Exhibit 1.1
AMERICAN HOME MORTGAGE INVESTMENT CORP.
SHARES OF COMMON STOCK
WARRANTS TO PURCHASE COMMON STOCK
SHARES OF PREFERRED STOCK
WARRANTS TO PURCHASE PREFERRED STOCK
DEBT SECURITIES
UNDERWRITING AGREEMENT
Dated: ______________, ____
[NAME OF UNDERWRITER]
[ADDRESS OF UNDERWRITER]
Ladies and Gentlemen:
American Home Mortgage Investment Corp., a Maryland corporation that
has elected to be taxed as a real estate investment trust (the "Company"),
confirms its agreement with each of the Underwriters listed on Schedule I hereto
(collectively, the "Underwriters"), for whom [ ] are acting as
representatives (in such capacity, the "Representatives"), with respect to (i)
the sale by the Company of (a) [ ] shares of Common Stock, par value $0.01
per share, of the Company ("Common Stock"), (b) [ ] shares of preferred
stock, par value $0.01 per share, of the Company ("Preferred Stock"), (c)
[ ] warrants to purchase Common Stock ("Common Stock Warrants"), (d)
[ ] warrants to purchase Preferred Stock ("Preferred Stock Warrants")
and/or (e) $[ ] in aggregate principal amount of debt securities of the
Company ("Debt Securities"), or any combination thereof (the "Initial
Securities"), and the purchase by the Underwriters, acting severally and not
jointly, of the respective number or amount of Initial Securities set forth
opposite the names of the Underwriters in Schedule I hereto, and (ii) the grant
of the option described in Section 1(b) hereof to purchase all or any part of
[ ] additional shares of Common Stock, [ ] additional shares of
Preferred Stock, [ ] additional Common Stock Warrants, [ ] additional
Preferred Stock Warrants and/or an additional $[ ] in Debt Securities to
cover over-allotments (the "Option Securities"), if any, from the Company to the
Underwriters, acting severally and not jointly, in the respective number or
amount of Option Securities set forth opposite the names of the Underwriters in
Schedule I hereto. The Initial Securities to be purchased by the Underwriters
and all or any part of the Option Securities subject to the option described in
Section l(b) hereof are hereinafter referred to collectively as the
"Securities."
The Company understands that the Underwriters propose to make a
public offering of the Securities as soon as the Underwriters deem 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-3 (No. 333-_____) and a
related preliminary
prospectus for the registration of the Securities under the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
thereunder. 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 documents filed as a part thereof or incorporated by reference therein, and
including any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Securities Act and deemed (whether
by incorporation by reference or otherwise) to be a part of the registration
statement at the time it became effective pursuant to Rule 430A(b) under the
Securities Act) 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) under the
Securities Act is hereinafter called the "Rule 462(b) Registration Statement,"
and after such filing the term "Registration Statement" shall include the 462(b)
Registration Statement. Each preliminary prospectus included in the registration
statement, or amendments thereof or supplements thereto before it became
effective under the Securities Act, and any preliminary prospectus supplement
filed with the Commission by the Company with the consent of the Underwriters
pursuant to Rule 424(b) under the Securities Act is hereinafter called the
"Preliminary Prospectus." The term "Prospectus" means the final prospectus
relating to the Securities, as first filed with the Commission pursuant to Rule
424(b) under the Securities Act, and any amendments thereof or supplements
thereto. The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus. Any reference herein to the Registration
Statement, the Prospectus, any Preliminary Prospectus or any amendment or
supplement thereto shall be deemed to refer to and include the documents
incorporated by reference therein, and any reference herein to the terms
"amend," "amendment" or "supplement," with respect to the Registration
Statement, the Prospectus or any Preliminary Prospectus, shall be deemed to
refer to and include the filing after the execution hereof of any document with
the Commission deemed to be incorporated by reference therein.
The Company and the Underwriters hereby agree as follows:
1. Sale and Purchase:
(a) Initial Securities. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, at
the purchase price of [ ], the Company agrees to sell to the
Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from the Company the number or amount of
Initial Securities set forth in Schedule I opposite such
Underwriter's name, plus any additional number or amount of Initial
Securities 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 the Representatives in
their sole discretion shall make to eliminate any sales or purchases
of fractional shares. The Underwriters may from
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time to time increase or decrease the public offering price after
the initial public offering to such extent as the Underwriters may
determine.
(b) Option Securities. In addition, upon the basis of the
warranties and representations and other terms and conditions herein
set forth, at the purchase price per share set forth in paragraph
(a), the Company hereby grants an option to purchase to the
Underwriters, acting severally and not jointly, in the respective
number or amount of Option Securities set forth opposite the names
of the Underwriters in Schedule I hereto, plus any additional number
of Option Securities 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 Securities upon notice by
the Representatives to the Company setting forth the number of
Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery
for such Option Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by the Representatives, but
shall not be later than ten full business days (or earlier, without
the consent of the Company, than two full business days) after the
exercise of said option, 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 Securities, each of the Underwriters, acting
severally and not jointly, will purchase the number of Option
Securities which the Company has been advised by the Representatives
have been attributed to such Underwriter or, if the Company has not
been so advised, that proportion of the total number of Option
Securities then being purchased which the number of Initial
Securities set forth in Schedule I opposite the name of such
Underwriter bears to the total number of Initial Securities, subject
in each case to such adjustments among the Underwriters as the
Representatives in their sole discretion shall make to eliminate any
sales or purchases of fractional shares. The Underwriters may from
time to time increase or decrease the public offering price of the
Option Securities after the initial public offering to such extent
as the Underwriters may determine.
2. Payment and Delivery:
(a) Initial Securities. Payment of the purchase price for the
Initial Securities shall be made to the Company by wire transfer of
immediately available funds against delivery of the certificates for
the Initial Securities to the Representatives through the facilities
of the Depository Trust Company (DTC) for the respective accounts of
the Underwriters. Such payment and delivery shall be made at 9:30
a.m., New York City time, on the third (or 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 the Representatives and the
Company). The time at which such payment and delivery are actually
made is hereinafter sometimes called the "Closing Time." Electronic
transfer of the Initial Securities shall be made to the
Representatives at
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the Closing Time in such names and in such denominations as the
Representatives shall specify.
(b) Option Securities. In addition, payment of the purchase
price for the Option Securities shall be made to the Company by wire
transfer of immediately available funds against delivery of the
certificates for the Option Securities to the Representatives
through DTC 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 determined pursuant to Section 1(b) above.
The time at which such payment and delivery are actually made is
hereinafter sometimes called the "Option Closing Time." Electronic
transfer of the Option Securities shall be made to the
Representatives at the Option Closing Time in such name and in such
denominations as the Representatives shall specify.
3. Representations and Warranties of the Company:
The Company represents and warrants to the Underwriters that:
(a) the Company has an authorized and outstanding
capitalization as set forth in the Prospectus under the caption
"Capitalization;" the outstanding shares of capital stock of the
Company and its Subsidiaries have been duly and validly authorized
and issued and are fully paid and non-assessable and were not issued
in violation of any preemptive right, resale right, right of first
refusal or similar right, and all of the outstanding shares of
capital stock of the Subsidiaries are directly or indirectly owned
of record and beneficially by the Company; except as disclosed in
the Prospectus, there are no outstanding (i) securities or
obligations of the Company or any of its Subsidiaries convertible
into or exchangeable for any capital stock of the Company or any
such Subsidiary, (ii) warrants, rights or options to subscribe for
or purchase from the Company or any such Subsidiary any such capital
stock or any such convertible or exchangeable securities or
obligations, or (iii) obligations of the Company or any such
Subsidiary to issue any shares of capital stock, any such
convertible or exchangeable securities or obligation, or any such
warrants, rights or options;
(b) the Company and the Company's Subsidiaries each has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its respective jurisdiction of
incorporation with full corporate 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 and to
consummate the transactions contemplated hereby; complete and
correct copies of the certificates of incorporation and of the
bylaws of the Company and the Subsidiaries and all amendments
thereto have been delivered to the Representatives, and except as
set forth in the exhibits to the Registration Statement no changes
therein will be made subsequent to the date hereof and prior to the
Closing Time or, if later, the Option Closing Time;
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(c) the Company and all of its Subsidiaries are duly qualified
or licensed by each jurisdiction in which they conduct their
respective businesses, and the Company and its Subsidiaries are duly
qualified, and are in good standing, in each jurisdiction in which
they own or lease real property or maintain an office and in which
such qualification is necessary, except where the failure to be so
qualified or licensed and in good standing, individually and in the
aggregate, would not have a material adverse effect on the assets,
business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiaries taken
as a whole; 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 from repaying to the
Company or any other Subsidiary any amounts which may from time to
time become due under 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; other than as disclosed in the Prospectus, 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;
(d) the Company and its Subsidiaries are in compliance in all
material respects with all applicable laws, rules, regulations,
orders, decrees and judgments, including those relating to
transactions with affiliates;
(e) neither the Company nor any of its Subsidiaries is in
breach of or in default under (nor has any event occurred which with
notice, lapse of time, or both would constitute a breach of, or
default under), its respective articles of incorporation or charter
or by-laws, 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 its
Subsidiaries is a party or by which any of them or their respective
properties is bound, except for such breaches or defaults which,
individually and in the aggregate, would not have a material adverse
effect on the assets, business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole, and the execution, delivery and
performance of this Agreement, consummation of the transactions
contemplated hereby and the application of the net proceeds from the
offering and sale of the Securities to be sold by the Company in the
manner set forth in the Prospectus Supplement (as defined in
paragraph (i) below) under the caption "Use of Proceeds" will not
(A) conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice, lapse of
time, or both would constitute a breach of, or default under), (i)
any provision of the articles of incorporation or charter or bylaws
of the Company or any of its 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 its 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
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law, regulation or rule or any decree, judgment or order applicable
to the Company or any of its Subsidiaries, except in the case of
clause (ii) for such breaches or defaults which, individually and in
the aggregate, would not have a material adverse effect on the
assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole; or (B) result in the creation or
imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company or its Subsidiaries;
(f) this Agreement has been duly authorized, executed and
delivered by the Company;
(g) 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 Company's execution, delivery and performance of
this Agreement, its consummation of the transaction contemplated
hereby, and its issuance, sale and delivery of the Securities, other
than (A) such as have been obtained, or will have been obtained at
the Closing Time or the Option Closing Time, as the case may be,
under the Securities Act, (B) such approvals as have been obtained
in connection with the approval of the listing of the Securities on
the New York Stock Exchange and (C) any necessary qualification
under the securities or blue sky laws of the various jurisdictions
in which the Securities are being offered by the Underwriters;
(h) each of the Company and its 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 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 and in the aggregate, have a material adverse effect on
the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole; neither the Company nor any of its
Subsidiaries is required by any applicable law to obtain
accreditation or certification from any governmental agency or
authority in order to provide the products and services which it
currently provides or which it proposes to provide as set forth in
the Prospectus; neither the Company nor any of its Subsidiaries is
in violation of, in default under, or has received any notice
regarding a possible violation, default or revocation of any such
license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of its Subsidiaries the
effect of which, individually or in the aggregate, could be material
and adverse to the assets, business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole; and no such license,
authorization, consent or approval contains a materially
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burdensome restriction that is not adequately disclosed in the
Registration Statement and the Prospectus;
(i) the Company meets the requirements for use of Form S-3;
each of the Registration Statement and any Rule 462(b) Registration
Statement, including the Prospectus and such amendments to such
Registration Statement as may have been required prior to the date
of this Agreement, has been prepared by the Company under the
provisions of the Securities Act, has been filed with the Commission
and 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; no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, are threatened
by the Commission, and any request on the part of the Commission for
additional information has been complied with; the Company has
prepared and filed with the Commission pursuant to Rule 424(b) under
the Securities Act a preliminary prospectus supplement subject to
completion, dated June 14, 2002, for use in connection with the
offering of the Securities (the "Preliminary Prospectus
Supplement"); and a final prospectus supplement pertaining to the
Securities (the "Prospectus Supplement") will be prepared and filed
by the Company with the Commission in accordance with Rule 424(b) on
or before the second business day after the date hereof (or such
earlier time as may be required under the Securities Act);
(j) on the effective date of each part of the Registration
Statement, the date the Prospectus is first filed with the
Commission pursuant to Rule 424(b) (if required), at all times
subsequent to and including the Closing Time and, if later, the
Option Closing Time, and when any post-effective amendment to the
Registration Statement becomes effective or any amendment or
supplement to the Prospectus is filed with the Commission, the
Registration Statement, the Prospectus (as amended or as
supplemented if the Company shall have filed with the Commission any
amendment or supplement thereto) and any Preliminary Prospectus,
including the financial statements included or incorporated by
reference in the Prospectus, did or will comply in all material
respects with all applicable provisions of the Securities Act and
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and will contain all statements required to be stated therein
in accordance with the Securities Act and the Exchange Act; no part
of the Registration Statement or any amendment thereto did or will,
in each case as of the applicable effective date, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, not misleading; the Preliminary Prospectus did not, and the
Prospectus or any amendment or supplement thereto will not, as of
the applicable filing date and at the Closing Time and the Option
Closing Time, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein, 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
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Statement or the Prospectus in reliance upon and in conformity with
the information concerning the Underwriters and furnished in writing
by or on behalf of the Underwriters through the Representatives to
the Company expressly for use in the Registration Statement or the
Prospectus; and the Company has not distributed any offering
material in connection with the offering or sale of the Securities
other than the Registration Statement, the Preliminary Prospectus,
the Prospectus or any other materials, if any, permitted by the
Securities Act;
(k) the documents which are incorporated by reference in the
Prospectus or from which information is so incorporated by
reference, when they become effective or were filed with the
Commission, as the case may be, complied in all material respects
with the requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading and any further documents so filed and incorporated by
reference shall, when they are filed with the Commission, conform in
all material respect, with the requirements of the Securities Act or
the Exchange Act, as applicable;
(l) the Preliminary Prospectus was and the Prospectus
delivered to the Underwriters for use in connection with this
offering will be identical to the versions of the Preliminary
Prospectus and Prospectus created to be transmitted to the
Commission for filing via the Electronic Data Gathering Analysis and
Retrieval System ("▇▇▇▇▇"), except to the extent permitted by
Regulation S-T;
(m) 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;
(n) there are no actions, suits, proceedings, inquiries or
investigations pending or, to the knowledge of the Company,
threatened against the Company or any of its 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 which could result in a judgment, decree,
award or order having a material adverse effect on the assets,
business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiaries taken
as a whole or preventing the consummation of the transactions
contemplated hereby;
(o) the financial statements, including the notes thereto,
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated financial
position of the entities to which such financial statements relate
(the "Covered Entities") as of the dates indicated and the
consolidated results of operations and changes in financial position
and cash
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flows of the Covered Entities for the periods specified; such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis during
the periods involved and in accordance with Regulation S-X
promulgated by the Commission; the financial statement schedules
included or incorporated by reference in the Registration Statement
and the amounts in the Prospectus under the captions "Summary -
Summary Financial Data" and "Selected Financial Data" fairly present
the information shown therein and have been compiled on a basis
consistent with the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus; the
unaudited pro forma financial information (including the related
notes) included or incorporated by reference in the Prospectus or
any Preliminary Prospectus complies as to form in all material
respects to the applicable accounting requirements of the Securities
Act and the rules and regulators thereunder, and management of the
Company believes that the assumptions underlying the pro forma
adjustments are reasonable; such pro forma adjustments have been
properly applied to the historical amounts in the compilation of the
information and such information fairly presents with respect to the
Company and the Subsidiaries, the financial position, results of
operations and other information purported to be shown therein at
the respective dates and for the respective periods specified;
(p) Deloitte & Touche LLP whose reports on the consolidated
financial statements of the Company and its Subsidiaries are filed
with the Commission and incorporated by reference in the
Registration Statement and Prospectus, are and were during the
periods covered by their reports independent public accountants as
required by the Securities Act and the regulations thereunder;
(q) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (A) any material adverse change, or any development
involving a prospective material adverse change in the business,
properties, management, financial condition, shareholders equity or
results of operation of the Company and its Subsidiaries taken as a
whole, (B) any transaction which is material to the Company or its
Subsidiaries, (C) any obligation, direct or contingent, which is
material to the Company and its Subsidiaries taken as a whole,
incurred by the Company or its Subsidiaries, (D) any change in the
capital stock or outstanding indebtedness of the Company or its
Subsidiaries or (E) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company; neither
the Company nor its Subsidiaries has any contingent obligation which
is not disclosed in the Registration Statement and is required to be
disclosed therein;
(r) the capital stock of the Company conforms in all material
respects to the description thereof contained in the Registration
Statement and the Prospectus;
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(s) except as set forth in the Registration Statement and the
Prospectus, (i) no person has the right, contractual or otherwise,
to cause the Company to issue or sell to it any shares of Common
Stock or shares of any other capital stock or other equity interests
of the Company, (ii) no person has any preemptive rights, resale
rights, rights of first refusal or other rights to purchase any
shares of Common Stock or shares of any other capital stock or other
equity interests of the Company, and (iii) no person has the right
to act as an underwriter, or as a financial advisor to the Company,
in connection with the offer and sale of the Securities, in the case
of each of the foregoing clauses (i), (ii) and (iii), whether as a
result of the filing or effectiveness of the Registration Statement
or the sale of the Securities as contemplated thereby or otherwise;
no person has the right, contractual or otherwise, to cause the
Company to register under the Securities Act any shares of Common
Stock or shares of any other capital stock or other equity interests
of the Company, or to include any such shares or interests in the
Registration Statement or the offering contemplated thereby whether
as a result of the filing or effectiveness of the Registration
Statement or the sale of the Securities as contemplated thereby or
otherwise, except for such rights as have been complied with or
waived;
(t) the Securities have been duly authorized and, when issued
and duly delivered against payment therefor as contemplated by this
Agreement, will be validly issued, fully paid and nonassessable,
free and clear of any pledge, lien, encumbrance, security interest
or other claim, and the issuance and sale of the Securities 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 to which the Company or any of
its Subsidiaries is a party or otherwise;
(u) the Company has not taken, and will not take, directly or
indirectly, any action which is designed to or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities;
(v) neither the Company nor any of its affiliates (i) is
required to register as a "broker" or "dealer" in accordance with
the provisions of the Exchange Act, 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 I of the By-laws of the National Association
of Securities Dealers, Inc. (the "NASD")) any member firm of the
NASD;
(w) the Company has not relied upon the Representatives or
legal counsel for the Representatives for any legal, tax or
accounting advice in connection with the offering and sale of the
Securities;
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(x) any certificate signed by any officer of the Company or
any Subsidiary delivered to the Representatives or to counsel for
the Underwriters pursuant to or in connection with this Agreement
shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby;
(y) 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
New York Stock Exchange;
(z) the Company and the Subsidiaries have good and marketable
title in fee simple to all real property, if any, and good title to
all personal property owned by them, in each case free and clear of
all liens, security interests, pledges, charges, encumbrances,
mortgages and defects, except such as are disclosed in the
Prospectus or such as do not materially and adversely affect the
value of such property and do not interfere with the use made or
proposed to be made of such property by the Company and the
Subsidiaries; and any real property and buildings held under lease
by the Company or any Subsidiary are held under valid, existing and
enforceable leases, with such exceptions as are disclosed in the
Prospectus or are not material and do not interfere with the use
made or proposed to be made of such property and buildings by the
Company or such Subsidiary;
(aa) the descriptions in the Registration Statement and the
Prospectus of the contracts, leases and other legal documents
therein described present fairly the information required to be
shown, and there are no contracts, leases, or other documents of a
character required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement which are not described or filed as required;
(bb) the Company and each Subsidiary owns 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 entitle 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 the Company does not know of any such infringement of or
conflict with) asserted rights of others with respect to any
Intangibles which could, individually or in the aggregate,
materially and adversely affect the business, prospects, properties,
assets, results of operations or condition (financial or otherwise)
of the Company or any Subsidiary;
(cc) the Company and each of its Subsidiaries 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
-11-
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;
(dd) each of the Company and 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 any such entity, nor does any
such entity know of any tax deficiency which is likely to be
asserted against any such entity which, if determined adversely to
any such entity, could, individually or in the aggregate, materially
adversely affect the business, 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;
(ee) each of the Company and its Subsidiaries maintains
insurance (issued by insurers of recognized financial
responsibility) of the types and in the amounts generally deemed
adequate for their respective businesses and consistent with
insurance coverage maintained by similar companies in similar
businesses, including, but not limited to, insurance covering real
and personal property owned or leased by the Company and its
Subsidiaries against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against, all of which
insurance is in full force and effect and will be in full force and
effect at the Closing Time or Option Closing Time, if later;
(ff) neither the Company nor any of its Subsidiaries has
violated, or received notice of any violation with respect to, any
applicable environmental, safety or similar law applicable to the
business of the Company or any of its Subsidiaries, nor any federal
or state law relating to discrimination in the hiring, promotion or
pay of employees, nor any applicable federal or state wages and
hours law, nor any provisions of the Employee Retirement Income
Security Act or the rules and regulations promulgated thereunder,
nor any state law precluding the denial of credit due to the
neighborhood in which a property is situated, the violation of any
of which, individually or in the aggregate, could have a material
adverse effect on the business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company and
its Subsidiaries, taken as a whole;
(gg) neither the Company nor any of its Subsidiaries nor any
officer or director purporting to act on behalf of the Company or
any of its 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
-12-
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 its Subsidiaries sells or from which the
Company or any of its Subsidiaries buys loans or servicing
arrangements for the purpose of influencing such agent, officer,
broker or person to buy loans or servicing arrangements from or sell
loans to the Company or any of its 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 its Subsidiaries;
(hh) except as otherwise disclosed in the Prospectus, there
are no material outstanding loans or advances or material guarantees
of indebtedness by the Company or any of its Subsidiaries to or for
the benefit of any of the officers or directors of the Company or
any of its Subsidiaries or any of the members of the families of any
of them;
(ii) neither the Company nor any of its Subsidiaries nor, to
the knowledge of the Company, any employee or agent of the Company
or any of its Subsidiaries, has made any payment of funds of the
Company or of any Subsidiary or received or retained any funds in
violation of any law, rule or regulation or of a character required
to be disclosed in the Prospectus;
(jj) all securities issued by the Company, any of its
Subsidiaries or any trusts established by the Company or any
Subsidiary, have been issued and sold in compliance with (i) all
applicable federal and state securities laws, (ii) the laws of the
applicable jurisdiction of incorporation of the issuing entity and
(iii) to the extent applicable to the issuing entity, the
requirements of the New York Stock Exchange;
(kk) 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. The Company has not
distributed and will not distribute any Prospectus or other offering
material in connection with the offer and sale of the Securities;
(ll) 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 its Subsidiaries or
affiliates does business with the government of Cuba or with any
person or affiliate located in Cuba;
(mm) the Company has not incurred any liability for any
finder's fees or similar payments in connection with the
transactions herein contemplated;
(nn) no relationship or transactions, direct or indirect,
exists between or among the Company or any of its Subsidiaries on
the one hand, and the directors,
-13-
officers, stockholders, customers or suppliers of the Company or any
of its Subsidiaries on the other hand, which is required by the
Securities Act and the regulations thereunder to be described in the
Registration Statement and the Prospectus and which is not so
described;
(oo) neither the Company nor any of the Subsidiaries is and,
after giving effect to the offering and sale of the Securities, will
be an "investment company" or an entity "controlled" by and
"investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(pp) there are no existing or, to the knowledge of the
Company, threatened labor disputes with the employees of the Company
or any of its Subsidiaries which are likely to have individually or
in the aggregate a material adverse effect on assets, business,
operations, earnings, prospects, properties or condition (financial
or otherwise) of the Company and its Subsidiaries taken as a whole;
(qq) the Company has obtained the agreement of each of its
directors in the form set forth as Exhibit A hereto;
(rr) any statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained
the written consent to the use of such data from such sources to the
extent required except where the failure to obtain such written
consent, individually or in the aggregate, would not have a material
adverse effect on the business, operations, earnings, prospects,
property or condition (financial or otherwise) of the Company and
its Subsidiaries, taken as a whole;
(ss) neither the Company, nor any of its Subsidiaries, nor to
the Company's knowledge, any employee or agent of the Company or its
Subsidiaries, has made any payment of funds of the Company or its
Subsidiaries or received or retained any funds in violation of any
law, rule or regulation, which payment, receipt or retention of
funds is of a character required to be disclosed in the Registration
Statement or the Prospectus;
(tt) if Debt Securities are offered, each applicable indenture
has been, or prior to issuance of such Debt Securities will have
been, duly authorized, executed and delivered by the Company; and
(uu) the Company meets the requirements for qualification and
taxation as a "real estate investment trust" under the Internal
Revenue Code of 1986, as amended (the "Code").
-14-
4. Certain Covenants of the Company:
The Company hereby agrees with each Underwriter:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Securities for offering and
sale under the securities or blue sky laws of such states as the
Representatives may designate and to maintain such qualifications in
effect as long as required for the distribution of the Securities,
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 Securities); and to promptly advise
the Representatives of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(b) to prepare the Prospectus in a form approved by the
Underwriters and file such Prospectus with the Commission pursuant
to Rule 424(b) not later than 10:00 a.m. (New York City time), on
the day following the execution and delivery of this Agreement and
to furnish promptly (and with respect to the initial delivery of
such Prospectus, not later than 10:00 a.m. (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 and the
regulations thereunder, 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;
to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
this Agreement and prior to any Closing Time which shall be
disapproved by the Representatives promptly after reasonable notice
thereof;
(c) to advise the Representatives promptly and (if requested
by the Representatives) to confirm such advice in writing, when the
Registration Statement has become effective and when any
post-effective amendment thereto becomes effective under the
regulations under the Securities Act; if necessary or appropriate,
to file a registration statement pursuant to Rule 462(b) under the
Securities Act;
(d) 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
-15-
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 Securities for offering or
sale in any jurisdiction, or of the initiation or threatening 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;
(e) to furnish to the Underwriters 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 shares 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 information as the Underwriters may reasonably
request regarding the Company and its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of
any event within the time during which a Prospectus relating to the
Securities is required to be delivered under the Securities Act
which could require the making of any change in the Prospectus then
being used, or in the information incorporated therein by reference,
so that the Prospectus would not include 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, and,
during such time, to prepare and furnish, at the Company's expense,
to the Underwriters promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change and to
furnish to the Underwriters a copy of such proposed amendment or
supplement before filing any such amendment or supplement with the
Commission;
(g) to furnish promptly to each Representative a signed copy
of the Registration Statement, as initially filed with the
Commission, and of all amendments or supplements thereto (including
all exhibits filed therewith or incorporated by reference therein)
and such number of conformed copies of the foregoing as the
Representatives may reasonably request;
(h) to furnish to each Representative, not less than two
business days before filing with the Commission subsequent to the
effective date of the Registration Statement and during the period
referred to in paragraph (f) above, a copy of any document proposed
to be filed with the Commission pursuant to Section 13, 14 or 15(d)
of the Exchange Act;
-16-
(i) to apply the net proceeds of the sale of the Securities in
accordance with its statements under the caption "Use of Proceeds"
in the Prospectus Supplement;
(j) 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 under the Securities Act) covering a period
of 12 months beginning after the effective date of the Registration
Statement;
(k) to furnish to its security holders, for a period of five
years from the date of this Agreement, as soon as practicable after
the end of each fiscal year an annual report, including a balance
sheet and statements of income, stockholders' equity and of cash
flow of the Company for such fiscal year, accompanied by a copy of
the certificate or report thereon of nationally recognized
independent certified public accountants;
(l) to furnish to the Representatives as early as practicable
prior to the Closing Time and the Option Closing Time, as the case
may be, but not later than two business days prior thereto, a copy
of the latest available unaudited interim consolidated financial
statements, if any, of the Company and its Subsidiaries which have
been read by the Company's independent certified public accountants,
as stated in their letter to be furnished pursuant to Section 6(d)
hereof;
(m) to comply with all provisions of any undertakings
contained in the Registration Statement;
(n) to use its best efforts to effect and maintain the listing
of the Common Stock on the New York Stock Exchange and to file with
the New York Stock Exchange all documents and notices required by
the New York Stock Exchange of companies that have securities that
are listed on the New York Stock Exchange;
(o) to engage and maintain, at its expense, a registrar and
transfer agent for the Securities;
(p) not to sell, offer or agree to sell, contract to sell,
hypothecate, pledge, grant any option to sell or otherwise dispose
of, directly or indirectly, any shares of Common Stock or securities
convertible into or exercisable or exchangeable for Common Stock or
warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common
Stock, or file or cause to be declared effective a registration
statement under the Securities Act relating to the offer and sale of
any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock or other rights to
purchase Common Stock or any other securities of the
-17-
Company that are substantially similar to Common Stock for a period
of 90 days after the date hereof (the "Lock-Up Period"), without the
prior written consent of [ ], except for (i) the registration of the
Securities and the sales to the Underwriters pursuant to this
Agreement, (ii) issuances of Common Stock upon the exercise of
options or warrants disclosed as outstanding in the Registration
Statement and the Prospectus or incorporated by reference therein
and (iii) the issuance of employee stock options not exercisable
during the Lock-Up Period pursuant to stock option plans described
in the Registration Statement and the Prospectus or incorporated by
reference therein;
(q) to not itself and to use its best efforts to cause its
executive officers, directors, stockholders 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 may cause or result in, or which might in the
future reasonably be expected 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 Securities,
(ii) sell, bid for, purchase or pay anyone any compensation for
soliciting purchases of the Securities or (iii) pay or agree to pay
to any person any compensation for soliciting any order to purchase
any other securities of the Company;
(r) if at any time during the 30-day period after any part of
the Registration Statement or Rule 462(b) Registration Statement, if
any, becomes effective or the Preliminary Prospectus is filed with
the Commission, 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
Securities 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
(s) to use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for so
long as the Board of Directors of the Company deems it in the best
interests of the Company's stockholders to remain so qualified.
5. Payment of Expenses:
(a) The Company agrees to pay all costs and expenses incident
to the performance of its obligations under this Agreement, whether
or not the transactions contemplated hereunder are consummated or
this Agreement is terminated, including expenses, fees and taxes in
connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus,
-18-
the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and
shipment), (ii) the preparation, issuance and delivery of the
Securities to the Underwriters, including any stock or other
transfer taxes or duties payable upon the sale of the Securities to
the Underwriters, (iii) the producing, word processing and printing
of this Agreement, any Agreement Among Underwriters, any dealer
agreements, any Powers of Attorneys and any closing documents and
furnishing of copies of each to the Underwriters and to dealers
(including costs of compilation, mailing and shipment), (iv) the
qualification of the Securities for offering and sale under state
laws that the Company and the Representatives have mutually agreed
are appropriate and the determination of their eligibility for
investment under state law as aforesaid (including the legal fees
and filing fees and other disbursements of counsel for the
Underwriters and the printing and furnishing of copies of any blue
sky surveys or legal investment surveys to the Underwriters and to
dealers, (v) filing for review of the public offering of the
Securities by the NASD (including the legal fees and filing fees and
other disbursements of counsel for the Underwriters relating
thereto), (vi) the fees and expenses of any transfer agent or
registrar for the Securities and miscellaneous expenses referred to
in the Registration Statement, (vii) if applicable, the fees and
expenses incurred in connection with the listing of the Securities
on the New York Stock Exchange, (viii) making road show
presentations with respect to the offering of the Securities, (ix)
preparing and distributing bound volumes of transaction documents
for the Representatives and their legal counsel and (x) the
performance of the Company's other obligations hereunder. Upon the
request of the Representatives, the Company will provide funds in
advance for filing fees.
(b) The Company agrees to reimburse the Representatives for
their reasonable out-of-pocket expenses in connection with the
performance of its activities under this Agreement, including, but
not limited to, costs such as printing, facsimile, courier service,
direct computer expenses, accommodations and travel, but excluding
the fees and expenses of the Underwriters' outside legal counsel and
any other advisors, accountants, appraisers, etc., which shall be
paid by the Representatives (other than the fees and expenses of
counsel with respect to state securities or blue sky laws and
obtaining the filing for review of the public offering of the
Securities by the NASD, all of which shall be reimbursed by the
Company pursuant to the provisions of subsection (a) above);
provided that, if the Securities are not delivered for any reason
other than the default by one or more of the Underwriters in its or
their respective obligations hereunder or the termination of this
Agreement pursuant to any of clauses (i), (iii), (iv) of (v) of
Section 7(B)(y) hereof, the Company shall reimburse the Underwriters
for the fees and expenses of their outside legal counsel and such
other advisors, accountants, appraisers, etc. The Underwriters
acknowledge and agree that the reimbursement of any such expenses by
the Company pursuant to this Section 7(b) shall be in lieu of any
entitlement to the compensation that would otherwise have been
earned on the sale of the Securities had this Agreement not
terminated.
-19-
6. Conditions of the Underwriters' Obligations: The
obligations of the Underwriters hereunder to purchase Securities at
the Closing Time or at the Option Closing Time, as applicable, are
subject to 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 at the Option Closing Time, as applicable,
the performance by the Company of its obligations hereunder in all
material respects and to the satisfaction of the following further
conditions at the Closing Time or at the Option Closing Time, as
applicable:
(a) The Company shall furnish to the Underwriters at the
Closing Time and at the Option Closing Time opinions of
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the
Company and its Subsidiaries, and Ballard, Spahr, ▇▇▇▇▇▇▇ &
Ingersoll, LLP, special Maryland counsel to the Company and
its Subsidiaries, as to matters of Maryland law, addressed to
the Underwriters and dated the Closing Time and the Option
Closing Time and in form and substance satisfactory to
Underwriters' counsel, stating that:
(1) the Company has an authorized and outstanding
capitalization as set forth in the Prospectus under the
caption "Capitalization"; the outstanding shares of
capital stock of the Company and its Subsidiaries have
been duly and validly authorized and issued and are
fully paid and non-assessable and free of statutory
preemptive rights and, based solely upon the exhibits to
the Registration Statement and the Company's Exchange
Act filings, contractual preemptive rights, and all of
the outstanding shares of capital stock of the
Subsidiaries are directly or indirectly owned of record
and beneficially by the Company; except as disclosed in
the Prospectus, there are no outstanding (i) securities
or obligations of the Company or any of its Subsidiaries
convertible into or exchangeable for any capital stock
of the Company or any such Subsidiary, (ii) warrants,
rights or options to subscribe for or purchase from the
Company or any such Subsidiary any such capital stock or
any such convertible or exchangeable securities or
obligations, or (iii) obligations of the Company or any
such Subsidiary to issue any shares of capital stock,
any such convertible or exchangeable securities or
obligation, or any such warrants, rights or options;
(2) the Company and its Subsidiaries each has been
duly incorporated and is validly existing as a
corporation in good standing under the laws of its
respective jurisdiction of incorporation with full
corporate 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 and to consummate the transactions
described in this Agreement;
(3) the Company and its Subsidiaries are duly
qualified or licensed by each jurisdiction in which they
conduct their respective
-20-
businesses, and the Company and its Subsidiaries are
duly qualified, and are in good standing, in each
jurisdiction in which they own or lease real property or
maintain an office and in which such qualification is
necessary except where the failure to be so qualified or
licensed and in good standing would not, individually
and in the aggregate, have a material adverse effect on
the assets, business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole; 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 from repaying to the Company or any other
Subsidiary, any amounts which may from time to time
become due under 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; other
than as disclosed in the Prospectus, 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;
(4) to such counsel's knowledge, the Company and
its Subsidiaries are in compliance in all material
respects with all applicable laws, orders, rules,
regulations and orders, including those relating to
transactions with affiliates;
(5) 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 which with
notice, lapse of time, or both would constitute a breach
of, or default under), (i) its respective articles of
incorporation or charter or by-laws, or (ii) 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 any other agreement or instrument to which
the Company or any of its 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 its Subsidiaries; except such breaches
or defaults in the case of (ii) above which,
individually and in the aggregate, would not have a
material adverse effect on the assets, business,
operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its
Subsidiaries take as a whole;
(6) the execution, delivery and performance of
this Agreement by the Company and the consummation by
the Company of the transactions contemplated by this
Agreement and the application of the net proceeds from
the offering and sale of the Securities in the manner
set forth in the Prospectus Supplement under the caption
"Use of Proceeds"
-21-
do not and will not (A) conflict with, or result in any
breach of, or constitute a default under (nor constitute
any event which with notice, lapse of time, or both
would constitute a breach of or default under), (i) any
provisions of the certificate of incorporation, charter
or by-laws of the Company or any Subsidiary, (ii) any
provision of any license, indenture, mortgage, deed of
trust, loan, credit or other agreement or instrument to
the best knowledge of such counsel and to which the
Company or any Subsidiary is a party or by which any of
them or their respective properties or assets may be
bound or affected, (iii) any law or regulation binding
upon or applicable to the Company or any Subsidiary or
any of their respective properties or assets, or (iv)
any decree, judgment or order to the best knowledge of
such counsel to be applicable to the Company or any
Subsidiary; or (B) result in the creation or imposition
of any lien, charge, claim or encumbrance upon any
property or assets of the Company or its Subsidiaries;
(7) this Agreement has been duly authorized,
executed and delivered by the Company;
(8) 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 consummation of
the transaction contemplated hereby, and the issuance,
sale and delivery of the Securities by the Company as
contemplated hereby, other than such as have been
obtained or made under the Securities Act and the
regulations thereunder, and except that such counsel
need express no opinion as to any necessary
qualification under the state securities or blue sky
laws of the various jurisdictions in which the
Securities are being offered by the Underwriters or any
approval of the underwriting terms and arrangements by
the NASD;
(9) to such counsel's knowledge, each of the
Company and its Subsidiaries has all necessary material
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 to conduct their respective
businesses, as described in the Prospectus; to such
counsel's knowledge neither the Company nor any
Subsidiaries is in violation of, in default under, or
has received any notice regarding a possible violation,
default or revocation of any such material license,
authorization, consent or approval or any federal,
state, local or foreign law, regulation or decree, order
or judgment applicable to the Company or any of its
Subsidiaries;
(10) the Securities have been duly authorized and,
when the Securities have been issued and duly delivered
against payment therefor as
-22-
contemplated by this Agreement, the Securities will be
validly issued, fully paid and nonassessable, and the
Underwriters will acquire good and marketable title to
the Securities, free and clear of any pledge, lien,
encumbrance, security interest, or other claim;
(11) the issuance and sale of the Securities by
the Company is not subject to preemptive or other
similar rights arising by operation of law, under the
certificate of incorporation, charter or by-laws of the
Company, or under any agreement known to such counsel to
which the Company or any of its Subsidiaries is a party
or, to such counsel's knowledge, otherwise;
(12) to such counsel's knowledge, there are no
persons with registration or other similar rights to
have any equity securities, including securities which
are convertible into or exchangeable for equity
securities, registered pursuant to the Registration
Statement or otherwise registered by the Company under
the Securities Act;
(13) the capital stock of the Company, including
the Securities, conforms in all material respects to the
descriptions thereof contained in the Registration
Statement and Prospectus;
(14) the Registration Statement, including the
Prospectus and such amendments to such Registration
Statement as may be required prior to the date of this
Agreement, has become effective under the Securities
Act; no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the best
of such counsel's knowledge, no proceedings with respect
thereto have been commenced or threatened; and any
required filing of the Prospectus and any supplement
thereto pursuant to Rule 424 under the Securities Act
has been made in the manner and within the time period
required by Rule 424;
(15) the Registration Statement and the Prospectus
as amended or supplemented, and any further amendments
and supplements thereto made by the Company prior to the
Closing Time or Option Closing Time, as applicable,
(except as to the financial statements and other
financial and statistical data contained therein, as to
which such counsel need express no opinion) complied as
to form in all material respects with the requirements
of the Securities Act, the Exchange Act and the rules
and regulations thereunder;
(16) the statements under those sections
"Description of Capital Stock" and "Plan of
Distribution" in the Registration Statement and section
"Underwriting" in the Prospectus Supplement, insofar as
such statements constitute a summary of the legal
matters referred to therein, constitute accurate
summaries thereof in all material respects;
-23-
(17) to such counsel's knowledge, there are no
actions, suits or proceedings, inquiries, or
investigations pending or threatened against the Company
or any of its 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 which are
required to be described in the Prospectus but are not
so described;
(18) to such counsel's knowledge, there are no
contracts or documents of a character which are required
to be filed as exhibits to the Registration Statement or
required to be described or summarized in the Prospectus
which have not been so filed, summarized or described,
and all such summaries and descriptions, in all material
respects, fairly and accurately set forth the material
provisions of such contracts and documents;
(19) to such counsel's knowledge, the Company and
each Subsidiary owns 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 entitle 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 which could materially and adversely affect
the business, prospects, properties, assets, results of
operations or condition (financial or otherwise) of the
Company or any Subsidiary;
(20) to such counsel's knowledge, each of the
Company and 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
any such entity, nor does any such entity know of any
tax deficiency which is likely to be asserted against
any such entity which if determined adversely to any
such entity, could materially adversely affect the
business, prospects, properties, assets, results of
operations or condition (financial or otherwise) of any
such entity, respectively;
(21) none of the Company or any of its
Subsidiaries is, and if operated solely in the manner
described in the Prospectus will be, (i) an "investment
company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as
such terms are defined in the Investment Company Act or
(ii) a "broker" within the meaning of Section 3(a)(4) of
the Exchange Act or a "dealer" within the
-24-
meaning of Section 3(a)(5) of the Exchange Act or
required to be registered pursuant to Section 15(a) of
the Exchange Act; and
(22) the documents incorporated by reference in
the Registration Statement and Prospectus as amended or
supplemented, when they became effective or were filed
(or, if an amendment with respect to any such document
was filed when such amendment was filed) with the
Commission, as the case may be, complied as to form in
all material respects with the Securities Act or
Exchange Act (except as to the financial statements and
schedules and other financial and statistical data
contained or incorporated by reference therein as to
which such counsel need express no opinion).
In addition, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall state that, in
the opinion of such counsel, and subject to the restrictions and limitations set
forth in such counsel's tax opinion filed as an exhibit to the Registration
Statement and reasonably acceptable to the Underwriters, (a) the Company is
qualified to be taxed as a real estate investment trust under the Code and (b)
the proposed method of operation described in the Prospectus and as represented
to such counsel by the Company will enable the Company to continue to satisfy
the requirements for such qualification for subsequent fiscal years under the
Code. Such counsel may state that actual qualification as a real estate
investment trust, however, will depend upon the Company's continued ability to
meet, and its meeting, through actual annual operating results and
distributions, the various qualifying tests under the Code.
Additionally, such counsel shall state that they have participated
in conferences with officers and other representatives of the Company,
independent public accountants of the Company, representatives of 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 (13), (16), (17) and (18) above), they
have no reason to believe that the Registration Statement or any amendment
thereto at the time such Registration Statement or amendment became effective
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Preliminary Prospectus or the Prospectus or any
supplement thereto, as of their respective effective or issue date, and at all
times up to and including the date of such counsel's opinion, contained or
contains an 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; the documents incorporated by reference in the Prospectus as amended
or supplemented, when they became effective or were so filed, as the case may
be, contained, in the case of a registration statement which became effective
under the Securities Act, an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of other documents which were
filed under the Securities Act or the Exchange Act with the Commission, an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed, not
-25-
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,
Prospectus or documents incorporated by reference therein).
(b) The Company shall furnish to the Underwriters at the
Closing Time and at the Option Closing Time, as applicable, a letter
permitting it to rely upon the opinions given pursuant to this
Agreement, which opinions and reliance letters shall be in form and
substance satisfactory to [ ].
(c) The Representatives shall have received from Deloitte &
Touche LLP, letters dated, respectively, as of the date of this
Agreement, the Closing Time and the Option Closing Time, as the case
may be, addressed to the Representatives, in form and substance
satisfactory to the Representatives, relating to the financial
statements of the Company and its Subsidiaries and such other
matters customarily covered by comfort letters issued in connection
with registered public offerings in the forms heretofore approved by
the Representatives.
(d) The Representatives shall have received at the Closing
Time and at the Option Closing Time, as applicable, the favorable
opinion of [ ], counsel for the Underwriters, dated the Closing Time
or the Option Closing Time, as applicable, addressed to the
Representatives with respect to the incorporation of the Company,
the validity of the Securities, the Registration Statement, the
Prospectus and other matters as the Representatives reasonably may
request.
(e) No amendment or supplement to the Registration Statement
or Prospectus shall have been filed to which the Underwriters shall
have objected in writing.
(f) Prior to the Closing Time and the Option Closing Time (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, and no
proceedings for such purpose shall have been initiated or
threatened, by the Commission, and no suspension of the
qualification of the Securities 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 all amendments thereto, or modifications thereof, if
any, shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (iii)
the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, 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.
-26-
(g) Between the time of execution of this Agreement and the
Closing Time or the Option Closing Time, as the case may be, (i) no
material and unfavorable change or any development involving a
material adverse change, financial or otherwise (other than such
change or development as specifically identified in the Registration
Statement and Prospectus at the time of this Agreement), in the
business, properties, financial condition, results of operation or
prospects of the Company and its Subsidiaries taken as a whole shall
occur or become known and (ii) no transaction which is material and
unfavorable to the Company shall have been entered into by the
Company or any of its Subsidiaries.
(h) The NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and
arrangements.
(i) The Representatives shall have received signed letters,
dated the date of this Agreement, from each of the directors of the
Company referred to in Section 3(qq) hereof in the form set forth as
Exhibit A hereto.
(j) The Company will, at the Closing Time and at the Option
Closing Time, deliver to the Underwriters a certificate of its
Chairman of the Board and Chief Executive Officer and its Executive
Vice President and Chief Financial Officer 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 and
the conditions set forth in paragraphs (g) and (h) have been
satisfied, in each case as of such date.
(k) Between the time of execution of this Agreement and the
Closing Time or Option Closing Time, as the case may be, there shall
not have occurred any downgrading, nor shall any notice or
announcement have been given or made of (i) any intended or
potential downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company or any Subsidiary by any
"nationally recognized statistical rating organization," as that
term is defined in Rule 436(g)(2) under the Securities Act. It is
understood and agreed that as of the date of this Agreement and the
Closing Time or Option Closing Time, as the case may be, neither the
Company nor any of its Subsidiaries has or will have any securities
of or guaranteed by the Company or any Subsidiary by any "nationally
recognized statistical rating organization."
(l) The Company shall have furnished to the Underwriters 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 in Agreement and Power of Attorney, and the
performance by the Company of its covenants contained herein and
therein, and the fulfillment of any conditions contained herein or
therein, as of the Closing Time or the Option Closing Time as the
Underwriters may reasonably request.
-27-
(m) The Company shall have performed such of its obligations
under this Agreement and Agreement and Power of Attorney as are to
be performed by the terms hereof and thereof at or before the
Closing Time or the Option Closing Time.
7. Termination: The obligations of the several Underwriters
hereunder shall be subject to termination in the absolute discretion of
[ ] or any group of Underwriters (which may include [ ]) which
has agreed to purchase in the aggregate at least 50% of the Initial
Securities, (A) at any time prior to the Closing Time or Option Closing
Time, 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 (B)
if, since the time of execution of this Agreement or the earlier
respective dates as of which information is given in the Registration
Statement and Prospectus, (x) there has been any material adverse change
or any development involving a prospective material adverse change in the
business, properties, management, financial condition, shareholders'
equity or results of operation of the Company and its Subsidiaries taken
as a whole, which would, in the judgment of [ ] or such group of
Underwriters, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Registration Statement and Prospectus, or (y)
there shall have occurred: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange, American
Stock Exchange or NASDAQ Stock Market; (ii) a suspension or material
limitation in trading in the Company's Common Stock on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities
declared by either federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the declaration of war by the United
States in accordance with its constitutional process or the outbreak or
escalation of hostilities or acts of terrorism involving the United States
or the declaration by the United States of a national emergency or war; or
(v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or
(v), in the judgment of [ ] or such group of Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in
the Registration Statement and Prospectus; or (z) there shall have
occurred any downgrading, or any notice shall have been given of (i) any
intended or potential downgrading or (ii) any review or possible change
that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company or any Subsidiary by any
"nationally recognized statistical rating organization," as that term is
defined in Rule 436(g)(2) under the Securities Act. It is understood and
agreed that as of the date of this Agreement and the Closing Time or
Option Closing Time, as the case may be, neither the Company nor any of
its Subsidiaries has or will have any securities of or guaranteed by the
Company or any Subsidiary by any "nationally recognized statistical rating
organization."
If [ ] or such group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Company and each other
Underwriter shall be notified promptly by telephone, promptly confirmed by
facsimile.
-28-
If the sale to the Underwriters of the Securities, 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 the Option Closing Time in its obligation
to take up and pay for the Initial Securities or Option Securities, as the
case may be, 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
Initial Securities or Option Securities, as the case may be, which such
Underwriter shall have agreed but failed to take up and pay for (the
"Defaulted Securities"). Absent the completion of such arrangements within
such 36 hour period, (i) if the total number or amount of Defaulted
Securities does not exceed 10% of the total number or amount of Initial
Securities or Option Securities, as the case may be, to be purchased on
such date, each non-defaulting Underwriter shall take up and pay for (in
addition to the number or amount of Initial Securities or Option
Securities, as the case may be, which it is otherwise obligated to
purchase on such date pursuant to this Agreement) the portion of the total
number or amount of Initial Securities or Option Securities, as the case
may be, 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 or amount of Defaulted Securities exceeds 10% of such
total, the Representatives 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 Initial Securities or Option Securities, as the case may
be, hereunder on such date unless all of the Initial Securities or Option
Securities, as the case may be, 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 Closing Time or the Option Closing Time, as applicable, 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.
-29-
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
Schedule I to this Agreement.
9. Indemnity and Contribution:
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, officers and directors and any
person who controls any Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing, from and against any
loss, expense, liability, damage or claim (including the reasonable
cost of investigation) which, jointly or severally, any such
Underwriter 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 (A) any
untrue statement or alleged untrue statement made by the Company in
Section 3 of this Agreement or the failure by the Company to perform
when and as required any agreement or covenant contained herein, (B)
any untrue statement or alleged untrue statement of any material
fact contained in any audio or visual materials provided by the
Company or based upon written information furnished by or on behalf
of the Company including, without limitation, slides, videos, films
or tape recordings used in connection with the marketing of the
Securities, (C) any failure on the part of the Company to comply
with any applicable law, rule or regulation relating to the offering
of securities being made pursuant to the Prospectus, or (D) 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 (the term Prospectus for the purpose of
this Section 9 being deemed to include any Preliminary Prospectus,
the Prospectus and the Prospectus as amended or supplemented by the
Company), or 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 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
concerning an Underwriter furnished in writing by the Underwriters
through the Representatives to the Company 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 Preliminary Prospectus or 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
-30-
confirmation of the sale of Securities to such person, unless such
failure resulted from noncompliance by the Company with Section 4(b)
above.
(b) If any action, suit or proceeding (each, an "Action") is
brought against an Underwriter or any such person in respect of
which indemnity may be sought against the Company pursuant to
subsection (a) above, such Underwriter or such person shall promptly
notify the Company in writing of the institution of such Action, and
the Company shall assume the defense of such Action, including the
employment of counsel reasonably satisfactory to such indemnified
party and payment of expenses, provided, however, that any failure
or delay to so notify the Company will not relieve the Company of
any obligation the Company may have to any Underwriter or any such
person or otherwise. Such Underwriter or such 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 person unless the employment of such counsel
shall have been authorized in writing by the Company in connection
with the defense of such Action, or the Company 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 or in conflict with those available to the Company (in
which case) the Company 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 paid as incurred (it being understood,
however, that the Company shall not be liable for the expenses of
more than one separate firm of attorneys for the Underwriters or
such persons in any one Action or series of related Actions in the
same jurisdiction (other than local counsel in any such
jurisdiction) representing the indemnified parties who are parties
to such Action). The Company shall not be liable for any settlement
of any such Action effected without the its written consent, but if
settled with the written consent of the Company, the Company agrees
to indemnify and hold harmless any Underwriter and any such person
from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this subsection (b), then the
indemnifying party agrees that it shall be liable for any settlement
of any Action effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement
and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or
threatened Action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified
-31-
party from all liability on claims that are the subject matter of
such Action and does not include an admission of fault, culpability
or a failure to act, by or on behalf of such indemnified party.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify, defend and hold harmless the Company, its directors and
officers that signed the Registration Statement, and any person who
controls 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 or any such person may incur under the Securities Act, the
Exchange Act or otherwise, but only 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 expressly for
use with reference to such Underwriter 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 such Registration Statement or Prospectus or
necessary to make such information, in the light of the
circumstances under which made, not misleading.
If any Action is brought against the Company or any such
person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company 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 reasonably satisfactory to such indemnified
party and payment of expenses. The Company 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
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 or in conflict with 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
(other than local counsel in any such jurisdiction) representing the
indemnified parties who are parties to such action). No Underwriter
shall be liable for any settlement of any such claim or action
effected
-32-
without the written consent of such Underwriter but if settled with
the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Company and any such person from and
against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement
of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement
and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent or the
indemnified party, effect any settlement of any pending or
threatened Action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Action.
(d) The indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a), (b) and
(c) 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 Underwriters from the offering of the Securities 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 of the
Underwriters 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 Underwriters shall be
deemed to be in the same respective proportion as the total proceeds
from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company, and the
underwriting discounts and commissions received by the Underwriters,
bear to the aggregate public offering price of the Securities. The
relative fault of the Company and the Underwriters 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 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
-33-
reasonably incurred by such party in connection with investigating
or defending any Action.
(e) The Company and the Underwriters 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 (d)(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 amount by which the total price at which the Securities
underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which such
Underwriter has otherwise been required to pay by reason of such
untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations 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
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, its directors and officers, or any
person who controls the Company 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 Securities.
The Company 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 directors,
in connection with the sale and delivery of the Securities, or in
connection with the Registration Statement or Prospectus.
11. Information Furnished by the Underwriters. The statements set
forth in the fifth, seventh, eighth and ninth paragraphs under the caption
"Underwriting" in the Prospectus Supplement constitute the only
information furnished by or on behalf of the Underwriters as such
information is referred to in Sections 3 and 9 hereof.
12. 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 [Name], [Address], [City, State Zip], Attention: [ ]; if to the
Company, shall be sufficient in all respects if delivered to the Company
at the executive offices of the Company.
13. Governing Law; Headings: THIS AGREEMENT AND ANY CLAIM,
COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER
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ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT ("CLAIM"),
DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES. The section headings in this Agreement have been inserted
as a matter of convenience of reference and are not a part of this
Agreement.
14. Submission to Jurisdiction: Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York
or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such
matters, and the Company consents to the jurisdiction of such courts and
personal service with respect thereto. The Company hereby consents to
personal jurisdiction, service and venue in any court in which any Claim
arising out of or in any way relating to this Agreement is brought by any
third party against [ ] or any indemnified party. Each of [ ]
and the Company (in the case of the Company, on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way
arising out of or relating to this Agreement. The Company agrees that a
final judgment in any such action, proceeding or counterclaim brought in
any such court shall be conclusive and binding upon the Company and may be
enforced in any other courts in the jurisdiction of which the Company is
or may be subject, by suit upon such judgment.
15. Parties at Interest: The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters, the Company and the
controlling persons, directors 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.
16. Counterparts and Facsimile Signatures: This Agreement may be
signed by the parties in counterparts which together shall constitute one
and the same agreement among the parties. A facsimile signature shall
constitute an original signature for all purposes.
17. Successors and Assigns: This Agreement shall be binding upon the
Underwriters, the Company and their successors and assigns and any
successor or assign of any substantial portion of the Company's and any of
the Underwriters' respective businesses and/or assets.
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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 and the Underwriters.
Very truly yours,
AMERICAN HOME MORTGAGE
INVESTMENT CORP.
By:
--------------------------------------
Name:
Title:
Accepted and agreed to as
of the date first above written
on behalf of the other Underwriters
named on Schedule I hereto:
[NAME]
By:
By:
----------------------------------------
Title:
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SCHEDULE I
Number of Number of
Initial Option
Securities Securities
to be to be
Underwriter Purchased Purchased
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Total...............................
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