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EXHIBIT 1.1
▇▇▇▇▇▇▇▇ CAPITAL CORPORATION
9,800,000 SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
April_____, 1998
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
EVEREN SECURITIES, INC.
as Representatives of the several Underwriters
c/o Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇ Capital Corporation, a Georgia corporation (the "Company"),
confirms its agreement with Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc., EVEREN
Securities, Inc. and each of the other Underwriters listed on Schedule I hereto
(collectively, the "Underwriters"), for whom Friedman, Billings, ▇▇▇▇▇▇ & Co.,
Inc. and EVEREN Securities, Inc. are acting as representatives (in such
capacity, the "Representatives"), with respect to (i) the sale by the Company
and the purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of common stock of the Company, $.01 par value per share (the
"Common Stock"), set forth in Schedule I hereto and (ii) the grant by the
Company to the Underwriters, acting severally and not jointly, of the option
described in Section 1(b) hereof to purchase all or any part of 1,470,000 shares
of Common Stock to cover over-allotments, if any. The 9,800,000 shares of Common
Stock to be purchased by the Underwriters (the "Initial Shares") and all or any
part of the 1,470,000 shares of Common Stock subject to the option described in
Section 1(b) hereof (the "Option Shares") are hereinafter called, collectively,
the "Shares."
The Company understands that the Underwriters propose to make a public
offering of the Shares as soon as Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. deems
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-11 (No. 333-42629) and a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Company has
prepared and filed such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required. The registration statement has been declared effective
under the Securities Act by the Commission. The registration statement as
amended at the time it became effective (including all information deemed to be
a part of the registration statement at the time it became effective pursuant to
Rule 430A(b) of the Securities Act Regulations) is hereinafter called the
"Registration Statement," except that, if the Company files a post-effective
amendment to such registration statement which becomes effective prior to the
Closing Time (as defined below), "Registration Statement" shall refer to such
registration statement as so amended. Any registration statement filed pursuant
to Rule 462(b) of the Securities Act Regulations is hereinafter called the "Rule
462(b) Registration Statement," and after any such filing the term "Registration
Statement" shall include the 462(b) Registration Statement. Each prospectus
included in the registration statement, or amendments thereof or supplements
thereto, before it became effective under the Securities Act and any prospectus
filed with the Commission by the Company with the consent of the Underwriters
pursuant to Rule 424(a) of the Securities Act Regulations is hereinafter called
the "Preliminary Prospectus." The term "Prospectus" means the final prospectus,
as first filed with the Commission pursuant to paragraph (1) or (4)
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of Rule 424(b) of the Securities Act Regulations, and any amendments thereof or
supplements thereto. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus.
The Company and the Underwriters agree as follows:
1. Sale and Purchase:
(a) Initial Shares. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price per share of $ , the number of
Initial Shares set forth in Schedule I opposite such Underwriter's name,
plus any additional number of Initial Shares which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 8 hereof
subject, in each case, to such adjustments among the Underwriters as
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. in its sole discretion shall make to
eliminate any sales or purchases of fractional shares, provided, however,
that the purchase price per share for up to 686,000 Initial Shares sold by
the Underwriters to the entities set forth on Schedule II shall be
$ .
(b) Option Shares. In addition, upon the basis of the warranties and
representations and other terms and conditions herein set forth, the
Company hereby grants an option to the Underwriters, severally and not
jointly, to purchase from the Company all or any part of the Option Shares
(which Option Shares shall not include any additional shares of Common
Stock to be sold to the entities set forth on Schedule II), at a purchase
price per share of $ , plus any additional number of Option Shares
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 8 hereof. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments, which may be
made in connection with the offering and distribution of the Initial
Shares, upon written notice by Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. to
the Company setting forth the number of Option Shares as to which the
several Underwriters are then exercising the option and the time and date
of payment and delivery for such Option Shares. Any such time and date of
delivery (a "Date of Delivery") shall be determined by Friedman, Billings,
▇▇▇▇▇▇ & Co., Inc., but shall not be later than three full business days
(nor earlier, without the consent of the Company, than two full business
days) after the exercise of said option (and the delivery of such notice),
nor in any event prior to the Closing Time, as hereinafter defined. If the
option is exercised as to all or any portion of the Option Shares, each of
the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Shares then being purchased which
the number of Initial Shares set forth in Schedule I opposite the name of
such Underwriter bears to the total number of Initial Shares, subject in
each case to such adjustments as Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc., in
its sole discretion shall make to eliminate any sales or purchases of
fractional shares.
(c) Terms of Public Offering. The Company is advised by the
Underwriters that the Shares are to be offered to the public initially at
$ per share (the "Public Offering Price") and to certain dealers
selected by the Underwriters at a price that represents a concession not in
excess of $ per share under the Public Offering Price, and that
any Underwriter may allow, and such dealers may reallow, a concession, not
in excess of $ per share, to any Underwriter or to certain other
dealers. The Underwriters may from time to time increase or decrease the
Public Offering Price of the Shares after the initial public offering to
such extent as the Underwriters may determine.
2. Payment and Delivery:
(a) Initial Shares. Payment of the purchase price for the Initial
Shares shall be made to the Company by wire transfer of immediately
available funds or certified or official bank check payable in federal
(same-day) funds at the offices of Hunton & ▇▇▇▇▇▇▇▇, located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (unless another place shall be
agreed upon by Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. and the Company)
against delivery of the certificates for the Initial Shares to the
Representatives for the respective accounts of the Underwriters. Such
payment and delivery shall be made at 9:30 a.m., New
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York City time, on the third (fourth, if pricing occurs after 4:30 p.m.,
New York City time) business day after the date hereof (unless another
time, not later than ten business days after such date, shall be agreed to
by Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. and the Company). The time at
which such payment and delivery are actually made is hereinafter sometimes
called the "Closing Time." At the election of the Representatives made not
later than the date of this Agreement, certificates for the Initial Shares
shall be delivered to the Representatives either (i) in definitive form
registered in such names and in such denominations as the Representatives
shall specify or (ii) through the facility of The Depository Trust Company
to accounts specified by the Representatives. For the purpose of expediting
the checking by the Representatives of the certificates for the Initial
Shares, the Company agrees to make such certificates available to the
Representatives for such purpose at least one full business day preceding
the Closing Time. If the Representatives so elect, delivery of the Initial
Shares may be made by credit through full fast transfer to the accounts at
the Depository Trust Company designated by the Representatives.
(b) Option Shares. In addition, payment of the purchase price for the
Option Shares shall be made to the Company by wire transfer of immediately
available funds or certified or official bank check payable in federal
(same-day) funds at the offices of Hunton & ▇▇▇▇▇▇▇▇ located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (unless another place shall be
agreed upon by Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. and the Company),
against delivery of the certificates for the Option Shares to the
Representatives for the respective accounts of the Underwriters.
Such payment and delivery shall be made at 9:30 a.m., New York City time,
on each Date of Delivery. At the election of the Representatives,
certificates for the Option Shares shall be delivered to the
Representatives either (i) in definitive form registered in such names and
in such denominations as the Representatives shall specify or (ii) through
the facility of the Depository Trust Company to accounts specified by the
Representatives. For the purpose of expediting the checking by the
Representatives of the certificates for the Option Shares the Company
agrees to make such certificates available to the Representatives for such
purpose at least one full business day preceding the relevant Date of
Delivery. If the Representatives so elect, delivery of the Option Shares
may be made by credit through full and fast transfer to the accounts at the
Depository Trust Company designated by the Representatives.
3. Representations and Warranties of the Company and the Partnership. The
Company and ▇▇▇▇▇▇▇▇ Capital Investments, L.P., a Georgia limited partnership
(the "Partnership"), jointly and severally, represent and warrant to the
Underwriters that:
(a) the Company and each Subsidiary of the Company set forth on
Schedule III hereto (each a "Subsidiary" and, collectively the
"Subsidiaries") has been duly formed or incorporated, as the case may be,
and is validly existing and in good standing under the laws of its
respective jurisdiction of formation or incorporation with all requisite
power and authority to own and lease its respective properties and to
conduct its respective business as now conducted and as proposed to be
conducted as described in the Registration Statement and Prospectus and, in
the case of the Company, to authorize, execute and deliver this Agreement,
the Management Agreement (the "Management Agreement"), to be entered into
at or prior to the Closing Time between the Company and ERE Yarmouth, Inc.
(the "Manager"), in substantially the form filed as an exhibit to the
Registration Statement, and the other agreements described in the
Prospectus and listed on Schedule IV attached hereto (the "Other
Transaction Documents") and to consummate the transactions described in
each such agreement; no Subsidiary is prohibited or restricted, directly or
indirectly, from paying dividends or distributions to the Company, or from
making any other distribution with respect to such Subsidiary's capital
stock or interests or from paying the Company or any other Subsidiary, any
loans or advances to such Subsidiary from the Company or such other
Subsidiary, or from transferring any such Subsidiary's property or assets
to the Company or to any other Subsidiary; the Company does not own,
directly or indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any partnership, joint
venture, or other association, other than those listed on Schedule III;
(b) the Company and the Subsidiaries are duly qualified or registered
to transact business in each jurisdiction in which they conduct their
respective businesses as now conducted and as proposed to be conducted as
described in the Registration Statement and the Prospectus and in which the
failure, individually or in the aggregate, to be so qualified or registered
would have a material adverse effect on the business, prospects, assets,
operations, or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole (a "Material Adverse Effect"), and each of
the Company and the Subsidiaries are in good standing in each jurisdiction
in which they own or lease real property or maintain
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an office or in which the nature or conduct of its business as now
conducted or proposed to be conducted as described in the Registration
Statement and the Prospectus requires such qualification, except where the
failure to be in good standing would not have a Material Adverse Effect;
(c) neither the Company nor any of the Subsidiaries is in breach of,
or in default under (nor has any event occurred that with notice, lapse of
time, or both would constitute a breach of, or default under), its
respective articles of incorporation, by-laws, certificate of limited
partnership or partnership agreement, as the case may be, or in the
performance or observance of any obligation, agreement, covenant, or
condition contained in any license, indenture, mortgage, deed of trust,
loan or credit agreement, or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which any of them or
their respective properties is bound, except for such breaches or defaults
that would not have a Material Adverse Effect and the execution, delivery,
and performance of this Agreement, the Management Agreement, and the Other
Transaction Documents, and consummation of the transactions contemplated
hereby and thereby will not conflict with, or result in any breach of, or
constitute a default under (nor constitute any event that with notice,
lapse of time, or both would constitute a breach of, or default under) (i)
any provision of the articles of incorporation, certificate of limited
partnership, or partnership agreement, as the case may be, of the Company
or any of the Subsidiaries, (ii) any provision of any license, indenture,
mortgage, deed of trust, loan or credit agreement, or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or their respective properties may be bound or affected,
or (iii) any federal, state, local, or foreign law, regulation, or rule or
any decree, judgment, or order applicable to the Company or any of the
Subsidiaries, except in the case of clause (ii) for such breaches or
defaults that would not have a Material Adverse Effect; or result in the
creation or imposition of any lien, charge, claim, or encumbrance upon any
property or asset of the Company or the Subsidiaries;
(d) the Company has full legal right, power, and authority to enter
into and perform this Agreement and to consummate the transactions
contemplated herein; this Agreement has been duly authorized, executed, and
delivered by the Company and is a legal, valid, and binding agreement of
the Company 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, whether considered at law or in equity, and except to the extent
that the indemnification and contribution provisions of Section 9 hereof
may be limited by federal or state securities laws and public policy
considerations in respect thereof; the Management Agreement has been duly
authorized by the Company and at the Closing Time will have been duly
executed and delivered by the Company and will constitute a legal, valid,
and binding agreement of the Company 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, whether considered at law or in equity;
(e) the Partnership has full legal right, power and authority to enter
into and perform this Agreement and to consummate the transactions
contemplated herein; this Agreement has been duly authorized, executed and
delivered by the Partnership and is a legal, valid, and binding agreement
of the Partnership 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, whether considered at law or in equity, and except to
the extent that the indemnification and contribution provisions of Section
9 hereof may be limited by federal or state securities laws and public
policy considerations in respect thereof;
(f) the Agreement of Limited Partnership of the Partnership, including
any amendment thereto (the "Partnership Agreement") has been duly and
validly authorized, executed, and delivered by or on behalf of the partners
of the Partnership and is a legal, valid, and binding agreement of the
parties thereto, 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, whether considered at law or in equity;
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(g) the issuance and sale of the Shares to the Underwriters hereunder
have been duly authorized by the Company; when issued and delivered against
payment therefor as provided in this Agreement, the Shares will be validly
issued, fully paid, and non-assessable and the issuance of the Shares will
not be subject to any preemptive or similar rights; no person or entity
holds a right to require or participate in the registration under the
Securities Act of the Shares pursuant to the Registration Statement; no
person or entity has a right of participation or first refusal with respect
to the sale of the Shares by the Company; except as set forth in the
Prospectus, there are no contracts, agreements, or understandings between
the Company and any person or entity granting such person or entity the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to require
the Company to include such securities with the Shares registered pursuant
to the Registration Statement; the form of certificates evidencing the
Shares complies with all applicable legal requirements;
(h) the Other Transaction Documents have been duly authorized and
executed or will have been duly authorized and will be, upon execution and
delivery, as applicable, by the Company, legal, valid, and binding
agreements of the Company enforceable in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors' rights generally, and by
general principles of equity, whether considered at law or in equity;
(i) no approval, authorization, consent, or order of or filing with
any federal, state, or local governmental or regulatory commission, board,
body, authority, or agency is required in connection with the execution,
delivery, and performance of this Agreement, the Management Agreement, and
the Other Transaction Documents, the consummation of the transactions
contemplated hereby and thereby, and the sale and delivery of the Shares,
other than (i) such as have been obtained, or will have been obtained at
the Closing Time or the relevant Date of Delivery, as the case may be,
under the Securities Act, (ii) such approvals as have been obtained in
connection with the approval of the quotation of the Shares on The Nasdaq
National Market and (iii) any necessary qualification under the securities
or "blue sky" laws of the various jurisdictions in which the Shares are
being offered by the Underwriters;
(j) each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents, and approvals and has made all
necessary filings required under any 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
their respective businesses as described in the Registration Statement and
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, have a Material Adverse Effect; neither
the Company nor any of the Subsidiaries is in violation of, in default
under, or has received any written notice regarding a possible violation,
default or revocation of any such license, authorization, consent, or
approval or any federal, state, local, or foreign law, regulation, or rule
or any decree, order, or judgment applicable to the Company or any of the
Subsidiaries, the effect of which reasonably would be likely to have a
Material Adverse Effect; and no such license authorization, consent, or
approval contains a materially burdensome restriction that is not
adequately disclosed in the Registration Statement and the Prospectus;
(k) each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Securities Act and no
stop order suspending the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement has been issued under the Securities
Act and, to the knowledge of the Company, no proceedings for that purpose
have been instituted or are pending or threatened by the Commission, and
any request on the part of the Commission for additional information has
been complied with;
(l) the Company and the transactions contemplated by this Agreement
meet the requirements and conditions for using a registration statement on
Form S-11 under the Securities Act set forth in the General Instructions to
Form S-11; the Preliminary Prospectus and the Registration Statement comply
and the Prospectus and any further amendments or supplements thereto will
comply, when they have become effective or are filed with the Commission,
as the case may be, in all material respects with the requirements of the
Securities Act and the Securities Act Regulations; the Registration
Statement did
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not, and any amendment thereto will not, in each case as of the applicable
effective date, contain any 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; and the Preliminary Prospectus does
not, and the Prospectus or any amendment or supplement thereto will not, as
of the applicable filing date and at the Closing Time and on each Date of
Delivery (if any), contain any 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 the Company makes no
warranty or representation with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in conformity
with the information concerning any Underwriter and furnished by or on
behalf of such Underwriter through the Representatives to the Company
expressly for use in the Registration Statement or the Prospectus (that
information being limited to that described in the last sentence of the
first paragraph of Section 9(b) hereof);
(m) the Preliminary Prospectus that was delivered to the Underwriters
for use in connection with this offering was identical to the version of
the Preliminary Prospectus contained in Amendment No. 2 to the Registration
Statement of the Company transmitted to the Commission for filing via the
Electronic Data Gathering Analysis and Retrieval System ("▇▇▇▇▇"), except
to the extent permitted by Regulation S-T;
(n) all legal or governmental proceedings, contracts, or documents of
a character required to be filed as exhibits to the Registration Statement
or to be summarized or described in the Prospectus have been so filed,
summarized, or described as required;
(o) there are no actions, suits, proceedings, inquiries, or
investigations pending or, to the Company's knowledge, threatened against
the Company or any of the Subsidiaries or any of their respective officers
and directors, or to which the properties, assets, or rights of any such
entity is subject, at law or in equity, before or by any federal, state,
local, or foreign governmental or regulatory commission, board, body,
authority, arbitral panel, or agency that is reasonably likely to result in
a judgment, decree, award, or order that would have a Material Adverse
Effect, or that is reasonably likely to adversely affect the consummation
of the transactions contemplated by this Agreement;
(p) the balance sheet, including the notes thereto, included in the
Registration Statement and the Prospectus present fairly the financial
position of the Company and the Subsidiaries as of the date indicated; such
balance sheet has been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved (except as indicated in the notes thereto); no other financial
statements or schedules are required by Form S-11 or otherwise to be
included in the Registration Statement or Prospectus; the unaudited
performance data, including the notes thereto, included as Appendix A to
the Prospectus or any Preliminary Prospectus fairly presents the
performance of the portfolios referred to therein and complies as to form
in all material respects to the applicable requirements of the Securities
Act and the Securities Act Regulations;
(q) Deloitte & Touche LLP, whose report on the balance sheet of the
Company and the Subsidiaries are included as part of the Registration
Statement and Prospectus, are and were on the date of their report
independent public accountants within the meaning of the Securities Act and
the Securities Act Regulations;
(r) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as may
be otherwise stated in the Registration Statement or Prospectus, there has
not been (i) any material adverse change in the business, prospects,
assets, operations, or condition (financial or otherwise), of the Company
and the Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, (ii) any transaction, other than in the
ordinary course of business, excluding purchases of "Real Estate Related
Assets" (as defined in the Preliminary Prospectus) contemplated or entered
into by the Company or any of the Subsidiaries that is material to the
Company and the Subsidiaries, taken as a whole, (iii) any obligation,
contingent or otherwise, directly or indirectly incurred by the Company or
any of the Subsidiaries, other than in the ordinary course of business,
excluding purchases of Real Estate Related Assets, that is material to the
Company
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and the Subsidiaries, taken as a whole, or (iv) any dividend or
distribution of any kind declared, paid, or made with respect to the
capital stock of the Company or any Subsidiary or with respect to the
partnership interests of the Partnership;
(s) the Shares conform in all material respects to the description
thereof contained in the Registration Statement and the Prospectus under
the heading "Description of Capital Stock"; the Company has an authorized,
issued, and outstanding capitalization as set forth in the Prospectus under
the caption "Capitalization." All of the issued and outstanding shares of
Common Stock of the Company have been duly authorized and are validly
issued, fully paid, and non-assessable, and have been offered, sold, and
issued by the Company in compliance with all applicable laws (including,
without limitation, federal and state securities laws); none of the issued
shares of Common Stock of the Company have been issued in violation of any
preemptive or similar rights; except as disclosed in the Prospectus, there
is no outstanding option, warrant, or other right calling for the issuance
of, and no commitment, plan or arrangement to issue, any shares of Common
Stock of the Company or any security convertible into or exchangeable for
shares of Common Stock of the Company;
(t) all of the issued and outstanding shares of capital stock of
▇▇▇▇▇▇▇▇ ▇▇ Holdings, Inc., a Georgia corporation ("General Partner"), and
▇▇▇▇▇▇▇▇ ▇▇ Holdings, Inc., a Georgia corporation ("Limited Partner"), have
been duly authorized and are validly issued, fully paid, and
non-assessable, and are owned of record and beneficially by the Company,
and have been offered, sold, and issued by the General Partner and the
Limited Partner in compliance with all applicable laws (including, but not
limited to, federal and state securities laws); none of the issued shares
of capital stock of the General Partner and the Limited Partner have been
issued in violation of any preemptive or similar rights; except as
disclosed in the Prospectus, there is no outstanding option, warrant, or
other right calling for the issuance of, and no commitment, plan or
arrangement to issue, any shares of capital stock of the General Partner or
the Limited Partner or any security convertible into or exchangeable for
capital stock of the General Partner or the Limited Partner;
(u) immediately after the Closing Time, all of the issued and
outstanding units of partnership interest in the Partnership ("Units") will
be validly issued, fully paid, and non-assessable; none of the Units has
been or will be issued or is owned or held in violation of any preemptive
right; the Units have been or will be offered, sold, and issued by the
Partnership in compliance with all applicable laws (including, without
limitation, federal and state securities laws); except as disclosed in the
Prospectus, there is no outstanding option, warrant or other right calling
for the issuance of, and no commitment, plan or arrangement to issue any
Unit or any security, convertible into or exchangeable for Units;
(v) each of the Company, the Subsidiaries, and their respective
officers, directors, and controlling persons has not taken, and will not
take, directly or indirectly, any action that is designed to or might
reasonably be expected to cause or result in, or has constituted a,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(w) neither the Company nor any of its affiliates, other than ERE
Yarmouth Capital Markets, Inc., (i) is required to register as a "broker"
or "dealer" in accordance with the provisions of the Securities Exchange
Act of 1934 or the rules and regulations thereunder or (ii) directly, or
indirectly through one or more intermediaries, controls or has any other
association with (within the meaning of Article 1 of the By-laws of the
National Association of Securities Dealers, Inc. (the "NASD")) any member
firm of the NASD;
(x) the Company has not relied upon the Underwriters or legal counsel
for the Underwriters for any legal, tax, or accounting advice in connection
with the offering and sale of the Shares except for advice relating to the
"blue sky" laws of the various jurisdictions in which the Shares are being
offered by the Underwriters and for advice relating to compliance with the
regulations of the National Association of Securities Dealers, Inc.;
(y) any certificate signed by any officer of the Company or any
Subsidiary delivered to the Underwriters or to counsel for the Underwriters
pursuant to or in connection with this Agreement shall be
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deemed a representation and warranty by the Company to the Underwriters as
to the matters covered thereby;
(z) the form of certificate used to evidence the Common Stock complies
in all material respects with any applicable requirements of the articles
of incorporation and by-laws of the Company and the requirements of The
Nasdaq National Market;
(aa) the Company and the Subsidiaries own no material real or personal
property or any other asset and have not entered into any contract or
agreement, whether or not in writing, to purchase material real or personal
property or any other asset and have no material liabilities except as set
forth in the Registration Statement and the Prospectus and since their
inception have had no operations;
(bb) no relationship, direct or indirect, exists between or among the
Company or any of the Subsidiaries on the one hand, and the directors,
trustees, officers, shareholders, customers, or suppliers of the Company or
any of the Subsidiaries on the other hand, that is required by the Act to
be described in the Registration Statement and the Prospectus that is not
so described; and except as disclosed in the Registration Statement and the
Prospectus, there are no material outstanding loans or advances or material
guarantees of indebtedness by the Company or any of the Subsidiaries to or
for the benefit of any of the officers or directors of the Company or any
of the Subsidiaries or any of the members of the families of any of them;
(cc) each of the Company and each Subsidiary owns or has applied to
possess or possesses adequate license or other rights to use all patents,
trademarks, service marks, trade names, copyrights, software and design
licenses, trade secrets, manufacturing processes, other intangible property
rights, and know-how (collectively "Intangibles") necessary to enable the
Company and each Subsidiary to conduct its business as described in the
Prospectus, and neither the Company, nor any Subsidiary, has received
notice of infringement of or conflict with (and knows of no such
infringement of or conflict with) asserted rights of others with respect to
any Intangibles that is reasonably likely to have a Material Adverse
Effect;
(dd) the Company and each of the Subsidiaries will maintain a system
of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions will be executed in accordance with management's
general or specific authorizations, (ii) transactions will be recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets will be permitted only in accordance
with management's general or specific authorization, and (iv) the recorded
accountability for assets will be compared with the existing assets at
reasonable intervals and appropriate action will be taken with respect to
any differences;
(ee) the Company and each of the Subsidiaries has filed on a timely
basis all necessary federal, state, local, and foreign income and franchise
tax returns required to be filed through the date hereof and have paid all
taxes shown as due thereon; and no tax deficiency has been asserted against
the Company or any of the Subsidiaries, nor does the Company or any of the
Subsidiaries know of any tax deficiency that is likely to be asserted
against any such entity that if determined adversely to any such entity, is
reasonably likely to materially adversely affect the business, prospects,
management, properties, assets, results of operations, or condition
(financial or otherwise) of any such entity, respectively; all tax
liabilities are adequately provided for on the respective books of such
entities;
(ff) neither the Company nor any of the Subsidiaries nor, to the best
of the Company's knowledge, any officer, director or trustee purporting to
act on behalf of the Company or any of the Subsidiaries has at any time;
(i) made any contributions to any candidate for political office, or failed
to disclose fully any such contributions, in violation of law, (ii) made
any payment to any state, federal or foreign governmental officer or
official, or other person charged with similar public or quasi-public
duties, other than payments required or allowed by applicable law, (iii)
made any payment outside the ordinary course of business to any investment
officer or loan broker or person charged with similar duties of any entity
to which the Company or any of the Subsidiaries sells or from which the
Company or any of the Subsidiaries buys loans or servicing arrangements for
the purpose of influencing such agent, officer,
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broker or person to buy loans or servicing arrangements from or sell loans
to the Company or any of the Subsidiaries, or (iv) engaged in any
transactions, maintained any bank account or used any corporate funds
except for transactions, bank accounts and funds which have been and are
reflected in the normally maintained books and records of the Company and
the Subsidiaries;
(gg) the Company is organized in conformity with the requirements for
qualification as a real estate investment trust (a "REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"), and the Company's
method of operation will enable it to meet the requirements for taxation as
a REIT under the Code; the Partnership will be treated as a partnership for
federal income purposes and not as a corporation or association taxable as
a corporation;
(hh) in connection with this offering, the Company has not offered and
will not offer its Common Stock or any other securities convertible into or
exchangeable or exercisable for Common Stock in a manner in violation of
the Securities Act or the Securities Act Regulations; the Company has not
distributed and will not distribute any Prospectus or other offering
material in connection with the offer and sale of the Shares, other than to
officers and employees of Lend Lease Corporation ("Lend Lease") and its
subsidiaries and to directors of the company in connection with the share
purchase program described on page 107 of the Preliminary Prospectus (the
"Directed Share Program") and through the Underwriters;
(ii) the Company has complied and will comply with all the provisions
of Florida Statutes, Section 517.075 (Chapter 92-198, Laws of Florida);
neither the Company nor any of the Subsidiaries or affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba;
(jj) neither the Company nor any of the Subsidiaries is, or solely as
a result of transactions contemplated hereby and the application of the
proceeds from the sale of the Shares, will become an "investment company"
or a company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act"); and
(kk) the Company has not incurred any liability for any finder's fees
or similar payments in connection with the transactions herein
contemplated.
4. Certain Covenants of the Company and the Partnership:
The Company and the Partnership hereby covenant with each Underwriter:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or "blue sky" laws of such states as the Representative may
designate and to maintain such qualifications in effect as long as required
for the distribution of the Shares, provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the service
of process under the laws of any such state (except service of process with
respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to
be declared effective before the offering of the Shares may commence, to
cause such post-effective amendment to become effective as soon as
possible;
(c) to prepare the Prospectus in a form approved by the Underwriters
(which approval shall not be unreasonably withheld) and to file such
Prospectus with the Commission pursuant to Rule 424(b) within the time
period prescribed by law, and to furnish promptly (and with respect to the
initial delivery of such Prospectus, not later than (New York
City time), on the day following the execution and delivery of this
Agreement) to the Underwriters as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Company shall have made any
amendments or supplements thereto after the effective date of the
Registration Statement) as the Underwriters may reasonably request for the
purposes contemplated by the Securities Act Regulations, which Prospectus
and any amendments or supplements thereto furnished to the Underwriters
will be identical to the version created to be transmitted to the
Commission for filing via ▇▇▇▇▇, except to the extent permitted by
Regulation S-T;
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(d) to advise the Representatives promptly, confirming such advice in
writing, when any post-effective amendment to the Registration Statement
becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, confirming such advice
in writing, of (i) the receipt of any comments from, or any request by, the
Commission for amendments or supplements to the Registration Statement or
Prospectus or for additional information with respect thereto, or (ii) the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, or of the suspension
of the qualification of the Shares for offering or sale in any
jurisdiction, or of the initiation or threatening (in writing) of any
proceedings for any of such purposes and, if the Commission or any other
government agency or authority should issue any such order, to make every
reasonable effort to obtain the lifting or removal of such order as soon as
possible; to advise the Representatives promptly of any proposal to amend
or supplement the Registration Statement or Prospectus and to file no such
amendment or supplement to which the Representatives shall reasonably
object in writing;
(f) before amending or supplementing the Registration Statement or the
Prospectus, or during any period of time in which a Prospectus relating to
the Shares is required to be delivered under the Securities Act
Regulations, to furnish to the Representatives a copy of each such proposed
amendment or supplement;
(g) to furnish to the Representatives for a period of five years from
the date of this Agreement (i) as soon as available, copies of all annual,
quarterly and current reports or other communications supplied to holders
of Common Stock, (ii) as soon as practicable after the filing thereof,
copies of all reports filed by the Company with the Commission, the NASD or
any securities exchange and (iii) such other publicly available information
as the Underwriters may reasonably request regarding the Company and the
Partnership;
(h) to advise the Representatives promptly during any period of time
in which a Prospectus relating to the Shares is required to be delivered
under the Securities Act Regulations (i) of any material change in the
Company's assets, operations, business, prospects or condition (financial
or otherwise) or (ii) of the happening of any event which would require the
making of any change in the Prospectus then being used so that the
Prospectus would not include any 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, and, during such time, to prepare and
furnish promptly to the Underwriters, at the Company's expense, such
amendments or supplements to the Prospectus as may be necessary to reflect
any such change;
(i) to furnish promptly to the Representatives a copy of the executed
Registration Statement, as initially filed with the Commission, and of all
amendments or supplements thereto (including all exhibits filed therewith)
and such number of conformed copies of the foregoing as the Underwriters
may reasonably request;
(j) to furnish to the Representatives, not less than two business days
before filing with the Commission subsequent to the effective date of the
Prospectus and during the period referred to in paragraph (h) above, a copy
of any document proposed to be filed by the Company with the Commission
pursuant to Section 13, 14, or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act");
(k) to apply the net proceeds of the sale of the Shares substantially
in accordance with the statements set forth under the caption "Use of
Proceeds" in the Prospectus;
(l) to make generally available to its security holders as soon as
practicable, but in any event not later than the end of the fiscal quarter
first occurring after the first anniversary of the effective date of the
Registration Statement, an earnings statement complying with the provisions
of Section 11(a) of the Securities Act (in form, at the option of the
Company, complying with the provisions of Rule 158 of the
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Securities Act Regulations) covering a period of 12 months beginning on the
effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the inclusion of
the Shares on The Nasdaq National Market and to file with The Nasdaq
National Market all documents and notices required by The Nasdaq National
Market of companies that have securities that are included on The Nasdaq
National Market;
(n) to refrain during a period of 180 days from the date of the
Prospectus, without the prior written consent of Friedman, Billings, ▇▇▇▇▇▇
& Co., Inc., from (i) offering, pledging, selling, contracting to sell,
selling any option or contract to purchase, purchasing any option or
contract to sell, granting any option for the sale of, or otherwise
disposing of or transferring, directly or indirectly, any Common Stock or
any securities convertible into or exercisable or exchangeable for Common
Stock, or filing any registration statement under the Securities Act with
respect to any of the foregoing or (ii) entering into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise; the foregoing sentence shall not apply to (A) the Shares
to be sold hereunder, (B) any Common Stock issued by the Company upon the
exercise of an option outstanding on the date hereof or upon the exercise
of any option granted pursuant to any stock option or other plan or
arrangement described in the Prospectus or pursuant to a dividend
reinvestment plan adopted hereafter, or (C) any option to purchase Common
Stock granted pursuant to any stock option or other plan or arrangement
described in the Prospectus;
(o) the Company shall not, and shall use its best efforts to cause its
officers, directors and affiliates not to, (i) take, directly or indirectly
prior to termination of the underwriting syndicate contemplated by this
Agreement, any action designed to stabilize or manipulate the price of any
security of the Company, or which could be reasonably likely to cause or
result in, or which could be reasonably likely to in the future reasonably
be to cause or result in, the stabilization or manipulation of the price of
any security of the Company, to facilitate the sale or resale of any of the
Shares, (ii) sell, bid for, purchase or pay anyone any compensation for
soliciting purchases of the Shares or (iii) pay or agree to pay to any
person any compensation for soliciting any order to purchase any other
securities of the Company;
(p) the Company will maintain a transfer agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar (which may be
the same entity as the transfer agent) for its Common Stock;
(q) the Company will use its best efforts (i) to meet the requirements
to qualify as a REIT under the Code and (ii) to cause the Partnership to be
treated as a partnership for federal income tax purposes;
(r) the Company will comply with all of the provisions of any
undertakings in the Registration Statement;
(s) the Company and the Partnership will conduct their affairs in such
a manner so as to ensure that neither the Company nor the Partnership will
be an "investment company" or an entity "controlled" by an investment
company within the meaning of the 1940 Act;
(t) if at any time during the 30-day period after the Registration
Statement becomes effective, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in the reasonable
opinion of the Representatives the market price of the Common Stock has
been or is likely to be materially affected (regardless of whether such
rumor, publication or event necessitates a supplement to or amendment of
the Prospectus) and after written notice from the Representatives advising
the Company to the effect set forth above, to forthwith prepare, consult
with the Representatives concerning the substance of, and disseminate a
press release or other public statement, reasonably satisfactory to the
Representatives, responding to or commenting on such rumor, publication or
event; and
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(u) to maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
5. Payment of Expenses:
(a) The Company agrees to pay all costs and expenses incident to the
performance of the Company's obligations under this Agreement whether or
not the transactions contemplated hereunder are consummated or this
Agreement is terminated, including, but not limited to, all fees and
expenses of filing with the Commission and the NASD; all "blue sky" fees
and expenses, including filing fees and disbursements of the
Representatives' "blue sky" counsel not to exceed $15,000; fees and
disbursements of counsel and accountants for the Company, and printing
costs, including costs of printing the prospectus, and any amendments
thereto, all underwriting documents, blue sky memoranda, a reasonable
quantity of prospectuses requested by the Representatives, and the
Company's direct road show costs and expenses.
(b) If and only if the offering is not consummated, the Company agrees
to reimburse the Representatives upon request for their reasonable
out-of-pocket expenses incurred in connection with its obligations under
this Agreement, including the fees and disbursements of Hunton & ▇▇▇▇▇▇▇▇,
not to exceed $150,000, provided, that if this Agreement is terminated by
the Underwriters pursuant to any of clause (iii), (iv), or (vii) of the
first paragraph of Section 7 hereof, then the Company shall have no
obligation to so reimburse the Representatives and the Representatives
shall refund to the Company promptly all such reimbursements made prior to
such termination.
(c) Notwithstanding the foregoing, if this Agreement shall be
terminated by the Underwriters, or any of them, because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Company
shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the transactions contemplated herein.
6. Conditions of the Underwriters' Obligations:
The obligations of the Underwriters hereunder are subject to (i) the
accuracy of the representations and warranties on the part of the Company in all
material respects on the date hereof and at the Closing Time and on each Date of
Delivery, (ii) the performance by the Company of its obligations hereunder in
all material respects, and (iii) the following further conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to
be declared effective before the offering of the Shares may commence, such
post-effective amendment shall have become effective not later than 9:30
a.m., New York City time, on the business day following the date of this
Agreement, or at such later date and time as shall be consented to in
writing by the Representatives.
(b) The Company shall furnish to the Underwriters at the Closing Time
and on each Date of Delivery an opinion of King & Spalding, counsel for the
Company, addressed to the Underwriters and dated the Closing Time and each
Date of Delivery and in form reasonably satisfactory to Hunton & ▇▇▇▇▇▇▇▇,
counsel for the Underwriters, stating that:
(i) the authorized shares of common stock of the Company conform as
to legal matters to the description thereof contained in the Prospectus
under the heading "Description of Capital Stock;" the Company has an
authorized capitalization as set forth in the Prospectus under the
caption
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"Capitalization;" the outstanding shares of common stock or capital
stock, as the case may be, of the Company and the Subsidiaries (other
than the Partnership) have been duly and validly authorized and issued
and are fully paid and non-assessable; all of the outstanding shares of
capital stock of or interests in the Subsidiaries, as the case may be,
are directly or indirectly owned of record and, to such counsel's
knowledge, beneficially by the Company; except as disclosed in the
Prospectus, there are no outstanding (i) securities or obligations of
the Company or any of the Subsidiaries convertible into or exchangeable
for any shares of common stock of the Company or any capital stock or
interests in any such Subsidiary, (ii) warrants, rights, or options to
subscribe for or purchase from the Company or any such Subsidiary any
such shares of common stock, capital stock, interests, or any such
convertible or exchangeable securities or obligations, or (iii)
obligations of the Company or any such Subsidiary to issue any shares of
common stock, capital stock, or interests, any such convertible or
exchangeable securities or obligation, or any such warrants, rights, or
options;
(ii) the Company and each of the Subsidiaries (other than the
Partnership) has been duly formed or incorporated, as the case may be,
and is validly existing and in good standing under the laws of its
respective jurisdiction of formation or incorporation with the requisite
power and authority to own its respective properties and to conduct its
respective business as described in the Registration Statement and
Prospectus and, in the case of the Company, to execute and deliver this
Agreement, the Management Agreement, and the Other Transaction Documents
and to consummate the transactions described in each such agreement;
(iii) based solely on such counsel's review of certificates of
public officials, the Company and the Subsidiaries (other than the
Partnership) are duly qualified in and in good standing in each
jurisdiction listed on Schedule V hereto; except as disclosed in the
Prospectus, no Subsidiary is prohibited or restricted, directly or
indirectly, from paying dividends to the Company, or from making any
other distribution with respect to such Subsidiary's capital stock or
interests or from paying the Company or any other Subsidiary, any loans
or advances to such Subsidiary from the Company or such other
Subsidiary, or from transferring any such Subsidiary's property or
assets to the Company or to any other Subsidiary; to such counsel's
knowledge, the Company does not own, directly or indirectly, any capital
stock or other equity securities of any other corporation or any
ownership interest in any partnership, joint venture, or other
association, except as set forth on Schedule III;
(iv) the Partnership has been duly formed and is validly existing
as a limited partnership under the laws of the jurisdiction of its
organization, with all requisite partnership power and authority to own,
lease, and operate its properties and to conduct its business as now
conducted and as proposed to be conducted as described in the
Registration Statement and the Prospectus; based solely on such
counsel's review of certificates of public officials, the Partnership
has been duly qualified to do business as a foreign partnership and is
in good standing in each jurisdiction listed on Schedule V hereto;
(v) to such counsel's knowledge, neither the Company nor any of its
Subsidiaries is in breach of, or in default under (nor has any event
occurred that with notice, lapse of time, or both would constitute a
breach of or default under) its respective articles of incorporation,
by-laws, certificate of limited partnership, or partnership agreement,
as the case may be, or in the performance or observation of any
obligation, agreement, covenant, or condition contained in any license,
indenture, mortgage, deed of trust, loan or credit agreement, or any
other agreement or instrument known to such counsel to which the Company
or any of the Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected or under any law,
regulation, or rule or any decree, judgment, or order applicable to the
Company or any of the Subsidiaries, except such breaches or defaults
that are not reasonably likely to have a Material Adverse Effect;
(vi) the execution, delivery, and performance of this Agreement,
the Management Agreement, and the Other Transaction Documents by the
Company and the consummation by the Company of the transactions
contemplated under this Agreement, the Management Agreement, or the
Other Transaction Documents, as the case may be, do not and will not
conflict with, or result in any breach of, or constitute a default under
(nor constitute any event that with notice, lapse of time, or both
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would constitute a breach of or default under) (i) any provisions of the
articles of incorporation, by-laws, certificate of limited partnership,
or partnership agreement, as the case may be, of the Company or any
Subsidiary, (ii) any provision of any license, indenture, mortgage, deed
of trust, loan or credit agreement, or other agreement or instrument
known to such counsel and to which the Company or any Subsidiary is a
party or by which any of them or their respective properties may be
bound or affected, or (iii) to such counsel's knowledge, any law or
regulation or any decree, judgment, or order applicable to the Company
or any Subsidiary, except in the case of clause (ii) for such conflicts,
breaches, or defaults that individually or in the aggregate are not
reasonably likely to have a Material Adverse Effect;
(vii) the Company has full corporate power, and authority to enter
into and perform this Agreement and to consummate the transactions
contemplated herein; this Agreement has been duly authorized, executed,
and delivered by the Company; the Management Agreement has been duly
authorized by the Company and at the Closing Time will have been duly
executed and delivered by the Company and will constitute a valid, and
binding agreement of the Company enforceable against the Company 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,
whether considered at law or in equity;
(viii) the Partnership has full legal right, power, and authority
to enter into and perform this Agreement and to consummate the
transactions contemplated herein; this Agreement has been duly
authorized, executed, and delivered by the Partnership;
(ix) the Other Transaction Documents have been duly authorized,
executed, and delivered by the Company and are valid and binding
agreements of the Company enforceable in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors' rights generally, and
by general principles of equity, whether considered at law or in equity;
(x) no approval, authorization, consent, or order of or filing with
any federal or state governmental or regulatory commission, board, body,
authority, or agency is required in connection with the execution,
delivery, and performance of this Agreement, the Management Agreement,
and the Other Transaction Documents or the consummation of the
transactions contemplated hereby and thereby by the Company and the
Partnership, the sale and delivery of the Shares by the Company as
contemplated hereby other than such as have been obtained or made under
the Securities Act and except that such counsel need express no opinion
as to any necessary qualification under the state securities or "blue
sky" laws or real estate syndication laws of the various jurisdictions
in which the Shares are being offered by the Underwriters or any
approval of the underwriting terms and arrangements by the NASD;
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materially burdensome restriction that is not adequately disclosed in
the Registration Statement and the Prospectus;
(xi) the Shares have been duly authorized and, when the Shares
have been issued and delivered against payment therefor as contemplated
by this Agreement, the Shares will be validly issued, fully paid, and
nonassessable, free and clear of any pledge, lien, encumbrance, security
interest, or other claim;
(xii) the issuance and sale of the Shares by the Company is not
subject to preemptive or other similar rights arising by operation of
law, under the articles of incorporation or by-laws of the Company,
under any agreement known to such counsel to which the Company or any of
the Subsidiaries is a party;
(xiii) to such counsel's knowledge, except as described in the
Registration Statement, there are no persons with registration or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
Securities Act;
(xiv) the form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the articles of
incorporation and by-laws of the Company and the requirements of The
Nasdaq National Market;
(xv) the Registration Statement has become effective under the
Securities Act and to such counsel's knowledge, based solely upon
telephonic confirmation by the Commission, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings with respect thereto have been commenced or threatened;
(xvi) as of the effective date of the Registration Statement, the
Registration Statement and the Prospectus as of its date, complied as to
form in all material respects with the requirements of the Securities
Act and the Securities Act Regulations (except as to the financial
statements and other financial and statistical data contained therein,
as to which such counsel need express no opinion);
(xvii) the statements under the captions "Distribution Policy,"
"Tax Status of the Company," "Certain Provisions of Georgia Law and of
the Company's Articles of Incorporation and Bylaws," "Description of
Capital Stock," "Common Stock Available for Future Sale," "Federal
Income Tax Considerations," "ERISA Considerations," and "Certain Legal
Aspects of Mortgage Loans and Real Property Investments," in the
Registration Statement and the Prospectus, insofar as such statements
constitute a summary of the legal matters referred to therein,
constitute accurate summaries thereof in all material respects;
(xviii) to such counsel's knowledge, there are no actions, suits,
or proceedings, inquiries, or investigations pending or threatened
against the Company or any of the Subsidiaries or any of their
respective officers and directors or to which the properties, assets, or
rights of any such entity are subject, at law or in equity, before or by
any federal, state, local, or foreign governmental or regulatory
commission, board, body, authority, arbitral panel, or agency that if
determined adversely to the Company, would have a Material Adverse
Effect; and to such counsel's knowledge, there are no contracts or
documents of a character that are required to be filed as exhibits to
the Registration Statement or to be described or summarized in the
Prospectus that have not been so filed, summarized, or described;
(xix) the Company is organized in conformity with the requirements
for qualification as a REIT pursuant to Sections 856 through 860 of the
Code, and the Company's proposed method of operation will enable it to
meet the requirements for qualification and taxation as a REIT under the
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Code; the Partnership will be treated as a partnership for federal
income purposes and not as a corporation or an association taxable as a
corporation; and
(xx) neither the Company nor any of the Subsidiaries is, or
solely as a result of transactions contemplated hereby and the
application of the proceeds from the sale of the Shares, as described in
the Prospectus, will become an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, independent
public accountants of the Company and the Representatives at which the contents
of the Registration Statement and Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility for the accuracy,
completeness, or fairness of the statements contained in the Registration
Statement or Prospectus (except as and to the extent stated in subparagraphs
(xvi) and (xxi) above), they have no reason to believe that the Registration
Statement, the Preliminary Prospectus or the Prospectus, as of their respective
effective or issue dates and as of the date of such counsel's opinion, contained
or contains any untrue statement of a material fact or omitted or omits 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 (it being understood that, in each case, such counsel need
express no view with respect to the financial statements and other financial and
statistical data included in the Registration Statement, Preliminary Prospectus
or Prospectus).
(c) The Representatives shall have received from Deloitte & Touche
LLP, letters dated, respectively, as of the date of this Agreement, the
Closing Time and each Date of Delivery, as the case may be, addressed to
the Representatives as representatives of the Underwriters and in form and
substance satisfactory to the Representatives.
(d) The Representatives shall have received at the Closing Time and on
each Date of Delivery the favorable opinion of Hunton & ▇▇▇▇▇▇▇▇, dated the
Closing Time or such Date of Delivery, addressed to the Representatives and
in form and substance satisfactory to the Representatives.
(e) No amendment or supplement to the Registration Statement or
Prospectus shall have been filed to which the Representatives shall have
reasonably objected in writing.
(f) Prior to the Closing Time and each Date of Delivery (i) no stop
order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus has been issued by the Commission, and no suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes,
has occurred; and (ii) the Registration Statement and the Prospectus shall
not contain an untrue statement of 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.
(g) Between the time of execution of this Agreement and the Closing
Time or the relevant Date of Delivery (i) no material and unfavorable
change in the business, prospects, properties, assets, results of
operations, or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, shall occur or become known (whether or not
arising in the ordinary course of business) that makes it, in the sole
judgment of the Representatives, impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus, or (ii) no
transaction which is material and unfavorable to the Company shall have
been entered into by the Company or the Partnership.
(h) At the Closing Time, the Other Transaction Documents shall have
been entered into and delivered by all required parties.
(i) At the Closing Time, the representations contained in the
Manager's Representations and Indemnification Agreement shall be true and
correct;
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(j) At the Closing Time or the relevant Times of Delivery, the Shares
shall have been approved for inclusion on The Nasdaq National Market.
(k) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(l) The Representatives shall have received letters from Lend Lease
and each officer and director of the Company who participates in the
Directed Share Program, in form and substance satisfactory to the
Representatives, confirming that for a period of two years with regard to
Lend Lease and one year with, regard to each officer and director of the
Company and each participant in the Directed Share Program, after the
Closing Time, such persons will not directly or indirectly (i) offer,
pledge to secure any obligation due on or within the time period specified
in the applicable letter, sell or contract to purchase, purchase any option
or contract to sell, grant any option for the sale of, or otherwise dispose
of or transfer (other than a disposition or transfer pursuant to which the
acquiror or transferee is subject to the restrictions on disposition and
transfer set forth in this Section 6(k) to the same extent as such
stockholder delivering a letter hereunder), directly or indirectly, any
Common Stock (other than by participating as selling stockholders in a
registered offering of Common Stock offered by the Company with the consent
of the Representatives) or any securities convertible into or exercisable
or exchangeable for Common Stock or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise, without the prior written consent of the Representative,
which consent may be withheld at the sole discretion of the
Representatives, except that Lend Lease may transfer shares of Common Stock
or options to purchase Common Stock to employees of Lend Lease.
(m) The Company will, at the Closing Time and on each Date of
Delivery, deliver to the Representatives a certificate of the Chief
Executive Officer and the Chief Financial Officer of the Company to the
effect that, to each of such officer's knowledge, the representations and
warranties of the Company set forth in this Agreement are true and correct
as of such date and the conditions set forth in paragraphs (f), (g), (h)
and (i) have been met.
(n) The Company shall have furnished to the Representatives such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus, the
representations, warranties and statement of the Company contained herein,
and the performance by the Company of its covenants contained herein, and
the fulfillment of any conditions contained herein as of the Closing Time
or any Date of Delivery as the Representatives may reasonably request.
(o) All filings with the Commission required by Rule 424 under the
Securities Act shall have been made within the applicable time period
prescribed for such filing by such Rule.
(p) The Company shall perform such of its obligations under this
Agreement as are to be performed by the terms hereof and thereof at or
before the Closing Time or the relevant Date of Delivery.
The several obligations of the Underwriters to purchase Option Shares
hereunder are subject to the delivery to the Representatives on the Date if
Delivery of such documents as the Representatives may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Option Shares and other matters related to the issuance of the Option
Shares.
7. Termination:
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of the Representatives, at any time prior
to the Closing Time or any Date of Delivery (i) if any of the conditions
specified in Section 6 shall not have been fulfilled when and as required by
this Agreement to be fulfilled, or (ii) if there has been since the respective
dates as of which information is given in the Registration Statement, any
material adverse change, or any development involving a prospective material
adverse change,
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in or affecting the business, prospects, management, properties, assets, results
of operations, or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, whether or not arising in the ordinary course of
business, or (iii) if there has occurred any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic, political or other conditions the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representative, impracticable to market or deliver the Shares or enforce
contracts for the sale of the Shares, or (iv) if trading in any securities of
the Company has been suspended by the Commission or by Nasdaq or if trading
generally on the New York Stock Exchange or in the Nasdaq over-the-counter
market has been suspended (including automatic halts in trading pursuant to
market-decline triggers other than those in which solely program trading is
temporarily halted), or limitations on prices for trading (other than
limitations on hours or numbers of days of trading) have been fixed, or maximum
ranges for prices for securities have been required, by such exchange or the
NASD or Nasdaq or by order of the Commission or any other governmental
authority, or (v) if there has been any downgrading in the rating of any of the
Company's debt securities or preferred stock by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Securities Act), or (vi) any federal or state statute, regulation, rule or
order of any court or other governmental authority has been enacted, published,
decreed or otherwise promulgated which in the reasonable opinion of the
Representative has a material adverse affect or will have a material adverse
affect on the assets, operations, business, prospects or condition (financial or
otherwise) of the Company, or (vii) any action has been taken by any federal,
state or local government or agency in respect of its monetary or fiscal affairs
which in the opinion of the Representatives has a material adverse effect on the
securities markets in the United States.
If the Representative elects to terminate this Agreement as provided in
this Section 7, the Company and the Underwriters shall be notified promptly by
telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply in all material respects with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5 and 9 hereof) and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. Increase in Underwriters' Commitments:
If any Underwriter shall default at the Closing Time or on a Date of
Delivery in its obligation to take up and pay for the Shares to be purchased by
it under this Agreement on such date, the Representatives shall have the right,
within 36 hours after such default, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Shares which such Underwriter shall have agreed but failed
to take up and pay for (the "Defaulted Shares"). Absent the completion of such
arrangements within such 36 hour period, (i) if the total number of Defaulted
Shares does not exceed 10% of the total number of Shares to be purchased on such
date, each non-defaulting Underwriter shall take up and pay for (in addition to
the number of Shares which it is otherwise obligated to purchase on such date
pursuant to this Agreement) the portion of the total number of Shares agreed to
be purchased by the defaulting Underwriter on such date in the proportion that
its underwriting obligations hereunder bears to the underwriting obligations of
all non-defaulting Underwriters; and (ii) if the total number of Defaulted
Shares exceeds 10% of such total, the Representative may terminate this
Agreement by notice to the Company, without liability to any non-defaulting
Underwriter.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Shares hereunder on such date unless all of the Shares to be
purchased on such date are purchased on such date by the Underwriters (or by
substituted Underwriters selected by the Representatives with the approval of
the Company or selected by the Company with the approval of the
Representatives).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company or the
non-defaulting Underwriters shall have the right to postpone the
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Closing Time or the relevant Date of Delivery for a period not exceeding five
business days in order that any necessary changes in the Registration Statement
and Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include
any Underwriter substituted under this Section 8 with the like effect as if such
substituted Underwriter had originally been named in this Agreement.
9. Indemnity and Contribution by the Company, the Partnership and the
Underwriters:
(a) The Company and the Partnership, jointly and severally agree to
indemnify, defend and hold harmless each Underwriter and any person who
controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any loss, expense,
liability, damage or claim (including the reasonable cost of investigation)
which, jointly or severally, any such Underwriter or controlling person may
incur under the Securities Act, the Exchange Act or otherwise, insofar as
such loss, expense, liability, damage or claim arises out of or is based
upon (i) any breach of any representation, warranty or covenant of the
Company or the Partnership contained herein or (ii) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration Statement
or Prospectus or necessary to make the statements made therein, in the
light of the circumstances under which they were made, not misleading,
except insofar as any such loss, expense, liability, damage or claim arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in and in
conformity with information furnished in writing by the Underwriters
through the Representatives to the Company or the Partnership expressly for
use in such Registration Statement or such Prospectus; provided, however,
that the indemnity agreement contained in this subsection (a) with respect
to the Prospectus shall not inure to the benefit of an Underwriter (or to
the benefit of any person controlling such Underwriter) with respect to any
person asserting any such loss, expense, liability, damage or claim which
is the subject thereof if the Prospectus or any supplement thereto prepared
with the consent of the Representatives and furnished to the Underwriters
prior to the Closing Time corrected any such alleged untrue statement or
omission and if such Underwriter failed to send or give a copy of the
Prospectus or supplement thereto to such person at or prior to the written
confirmation of the sale of Shares to such person, unless such failure
resulted from noncompliance by the Company or the Partnership with Section
4(a) of this Agreement.
If any action is brought against an Underwriter or controlling person
in respect of which indemnity may be sought against the Company or the
Partnership pursuant to the preceding paragraph, such Underwriter shall
promptly notify the Company and the Partnership in writing of the
institution of such action and the Company and the Partnership shall assume
the defense of such action, including the employment of counsel and payment
of expenses; provided, however, that any failure or delay to so notify the
Company or the Partnership will not relieve the Company or the Partnership
of any obligation hereunder, except to the extent that its ability to
defend is actually impaired by such failure or delay. Such Underwriter or
controlling person shall have the right to employ its or their own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless the
employment of such counsel shall have been authorized in writing by the
Company and the Partnership in connection with the defense of such action
or the Company and the Partnership shall not have employed counsel to have
charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which
are different from or additional to those available to the Company or the
Partnership and which counsel to the Underwriter believes may present a
conflict for counsel representing the Company or the Partnership and the
Underwriter (in which case the Company and the Partnership shall not have
the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be
borne by the Company and the Partnership and paid as incurred (it being
understood, however, that the Company and the Partnership shall not be
liable for the expenses of more than one
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separate firm of attorneys for the Underwriters or controlling persons in
any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action).
Anything in this paragraph to the contrary notwithstanding, neither the
Company nor the Partnership shall be liable for any settlement of any such
claim or action effected without the its written consent.
(b) Each Underwriter agrees, severally and not jointly, to indemnify,
defend and hold harmless the Partnership, the Company, its directors and
officers who signed the Registration Statement and any person who controls
the Partnership or the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any loss,
expense, liability, damage or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company, the Partnership or
any such person may incur under the Securities Act, the Exchange Act or
otherwise, insofar as such loss, expense, liability, damage or claim arises
out of or is based upon any untrue statement or alleged untrue statement of
a material fact contained in and in conformity with information furnished
in writing by such Underwriter through the Representatives to the Company
or the Partnership expressly for use in the Registration Statement (or in
the Registration Statement as amended by any post-effective amendment
thereof by the Company) or in a Prospectus, or arises out of or is based
upon any omission or alleged omission to state a material fact in
connection with such information required to be stated either in the
Registration Statement or Prospectus or necessary to make such information,
in the light of the circumstances under which made, not misleading. The
statements set forth in the last paragraph on the cover page and under the
first, second, third and ninth paragraphs under the caption "Underwriting,"
and the information regarding "Stabilizing" and "Passive Market Making" in
the Preliminary Prospectus and the Prospectus (all to the extent such
statements relate to the Underwriters) constitute the only information
furnished by or on behalf of any Underwriter through the Representative to
the Company for purposes of Section 3(n) and this Section 9.
If any action is brought against the Company, the Partnership or any
such person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company, the
Partnership or such person shall promptly notify the Representatives in
writing of the institution of such action and the Representatives, on
behalf of the Underwriters, shall assume the defense of such action,
including the employment of counsel and payment of expenses. The Company,
the Partnership or such person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall
be at the expense of the Company, the Partnership or such person unless the
employment of such counsel shall have been authorized in writing by the
Representatives in connection with the defense of such action or the
Representatives shall not have employed counsel to have charge of the
defense of such action within a reasonable time or such indemnified party
or parties shall have reasonably concluded (based on the advice of counsel)
that there may be defenses available to it or them which are different from
or additional to those available to the Underwriters (in which case the
Representatives shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by such Underwriter and paid
as incurred (it being understood, however, that the Underwriters shall not
be liable for the expenses of more than one separate firm of attorneys in
any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action).
Anything in this paragraph to the contrary notwithstanding, no Underwriter
shall be liable for any settlement of any such claim or action effected
without the written consent of the Representatives.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, expenses, liabilities, damages or
claims referred to therein, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
expenses, liabilities, damages or claims (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Partnership on the one hand and the Underwriters on the other hand from
the offering of the Shares or (ii) if (but only if) the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the
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Partnership on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
expenses, liabilities, damages or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Partnership on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting
expenses) received by the Company and the Partnership bear to the
underwriting discounts and commissions received by the Underwriters. The
relative fault of the Company and the Partnership on the one hand and of
the Underwriters on the other shall be determined by reference to, among
other things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission relates to information
supplied by the Company or the Partnership or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages and
liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
(d) The Company and the Partnership, on the one hand, and the
Underwriters, on the other, agree that it would not be just and equitable
if contribution pursuant to this Section 9 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 in subsection (c)(i) and, if
applicable (ii), above. Notwithstanding the provisions of this Section 9,
no Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased
by such Underwriter. 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 to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
10. Survival:
The indemnity and contribution agreements contained in Section 9 and the
covenants, warranties and representations of the Company and the Partnership
contained in Sections 3, 4 and 5 of this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf of any
Underwriter, or any person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, or by or on
behalf of the Company and the Partnership and the Company's officers or any
person who controls the Company or the Partnership within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, and shall survive
any termination of this Agreement or the sale and delivery of the Shares. The
Company, the Partnership and each Underwriter agree promptly to notify the
others of the commencement of any litigation or proceeding against it and, in
the case of the Company, against any of the Company's officers and trustees, in
connection with the sale and delivery of the Shares, or in connection with the
Registration Statement or Prospectus.
11. Notices:
Except as otherwise herein provided, all statements, requests, notices and
agreements shall be in writing or by telegram and, if to the Underwriters, shall
be sufficient in all respects if delivered to Friedman, Billings, ▇▇▇▇▇▇ & Co.,
Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate
Department; if to the Company or the Partnership, shall be sufficient in all
respects if delivered to the Company at the offices of the Company at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
12. Governing Law; Consent to Jurisdiction; Headings:
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
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The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Parties in Interest:
The Agreement herein set forth has been and is made solely for the benefit
of the Underwriters, the Company, the Partnership and the controlling persons,
trustees and officers referred to in Sections 9 and 10 hereof, and their
respective successors, assigns, executors and administrators. No other person,
partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. Counterparts:
This Agreement may be signed by the parties in counterparts which together
shall constitute one and the same agreement among the parties.
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If the foregoing correctly sets forth the understanding among the Company
and the Underwriters, please so indicate in the space provided below for the
purpose, whereupon this Agreement shall constitute a binding agreement among the
Company, the Partnership and the Underwriters.
Very truly yours,
▇▇▇▇▇▇▇▇ CAPITAL CORPORATION
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇ CAPITAL INVESTMENTS, L.P.
By: ▇▇▇▇▇▇▇▇ ▇.▇. Holdings, Inc.
Its: General Partner
By:
------------------------------------
Name:
Title:
Accepted and agreed to as
of the date first above written:
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
EVEREN SECURITIES, INC.
as Representatives of the several
Underwriters
BY: FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
By:
----------------------------------
Name:
Title:
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SCHEDULE I
NUMBER OF
INITIAL SHARES TO
UNDERWRITER BE PURCHASED
----------- -----------------
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.......................
EVEREN Securities, Inc......................................
---------
Total............................................. 9,800,000
=========
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SCHEDULE II
The Equitable Life Assurance Society of the United States
ERE ▇▇▇▇▇ Joint Venture
Colorado Public Employee Retirement Association
Stanford University
Ohio Police & Fire
Denver Public Schools
Equitable Life Pension Fund
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SCHEDULE III
SUBSIDIARIES OF THE COMPANY
▇▇▇▇▇▇▇▇ ▇.▇. Holdings, Inc.
▇▇▇▇▇▇▇▇ ▇.▇. Holdings, Inc.
▇▇▇▇▇▇▇▇ Capital Investments, L.P.
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SCHEDULE IV
OTHER TRANSACTION DOCUMENTS
Stock Purchase Agreement dated December 17, 1997 between ▇▇▇▇▇▇▇▇ Capital
Corporation and Yarmouth Lend Lease Holdings, Inc.
Stock Purchase Agreement dated December 17, 1997 between ▇▇▇▇▇▇▇▇ Capital
Corporation and Yarmouth Lend Lease Holdings, Inc.
Registration Rights Agreement dated December 17, 1998 between ▇▇▇▇▇▇▇▇ Capital
Corporation and FBR Asset Investment Corporation.
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SCHEDULE V
JURISDICTIONS IN WHICH THE COMPANY AND ITS SUBSIDIARIES IS QUALIFIED
28
