EXHIBIT 1.1
B&W Draft 11/19/97
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________________________________________________________________________________
APEX MORTGAGE CAPITAL, INC.
(a Maryland corporation)
2,000,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
--------------------------------
Dated: November __, 1997
________________________________________________________________________________
TABLE OF CONTENTS
INTERNATIONAL PURCHASE AGREEMENT.............................................. 1
SECTION 1. Representations and Warranties............................. 3
(a) Representations and Warranties by the Company.............. 3
(i) Compliance with Registration Requirements.......... 3
(ii) Independent Accountants............................ 4
(iii) Financial Statements............................... 4
(iv) No Material Adverse Change in Business............. 5
(v) Good Standing of the Company....................... 5
(vi) Qualification as a REIT............................ 5
(vii) Capitalization..................................... 5
(viii) Authorization of Agreement......................... 5
(ix) Management Agreement............................... 6
(x) Authorization and Description of Securities........ 6
(xi) Absence of Defaults and Conflicts.................. 6
(xii) Absence of Proceedings............................. 7
(xiii) Accuracy of Exhibits............................... 7
(xiv) Possession of Intellectual Property................ 7
(xv) Absence of Further Requirements.................... 7
(xvi) Possession of Licenses and Permits................. 8
(xvii) Title to Property.................................. 8
(xviii) Investment Company Act............................. 8
(xix) Accounting Controls................................ 8
(xx) Registration Rights................................ 9
(b) Representations and Warranties by the Manager.............. 9
(i) No Material Misstatements or Omissions............. 9
(ii) Good Standing...................................... 9
(iii) Authorization of Agreements........................ 9
(iv) No Material Adverse Change in Business............. 10
(v) Absence of Defaults and Conflicts.................. 10
(vi) Absence of Proceedings............................. 10
(vii) Absence of Further Requirements.................... 11
(viii) Possession of Licenses and Permits................. 11
(ix) Investment Adviser................................. 11
(x) Financial Resources................................ 11
(c) Officer's Certificates..................................... 11
SECTION 2. Sale and Delivery to Underwriters; Closing................. 12
(a) Initial Securities......................................... 12
(b) Option Securities.......................................... 12
(c) Payment.................................................... 12
(d) Denominations; Registration................................ 13
SECTION 3. Covenants.................................................. 13
(a) Covenants of the Company................................... 13
(b) Covenant of the Manager.................................... 17
SECTION 4. Payment of Expenses........................................ 17
(a) Expenses................................................... 17
(b) Termination of Agreement................................... 18
SECTION 5. Conditions of International Managers' Obligations.......... 18
(a) Effectiveness of Registration Statement.................... 18
(b) Opinions of Counsel for Company and the Manager............ 18
(c) Opinion of Maryland Counsel for the Company................ 18
(d) Opinion of Counsel for International Managers.............. 18
(e) Officers' Certificate of the Company....................... 19
(f) Officers' Certificate of the Manager....................... 19
(g) Accountant's Comfort Letter................................ 19
(h) Bring-down Comfort Letter.................................. 19
(i) Approval of Listing........................................ 20
(j) No Objection............................................... 20
(k) Lock-up Agreements......................................... 20
(l) Insurance Policy........................................... 20
(m) Conditions to Purchase of International Option Securities.. 20
(n) Additional Documents....................................... 21
(o) Termination of Agreement................................... 21
SECTION 6. Indemnification............................................ 22
(a) Indemnification of International Managers by the Company
and the Manager............................................ 22
(b) Indemnification of the Company and the Manager, and their
Respective Directors and Officers.......................... 23
(c) Actions against Parties; Notification...................... 23
(d) Settlement without Consent if Failure to Reimburse......... 24
(e) Recourse Against the Manager............................... 24
SECTION 7. Contribution............................................... 25
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery................................................... 26
SECTION 9. Termination of Agreement................................... 26
(a) Termination; General....................................... 26
(b) Liabilities................................................ 27
SECTION 10. Default by One or More of the International Managers....... 27
SECTION 11. Notices.................................................... 28
SECTION 12. Parties.................................................... 28
SECTION 13. GOVERNING LAW AND TIME..................................... 28
SECTION 14. Effect of Headings......................................... 28
ii
SCHEDULES
Schedule A - List of International Managers............................. Sch A-1
Schedule B - Pricing Information........................................ Sch B-1
Schedule C - List of Persons Subject to Lock-up......................... Sch C-1
EXHIBITS
Exhibit A-1 Form of Opinion of Company's Counsel....................... A-1-1
Exhibit A-2 Form of Opinion of Counsel to the Manager.................. A-2-1
Exhibit B - Form of Opinion of Maryland Counsel......................... B-1
Exhibit C - Form of Lock-Up Letter...................................... C-1
1
APEX MORTGAGE CAPITAL, INC.
(a Maryland corporation)
2,000,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
--------------------------------
November __, 1997
XXXXXXX XXXXX INTERNATIONAL
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
SUTRO & CO. INCORPORATED
c/x Xxxxxxx Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
Apex Mortgage Capital, Inc., a Maryland corporation (the "Company") and TCW
Investment Management Company, a California corporation (the "Manager"), confirm
their respective agreements with Xxxxxxx Xxxxx International ("Xxxxxxx Xxxxx"),
PaineWebber International (U.K.) Ltd., Xxxxxx, Xxxxxxxx & Company, Incorporated,
Sutro & Co. Incorporated (collectively, the "International Managers", which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), with respect to the issue and sale by the Company and the
purchase by the International Managers, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.01 per share, of the
Company ("Common Stock") set forth in said Schedule A, and with respect to the
grant by the Company to the International Managers, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of 300,000 additional shares of Common Stock to cover over-allotments, if
any. The aforesaid 2,000,000 shares of Common Stock (the "Initial International
Securities") to be purchased by the International Managers and all or any part
of the 300,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "International Option Securities") are hereinafter called,
collectively, the "International Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 8,000,000 shares of Common Stock
(the "Initial U.S. Securities") through
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arrangements with certain underwriters in the United States (the "U.S.
Underwriters") for which Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx &
Xxxxx Incorporated, PaineWebber Incorporated, Xxxxxx, Xxxxxxxx & Company,
Incorporated and Sutro & Co. Incorporated are acting as representatives (the
"U.S. Representatives") and the grant by the Company to the U.S. Underwriters,
acting severally and not jointly, of an option to purchase all or any part of
the U.S. Underwriters' pro rata portion of up to 1,200,000 shares of additional
Common Stock solely to cover overallotments, if any (the "U.S. Option
Securities" and, together with the International Option Securities, the "Option
Securities"). The Initial U.S. Securities and the U.S. Option Securities are
hereinafter called the "U.S. Securities".
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (in
such capacity, the "Global Coordinator").
The Company and the Underwriters agree that up to 500,000 shares of the
Securities to be purchased by the Underwriters (the "Reserved Securities") shall
be reserved for sale by the Underwriters to directors, officers and employees of
the Company, The TCW Group, Inc. ("TCW") and its affiliates as part of the
distribution of the Securities by the Underwriters, subject to the terms of this
Agreement, the applicable rules, regulations and interpretations of the National
Association of Securities Dealers, Inc. (the "NASD") and all other applicable
laws, rules and regulations. To the extent that such Reserved Securities are
not so purchased by such persons, such Reserved Securities may be offered to the
public as part of the public offering contemplated hereby.
In consideration of the Underwriters entering into this Agreement and as a
condition to their obligations hereunder, TCW has entered into a representation
letter (the "Representation Letter") dated the date hereof with the
Underwriters.
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as they 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-11 (No. 333-36069) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933
2
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). Two forms of prospectus are to
be used in connection with the offering and sale of the Securities: one relating
to the International Securities (the "Form of International Prospectus") and one
relating to the U.S. Securities (the "Form of U.S. Prospectus"). The Form of
International Prospectus is identical to the Form of U.S. Prospectus, except for
the front cover and back cover pages and the information under the caption
"Underwriting". The information included in any such prospectus or in any such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each Form
of International Prospectus and Form of U.S. Prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final Form of International Prospectus and final
Form of U.S. Prospectus in the forms first furnished to the Underwriters for use
in connection with the offering of the Securities are herein called the
"International Prospectus" and the "U.S. Prospectus," respectively, and
collectively, the "Prospectuses." If Rule 434 is relied on, the terms
"International Prospectus" and "U.S. Prospectus" shall refer to the preliminary
International Prospectus dated November 10, 1997 and the preliminary U.S.
Prospectus dated November 10, 1997, respectively, each together with the
applicable Term Sheet and all references in this Agreement to the date of such
Prospectuses shall mean the date of the applicable Term Sheet. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the U.S. Prospectus, the International Prospectus or any Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company represents
and warrants to each International Manager as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each International
Manager, as follows:
(i) Compliance with Registration Requirements. The Company meets the
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requirements for use of Form S-11 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of
3
the Company, are contemplated by the Commission, and any written request to
the Company or counsel to the Company, or any oral request to their
knowledge, on the part of the Commission for additional information has
been complied with or satisfied.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither of the Prospectuses nor any
amendments or supplements thereto, at the time the Prospectuses or any such
amendment or supplement was issued and at the Closing Time (and, if any
International Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If Rule 434 is used, the Company will comply with
the requirements of Rule 434 and the Prospectuses shall not be "materially
different", as such term is used in Rule 434, from the prospectuses
included in the Registration Statement at the time it became effective.
The representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or International
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any International Manager expressly
for use in the Registration Statement or International Prospectus.
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and, each
preliminary prospectus and the Prospectuses delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified the
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balance sheet included in the Registration Statement are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The balance sheet included in the
--------------------
Registration Statement and the Prospectuses, together with the related
notes, presents fairly the financial position of the Company at the date
indicated; said balance sheet has been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a consistent
basis.
(iv) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the Prospectuses, except as
4
otherwise stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company, other than those in the
ordinary course of business, which are material with respect to the
Company, and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(v) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing under
the laws of the State of Maryland and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its obligations
under this Agreement and the U.S. Purchase Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect. The Company
has no subsidiaries.
(vi) Qualification as a REIT. The Company is organized in
-----------------------
accordance with the requirements for qualification as a real estate
investment trust under Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Internal Revenue Code") and the rules and
regulations thereunder. The contemplated method of operation of the
Company's business as described in the Registration Statement will allow
the Company to satisfy the operational requirements for qualification as a
real estate investment trust under Sections 856 through 860 of the Internal
Revenue Code, and the rules and regulations thereunder.
(vii) Capitalization. The authorized, issued and outstanding capital
--------------
stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of options referred to in the Prospectuses). The
shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any security
holder of the Company.
(viii) Authorization of Agreement. This Agreement and the U.S.
--------------------------
Purchase Agreement have been duly authorized, executed and delivered by the
Company.
(ix) Management Agreement. The Management Agreement (the
--------------------
"Management Agreement") dated as of November __, 1997 between the Company
and the Manager has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company
enforceable in accordance with its terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency,
5
reorganization or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles.
(x) Authorization and Description of Securities. The Securities to
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be purchased by the International Managers and the U.S. Underwriters from
the Company have been duly authorized for issuance and sale to the
International Managers pursuant to this Agreement and the U.S. Underwriters
pursuant to the U.S. Purchase Agreement, respectively, and, when issued and
delivered by the Company pursuant to this Agreement and the U.S. Purchase
Agreement, respectively, against payment of the consideration set forth
herein and in the U.S. Purchase Agreement, respectively, will be validly
issued and fully paid and non-assessable; the Common Stock conforms to all
statements relating thereto contained in the Prospectuses and such
description conforms in all material respects to the rights set forth in
the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any security holder of the Company.
(xi) Absence of Defaults and Conflicts. The Company is not in
---------------------------------
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company is a
party or by which it may be bound, or to which any of the property or
assets of the Company is subject (collectively, for purposes of this
paragraph, "Agreements and Instruments") except for such defaults that
would not result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement, the U.S. Purchase Agreement and the
Management Agreement and the consummation of the transactions contemplated
in this Agreement, the U.S. Purchase Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the use of
the proceeds from the sale of the Securities as described in the
Prospectuses under the caption "Use of Proceeds") and compliance by the
Company with its obligations under this Agreement, the U.S. Purchase
Agreement and the Management Agreement have been duly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or defaults
or liens, charges or encumbrances that would not reasonably be expected to
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its assets,
properties or operations, except for such violations, which singly or in
the aggregate, would not reasonably be expected to result in a Material
Adverse Effect. As used in this Section, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness
6
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company.
(xii) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company, which is
required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement, the U.S.
Purchase Agreement, or the Management Agreement or the performance by the
Company of its obligations hereunder or thereunder; the aggregate of all
pending legal or governmental proceedings to which the Company is a party
or of which any of its property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents
--------------------
which are required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits thereto which have not been so
described and filed as required.
(xiv) Possession of Intellectual Property. The Company owns or
-----------------------------------
possesses, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names
or other intellectual property (collectively, "Intellectual Property")
necessary to carry on its business as contemplated in the Prospectuses, and
the Company has not received any notice and is not otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material Adverse
Effect.
(xv) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of
the Securities under this Agreement and the U.S. Purchase Agreement or the
consummation of the transactions contemplated by this Agreement, the U.S.
Purchase Agreement or the Management Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws or the regulations of the NASD.
(xvi) Possession of Licenses and Permits. The Company possesses such
----------------------------------
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental
7
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct its business as
contemplated in the Prospectus, the Company is in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure
so to possess or comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and the Company has
not received any written notice, or any oral notice to its knowledge, of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would reasonably be expected to
result in a Material Adverse Effect.
(xvii) Title to Property. The Company owns no real property. The
-----------------
Company has good and marketable title to all other properties owned by it,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as
(a) are described in the Prospectuses or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company; and all of the leases and subleases material to the business of
the Company and under which the Company holds properties described in the
Prospectuses, are in full force and effect, and the Company does not have
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company to
the continued possession of the leased or subleased premises under any such
lease or sublease.
(xviii) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Securities as contemplated herein and in the U.S.
Purchase Agreement and the application of the net proceeds from the sale of
the Securities substantially as described in the Prospectuses will not be,
an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of 1940,
as amended (the "1940 Act").
(xix) Accounting Controls. As of the Closing Time, the Company has
-------------------
or will maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with transaction's general or specific authorization and (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for
assets.
(xx) Registration Rights. There are no persons with registration
-------------------
rights or other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the Company under
the 1933 Act.
(b) Representations and Warranties by the Manager. As an inducement to
each International Manager and to the Company to enter into this Agreement and
to complete the
8
transactions contemplated hereby in connection with the consummation of the
issuance, sale and delivery of the International Securities, the Manager hereby
represents and warrants to each International Manager and to the Company as
follows:
(i) No Material Misstatements or Omissions. At the respective
--------------------------------------
times the Registration Statement, any Rule 462(b) Registration Statement
and any post-effective amendments thereto became effective and at the
Closing Time (and, if any International Option Securities are purchased, at
the Date of Delivery), the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto, did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and neither the Prospectuses, nor
any amendments of supplements thereto, at the time the Prospectuses or any
such amendment or supplement thereto was issued and at the Closing Time
(and, if any International Option Securities are purchased, at the Date of
Delivery) did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or International Prospectus made in reliance upon and in
conformity with information furnished to the Company or the Manager in
writing by any International Manager expressly for use in the Registration
Statement or International Prospectus.
(ii) Good Standing. The Manager has been duly organized and is
-------------
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its obligations
under this Agreement, the U.S. Purchase Agreement and the Management
Agreement; the Manager is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, except where the failure to so
qualify or be in good standing would not result in a Material Adverse
Effect. All of the issued and outstanding capital stock of the Manager has
been duly authorized and validly issued, is fully paid and non-assessable
and is owned by TCW, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(iii) Authorization of Agreements. This Agreement, the International
---------------------------
Purchase Agreement and the Management Agreement have each been duly
authorized, executed and delivered by the Manager. The Management
Agreement constitutes the valid and binding agreement of the Manager,
enforceable in accordance with its terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency or other laws
relating to or affecting enforcement of creditors' rights or by general
equity principles.
(iv) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition,
9
financial or otherwise, or in the earnings, business affairs or business
prospects of the Manager, whether or not arising in the ordinary course of
business and (B) there have been no transactions entered into by the
Manager, other than those in the ordinary course of business, which are
material in the context of the transactions contemplated in this Agreement,
the U.S. Purchase Agreement or the Management Agreement.
(v) Absence of Defaults and Conflicts. The Manager is not in
---------------------------------
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which it is a party or by
which it may be bound, or to which any of its property or assets is subject
(collectively, for purposes of this paragraph, "Agreements and
Instruments") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement, the U.S. Purchase Agreement and the Management Agreement and the
consummation of the transactions contemplated herein, in the U.S. Purchase
Agreement, in the Management Agreement and in the Registration Statement,
and compliance by the Manager with its obligations hereunder and under the
U.S. Purchase Agreement and the Management Agreement, have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Manager pursuant
to, the Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Manager or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Manager or any of its assets, properties or
operations, except for such violations which, singly or in the aggregate,
would result in a Material Adverse Effect. As used in this Section, a
"Repayment Event" means any event or condition which gives the holder of
any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Manager.
(vi) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Manager, threatened against or affecting the Manager, which is required
to be disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of
the transactions contemplated in this Agreement, the U.S. Purchase
Agreement or the Management Agreement or the performance by the Manager of
its obligations hereunder or under the U.S. Purchase Agreement or the
Management Agreement; the aggregate of all pending legal or governmental
proceedings to which the Manager is a party or of which any of its
10
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material
Adverse Effect.
(vii) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Manager of its
obligations hereunder or under the U.S. Purchase Agreement or the
Management Agreement.
(viii) Possession of Licenses and Permits. The Manager possesses
----------------------------------
such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct
its business as contemplated in the Prospectuses; the Manager is in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
aggregate, have a Material Adverse Effect; all of the Governmental Licenses
are valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and the
Manager has not received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(ix) Investment Adviser. The Manager is not prohibited by the
------------------
Investment Advisers Act of 1940, as amended (the "Advisers Act"), or the
rules and regulations thereunder, from acting under the Management
Agreement as contemplated by the Prospectuses.
(x) Financial Resources. The Manager has the financial resources
-------------------
available to it necessary for the performance of its services and
obligations as contemplated in the Prospectuses.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or the Manager delivered to the Global Coordinator, the International
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company or the Manager to each International
Manager as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each International Manager, severally and not jointly,
and each International Manager, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial International Securities set forth in Schedule A opposite the name of
such International Manager, plus any additional number of Initial Securities
which such International
11
Manager may become obligated to purchase pursuant to the provisions of Section
10 hereof bears to the total number of Initial International Securities,
subject, in each case, to such adjustments among the International Managers as
the Global Coordinator in its sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the International Managers,
severally and not jointly, to purchase up to an additional 300,000 shares of
Common Stock at the price per share set forth in Schedule B, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial International Securities but not payable on the
International Option Securities. 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 International Securities upon
notice by the Global Coordinator to the Company setting forth the number of
International Option Securities as to which the several International Managers
are then exercising the option and the time and date of payment and delivery for
such International Option Securities. Any such time and date of delivery for
the International Option Securities (a "Date of Delivery") shall be determined
by the Global Coordinator, but shall not be later than seven 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 International Option Securities, each of the International Managers, acting
severally and not jointly, will purchase that proportion of the total number of
International Option Securities then being purchased which the number of Initial
International Securities set forth in Schedule A opposite the name of such
International Manager bears to the total number of Initial International
Securities, subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
O'Melveny & Xxxxx llp, Embarcadero Center West, 000 Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or at such other place as shall be agreed upon
by the Global Coordinator and the Company, at 7:00 A.M. (California time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Global Coordinator and the
Company (such time and date of payment and delivery being herein called "Closing
Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the International Managers for
12
the respective accounts of the International Managers of certificates for the
International Securities to be purchased by them. Xxxxxxx Xxxxx, individually
and not as representative of the International Managers, may (but shall not be
obligated to) make payment of the purchase price for the Initial International
Securities or the International Option Securities, if any, to be purchased by
any International Manager whose funds have not been received by the Closing Time
or the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the International
Managers may request in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Initial International Securities and the International
Option Securities, if any, will be made available for examination and packaging
by the International Managers in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
SECTION 3. Covenants.
---------
(a) Covenants of the Company. The Company covenants with each
International Manager as follows:
(i) Compliance with Securities Regulations and Commission
-----------------------------------------------------
Requests. The Company, subject to Section 3(a)(ii), will comply with the
--------
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Global Coordinator as soon as reasonably practicable, and confirm the
notice in writing, (A) when any post-effective amendment to the
Registration Statement, shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (B) of the
receipt of any comments from the Commission, (C) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectuses or for additional information, and (D) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or 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. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus. The
Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(ii) Filing of Amendments. The Company will give the Global
--------------------
Coordinator notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectuses
included in the Registration Statement
13
at the time it became effective or to the Prospectuses and will furnish the
Global Coordinator with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not
file or use any such document to which the Global Coordinator or counsel
for the International Managers shall reasonably object.
(iii) Delivery of Registration Statements. The Company has
-----------------------------------
furnished or will deliver to the International Managers and counsel for the
International Managers, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith) and signed copies of all consents and
certificates of experts, and will also deliver to the International
Managers, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the International Managers. The copies of the Registration Statement
and each amendment thereto furnished to the International Managers will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(iv) Delivery of Prospectuses. The Company has delivered to
------------------------
each International Manager, without charge, as many copies of each
preliminary prospectus as such International Manager reasonably requested,
and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each International
Manager, without charge, during the period when the International
Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 Act"), such number of copies of the
International Prospectus (as amended or supplemented) as such International
Manager may reasonably request. The International Prospectus and any
amendments or supplements thereto furnished to the International Managers
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(v) Continued Compliance with Securities Laws. The Company
-----------------------------------------
will comply with the 1933 Act and the 1933 Act Regulations so as to permit
the completion of the distribution of the Securities as contemplated in
this Agreement, the U.S. Purchase Agreement and in the Prospectuses. If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the reasonable opinion
of counsel for the International Managers or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that
the Prospectuses will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement any Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
the Company will promptly prepare and file with the Commission, subject to
Section 3(a)(ii), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or
14
the Prospectuses comply with such requirements, and the Company will
furnish to the International Managers such number of copies of such
amendment or supplement as the International Managers may reasonably
request.
(vi) Blue Sky Qualifications. The Company will use its
-----------------------
commercially reasonable efforts, in cooperation with the International
Managers, to take such action as the Global Coordinator may reasonably
request to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic
or foreign) as the Global Coordinator may designate in writing to the
Company and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; provided, however,
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(vii) Rule 158. The Company will timely file such reports
--------
pursuant to the 1934 Act as are necessary in order to make generally
available to its security holders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Company will use the net proceeds
---------------
received by it from the sale of the Securities substantially in the manner
specified in the Prospectuses under "Use of Proceeds".
(ix) Listing. The Company will use its best efforts to effect
-------
the listing of the Common Stock (including the Securities) on the New York
Stock Exchange.
(x) Restriction on Sale of Securities. During a period of 180
---------------------------------
days from the date of the Prospectuses, the Company will not, without the
prior written consent of the Global Coordinator, in its discretion
reasonably exercised, (A) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock
or file any registration statement under the 1933 Act with respect to any
of the foregoing or (B) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly,
the economic consequence of ownership of the Common Stock, whether any such
swap or transaction described in clause (A) or (B) above is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise.
The foregoing sentence shall not apply to (A) the Securities to be sold
hereunder or under the International Purchase Agreement, (B) any shares of
Common Stock issued by the Company upon the exercise
15
of an option or warrant or the conversion of a security outstanding on the
date hereof and referred to in the Prospectuses, (C) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans of the Company referred to in the
Prospectuses or (D) any shares of Common Stock issued pursuant to any non-
employee director stock plan or dividend reinvestment plan.
(xi) Reporting Requirements. The Company, during the period
----------------------
when the Prospectuses are required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the rules and regulations of the Commission thereunder.
(xii) REIT Qualification. The Company will use its best efforts
------------------
to meet the requirements to qualify, commencing with its taxable year
ending December 31, 1997, as a "real estate investment trust" under the
Code.
(xiii) Compliance with NASD Rules. The Company hereby agrees
--------------------------
that it will require that the holders of Reserved Securities execute lock-
up agreements that provide that such securities will be restricted as
required by the NASD or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date of
this Agreement. The Underwriters will notify the Company in writing as to
which persons will need to be so restricted. At the request of the
Underwriters, the Company will direct the transfer agent to place a stop
transfer restrictions upon such securities for such period of time.
(xiv) Insurance Policy. The Company agrees to provide, without
----------------
expense to the Underwriters, not later than the Closing Date, an insurance
policy (the "Insurance Policy") providing for coverage, among other things,
of the Company's and the Manager's indemnity and contribution obligations
pursuant to Section 6 and Section 7 of this Agreement and the U.S. Purchase
Agreement. The form of such policy shall be in the form previously
provided to the Underwriters and approved by Xxxxxxx Xxxxx. Such policy
shall be for a minimum of three years and shall be prepaid. The Company
and the Manager, on the one hand, and the Underwriters on the other,
respectively, acknowledge and agree that they shall not change, or permit
to be changed, any provision of such policy negatively affecting the
Company and/or the Manager, on the one hand, or the Underwriters, on the
other, respectively, without the prior written authorization of Xxxxxxx
Xxxxx.
(b) Covenant of the Manager. The Manager covenants with each International
Manager and with the Company that, during the period when the Prospectuses is
required to be delivered under the 1933 Act or the 1934 Act, it shall notify you
and the Company of the occurrence of any material events respecting its
activities, affairs or condition, financial or otherwise, and, if as a result of
any such event it is necessary, in the opinion of counsel, to amend or
supplement the Prospectuses in order to make the Prospectuses not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, the Manager will forthwith supply such information to the Company as
shall be necessary for the Company to
16
prepare an amendment or supplement to the Prospectuses so that, as so amended or
supplemented, the Prospectuses will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
-------------------
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
International Managers of this Agreement, any Agreement among Managers and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Securities, (iii) the preparation, issuance
and delivery of the certificates for the International Securities to the
International Managers, including any stock or other transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery of the
International Securities to the International Managers and the transfer of the
International Securities between the International Managers and the U.S.
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the International
Securities under securities laws in accordance with the provisions of Section
3(a)(vi) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the International Managers in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the International Managers of copies
of each preliminary prospectus, any Term Sheets and of the International
Prospectus and any amendments or supplements thereto, (vii) the cost of the
Insurance Policy, (viii) the preparation, printing and delivery to the
International Managers of copies of the Blue Sky Survey and any supplement
thereto, (ix) the fees and expenses of any transfer agent or registrar for the
Securities and (x) the filing fees incident to, and the reasonable fees and
disbursements actually incurred by counsel to the International Managers in
connection with, the review by the NASD of the terms of the sale of the
Securities, and (xi) the fees and expenses incurred in connection with the
listing of the Securities on the New York Stock Exchange [and (xii) all costs
and expenses of the International Managers, including the fees and disbursements
of counsel for the International Managers, in connection with matters related to
the Reserved Securities which are designated by the Company for sale to
directors, officers and employees of the Company, TCW and its affiliates.
(b) Termination of Agreement. If this Agreement is terminated by the
Global Coordinator in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company or the Manager shall reimburse the International
Managers for all of their out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the International Managers.
SECTION 5. Conditions of International Managers' Obligations. The
-------------------------------------------------
obligations of the several International Managers hereunder are subject to the
accuracy in all material respects of the representations and warranties of the
Company and the Manager contained in Section 1 hereof or in certificates of any
officer of the Company or the Manager delivered pursuant to the provisions
hereof, to the performance by each of the Company or the Manager of its
respective covenants and other obligations hereunder, and to the following
further conditions:
17
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
International Managers. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule 424(b)
(or a post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule
430A) or, if the Company has elected to rely upon Rule 434, a Term Sheet
shall have been filed with the Commission in accordance with Rule 424(b).
(b) Opinions of Counsel for Company and the Manager. At Closing Time,
the International Managers shall have received the favorable opinions,
dated as of Closing Time, of O'Melveny & Xxxxx LLP, as counsel for the
Company and of _________________, as counsel for the Manager, in form and
substance reasonably satisfactory to counsel for the International
Managers, together with signed or reproduced copies of each such letter for
each of the other International Managers to the effect set forth in Exhibit
A hereto.
(c) Opinion of Maryland Counsel for the Company. At Closing Time, the
International Managers shall have received the favorable opinion, dated as
of Closing Time, of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, special Maryland
counsel for the Company, in form and substance reasonably satisfactory to
counsel for the International Managers, together with signed or reproduced
copies of such letter for each of the other International Managers to the
effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for International Managers. At Closing Time,
the International Managers shall have received the favorable opinion, dated
as of Closing Time, of Brown & Wood llp, counsel for the International
Managers, together with signed or reproduced copies of such letter for each
of the other International Managers with respect to the matters set forth
in clauses (i), (ii), (v), (vi) (solely as to preemptive or other similar
rights arising by operation of law or under the charter or by-laws of the
Company), (vii) through (x), inclusive (xii), (xiv) (solely as to the
information in the Prospectuses under "Description of Capital Stock--Common
Stock") and the penultimate paragraph of Exhibit A hereto. In giving such
opinion Brown & Wood llp may rely, as to all matters governed by the laws
of jurisdictions other than the law of the State of New York and the
federal law of the United States, upon the opinions of counsel satisfactory
to the International Managers. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent
they deem proper, upon certificates of officers of the Company and the
Manager and certificates of public officials.
(e) Officers' Certificate of the Company. At Closing Time, there
shall not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectuses, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company,
18
whether or not arising in the ordinary course of business, and the
International Managers shall have received a certificate of the President
or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct
in all material respects with the same force and effect as though expressly
made at and as of Closing Time, (iii) the Company has, in all material
respects, complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or, to
such persons' knowledge, are pending or are contemplated by the Commission.
(f) Officers' Certificate of the Manager. At Closing Time, there
shall not have been, since the date hereof or since the respective dates of
which information is given in the Prospectuses, any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Manager, whether or not arising in the
ordinary course of business, and the International Managers shall have
received a certificate of the President or a Vice President of the Manager
and of the chief financial or chief accounting officer of the Manager,
dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties of the
Manager contained in Section 1(b) hereof are true and correct with the same
force and effect as though expressly made at and as of Closing Time, and
(iii) the Manager has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the International Managers shall have received from Deloitte &
Touche LLP a letter dated such date, in form and substance reasonably
satisfactory to the International Managers, together with signed or
reproduced copies of such letter for each of the other International
Managers containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectuses.
(h) Bring-down Comfort Letter. At Closing Time, the International
Managers shall have received from Deloitte & Touche LLP a letter, dated as
of Closing Time, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (h) of this Section, except
that the specified date referred to shall be a date not more than three
business days prior to Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
19
(j) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(k) Lock-up Agreements. At the date of this Agreement, the
International Managers shall have received an agreement in the form of
Exhibit C hereto signed by the persons listed on Schedule C hereto.
(l) Insurance Policy. At Closing Time, the Insurance Policy shall be
in full force and effect upon the terms and conditions agreed to by the
Underwriters prior to the date hereof.
(m) Conditions to Purchase of International Option Securities. In the
event that the International Managers exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the International
Option Securities, the representations and warranties of the Company and
the Manager contained herein and the statements in any certificates
furnished by the Company or the Manager hereunder shall be true and correct
in all material respects as of each Date of Delivery and, at the relevant
Date of Delivery, the International Managers shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
---------------------
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(f) hereof remains true and correct as of such Date of
Delivery.
(ii) Officers' Certificates. A certificate, dated such Date of
----------------------
Delivery, of the President or a Vice President of the Manager and of
the chief financial or chief accounting officer of the Manager
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(g) hereof remains true and correct as of such Date of
Delivery.
(iii) Opinions of Counsel for Company and the Manager. The favorable
------------------------------------------------
opinion of O'Melveny & Xxxxx LLP, as counsel for the Company and
__________, as counsel for the Manager, in form and substance
satisfactory to counsel for the International Managers, dated such
Date of Delivery, relating to the International Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect
as the opinions required by Section 5(b) hereof.
(iv) Opinion of Maryland Counsel for the Company. The favorable
-------------------------------------------
opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, special Maryland counsel
for the Company, in form and substance satisfactory to counsel for the
International Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinions required by
Section 5(c) hereof.
20
(v) Opinion of Counsel for the International Managers. The
-------------------------------------------------
favorable opinion of Xxxxx & Wood llp, counsel for the International
Managers, dated such Date of Delivery, relating to the International
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(vi) Bring-down Comfort Letter. A letter from Deloitte & Touche
-------------------------
LLP, in form and substance satisfactory to the International Managers
and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the International Managers
pursuant to Section 5(g) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(n) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the International Managers shall have been furnished
with such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained (provided, however, that neither the Company,
the Manager nor their counsel shall be required to provide any further
information, documents, assurances or opinions with respect to the
Insurance Policy not specified herein); and all proceedings taken by the
Company or the Manager in connection with the issuance and sale of the
Securities as herein contemplated shall be reasonably satisfactory in form
and substance to the International Managers and counsel for the
International Managers.
(o) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of
International Option Securities, on a Date of Delivery which is after the
Closing Time, the obligations of the several International Managers to
purchase the relevant International Option Securities, may be terminated by
the International Managers by notice to the Company at any time at or prior
to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of International Managers by the Company and the
Manager. The Company and the Manager (subject to Section 6(e) below), jointly
and severally, agree to indemnify and hold harmless each International Manager
and each person, if any, who controls any International Manager within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material
21
fact contained in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any preliminary prospectus
or the Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company;
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
(iv) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of the failure of directors, officers
and employees of the Company, TCW and its affiliates to pay for and accept
delivery of Reserved Securities, which by the end of the first business day
following the date of this Agreement, were subject to a properly confirmed
agreement to purchase; and
(v) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement of a material
fact included in the supplemental material distributed in connection with
the reservation and sale of the Reserved Securities to directors, officers
and employees of the Company, TCW and its affiliates or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein, when considered in conjunction with the Prospectuses or
preliminary prospectuses, not misleading.
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (A) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectuses
(or any amendment or supplement thereto) or (B) that results solely from an
untrue statement of a material fact contained in, or the omission of a material
fact from, the preliminary prospectus, which untrue
22
statement or omission was corrected in its entirety in the Prospectuses (as then
amended or supplemented).
(b) Indemnification of the Company and the Manager, and their Respective
Directors and Officers. Each International Manager severally agrees to
indemnify and hold harmless the Company and the Manager, and their respective
directors, each of the Company's officers who signed the Registration Statement,
and each person, if any, who controls the Company or the Manager within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such International Manager through Xxxxxxx Xxxxx expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party
23
for fees and expenses of counsel, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding 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, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
(e) Recourse Against the Manager. Notwithstanding anything herein to the
contrary, the International Managers' recourse against the Manager with respect
to (i) the matters set forth in this Agreement (including, without limitation,
Sections 6 and 7 of this Agreement), (ii) any matters in the Registration
Statement, (iii) any matters arising as a matter of law, or (iv) any other
matters whatsoever, shall be expressly limited as follows:
(i) first, the International Managers shall have fully and finally
exhausted all of their rights and remedies under the Insurance Policy;
(ii) second, the International Managers, as their sole and exclusive
remedy, may thereafter assert any claims they may have against the Manager
directly against the Manager to the limited extent of the gross compensation
(not reimbursement of expenses) paid (not payable) by the Company to the Manager
solely in respect of the three-year period commencing at the Closing Time;
(iii) the Manager shall have no other liability to the International
Managers whatsoever; and
(iv) the International Managers' shall have no rights, remedies or
claims whatsoever against the Manager, directly or indirectly.
provided, however, that the foregoing limitations set forth in this subsection
-------- -------
(e) shall not apply to any claim that the International Managers may have
against the Manager as to which there is a final adjudication of actual,
intentional and deliberate fraud on the part of the Manager.
SECTION 7. Contribution.
------------
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such
24
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Manager
(collectively, the "Company Parties"), on the one hand and the International
Managers, on the other hand, from the offering of the International Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company Parties, on the one hand, and of the International
Managers on the other hand, in connection with the statements or omissions.
The relative benefits received by the Company Parties, on the one hand, and
the International Managers, on the other hand, in connection with the offering
of the International Securities pursuant to this Agreement shall be deemed to be
in the same respective proportions as the total net proceeds from the offering
of the International Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting discount received
by the International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company Parties, on the one hand, and the
International Managers, on the other hand, shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company Parties, on the one hand, or by the
International Managers, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Manager and the International Managers agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the International Managers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
Notwithstanding the provisions of this Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Manager has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
25
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company or the Manager, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company or the Manager within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company and the Manager, respectively. The International
Managers' respective obligations to contribute pursuant to this Section 7 are
several in proportion to the number of Initial International Securities set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or the Manager submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any International Manager or controlling
person, or by or on behalf of the Company or the Manager, and shall survive
delivery of the Securities to the International Managers.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The International Managers may terminate this
Agreement, by written notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the International
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business, or any such
adverse change with respect to the Manager which is material in the context of
the transactions contemplated by this Agreement, or (ii) if there has occurred
any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the International Managers, impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) if trading in
any securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
26
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the International Managers. If
----------------------------------------------------
one or more of the International Managers shall fail at Closing Time or a Date
of Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the International
Managers shall have the right, within 24 hours thereafter, to make arrangements
for one or more of the non-defaulting International Managers, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the International Managers shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Securities to be purchased on such date, each of the non-
defaulting International Managers shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after the Closing Time, the obligation
of the International Managers to purchase and of the Company to sell the
International Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any non-
defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the International
Managers or the Company shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectuses or in any other documents or arrangements. As used herein, the
term "International Manager" includes any person substituted for a International
Manager under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the International Managers at
Ropemaker Place, 00 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, attention of Equity
Capital Markets; and notices to the Company shall be directed to it at 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of Xxxxxx
X. Xxxxxx with
27
a copy to O'Melveny & Xxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, attention: Xxxxx X. Xxxxx, Esq.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the International Managers, the Company and the Manager and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the International Managers, the Company and the Manager and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
International Managers, the Company and the Manager and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any International Manager shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
28
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the International Managers, the Manager and the Company, in accordance with its
terms.
Very truly yours,
APEX MORTGAGE CAPITAL, INC.
By____________________________
Title:
TCW INVESTMENT MANAGEMENT COMPANY
By____________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
SUTRO & CO. INCORPORATED
By: XXXXXXX XXXXX INTERNATIONAL
By _______________________________________
Authorized Signatory
29
SCHEDULE A
Number of
Initial
International
Name of International Manager Securities
------------------------------ ----------
Xxxxxxx Xxxxx International...............
PaineWebber International (U.K.) Ltd......
Xxxxxx, Xxxxxxxx & Company, Incorporated..
Sutro & Co. Incorporated..................
---------
Total..................................... 2,000,000
=========
SCHEDULE B
APEX MORTGAGE CAPITAL, INC.
2,000,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $..
2. The purchase price per share for the Securities to be paid by
the several International Managers shall be $., being an amount equal to
the initial public offering price set forth above less $. per share;
provided that the purchase price per share for any International Option
Securities purchased upon the exercise of the over-allotment option
described in Section 2(b) shall be reduced by an amount per share equal to
any dividends or distributions declared by the Company and payable on the
Initial International Securities but not payable on the International
Option Securities.
Sch B-1
SCHEDULE C
List of persons and entities
subject to lock-up
Sch C-1
Exhibit A-1
FORM OF OPINION OF COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Maryland.
(ii) The Company has the corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the
International Purchase Agreement and the U.S. Purchase Agreement,
respectively.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect. [see examples enclosed]
(iv) The Company is organized in accordance with the requirements
for qualification as a real estate investment trust under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the "Internal
Revenue Code") and the rules and regulations thereunder. The contemplated
method of operation of the Company's business as described in the
Registration Statement will satisfy the operational requirements for
qualification as a real estate investment trust under Sections 856 through
860 of the Internal Revenue Code, and the rules and regulations thereunder.
(v) The Company is not, and upon the issuance and sale of the
International Securities as contemplated in the International Purchase
Agreement and the U.S. Securities as contemplated in the U.S. Purchase
Agreement and the application of the net proceeds from the sale of the
Securities as described in the Prospectuses will not be, an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the 1940 Act.
(vi) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if
any, pursuant to the International Purchase Agreement or the U.S. Purchase
Agreement or pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectuses or pursuant to the exercise of options
referred to in the Prospectuses); the shares of issued and outstanding
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable [deletion made subject to
confirmation of inclusion in BSA&I opinion].
A-1-1
(vii) The Securities have been duly authorized for issuance and sale
to the International Managers pursuant to the International Purchase
Agreement and to the U.S. Underwriters pursuant to the U.S. Purchase
Agreement and, when issued and delivered by the Company pursuant to the
International Purchase Agreement and the U.S. Purchase Agreement,
respectively, against payment of the consideration set forth in the
International Purchase Agreement and the U.S. Purchase Agreement,
respectively, will be validly issued and fully paid and non-assessable
[deletion made subject to confirmation of inclusion in BSA&I opinion].
(viii) The issuance of the Securities is not subject to preemptive
or other similar rights of any security holder of the Company arising by
operation of law, under the charter or by-laws of the Company or, to the
best of our knowledge and information, otherwise.
(ix) 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 charter and by-laws
of the Company.
(x) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectuses pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and, to
the best of our knowledge, no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement has
been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or threatened by the Commission.
(xi) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434
Information, as applicable, the Prospectuses and each amendment or
supplement to the Registration Statement and Prospectuses as of their
respective effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom, as to which
we need express no opinion) complied as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations.
(xii) If Rule 434 has been relied upon, the Prospectuses were not
"materially different," as such term is used in Rule 434, from the
prospectuses included in the Registration Statement at the time it became
effective.
(xiii) All descriptions in the Registration Statement of contracts
and other documents to which the Company is a party are accurate in all
material respects; to the best of our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects. [see
examples enclosed]
(xiv) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to which
the Company or the Manager is a party, or to
A-1-2
which the property of the Company or the Manager is subject, before or
brought by any court or governmental agency or body, domestic or foreign,
which might reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated in the International Purchase Agreement, the U.S. Purchase
Agreement or the Management Agreements, or the performance by the Company
and the Manager of its obligations thereunder.
(xv) To the best of our knowledge, the Company is not in violation
of its charter or by-laws and no default by the Company exists in the due
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is described
or referred to in the Registration Statement or the Prospectuses or filed
as an exhibit to the Registration Statement. [see examples enclosed]
(xvi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the 1933 Act and
the 1933 Act Regulations, which have been obtained, or as may be required
under the securities or blue sky laws of the various states, as to which we
need express no opinion) is necessary or required in connection with the
due authorization, execution and delivery of the International Purchase
Agreement, the U.S. Purchase Agreement or the Management Agreement by the
Company, or for the offering, issuance or sale of the Securities.
(xvii) The Company possesses such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct its business as contemplated in the
Prospectuses that we have, in the exercise of customary professional
diligence, recognized as applicable to the Company and, to our knowledge
and information, the Company is in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse Effect.
(xviii) Each of the International Purchase Agreement and the U.S.
Purchase Agreement has been duly authorized, executed and delivered by the
Company.
(xix) The Management Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding obligation
of the Company enforceable against it in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xx) The execution, delivery and performance of the International
Purchase Agreement, the U.S. Purchase Agreement and the Management
Agreement, the consummation of the transactions contemplated therein and in
the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in
A-1-3
the Prospectuses under the caption "Use Of Proceeds") and the compliance by
the Company with its obligations under the International Purchase Agreement
and the U.S. Purchase Agreement, respectively, do not and will not, whether
with or without the giving of notice or lapse of time or both, conflict
with or constitute a breach of, or default or Repayment Event (as defined
in Section 1(a)(xi) of the International Purchase Agreement and U.S.
Purchase Agreement) under or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument, known
to us, to which the Company is a party or by which it may be bound, or to
which any of the property or assets of the Company is subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or
any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of
its properties, assets or operations, except for such violations, which
singly or in the aggregate, would not result in a Material Adverse Effect.
(xxi) The information in the Prospectuses under "Business and
Strategy--Legal Proceedings," "Federal Income Tax Consequences," "ERISA
Considerations," "Description of Capital Stock," "Certain Provisions of
Maryland Law and of the Company's Charter and Bylaws" and in Item 33 and
Item 34 of Part II of the Registration Statement, to the extent that it
constitutes matters of law, summaries of legal matters, the Company's
charter and bylaws or legal proceedings, or legal conclusions, has been
reviewed by us and is correct in all material respects; and our opinion set
forth under "Federal Income Tax Consequences" is confirmed.
(xxii) To the best of our knowledge, there are no statutes or
regulations that are required to be described in the Prospectuses that are
not described as required. [see examples enclosed]
(xxiii) To the best of our knowledge, there are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered
by the Company under the 1933 Act.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment thereto, including the Rule
430A Information and Rule 434 Information (if applicable), (except for
financial statements and schedules and other financial data included
therein or omitted therefrom, as to which we need make no statement), at
the time such Registration Statement or any such 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 Prospectuses or any
amendment or supplement thereto (except for financial statements and
schedules and other financial data included therein or omitted therefrom,
as to which we need make no statement), at the time the Prospectuses were
issued, at the time any such amended or supplemented prospectuses were
issued or at the Closing Time, included or includes an untrue statement of
a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
A-1-4
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the laws of Maryland, upon the opinion of
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, special counsel to the Company (which
opinion shall be dated and furnished to the Representatives at the Closing
Time, shall be satisfactory in form and substance to counsel for the
Underwriters and shall expressly state that the Underwriters may rely on
such opinion as if it were addressed to them), provided that O'Melveny &
Xxxxx LLP shall state in their opinion that they believe that they and the
Underwriters are justified in relying upon such opinion, and (B), as to
matters of fact (but not as to legal conclusions) O'Melveny & Xxxxx LLP may
rely, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion shall not state
that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal
opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). [Note: comments made to the foregoing
paragraph were unclear]
A-1-5
Exhibit A 2
FORM OF OPINION OF COUNSEL TO THE MANAGER
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Manager has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
California.
(ii) The Manager has the corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the
International Purchase Agreement and the U.S. Purchase Agreement,
respectively.
(iii) The Manager is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not result in a Material Adverse
Effect.
(iv) All of the issued and outstanding capital stock of the
Manager has been duly authorized and validly issued, is fully paid and non-
assessable and is owned by TCW, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(v) The Manager is duly registered as an "investment adviser," as
such term is defined in the Investment Advisers Act of 1940, as amended
(the "Advisers Act"), and is not prohibited by the Advisers Act or the
rules and regulations thereunder from acting under the Management Agreement
as contemplated by the Prospectuses.
(vi) All descriptions in the Registration Statement of contracts and
other documents to which the Manager is a party are accurate in all
material respects.
(vii) To the best of my knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to which
the Manager is a party, or to which the property of the Manager is subject,
before or brought by any court or governmental agency or body, domestic or
foreign, which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely
affect the properties or assets thereof or the consummation of the
transactions contemplated in the International Purchase Agreement, the U.S.
Purchase Agreement or the Management Agreement or the performance by the
Manager of its obligations thereunder.
A-2-1
(viii) To the best of my knowledge, the Manager is not in violation
of its charter or by-laws and no default by the Manager exists in the due
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is described
or referred to in the Registration Statement or the Prospectuses or filed
as an exhibit to the Registration Statement. [see examples]
(ix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the 1933 Act and
the 1933 Act Regulations, which have been obtained, is necessary or
required in connection with the due authorization, execution and delivery
by the Manager of the International Purchase Agreement, the U.S. Purchase
Agreement or the Management Agreement.
(x) The Manager possesses such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct its business as contemplated in the
Prospectuses that we have, in the exercise of customary professional
diligence, recognized as applicable to the Manager and, to our knowledge
and information, the Manager is in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse Effect.
(xi) Each of the International Purchase Agreement and the U.S.
Purchase Agreement has been duly authorized, executed and delivered by the
Manager.
(xii) The Management Agreement has been duly authorized, executed
and delivered by the Manager and constitutes a valid and binding obligation
of the Manager enforceable against it in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting the
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xiii) The execution, delivery and performance of the International
Purchase Agreement, the U.S. Purchase Agreement and the Management
Agreement, the consummation of the transactions contemplated therein and in
the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectuses under the caption "Use Of Proceeds") and the
compliance by the Manager with its obligations under the International
Purchase Agreement and the U.S. Purchase Agreement, respectively, do not
and will not, whether with or without the giving of notice or lapse of time
or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined in Section 1(b)(v) of the U.S. Purchase Agreement and
International Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Manager pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Manager is a party or by which it may
be bound, or to which any of the property or assets of the Manager is
subject (except for such conflicts, breaches or defaults or liens, charges
or encumbrances that
A-2-2
would not have a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws of the Manager or
any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Manager or any of
its properties, assets or operations, except for such violations, which
singly or in the aggregate, would not result in a Material Adverse Effect.
(xiv) To the best of my knowledge and information, the description
of the Manager in the Registration Statement and the Prospectuses does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
In rendering such opinion, such counsel may rely as to matters of
fact (but not as to legal conclusions) [ ] may rely, to the extent
they deem proper, on certificates of responsible officers of the Manager
and public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including,
without limitation, the Legal Opinion Accord of the ABA Section of Business
Law (1991).
A-2-3
Exhibit B
FORM OF OPINION OF
SPECIAL MARYLAND COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state of
Maryland.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the
International Purchase Agreement and the U.S. Purchase Agreement,
respectively.
(iii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectuses in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to the International Purchase Agreement and the
U.S. Purchase Agreement or pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectuses or pursuant to the exercise
of options referred to in the Prospectuses); the shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any securityholder of the
Company, either pursuant to the charter or by-laws of the Company or
Maryland law.
(iv) The Securities have been duly authorized for issuance and
sale to the Managers pursuant to the International Purchase Agreement and
to the U.S. Underwriters pursuant to the U.S. Purchase Agreement and, when
issued and delivered by the Company pursuant to the International Purchase
Agreement and the U.S. Purchase Agreement, respectively, against payment of
the consideration set forth in the International Purchase Agreement and the
U.S. Purchase Agreement, respectively, will be validly issued and fully
paid and non-assessable and no holder of the Securities is or will be
subject to personal liability by reason of being such a holder.
(v) The issuance of the Securities is not subject to preemptive
or other similar rights of any securityholder of the Company, either
pursuant to the charter or by-laws of the Company or Maryland law.
(vi) Each of the International Purchase Agreement and the U.S.
Purchase Agreement has been duly authorized, executed and delivered by the
Company.
(vii) The Management Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable against it in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting the
B-1
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(viii) The Insurance Policy has been duly authorized, executed
and delivered and is in full force and effect and enforceable in accordance
with its terms.
(ix) The form of certificate used to evidence the Common Stock
complies in all material respects with Maryland law and with any applicable
requirements of the charter and by-laws of the Company.
(x) The information in the Prospectus under "Description of
Capital Stock," "Certain Provisions of Maryland Law and of the Company's
Charter and Bylaws," and "Federal Income Tax Consequences," to the extent
that it constitutes matters of Maryland law or the Company's charter and
bylaws, has been reviewed by us and is correct in all material respects.
(xi) To the best of our knowledge, there are no statutes or
regulations of the State of Maryland that are required to be described in
the Prospectuses that are not described as required.
(xii) To the best of our knowledge, the Company is not in
violation of its charter or by-laws and no default exists in the due
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is described
or referred to in the Registration Statement or the Prospectuses or filed
as an exhibit to the Registration Statement.
(xiii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency of the State of Maryland is necessary or
required in connection with the due authorization, execution and delivery
of the International Purchase Agreement, the U.S. Purchase Agreement and
the Management Agreement or for the offering, issuance or sale of the
Securities.
(xiv) The execution, delivery and performance of the
International Purchase Agreement, the U.S. Purchase Agreement and the
Management Agreement, the consummation of the transactions contemplated
therein and in the Registration Statement (including the issuance and sale
of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use Of
Proceeds") and the compliance by the Company with its obligations under the
International Purchase Agreement, the U.S. Purchase Agreement and the
Management Agreement do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined in Section 1(a)(xi) of
the International Purchase Agreement and the U.S. Purchase Agreement) under
or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or any other agreement or instrument, known to us, to which the Company is
a party or by which it, or to which any of the property or assets of the
Company, is subject (except for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a Material Adverse
Effect), nor will such action result in any violation of the
B-2
provisions of the charter or by-laws of the Company or any applicable
Maryland law, statute, rule, regulation, judgment, order, writ or decree,
known to us, of any government, government instrumentality or court of the
State of Maryland or any of its properties, assets or operations, except
for such violations, which singly or in the aggregate, would not result in
a Material Adverse Effect.
B-3
[FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS PURSUANT TO
SECTION 5(L)]
Exhibit C
, 1997
XXXXXXX XXXXX INTERNATIONAL
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
SUTRO & COMPANY INCORPORATED
c/x Xxxxxxx Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Re: Proposed Public Offering by Apex Mortgage Capital, Inc.
-------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of Apex
Mortgage Capital, Inc., a Maryland corporation (the "Company"), understands that
Xxxxxxx Xxxxx International ("Xxxxxxx Xxxxx"), PaineWebber International (U.K.)
Ltd., Xxxxxx, Xxxxxxxx & Company, Incorporated, Sutro & Company Incorporated
propose to enter into an International Purchase Agreement (the "International
Purchase Agreement") with the Company providing for the public offering of
shares (the "Securities") of the Company's common stock, par value $.01 per
share (the "Common Stock"). In recognition of the benefit that such an offering
will confer upon the undersigned as a stockholder [and an officer and/or
director] of the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with each underwriter to be named in the International Purchase Agreement that,
during a period of 180 days from the date of the International Purchase
Agreement, the undersigned will not, without the prior written consent of
Xxxxxxx Xxxxx, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, or otherwise
dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part,
C-1
directly or indirectly, the economic consequence of ownership of the Common
Stock, whether any such swap or transaction is to be settled by delivery of
Common Stock or other securities, in cash or otherwise.
Very truly yours,
Signature:
Print Name:
C-2
