: /s/ Todd Giannoble ----------------------------- Name: Todd Giannoble Title: Vice President W9/WHSHC, L.L.C. I By: Whitehall Street Real Estate Limited Partnership IX By: WH Advisors, L.L.C. IX, general partner By: /s/ Todd Giannoble ----------------------------- Name: Todd Giannoble Title: Vice President EX-99.7 7 ex_7.txt EXHIBIT 7: JOINT FILING AGREEMENT EXHIBIT 7 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the Common Stock of Strategic Hotel Capital, Inc., and further agree to the filing of this agreement as an Exhibit thereto. In addition, each party to this Agreement expressly authorizes each other party to this Agreement to file on its behalf any and all amendments to such Statement on Schedule 13D. Dated: July 9, 2004 THE GOLDMAN SACHS GROUP, INC. By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-Fact GOLDMAN, SACHS & CO. By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-Fact WH ADVISORS, L.L.C. VII By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-Fact WH ADVISORS, L.L.C. IX By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-Fact WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VII By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-Fact WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP IX By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-Fact WHSHC, L.L.C. By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-Fact W9/WHSHC, L.L.C. I By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-Fact EX-99.8 8 ex_8.txt EXHIBIT 8: POWER OF ATTORNEY EXHIBIT 8 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that THE GOLDMAN SACHS GROUP, INC. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel, Saskia Brookfied Martin and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of December 12th, 2003. THE GOLDMAN SACHS GROUP, INC. By: s/ Gregory K. Palm - ------------------------------------ Name: Gregory K. Palm Title: Executive Vice President and General Counsel EX-99.9 9 ex_9.txt EXHIBIT 9: POWER OF ATTONEY EXHIBIT 9 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN, SACHS & CO. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel, Saskia Brookfied Martin and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of November 19th, 2003. GOLDMAN, SACHS & CO. By: s/ Gregory K. Palm - ---------------------------- Name: Gregory K. Palm Title: Managing Director EX-99.10 10 ex_10.txt EXHIBIT 10: POWER OF ATTORNEY EXHIBIT 10 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that WH ADVISORS, L.L.C. VII (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 24, 2004. WH ADVISORS, L.L.C. VII By: s/ Elizabeth Burban ----------------------------------- Name: ELIZABETH BURBAN Title: Vice President EX-99.11 11 ex_11.txt EXHIBIT 11: POWER OF ATTORNEY EXHIBIT 11 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that WH ADVISORS, L.L.C. IX (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 24, 2004. WH ADVISORS, L.L.C. IX By: s/ Elizabeth Burban --------------------------------- Name: ELIZABETH BURBAN Title: Vice President EX-99.12 12 ex_12.txt EXHIBIT 12: POWER OF ATTORNEY EXHIBIT 12 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VII (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 24, 2004. WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VII By: WH Advisors, L.L.C. VII By: s/ Elizabeth Burban ----------------------------------- Name: ELIZABETH BURBAN Title: Vice President EX-99.13 13 ex_13.txt EXHIBIT 13: POWER OF ATTORNEY EXHIBIT 13 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP IX (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 24, 2004. WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP IX By: WH Advisors, L.L.C. IX By: s/ Elizabeth Burban --------------------------------- Name: ELIZABETH BURBAN Title: Vice President EX-99.14 14 ex_14.txt EXHIBIT 14: POWER OF ATTORNEY EXHIBIT 14 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that WHSHC, L.L.C. (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 24, 2004. WHSHC, L.L.C. By: s/ Elizabeth Burban ------------------------------------ Name: ELIZABETH BURBAN Title: Vice President EX-99.15 15 ex_15.txt EXHIBIT 15: POWER OF ATTORNEY EXHIBIT 15 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that W9/WHSHC, L.L.C. I (the "Company") does hereby make, constitute and appoint each of Roger S. Begelman, Edward T. Joel and Ted Chang, (and any other employee of The Goldman Sachs Group, Inc. or one of its affiliates designated in writing by one of the attorneys-in-fact), acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the "Act"), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof. THIS POWER OF ATTORNEY shall remain in full force and effect until either revoked in writing by the undersigned or until such time as the person or persons to whom power of attorney has been hereby granted cease(s) to be an employee of The Goldman Sachs Group, Inc. or one of its affiliates. IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 24, 2004. W9/WHSHC, L.L.C. I By: s/ Elizabeth Burban ----------------------------------- Name: ELIZABETH BURBAN Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----