EXHIBIT 10.20
VINTAGE WINE TRUST INC.
15,000,000 SHARES OF COMMON STOCK
PURCHASE/PLACEMENT AGREEMENT
MARCH 16, 2005
PURCHASE/PLACEMENT AGREEMENT
March 16, 2005
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
Vintage Wine Trust Inc., a Maryland corporation (the "Company"), proposes
to sell to you, Friedman, Billings, Xxxxxx & Co., Inc. ("FBR" or "you"), as
initial purchaser, on the terms of this Agreement, a number of shares of the
Company's common stock, par value $0.01 per share (the "Common Stock"), equal to
15,000,000 less the number of shares designated as Regulation D Shares (as
defined below) by FBR and less the number of DSP Shares (as defined below) (the
"144A/Regulation S Shares").
FBR will also act as the Company's exclusive placement agent in connection
with the Company's offer and sale of (a) that number of shares of Common Stock
designated for sale in the Private Placement (as defined below) by FBR, which
shall not include the DSP Shares (the "Regulation D Shares" and, together with
the 144A/Regulation S Shares, the "Initial Shares"), and (b) the Placed Option
Shares (as defined below), in each case for sale to Accredited Investors (as
defined below) (collectively, "Participants"), as set forth in the Final
Memorandum (as defined below) under thee heading "Private Placement." The offer
and sale of the shares described in clauses (a) and (b) of the first sentence of
this paragraph as well as the DSP Shares (as defined below) (collectively, the
"Private Placement Shares") are referred to collectively herein as the "Private
Placement."
In addition, the Company grants to FBR the option described in Section 1(c)
hereof to purchase or place all or any part of 2,250,000 additional shares of
Common Stock (the "Option Shares" and, together with the Initial Shares and the
DSP Shares, the "Shares").
The sale of the Shares to you, the Participants and the DSP Participants
(as defined below), respectively, will be made without registration of the
Shares under the Securities Act of 1933, as amended (the "Securities Act"), and
the rules and regulations thereunder (the "Securities Act Regulations"), in
reliance upon exemptions from the registration requirements of the Securities
Act, including as provided by Section 4(2) thereof. You have advised the Company
that you will make offers and sales ("Exempt Resales") of the 144A/Regulation S
Shares and Purchased Option Shares (as defined below) purchased by you hereunder
(such shares referred to collectively herein as "Resale Shares") in accordance
with Section 3 hereof on the terms set forth in the Final Memorandum (as defined
below), as soon as you deem advisable after this Purchase/Placement Agreement
(this "Agreement") has been executed and delivered.
In connection with the sale of the Shares, the Company has prepared a
confidential preliminary offering memorandum, subject to completion, dated
February 21, 2005 (the "Preliminary Memorandum"), and a confidential final
offering memorandum, dated March 16, 2005 (the "Final Memorandum" and,
collectively with the Preliminary Memorandum, as either or both may be amended
or supplemented, the "Memorandum"). Each of the Preliminary Memorandum and the
Final Memorandum sets forth certain information concerning the Company (and the
Subsidiaries (as defined below)) and the Shares. The Company hereby confirms
that it has authorized the use of the Preliminary Memorandum
and the Final Memorandum in connection with (i) the offering and resale of the
Resale Shares by FBR and by all dealers to whom Resale Shares may be sold, and
(ii) the Private Placement. Any references to the Preliminary Memorandum or the
Final Memorandum shall be deemed to include all exhibits and annexes thereto.
It is understood and acknowledged that FBR and the holders of the Shares
(including direct and indirect transferees of FBR and the holders) will have the
rights set forth in the registration rights agreement by and between the Company
and FBR, which shall be in substantially the form attached hereto as Exhibit A
and dated as of the Closing Time (as defined below) (the "Registration Rights
Agreement"), for so long as such Shares constitute "Registrable Shares" (as
defined in the Registration Rights Agreement).
In addition, pursuant to (clauses (a) through (g), collectively, the
"Contribution Agreements"):
(a) that certain Irrevocable Contribution Agreement dated as of February
18, 2005, among First Banc Mortgage LLC, a Nevada limited liability
company ("First Banc"), Vintage Wine Trust, LP, a Delaware limited
partnership ("VWT LP"), the Company, and VWP LLC, a Delaware limited
liability company ("VWP LLC");
(b) that certain Irrevocable Contribution Agreement dated as of February
18, 2005, among Xxx Xxxxx, an individual, Xxxxxxx X. Shell, an
individual, Shell Investors LLC, a Delaware limited liability company
("Shell LLC"), VWT LP and the Company;
(c) that certain Irrevocable Contribution Agreement dated as of February
18, 2005, among Xxxxxx X. Xxxxxx, an individual, Ciatti Shell LLC, a
Delaware limited liability company ("Ciatti LLC"), VWT LP and the
Company;
(d) that certain Irrevocable Contribution Agreement dated as of February
18, 2005, among Xxxxxxx X. Shell, an individual, Ciatti LLC, VWT LP
and the Company;
(e) that certain Irrevocable Contribution Agreement dated as of February
18, 2005, among Xxxxxx X. Xxxxxxx, an individual, Ciatti LLC, VWT LP
and the Company;
(f) that certain Purchase Agreement dated as of February 18, 2005, among
Xxxxxx Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx Investors LLC, a Delaware
limited liability company ("Ciatti Investors LLC"), VWT LP and the
Company; and
(g) that certain Purchase Agreement dated as of February 18, 2005, among
Xxxxxxx X'Xxxxx, Xxxxxx X. Xxxxxx, an individual, Ciatti Investors
LLC, VWT LP and the Company,
First Banc, Xxx Xxxxx, Xxxxxxx X. Shell, Shell LLC, Xxxxxx X. Xxxxxx, Ciatti
LLC, Xxxxxx X. Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxx Investors LLC and Xxxxxxx X'Xxxxx
being all of the members of VWP LLC or the owners of the equity interests in the
members of VWP LLC (collectively, the "Members"; Xxx Xxxxx, Xxxxxxx X. Shell,
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxx Xxxxxx and Xxxxxxx X'Xxxxx,
collectively, the "Natural Members") agreed, contemporaneous with the Closing
Time, to contribute or sell their respective direct or indirect interests in VWP
LLC to VWT LP in exchange for cash or limited partnership units of VWT LP, or
both. Upon the performance of all of the obligations under the Contribution
Agreements by the parties thereto, VWT LP will be a member of VWP LLC and wholly
own all of the other members of VWP LLC. This Agreement, the Contribution
Agreements and the Registration Rights Agreement are collectively referred to
herein as the "Transaction Documents."
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The Company, VWT LP, VWP LLC and FBR, as the case may be, agree as follows:
1. Sale and Purchase.
(a) 144A/Regulation S Shares. Upon the basis of the representations
and warranties and subject to the other terms and conditions herein set forth,
at a purchase price of $9.30 per share (the "144A/Regulation S Purchase Price"),
(i) the Company agrees to issue and sell to FBR the 144A/Regulation S Shares and
FBR agrees to purchase the 144A/Regulation S Shares from the Company and (ii) to
the extent that FBR exercises the option described in Section 1(c)(i) the
Company agrees to issue and sell to FBR the Purchased Option Shares and FBR
agrees to purchase the Purchased Option Shares from the Company, in all cases
pursuant to the terms and conditions set forth in the form of letter agreements
substantially in the form attached to the Preliminary Memorandum as Annex I or
Annex II, as the case may be.
(b) Regulation D Shares. The Company agrees to issue and sell, and FBR
agrees to use its best efforts to place, the Regulation D Shares and, to the
extent that FBR exercises the option described in Section 1(c)(ii), the Placed
Option Shares for which Participants have subscribed, pursuant to the terms and
conditions set forth in the form of subscription agreement substantially in the
form attached to the Preliminary Memorandum as Annex III (each agreement in such
form, a "Subscription Agreement"), it being understood that the Company is
reserving up to 100,000 Shares (the "DSP Shares") for sale to its senior
officers, directors and certain other parties (the "DSP Participants"). The
Private Placement Shares will be sold by the Company pursuant to this Agreement
at a price of $10.00 per share (the "Regulation D Purchase Price"). As
compensation for the services to be provided by FBR in connection with the
Private Placement, the Company shall pay to FBR at each of the Closing Time and
any Secondary Closing Time (as defined below) an amount equal to $0.70 per
Private Placement Share (other than the DSP Shares) sold at such time (the
"Placement Fee"). The DSP Shares will be sold by the Company to the DSP
Participants who subscribed therefor pursuant to the terms and conditions set
forth in the relevant Subscription Agreements without payment of the Placement
Fee to FBR.
(c) Option Shares. Upon the basis of the representations and
warranties and subject to the other terms and conditions herein set forth, the
Company hereby grants an option to FBR to (i) purchase from the Company, as
initial purchaser, up to an aggregate of 2,250,000 Option Shares at the
144A/Regulation S Purchase Price per share (the "Purchased Option Shares"); and
(ii) place, as exclusive placement agent for the Company, up to that number of
Option Shares remaining, after subtracting any Purchased Option Shares with
respect to which FBR has exercised its option pursuant to clause (i) from
2,250,000, at the Regulation D Purchase Price per share with the right to
receive from the Company the Placement Fee (the "Placed Option Shares"). The
option granted hereby will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time in one or more installments
(provided that there shall be no more than three such exercises, unless mutually
agreed upon by FBR and the Company) upon written notice by FBR to the Company
setting forth (A) the number of Option Shares as to which FBR is then exercising
the option, (B) the names and denominations in which the certificates for the
Option Shares exercised are to be registered or to which the Option Shares are
to be delivered in book-entry form through the facilities of the Depository
Trust Company (the "DTC"), (C) the number of Option Shares that are to be
Purchased Option Shares and the number of Option Shares that are to be Placed
Option Shares, and (D) the time and date of payment for and delivery of such
Option Shares, whether in certificated or book-entry form. Any such time and
Date of Delivery (as defined below) shall be determined by FBR, but shall not be
later than seven full business days nor earlier than two full business days
after the exercise of said option, nor in any event prior to the Closing Time,
unless otherwise agreed by FBR and the Company.
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2. Payment and Delivery.
(a) 144A/Regulation S Shares. The closing of FBR's purchase of the
144A/Regulation S Shares shall be held at the office of Xxxxxxxx Chance US LLP,
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (unless another place shall be
agreed upon by FBR and the Company). At the closing, subject to the satisfaction
or waiver of the closing conditions set forth herein, FBR shall pay to the
Company the aggregate purchase price for the 144A/Regulation S Shares by wire
transfer of immediately available funds to accounts previously designated by the
Company in writing against delivery by the Company of the certificates for the
144A/Regulation S Shares to FBR for FBR's account (or, at the request of FBR, in
fully-registered global form through the facilities of DTC) in such
denominations and registered in such names as FBR shall specify. Such payment
and delivery shall be made at a mutually satisfactory time, on the third
(fourth, if the closing of the books occurs after 4:30 p.m. New York City time)
business day after the date hereof (unless another date, not later than ten
business days after such date, shall be determined by FBR with notice to the
Company. The time at which such payment and delivery are actually made is
hereinafter sometimes called the "Closing Time" and the date of delivery of the
Initial Shares and, if applicable, the Option Shares, is hereinafter sometimes
called the "Date of Delivery." In the event FBR elects to have any
144A/Regulation S Shares delivered in certificated form, for the purpose of
expediting the checking of the certificates for the 144A/Regulation S Shares by
FBR, the Company agrees to make such certificates available to FBR for such
purpose at least two full business days preceding the applicable Date of
Delivery.
(b) Regulation D Shares. At the Closing Time, subject to the
satisfaction or waiver of the closing conditions set forth herein, FBR shall pay
to the Company the aggregate applicable purchase price for the Regulation D
Shares (net of any Placement Fee) by wire transfer of immediately available
funds to an account previously designated by the Company in writing against the
Company's delivery of the certificates for the Regulation D Shares to FBR for
each Participant's account (or, at the request of FBR, in fully-registered
global form through the facilities of DTC) in such denominations and registered
in such names as FBR shall specify. In addition, if within 30 days after the
Closing Time, FBR receives the applicable purchase price for any Regulation D
Shares that were not issued at the Closing Time, FBR shall pay to the Company
such aggregate applicable purchase price (net of any Placement Fee) by wire
transfer of immediately available funds to an account previously designated by
the Company in writing against the Company's delivery of the certificates for
the applicable Regulation D Shares to FBR for FBR's or each Participant's
account (or, at the request of FBR, in fully-registered global form through the
facilities of DTC) in such denominations and registered in such names as FBR
shall specify. Each such post-Closing Time payment and delivery shall occur at a
time and place to be mutually agreed upon by FBR and the Company, provided that
there shall be no more than three such events, unless mutually agreed upon by
FBR and the Company. Each time at which such payment and delivery are actually
made is hereinafter sometimes called a "Secondary Closing Time." In the event
FBR elects to have any Regulation D Shares delivered in certificated form, for
the purpose of expediting the checking of the certificates for the Regulation D
Shares by FBR, the Company agrees to make such certificates available to FBR for
such purpose at least two full business days preceding the applicable Date of
Delivery.
At each of the Closing Time and any Secondary Closing Time, unless FBR has
withheld such amount from the applicable purchase price paid by FBR to the
Company with respect to the Regulation D Shares purchased or placed by FBR on
such date, the Company shall pay to FBR, by wire transfer of immediately
available funds to an account or accounts designated by FBR in writing, any
Placement Fee amount payable with respect to the Regulation D Shares issued at
the Closing Time or such Secondary Closing Time for which the Company shall have
received the purchase price.
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(c) Option Shares. The closing of FBR's purchase or placement of the
Option Shares shall occur from time to time at the office of Xxxxxxxx Chance US
LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (unless another place shall
be agreed upon by FBR and the Company). On the applicable Date of Delivery,
subject to the satisfaction or waiver of the closing conditions set forth
herein, FBR shall pay to the Company the aggregate applicable purchase price for
the Option Shares then purchased or placed by FBR (net of any Placement Fee with
respect to any Placed Option Shares) by wire transfer of immediately available
funds to an account previously designated by the Company in writing against the
Company's delivery of the certificates for the Option Shares to FBR for FBR's or
for each Participant's account, as indicated by FBR to the Company (or, at the
request of FBR, in fully-registered global form through the facilities of DTC),
in such denominations and registered in such names as FBR shall specify. Such
payment and delivery shall be made at a mutually satisfactory time, on each Date
of Delivery. In the event FBR elects to have any Option Shares delivered in
certificated form, for the purpose of expediting the checking of the
certificates for the Option Shares by FBR, the Company agrees to make such
certificates available to FBR for such purpose at least two full business days
preceding the applicable Date of Delivery.
3. Offering of the Shares; Restrictions on Transfer.
(a) FBR represents and warrants to and agrees with the Company that:
(i) it has not solicited and will not solicit any offer to buy or offer to sell
the Shares by means of any form of general solicitation or general advertising
(within the meaning of Regulation D under the Securities Act ("Regulation D")),
and, with respect to Resale Shares sold in reliance on Regulation S under the
Securities Act ("Regulation S"), by means of any directed selling efforts
(within the meaning of Regulation S); and (ii) it has solicited and will solicit
offers to buy the Resale Shares only from, and has offered and will offer, sell
or deliver the Resale Shares only to, (A) persons whom it reasonably believes to
be "qualified institutional buyers" (as defined in Rule 144A under the
Securities Act, "Rule 144A") (such persons, "QIBs") or, if any such person is
buying for one or more institutional accounts for which such person is acting as
fiduciary or agent, only when such person has represented to it that each such
account is a QIB to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A, who, in each case, provide to it an
executed certificate substantially in the form of Annex I to the Preliminary
Memorandum, and (B) persons (each a "Regulation S Purchaser") to whom and under
circumstances in which it reasonably believes offers and sales of Resale Shares
may be made without registration under the Securities Act in reliance on
Regulation S, and only to persons who provide to it an executed certificate
substantially in the form of Annex II to the Preliminary Memorandum (such
persons specified in clauses (A) and (B) being referred to herein as "Eligible
Purchasers"). FBR agrees to abide by the "offering restrictions" requirements of
Rule 902(g)(1) of Regulation S.
(b) The Company represents and warrants to and agrees with FBR that
none of it and any of its affiliates (which shall include, without limitation,
VWT LP, VWP LLC, Shell LLC, Ciatti LLC, Ciatti Investors LLC, VWP Inc., a
Delaware corporation ("VWP Inc."), Vintage Wine Business Trust I, a Delaware
business trust ("VWB I"), and Vintage Wine Business Trust II, a Delaware
business trust ("VWB II" and together with VWT LP, VWP LLC, Shell LLC, Ciatti
LLC, Ciatti Investors LLC, VWP Inc. and VWB I, the "Subsidiaries") has solicited
or will solicit any offer to buy, and none of it and any of its affiliates has
offered or will offer to sell, the Shares by means of any form of general
solicitation or general advertising (within the meaning of Regulation D). The
Company further represents and warrants to and agrees with FBR that each of the
Company and its affiliates has solicited and will solicit offers to buy the
Private Placement Shares (or any other Shares) only from, and has offered and
will offer, sell or deliver the Private Placement Shares (or any other Shares)
only to, "accredited investors" within the meaning of Rule 501 (a) under the
Securities Act (each, an "Accredited Investor") and that the Company will only
deliver Private Placement Shares to Accredited Investors who have provided to
the Company a
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fully completed and executed Subscription Agreement substantially in the form of
Annex III to the Preliminary Memorandum.
(c) The Company represents and warrants to and agrees with FBR that,
assuming the accuracy of FBR's representations and warranties and FBR's
compliance with its obligations set forth in this Section 3, (i) none of the
Company or any of its affiliates or any person acting on behalf of the Company
or any of its affiliates has engaged in, nor will it engage in, any directed
selling efforts (as that term is defined in Regulation S) with respect to the
Shares in violation of Regulation S; and (ii) the Company and any of its
affiliates and any person acting on the behalf of any of the foregoing (other
than FBR, as to which no representation is made) have complied and will comply
with the offering restrictions requirement of Regulation S.
(d) FBR represents and warrants to and agrees with the Company that it
has not offered or sold, nor will it offer or sell, any Resale Shares in any
jurisdiction outside of the United States except in material compliance with all
applicable laws, regulations and rules of those countries.
(e) Each of FBR and the Company represents and warrants to the other
that no action is being taken by it or is contemplated by it that would permit
an offering or sale of the Shares or possession or distribution of the
Preliminary Memorandum or the Final Memorandum or any other offering material
relating to the Shares in any jurisdiction where, or in any other circumstances
in which, action for those purposes is required (other than in jurisdictions
where such action has been duly taken by counsel for FBR).
(f) FBR and the Company agree that FBR may arrange (i) for the private
offer and sale of a portion of the Resale Shares to a limited number of Eligible
Purchasers (which may include affiliates of FBR that are Eligible Purchasers),
and (ii) for the private offer and sale of the Private Placement Shares by the
Company to Accredited Investors (which may include affiliates or employees of
FBR that are Accredited Investors) that in purchasing such Shares have provided
to the Company a fully completed and executed Subscription Agreement, in each
case under restrictions and other circumstances designed to preclude any
distribution of the Shares that would require registration of the Shares under
the Securities Act.
(g) FBR and the Company agree that the Shares maybe resold or
otherwise transferred by the holders thereof only if such Shares are registered
under the Securities Act or if an exemption from registration is available. FBR
hereby establishes and agrees that it has observed and will observe the
following procedures in connection with offers, sales and subsequent resales or
other transfer of any Shares purchased or placed by FBR:
(i) Sales only to certain investors. Initial offers and sales of
the Resale Shares will be made only in Exempt Resales by FBR to investors
that FBR reasonably believes to be Eligible Purchasers.
(ii) No general solicitation. The Shares will be offered only by
approaching prospective purchasers on an individual basis. No general
solicitation or general advertising within the meaning of Rule 502(c) under
the Securities Act will be used in connection with the offering of the
Shares.
(h) FBR and the Company agree that the Final Memorandum shall state
that the Shares have not been and will not be registered (other than pursuant to
the Registration Rights Agreement) under the Securities Act.
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(i) FBR and the Company agree that each initial resale of Resale
Shares by FBR (and each purchase of Resale Shares from the Company by FBR) in
accordance with this Section 3 shall be deemed to have been made on the basis of
and in reliance on the representations, warranties, covenants and agreements
(including, without limitation, agreements with respect to indemnification and
contribution) of the Company, VWT LP and VWP LLC contained in this Agreement.
(j) FBR agrees that it shall send via first class mail (or via private
courier of national recognition) or give a copy of the Final Memorandum to each
person purchasing Shares at the Closing Time as soon as reasonably practical
after FBR receives sufficient copies of the Final Memorandum for such purpose.
4. Representations and Warranties of the Company, VWT LP and VWP LLC.
In addition to the other representations and warranties contained herein,
the Company, VWT LP and VWP LLC hereby, jointly and severally, represent and
warrant to FBR that, as of the date of this Agreement, the Closing Time, any
Secondary Closing Time and any Date of Delivery:
(a) the Preliminary Memorandum did not, as of its date, 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 under
which they were made, not misleading; and the Final Memorandum (as it may be
amended or supplemented) will not, as of its date, at Closing Time, each
Secondary Closing Time (if any) and on each Date of Delivery (if any), 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 under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statement in or
omission from the Preliminary Memorandum or Final Memorandum made in reliance
upon and in conformity with information furnished to the Company in writing by
FBR expressly for use therein (that information being limited to that described
in the last sentence of Section 8(c) hereof);
(b) the Company is a corporation duly organized and validly existing
and in good standing under the laws of the State of Maryland, with full
corporate power and authority to own, lease or operate its properties and to
conduct its business as described in the Memorandum and to execute and deliver
the Transaction Documents, and to consummate the transactions contemplated by
the Transaction Documents (including the issuance, sale and delivery of the
Shares);
(c) each Subsidiary is a corporation, trust, limited partnership or
limited liability company duly organized or formed and validly existing and in
good standing under the laws of its jurisdiction of incorporation or formation,
with full corporate or other power and authority to own, lease or operate its
properties, as applicable, and to conduct its business as described in the
Memorandum and, to execute and deliver this Agreement and the Contribution
Agreements, and to consummate the transactions contemplated hereby and thereby,
in each case as applicable; to the knowledge of the Company, each party to the
Contribution Agreements that is an entity and is not a Subsidiary is a limited
liability company duly organized or formed and validly existing and in good
standing under the laws of its jurisdiction of formation with full company power
and authority to execute and deliver the applicable Contribution Agreement and
to consummate the transactions contemplated thereby; to the knowledge of the
Company, each party to the Contribution Agreements that is an individual has
full capacity to execute and deliver the applicable Contribution Agreements and
to consummate the transactions contemplated thereby;
(d) complete and correct copies of the articles of incorporation,
certificate of formation, bylaws, operating agreement, limited partnership
agreement or other organizational documents
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(collectively, the "Charter Documents") of the Company and each Subsidiary and
all amendments thereto through the date hereof or that may be adopted prior to
the Closing Time have been delivered to FBR;
(e) all issued and outstanding shares of capital stock, membership
interests, partnership interests, beneficial interests or other equity interests
of each Subsidiary have been duly authorized and validly issued, are fully paid
and nonassessable, as applicable, and have not been issued in violation of or
subject to any preemptive right, co-sale right, registration right, right of
first refusal or other similar right of shareholders arising under applicable
law, under the Charter Documents of such Subsidiary, under any agreement to
which such Subsidiary is a party or otherwise, and, at and after the Closing
Time, except with respect to the limited partnership interests of VWT LP owned
by former members of VWP LLC and by members of management described in the
Memorandum, will be owned, directly or indirectly, by the Company; at and after
the Closing Time, all of such shares of capital stock, membership interests,
partnership interests, beneficial interests, or other equity interests of each
Subsidiary, including those limited partnership interests of VWT LP owned by
former members of VWP LLC and by members of management described in the
Memorandum, except as otherwise described in the Memorandum, will be owned free
and clear of any pledge, security interests, liens, encumbrances, claims or
equitable interests; the Company does not, and as of any Closing Date will not,
own or control, directly or indirectly, any corporation, association or other
entity other than the Subsidiaries;
(f) as of the date of this Agreement and immediately prior to the
Closing Time (without giving effect to the Exchange), all issued and outstanding
membership interests of VWP LLC were owned of record or beneficially by the
Members; at the Closing Time and each Date of Delivery and Secondary Closing
Time, if any, all the memberships interests of VWP LLC will be owned directly
and indirectly by VWT LP and the Company free and clear of any Liens (as
hereinafter defined); Shell LLC, Ciatti LLC and, Ciatti Investors LLC are not
subject to any obligation, cost, expense or liability of any kind, whether
absolute, contingent, accrued or otherwise, that will survive the Closing Time
or that is or will become, on a consolidated basis, an obligation or liability
of the Company, VWT LP or their affiliates;
(g) the Company had, at the date indicated and at the Closing Time,
the duly authorized capitalization set forth in the Memorandum under the caption
"Capitalization" after giving effect to the adjustments set forth thereunder
(but without giving effect to the purchase or placement of the Option Shares by
FBR); all of the issued and outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
nonassessable, and have been issued in compliance with all of the applicable
state and federal securities laws and not in violation of or subject to any
preemptive right or other similar right of shareholders arising under applicable
law, under the Charter Documents of the Company, under any agreement to which
the Company is a party or otherwise; except as disclosed in or contemplated by
the Memorandum, there are no outstanding (i) securities or obligations of the
Company or any Subsidiary convertible into or exchangeable for any capital stock
of the Company, (ii) warrants, rights or options to subscribe for or purchase
from the Company or any Subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations or (iii) obligations of
the Company or any Subsidiary to issue or sell, subscribe for or purchase any
shares of capital stock, any such convertible or exchangeable securities or
obligation, or any such warrants, rights or options;
(h) the Shares have been duly authorized for issuance, sale and
delivery pursuant to this Agreement and, when issued by the Company and
delivered against payment therefor in accordance with the terms of this
Agreement, will be duly and validly issued and fully paid and nonassessable,
free and clear of any pledge, lien, charge, mortgage, security interest, claim
or other encumbrance, preferential arrangement, defect or restriction of any
kind whatsoever (any "Lien"), and the issuance, sale and delivery of the Shares
are not subject to any preemptive right, co-sale right, registration right,
right of first refusal or other similar right of shareholders arising under
applicable law, under the Charter Documents
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of the Company or its Subsidiaries, under any agreement to which the Company is
a party or otherwise, other than as provided for in the Registration Rights
Agreement;
(i) each of the Company and each Subsidiary is duly qualified or
licensed by, and is in good standing as a foreign corporation, limited liability
company, limited partnership or trust, as the case may be, in each jurisdiction
in which it conducts its business or in which it owns or leases property or
maintains an office and in which such qualification or licensing is necessary
and in which the failure, individually or in the aggregate, to be so qualified
or licensed would reasonably be expected to have a material adverse effect on
(i) the business, condition (financial or otherwise), results of operations,
stockholders' equity or properties or prospects of the Company and the
Subsidiaries, taken as a whole, or (ii) the consummation of the transactions
contemplated by the Transaction Documents (a "Material Adverse Effect");
(j) the Company and each Subsidiary have good and marketable title in
fee simple to all real property, if any, and good title to all personal
property, if any, owned by it, in each case free and clear of all Liens, except
such as are disclosed in the Memorandum or as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; any real
property or personal property held under lease by the Company or any of the
Subsidiaries is held under a lease that is legal, valid, binding and enforceable
against the Company or such Subsidiary, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, and by general principles of equity, or as otherwise disclosed
in the Memorandum or as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; the Company and its Subsidiaries
own, lease or have access to all such properties as are necessary to the conduct
of their business as presently operated and as proposed to be operated as
described in the Memorandum, except as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; neither the
Company nor any Subsidiary has received any notice of any claim adverse to its
ownership of any real or personal property or of any claim against the continued
possession of any real property, whether owned or held under lease or sublease
by the Company or its Subsidiaries, except as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect;
(k) the Company and the Subsidiaries, taken together, own or possess
such licenses or other rights to use all patents, trademarks, service marks,
trade names, copyrights, software and design licenses, trade secrets, production
or viticultural processes, other intangible property rights and know-how
(collectively "Intangibles"), as are necessary to entitle the Company and the
Subsidiaries, taken as a whole, to conduct their business as described in the
Memorandum, and neither the Company nor any of the Subsidiaries has received
written notice of any infringement of or conflict with (and, upon due inquiry,
neither the Company nor any Subsidiary knows of any infringement of or conflict
with) asserted rights of others with respect to any Intangibles which would
reasonably be expected to have a Material Adverse Effect;
(l) the Company and the Subsidiaries are in compliance with, and
neither the Company nor any of the Subsidiaries has violated, or received notice
of, or knows of any violation with respect to any law, rule, regulation, order,
decree or judgment applicable to it and its business, including those relating
to transactions with affiliates, environmental, safety or similar laws, federal
or state laws relating to discrimination in the hiring, promotion or pay of
employees, federal or state wages and hours law, the Employee Retirement Income
Security Act or the rules and regulations promulgated thereunder, except for
those violations as would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect;
9
(m) the Resale Shares satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act; assuming the accuracy of FBR's
representations and warranties set forth in Section 3 of this Agreement and that
the purchasers who buy the Resale Shares in Exempt Resales are Eligible
Purchasers, each of the sale of the Resale Shares to FBR, as contemplated
hereby, the Exempt Resales and the sale of the Private Placement Shares to
Accredited Investors, as contemplated hereby, are exempt from the registration
requirements of the Securities Act;
(n) neither the Company nor any Subsidiary nor any officer, director,
agent or employee purporting to act on behalf of the Company or any Subsidiary
has at any time, directly or indirectly, (i) made any contributions to any
candidate for political office, or failed to disclose fully any such
contributions, in violation of law, (ii) made any payment to any state, federal
or foreign, governmental officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or allowed
by applicable law, (iii) engaged in any transactions, maintained any bank
account or used any corporate funds except for transactions, bank accounts and
funds which have been and are reflected in the normally maintained books and
records of the Company and the Subsidiaries, or (iv) violated any provision of
the Foreign Corrupt Practices Act of 1977, as amended;
(o) except as otherwise disclosed in the Memorandum, there are no
outstanding loans, advances, amounts due or guarantees of indebtedness by the
Company or any Subsidiary to or for the benefit of any of the officers,
directors, affiliates or representatives of the Company or the Subsidiaries or
any of the members of the families of any of them;
(p) except with respect to FBR, neither the Company nor any Subsidiary
has incurred any liability or obligation for any brokerage commission, finder's
fees or similar payments in connection with the transactions contemplated by the
Transaction Documents;
(q) neither the Company nor any of the Subsidiaries nor First Banc
Mortgage LLC, a Nevada limited liability company ("First Banc") is in breach of,
or in default under (nor has any event occurred which with notice, lapse of
time, or both would constitute a breach of, or default under), its respective
Charter Documents or in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, license, indenture,
mortgage, deed of trust, franchise, license or permit, bank loan or credit
agreement or other agreement or instrument to which the Company, such Subsidiary
or First Banc is a party or by which either of them or their respective
properties may be bound or affected, except for such breaches or defaults that
could not reasonably be expected to have a Material Adverse Effect;
(r) the execution, delivery and performance of this Agreement by the
Company, VWP LLC and VWT LP, the Contribution Agreements by the Company, its
affiliates and the other parties thereto, and of the Registration Rights
Agreement by the Company, and the issuance, sale and delivery of the Shares and
the consummation by the Company and its affiliates, as applicable, of the
transactions contemplated hereby and thereby, and compliance by the Company, its
affiliates and, the other parties to the Contribution Agreements, as applicable,
with the terms and provisions hereunder and thereunder, do not and will not
conflict with, or result in any breach of or constitute a default under (nor
constitute any event that with notice, lapse of time, or both would constitute a
breach of or default under), as applicable, (A) any provision of the Charter
Documents of the Company, its affiliates and the other parties to the
Contribution Agreements (B) any provision of any contract, license, indenture,
mortgage, deed of trust, bank loan or credit agreement or other agreement or
instrument to which the Company, its affiliates or the other parties to the
Contribution Agreements is a party or by which it or its respective properties
may be bound or affected, or (C) under any federal, state, local or foreign law,
regulation or rule or any decree, judgment, permit, writ or order applicable to
the Company, its affiliates or the other parties to the Contribution Agreements,
except in the case of clauses (B) or (C) for such conflicts,
10
breaches or defaults which have been validly waived or would not reasonably be
expected to have a Material Adverse Effect or result in the creation or
imposition of any Lien upon any property or asset of the Company or any of its
affiliates;
(s) (i) this Agreement has been duly authorized, executed and
delivered by the Company, VWT LP and VWP LLC, and constitutes a legal, valid and
binding agreement of the Company, VWT LP and VWP LLC, enforceable against the
Company, VWT LP and VWP LLC in accordance with its terms, (ii) the applicable
Contribution Agreements have been duly authorized by the Company, VWP LLC and
VWT LP and at the Closing Time will have been duly executed and delivered by the
Company, VWP LLC and VWT LP and will constitute a legal, valid and binding
agreement of the Company, VWP LLC and VWT LP enforceable against each of
Company, VWP LLC and VWT LP in accordance with its terms, (iii) the Registration
Rights Agreement has been duly authorized by the Company and at the Closing Time
will have been duly executed and delivered by the Company and will constitute a
legal, valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, except, in each case, as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
and except to the extent that the indemnification and contribution provisions of
this Agreement may be limited by federal or state securities laws and public
policy considerations in respect thereof;
(t) the Shares, the capital stock of the Company and VWT LP, the
Company's and VWT LP's Charter Documents, the Contribution Agreements and the
Registration Rights Agreement conform in all material respects to the
description thereof contained in the Memorandum; the form of certificate used to
evidence the Common Stock complies in all material respects with all applicable
statutory requirements (including any requirement under Section 2-210 and
Section 2-211 of the Maryland General Corporation Law) and with any applicable
requirements of the Charter Documents of the Company;
(u) assuming the accuracy of FBR's representations and warranties set
forth in Section 3 of this Agreement and that the purchasers who buy the Resale
Shares in Exempt Resales are Eligible Purchasers, no approval, authorization,
consent, license, permit, certification or order of (a "Consent") or filing with
any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the execution,
delivery and performance by (1) the Company, VWT LP and VWP LLC of this
Agreement, (2) the Company, VWP LLC, VWT LP and the other parties thereto of the
Contribution Agreements, (3) the Company of the Registration Rights Agreement,
(4) the consummation of the applicable Transaction Documents by Company, VWP
LLC, VWT LP and the other parties to the Contribution Agreements, or (5) the
offer, issuance, sale and delivery of the Shares as contemplated hereby, other
than (i) such as have been obtained or made, or will have been obtained or made
prior to the Closing Time, (ii) any necessary qualification under the securities
or blue sky laws of the various jurisdictions in which the Shares are being
offered or placed by FBR or the DSP Shares are being offered by the Company,
(iii) with or by federal or state securities regulatory authorities in
connection with or pursuant to the Registration Rights Agreement, including
without limitation the filing of the registration statement(s) required thereby
with the Securities and Exchange Commission (the "Commission") and (iv) the
filing of a Form D with the Commission;
(v) the Company has filed, or has caused to be filed, an application
(the "PORTAL Application") with the National Association of Securities Dealers,
Inc.'s PORTAL(SM) Market ("PORTAL") relating to the eligibility of the Shares as
PORTAL-eligible securities in accordance with the rules and regulations of the
National Association of Securities Dealers, Inc.; Annexes I, II and III to the
Memorandum are adequate to create a reasonable belief on the part of the Company
and FBR that the
11
purchasers of Rule 144A Shares, Regulation S Shares and Regulation D Shares are
qualified purchasers in each respective case;
(w) (i) each of the Company and each Subsidiary has obtained all
necessary Consents and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule, and has obtained all
necessary Consents from other persons, required in order to conduct its business
as described in the Memorandum, except to the extent that any failure to have
any such Consents or make any such filing would not, alone or in the aggregate,
reasonably be expected to have a Material Adverse Effect; (ii) except as would
not reasonably be expected to have a Material Adverse Effect, each such Consent
is valid and in full force and effect; (iii) neither the Company nor any
Subsidiary has received written notice, or to the knowledge of the Company, any
other notice, of any investigation or proceedings that results in or, if decided
adversely to the Company or such Subsidiary, could reasonably be expected to
result in, the revocation of, or imposition of a materially burdensome
restriction on, any Consent; neither the Company nor any Subsidiary is in
violation of, or in default under, nor has the Company or any Subsidiary
received notice of any proceeding relating to the revocation or modification of,
any such Consent or any federal, state, local or foreign law, regulation or rule
or any decree, order or judgment applicable to the Company, except where such
violation, default, modification or revocation could not be expected to have a
Material Adverse Effect; and (iv) no Consent contains a restriction which would,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect that is not adequately disclosed in the Memorandum;
(x) no relationship, direct or indirect, exists between or among the
Company or any of the Subsidiaries, and any director, trustee, officer,
shareholder, lessee or prospective lessee of the Company or any of its
Subsidiaries, or any affiliate or family member thereof, which would be required
to be described in a prospectus included in a registration statement on Form
S-11 under the Securities Act which is not described in the Memorandum;
(y) the Memorandum contains complete and accurate summaries of all
material contracts, agreements, instruments and other documents of the Company
and its Subsidiaries that would be required to be described in a prospectus
included in a registration statement on Form S-11 under the Securities Act;
copies of all such material contracts, agreements, instruments and other
documents of the Company and its Subsidiaries have been previously made
available to FBR or its counsel and are complete and genuine;
(z) the Company and its Subsidiaries (and any predecessors in
interest) have provided FBR and its counsel with copies of all contracts,
letters of intent, terms sheets, title reports (including any exception
documents), title policies, financial reports, environmental reports,
appraisals, surveys as well as any other material due diligence materials
relating to the Properties (as hereinafter defined) that are in their possession
or control or that they have relied on;
(aa) other than as set forth in the Memorandum, there are no material
actions, suits, proceedings, inquiries or investigations pending or, to the
knowledge of the Company, threatened against the Company or any Subsidiary, or
any of their respective properties, directors, managers, partners, officers or
affiliates at law or in equity, or before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or agency;
there are no actions, suits, proceedings, inquiries or investigations pending,
or to the knowledge of the Company, threatened against the Natural Members at
law or in equity, or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency that
would reasonably be expected to have Material Adverse Effect; other than FBR,
neither the Company nor any Subsidiary has authorized anyone to make any
representations regarding the offer and sale of the Shares, or regarding the
Company or its Subsidiaries in connection therewith; neither the Company nor any
Subsidiary has received notice of any
12
stop order or other similar order or decree preventing the use of the
Memorandum, nor of any order asserting that the transactions contemplated by
this Agreement are subject to the registration requirements of the Securities
Act, and no proceeding for that purpose has commenced or is pending or, to its
knowledge, is contemplated;
(bb) no securities of the Company are of the same class (within the
meaning of Rule 144A under the Securities Act) as the Shares and listed on a
national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or quoted in a U.S.
automated inter-dealer quotation system;
(cc) subsequent to the date of the Final Memorandum and immediately
prior to the Closing Time, each Secondary Closing Time and each Date of
Delivery, as the case may be, and except as may be otherwise stated in the Final
Memorandum, there has not been (i) any event, circumstance or change that has,
or would reasonably be expected to have, a Material Adverse Effect, (ii) any
transaction, other than in the ordinary course of business, that is material to
the Company or any of the Subsidiaries, contemplated or entered into by the
Company or any of the Subsidiaries, (iii) any obligation, contingent or
otherwise, directly or indirectly incurred by the Company or any of the
Subsidiaries, other than in the ordinary course of business, that is material to
the Company or such Subsidiary, (iv) any dividend or distribution of any kind
declared, paid or made by the Company or any Subsidiary on any class of its
capital stock, or any purchase by the Company of any of its outstanding capital
stock, (v) other than with respect to the formation transactions of the Company
as described in the Final Memorandum, any change of the capital stock of the
Company and the Subsidiaries or (vi) change in the indebtedness of the Company
and the Subsidiaries;
(dd) neither the Company nor any of the Subsidiaries is, nor upon the
sale of the Shares as contemplated herein and the application of the net
proceeds therefrom as described in the Final Memorandum under the caption "Use
of Proceeds" will be, an "investment company" or an entity "controlled" by an
"investment company" (as such terms are defined in the Investment Company Act of
1940, as amended);
(ee) except as described in the Memorandum, there are no persons with
registration or other similar rights to have any securities registered by the
Company or any of the Subsidiaries under the Securities Act other than pursuant
to the Registration Rights Agreement and any other registration rights agreement
described in the Memorandum;
(ff) the Company has not relied upon FBR or legal counsel for FBR for
any legal, tax or accounting advice in connection with the offering and sale of
the Shares;
(gg) to the Company's knowledge, the industry, statistical and market
related data included in the Memorandum is based on or derived from the most
current sources reasonably available and the Company and each Subsidiary believe
such sources are reliable and such data is accurate in all material respects;
(hh) each person named in the Memorandum who is or is expected to be
an independent director of the Company has not, within the last five years, been
employed by or affiliated with, directly or indirectly, the Company or any
Subsidiary, whether by ownership of, ownership interest in, employment by, any
material business or professional relationship with, or serving as an officer or
director of the Company or any Subsidiary;
(ii) the Company's investment and leverage guidelines and operating
policies described in the Memorandum accurately reflect in all material respects
the intentions of the Company
13
with respect to the operation of its business, and no material deviation from
such guidelines or policies is contemplated;
(jj) in connection with the offering of the Shares, neither the
Company, any of the Subsidiaries, nor any of their respective affiliates (as
defined in Section 501(b) of Regulation D) has, whether directly or through any
agent or person acting on its behalf (other than FBR): (i) offered Common Stock
of the Company or any other securities convertible into or exchangeable or
exercisable for such Common Stock in a manner in violation of the Securities Act
or the rules and regulations thereunder, (ii) distributed any other offering
material in connection with the offer and sale of the Shares, other than as
described in the Memorandum, or (iii) sold, offered for sale, solicited offers
to buy or otherwise negotiated in respect of any security (as defined in the
Securities Act) which is or will be integrated with the offering and sale of the
Shares in a manner that would require the registration of the Shares under the
Securities Act;
(kk) neither the Company nor any of the Subsidiaries has taken any
action that would not permit the Company to qualify to be taxed as a real estate
investment trust ("REIT") under the Internal Revenue Code of 1986, as amended
(the "Code"), or to conduct its operations in a manner that will enable the
Company to meet the requirements for qualification and taxation as a REIT under
the Code;
(ll) neither the Company nor any of its affiliates (i) is required to
register as a "broker" or "dealer" in accordance with the provisions of the
Exchange Act or the rules and regulations thereunder, or (ii) directly, or
indirectly through one or more intermediaries, controls or has any other
association with (within the meaning of Article 1 of the By-Laws of the National
Association of Securities Dealers, Inc. (the "NASD")) any member firm of the
NASD;
(mm) each of the Company and the Subsidiaries carry or are covered by,
or upon completion of the offering contemplated hereby will be covered by,
insurance (issued by insurers of recognized financial responsibility to the
knowledge of the Company) in such amounts and covering such risks as, to the
knowledge of the Company, is reasonably adequate for the conduct of its
businesses and the value of the assets to be held by them upon the consummation
of the transactions contemplated by the Final Memorandum and all of such
insurance is in full force and effect; there are no material claims by the
Company or any Subsidiary under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause; neither the Company nor any Subsidiary has not been refused any
insurance coverage sought or applied for; neither the Company nor any Subsidiary
has reason to believe that it will not be able to renew its existing insurance
as and when such coverage expires;
(nn) the consolidated financial statements, including the notes
thereto, included in the Memorandum fairly present the financial condition of
the Company and the Subsidiaries on a consolidated basis as of the respective
dates thereof, and the consolidated results of their operations for the periods
then ended in conformity with U.S. generally accepted accounting principles
applied on a consistent basis; neither the Company nor any Subsidiary has any
material liabilities, obligations or guarantees, direct or contingent (including
off-balance sheet obligations) that are required to be disclosed in the
Memorandum in accordance with U.S. generally accepted accounting principles or
that would be required to be disclosed in a registration statement on Form S-11
in accordance with item 103 of Regulation S-K, in each case, that are not so
disclosed;
(oo) except as disclosed in the Memorandum, no Subsidiary is
prohibited or restricted, directly or indirectly, from paying any dividends or
distributions to the Company to the extent permitted by applicable law, from
making any other distribution on such Subsidiary's issued and outstanding
capital
14
stock, from repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of the property or assets of such
Subsidiary to the Company;
(pp) the Company and each Subsidiary has prepared and timely filed any
and all federal, state, foreign and other tax returns that are required to be
filed by it, if any, and has paid or will pay all taxes, assessments,
governmental or other similar charges, including without limitation, all sales
and use taxes and all taxes which the Company or any Subsidiary is obligated to
withhold from amounts owing to employees, creditors and third parties, with
respect to the periods covered by such tax returns (whether or not such amounts
are shown as due on any tax return), except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; no deficiency
assessment with respect to a proposed adjustment of the Company's or any
Subsidiary's federal, state, local or foreign taxes is pending or, to the
Company's knowledge, threatened, which if determined adversely to the Company or
any Subsidiary would reasonably be expected to have a Material Adverse Effect;
the accruals and reserves on the books and records of the Company and the
Subsidiaries in respect of tax liabilities for any taxable period not finally
determined, if any and if applicable, are adequate to meet any assessments and
related liabilities for any such period and, since the date of most recent
audited financial statements, neither the Company nor any Subsidiary has
incurred any liability for taxes other than in the ordinary course of its
business; there is no tax lien, whether imposed by any federal, state, foreign
or other taxing authority, outstanding against the assets, properties or
business of the Company or any Subsidiary;
(qq) the Company and each Subsidiary maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(rr) without limiting the scope of any of the other representations
contained herein, none of the restrictions on ownership of the Company's common
stock that are contained in the Company's Charter Documents or elsewhere,
including without limitation the percentage ownership restriction that prohibits
any stockholder of the Company from owning more than 9.8% of the Company's
common stock, will apply to FBR as a result of FBR's initial purchase of the
Resale Shares from the Company, as contemplated by this Agreement;
(ss) the Company has performed and completed a due diligence
investigation consistent with the Company's underwriting process and criteria
described in the Memorandum with respect to each proposed property which it
intends to acquire or develop, as generally identified in the Memorandum under
the heading "Business and Properties -- Our Initial Properties" (the
"Properties");
(tt) none of the entities or individuals (including employees of the
Company) which prepared material diligence reports regarding the Properties,
including any appraisal or Phase I environmental assessment reports, (i) did so
on a contingent basis, or (ii) have any substantial interest in the Company or
any of its Subsidiaries, and none of such entities' directors, managers,
officers, equity holders, or employees are connected or have material
relationships with the Company, any of its Subsidiaries, directors or officers
as a promoter, selling agent, trustees, director, manager, officer, equity
holder, employee or otherwise;
(uu) the Company has disclosed in the Memorandum all material details
of all options or rights of first refusal to purchase all or any part of any
property, including the Properties, or any interest therein; to the knowledge of
the Company, each of the Properties complies with all applicable
15
codes, laws and regulations (including, without limitation, regulations and laws
relating to access to the Properties), except if and to the extent disclosed in
the Memorandum or except for such failures to comply that would not,
individually or in the aggregate, have a Material Adverse Effect;
(vv) each of the Company or its Subsidiaries, as applicable, is duly
authorized to negotiate, enter into and perform under the agreements and any
letters of intent entered into in connection with the Properties; the
consummation of the acquisition of the Properties will not conflict with, or
result in any breach of or constitute a default under (nor constitute any event
which with notice, lapse of time, or both would constitute a breach of, or
default under), (i) any provision of the Charter Documents, (ii) any of the
Company's or its Subsidiaries' obligations under any provision of any license,
indenture, mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or such Subsidiary is a party or by
which it or its properties may be bound or affected, or (iii) under any federal,
state, local or foreign law, regulation or rule or any decree, judgment, permit
or order applicable to the Company, its Subsidiaries or any Property; to the
knowledge of the Company, the other parties thereto are duly authorized to
negotiate, enter into and perform each agreement to acquire each Property; to
the knowledge of the Company, there is no material fact that would, if not
remedied, affect the Company's ability or intent to acquire each Property; the
Company has identified potential investments and has corresponded with
representatives of owners of properties in an aggregate amount of approximately
$550 million, as set forth in the Memorandum under the heading "Business and
Properties -- Our Initial Properties -- Additional Investments Under Review" and
has not received an indication from such representatives that they are unwilling
to engage in future communications regarding the Company's potential acquisition
of the applicable properties;
(ww) any certificate signed by any officer of the Company, VWT LP or
VWP LLC delivered to FBR or to counsel for FBR pursuant to or in connection with
this Agreement shall be deemed a representation and warranty by the Company, VWT
LP and VWP LLC to FBR as to the matters covered thereby; and
(xx) the transactions contemplated by the Contribution Agreements and
the other formation transactions of the Company and its Subsidiaries described
in the Memorandum have been approved by all necessary action on the part of the
board of directors, managers, partners, members or shareholders, as applicable,
of the Company, VWT LP, VWP LLC, each other Subsidiary (if necessary), and all
other parties to the Contribution Agreements, and prior to the Closing Time the
Company, VWT LP, VWP LLC, each other Subsidiary, and all other parties to the
Contribution Agreements will have obtained all necessary Consents from and made
all necessary filings with third parties and any federal, state or local
governmental or regulatory commission, board, body, authority or agency required
for the consummation of transactions contemplated by the Contribution Agreements
and the other formation transactions of the Company and its Subsidiaries
described in the Memorandum, except such Consents and filings that, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect; the limited partnership units to be issued to the Members by VWT LP in
connection with the transactions contemplated by the Contribution Agreements,
when so issued, will be duly authorized, validly issued, fully paid and
nonassessable; the Contribution Agreements and the other agreements relating to
the other formation transactions of the Company and its Subsidiaries described
in the Memorandum have not been terminated or amended.
5. Certain Covenants.
The Company, VWT LP and VWP LLC hereby agree with FBR:
(a) to furnish such information and to pay such fees as may be
required and otherwise to cooperate in qualifying the Shares for offer and sale
under the securities or blue sky laws of
16
such states and other jurisdictions as FBR may designate or as required for the
Private Placement and to maintain such qualifications in effect as long as
required by such laws for the distribution of the Shares and for the Exempt
Resales of the Resale Shares; provided, however, that the Company shall not be
required to qualify as a foreign corporation or to consent to the service of
process under the laws of, or subject itself to taxation as doing business in,
any such state or other jurisdiction (except service of process with respect to
the offering and sale of the Shares);
(b) to prepare the Final Memorandum in a form reasonably approved by
FBR and to furnish promptly (and with respect to the initial delivery of such
Final Memorandum, not later than 10:00 a.m. (New York City time) on the second
day following the execution and delivery of this Agreement, or earlier, if
practicable) to FBR as many copies of the Final Memorandum (and any amendments
or supplements thereto) as FBR may reasonably request for the purposes
contemplated by this Agreement;
(c) to advise FBR promptly, confirming such advice in writing, of: (i)
the happening of any event known to the Company or any Subsidiary within the
time during which the Final Memorandum shall (in the view of FBR) be required to
be distributed by FBR in connection with an Exempt Resale (and FBR hereby agrees
to notify the Company in writing when the foregoing time period has ended)
which, in the reasonable judgment of the Company, would require the making of
any change in the Final Memorandum then being used so that the Final Memorandum
would not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not misleading
and to prepare and furnish, at the Company's expense, to FBR (and to persons
designated by FBR) promptly any proposed amendments or supplements to the Final
Memorandum as may be necessary so that the Final Memorandum does not include an
untrue statement of a material fact or omit to state such material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they are made, not misleading; and (ii) the
receipt of any notification with respect to the modification, rescission,
withdrawal or suspension of the qualification of the Shares, or of any exemption
from such qualification or from registration of the Shares, for offering or sale
in any jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes and, if any government agency or authority should issue any
such order, to make every reasonable effort to obtain the lifting or removal of
such order as soon as possible;
(d) to the extent not publicly available, to furnish to FBR for a
period of two years from the Closing Time (i) copies of all annual, quarterly
and current reports supplied to holders of the Shares (if such reports are not
available to the public electronically on the Commission's website) and (ii)
copies of all reports filed or furnished by the Company with or to the
Commission;
(e) not to amend or supplement the Preliminary Memorandum or the Final
Memorandum unless FBR shall previously have been advised thereof and shall have
consented thereto or not have reasonably objected thereto (for legal reasons) in
writing within a reasonable time after being furnished a copy thereof;
(f) during any period in the two years (or such shorter period as may
then be applicable under the Securities Act regarding the holding period for
securities under Rule 144(k) under the Securities Act or any successor rule)
after the Closing Time in which the Company is not subject to Section 13 or
15(d) of the Exchange Act to furnish, upon request, to any holder of such Shares
the information ("Rule 144A Information") specified in Rule 144A(d)(4) under the
Securities Act and any additional information ("PORTAL Information") required by
PORTAL; and any such Rule 144A Information and PORTAL Information will not, at
the date thereof, contain any 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 are made, not misleading;
17
(g) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Final Memorandum;
(h) that neither the Company nor any of its affiliates (as defined in
Section 501(b) of Regulation D) will, whether directly or through any agent or
person acting on its behalf (other than FBR): (i) offer Common Stock of the
Company or any other securities convertible into or exchangeable or exercisable
for such Common Stock in a manner in violation of the Securities Act or the
rules and regulations thereunder, (ii) distribute any other offering material in
connection with the offer and sale of the Shares, other than as described in the
Preliminary Memorandum or Final Memorandum, (iii) sell, offer for sale, solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
the Securities Act), the offer of which will be integrated with the offering and
sale of the Shares in a manner that would require the registration under the
Securities Act of the sale to FBR or the Eligible Purchasers of the Resale
Shares or to the Participants of the Private Placement Shares, or (iv) offer or
sell the DSP Shares to any person other than to the DSP Participants, a written
list of whom will be provided to FBR no later than one business day after the
date hereof;
(i) that neither the Company nor any of its Subsidiaries will take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Shares;
(j) that, except as permitted by the Securities Act, neither the
Company nor any of its affiliates will distribute any offering materials in
connection with Exempt Resales, other than FBR's distribution of the Memorandum;
(k) to pay all expenses, fees and taxes in connection with (i) the
preparation of the Memorandum, and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to FBR (including costs of
mailing and shipment), (ii) the preparation, issuance, sale and delivery of the
Shares, including any stock or other transfer taxes or duties payable upon the
sale of the Resale Shares to FBR, (iii) the printing and/or reproduction of this
Agreement and any dealer agreements, and the furnishing of copies of each
thereof to dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state laws and the
determination of their eligibility for investment under state law as aforesaid
(including any filing fees and reasonable legal fees and other expenses of FBR),
and the printing and furnishing of copies of any blue sky surveys or legal
investment surveys to FBR and to dealers, (v) the designation of the Shares as
PORTAL-eligible securities by PORTAL, (vi) all fees and disbursements of counsel
and accountants for the Company, (vii) the fees and expenses of any transfer
agent or registrar for the Common Stock, (viii) the costs and expenses of the
Company incurred in connection with the marketing of the Shares, including the
road show costs and expenses of Company personnel, (ix) all costs and expenses
incurred by the Company, FBR and their respective affiliates in connection with
the offer and sale of the DSP Shares and (x) performance of the Company's other
obligations hereunder;
(l) to use reasonable efforts in cooperation with FBR to obtain
permission for the Shares (other than Shares offered and sold in accordance with
Regulation S) to be eligible for clearance and settlement through the DTC, and
for the Shares sold in accordance with Regulation S to be eligible for clearance
and settlement through the Clearstream Banking, societe anonyme, Luxembourg;
(m) to affix to each global stock certificate, if any, an appropriate
legend to facilitate compliance with Rule 144A, Regulation S, Regulation D, the
policies, rules and regulations of the DTC, and any other transfer restrictions
(as set forth in the Memorandum), as the case may be;
18
(n) to refrain during the period commencing on the date of this
Agreement and continuing until the later of: (x) the date that is 240 days after
the Closing Time; and (y) the date that is 90 days after the effective date of
the Company's registration statement which provides for the resale of the Shares
under the Securities Act, without the prior written consent of FBR (which
consent may be withheld or delayed in FBR's sole discretion), from (i) pledging,
selling, offering, contracting to sell, selling any option or contract to
purchase, purchasing any option or contract to sell, granting any option, right
or warrant for the sale of, lending or otherwise disposing of or transferring,
directly or indirectly, any equity securities of the Company, or any securities
convertible into or exercisable or exchangeable for equity securities of the
Company, or filing any registration statement under the Securities Act with
respect to any of the foregoing; or (ii) entering into any swap or other
arrangement that transfers to another, in whole or in part, directly or
indirectly, any of the economic consequences of ownership of equity securities
of the Company, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise; the foregoing sentence shall not apply to (A) the Shares to
be sold hereunder, (B) the registration and sale of the Shares in accordance
with the terms of the Registration Rights Agreement, (C) any shares of Common
Stock issued by the Company upon the exercise of an option outstanding on the
date hereof and referred to in the Final Memorandum, or (D) issuances of options
or grants of restricted stock under the Company's stock option and incentive
plan;
(o) to maintain a registrar and a transfer agent;
(p) that, from and after the Closing Time, the Company shall have in
place and maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization, (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences, (v) the Company
will qualify as a REIT under the Code, and (vi) management is aware of all
material transactions to which the Company is a party or its properties are
subject;
(q) that, commencing with its taxable year ending December 31, 2005,
the Company has been organized and operated in conformity with the requirements
for qualification and taxation as a REIT under the Code and its current and
proposed method of operation will enable the Company to meet the requirements
for qualification and taxation as a REIT under the Code; provided, however, that
this covenant shall not restrict the Company from ceasing to comply with the
requirements for qualification as a REIT under the Code if a majority of the
board of directors of the Company determines that it is no longer in the best
interests of the Company and its stockholders to so comply;
(r) that, for a period of two years after the Closing Time, the
Company will conduct its affairs and the affairs of the Subsidiaries in such a
manner so as to ensure that neither the Company nor any of the Subsidiaries will
be an "investment company" or an entity "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended; provided,
however, that this covenant shall not restrict the Company or any Subsidiary
from conducting its business in a manner that would result in the Company or
such Subsidiary being an "investment company" or an entity "controlled" by an
investment company within the meaning of the Investment Company Act of 1940, as
amended, if a majority of the board of directors of the Company determines that
it is in the best interests of the Company and its stockholders to do so;
19
(s) that, for a period of two years after the Closing Time, to make
all necessary filings, individually or in the aggregate, required under any
federal, state, local or foreign law, regulation or rule and obtain and maintain
all necessary licenses, authorizations, consents and approvals from other
persons, required in order to conduct its proposed business as described in the
Final Memorandum, except where the failure to make such filings, or obtain or
maintain such licenses, authorizations, consents and approvals, would not have a
Material Adverse Effect;
(t) that the Company will not have in place at any time prior to the
effective date of a shelf registration statement on Form S-11 or such other
appropriate form pursuant to Rule 415 under the Securities Act relating to the
Shares a compensation package, plan or plans for its Chairman of the Board,
Chief Executive Officer, President, Chief Operating Officer, Chief Financial
Officer or any senior management that result in such officers receiving greater
aggregate and cumulative compensation from the Company than is described in the
Memorandum under the heading "Management" during the periods so described;
(u) that, as soon as reasonably practicable following completion of
the transactions contemplated hereby, but no later than 90 days following the
Closing Time, to use commercially reasonable efforts to cause the Company's
board of directors to approve the investment guidelines of the Company and the
corporate governance policies and procedures of the Company as described in the
Final Memorandum, and the Company will maintain and comply with such guidelines,
policies and procedures; and
(v) the Company will consider director candidates proposed by FBR and
use its best efforts to nominate one such proposed director to its Board of
Directors, or two such proposed directors if Xxxxx Xxxxxx does not serve as a
director of the Company, and establish a board of seven (7) directors, five (5)
of whom shall be "independent" (as defined by Section 303A.02 of the New York
Stock Exchange Listed Company Manual.
6. Conditions of FBR's Obligations. The obligations of FBR hereunder are
subject to (i) the accuracy of the representations and warranties on the part of
the Company, VWT LP and VWP LLC on the date hereof, at the Closing Time, each
Secondary Closing Time and each Date of Delivery, (ii) the accuracy of the
statements of the Company's officers made in any certificate pursuant to the
provisions hereof as of the date of such certificate, (iii) the performance by
the Company, VWT LP and VWP LLC of all of their respective covenants and other
obligations hereunder and (iv) the following other conditions:
(a) The Company shall furnish to FBR at the Closing Time (i) an
opinion of Xxxxxxxx Chance US LLP, counsel for the Company, addressed to FBR and
dated the Closing Time, in the form set forth on Exhibit B hereto. Such opinion
shall indicate that it is being rendered to FBR at the request of the Company,
and such counsel may limit its opinions to the Delaware Revised Uniform Limited
Partnership Act and the Delaware Limited Liability Company Act (which for the
purposes of rendering such opinions includes all applicable case law), the laws
of the State of New York and the federal laws of the United States of America
and may rely on opinions of local counsel as well as certificates of public
officials and officers of the Company.
(b) The Company shall furnish to FBR at the Closing Time an opinion of
Xxxxxxx LLP, Maryland counsel for the Company, addressed to FBR and dated the
Closing Time, in the form set forth on Exhibit C hereto. Such opinion shall
indicate that it is being rendered to FBR at the request of the Company, and
such counsel shall be permitted to state that it expresses no opinion as to the
laws of any jurisdiction other than the laws of the United States and the State
of Maryland and may rely on certificates of public officials and officers of the
Company.
20
(c) The Company shall furnish to FBR at the Closing Time an opinion of
Xxxxxxxx Chance US LLP, counsel for the Company, addressed to FBR and dated the
Closing Time, in the form set forth on Exhibit D hereto. Such opinion shall
indicate that it is being rendered to FBR at the request of the Company.
(d) The Company shall furnish to FBR at the Closing Time (i) an
opinion of Xxxxxxx & Xxxxxxx LLP, California counsel for the Company, addressed
to FBR and dated the Closing Time, in the form set forth on Exhibit E hereto.
(e) The Company shall furnish to FBR at the Closing Time (i) an
opinion of Xxxx and Xxxx, general outside counsel for First Banc Mortgage, LLC,
addressed to FBR and dated the Closing Time, in the form set forth on Exhibit F
hereto.
(f) The Company shall furnish to FBR at the Closing Time (i) an
opinion of Lionel, Xxxxxx & Xxxxxxx, Nevada counsel for the First Banc Mortgage,
LLC, addressed to FBR and dated the Closing Time, in the form set forth on
Exhibit G hereto.
(g) FBR shall have received from Deloitte & Touche LLP a "comfort"
letter or letters dated, respectively, as of the date hereof and the Closing
Time, addressed to FBR and in form and substance satisfactory to FBR, in
substantially the form attached as Exhibit H hereto.
(h) FBR shall have received at the Closing Time the opinion of Hunton
& Xxxxxxxx LLP, counsel for FBR, dated the Closing Time, in form and substance
satisfactory to FBR.
(i) Prior to the Closing Time, each Secondary Closing Time, and each
Date of Delivery, as the case may be, (i) no suspension of the qualification of
the Shares for offering or sale in any jurisdiction, or of the initiation by
written notice or threatening of any proceedings for any of such purposes, shall
have occurred and (ii) the Final Memorandum and all amendments or supplements
thereto, or modifications thereof, if any, shall not contain an untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading and without limiting the foregoing, no
transaction which is material to the Company and the Subsidiaries, taken as a
whole, shall have been entered into by the Company or any Subsidiary which has
not been fully and accurately disclosed in the Final Memorandum.
(j) Between the time of execution of this Agreement and the Closing
Time, each Secondary Closing Time or each Date of Delivery, as the case may be,
(i) no event, circumstance or change constituting a Material Adverse Effect or
any development that in the reasonable judgment of FBR could result in Material
Adverse Effect shall have occurred or become known, and (ii) no order, decree or
stop order preventing the use of the Final Memorandum, or any amendment or
supplement thereto, or any order asserting that any of the transactions
contemplated by this Agreement are subject to the registration requirements of
the Securities Act shall have been issued.
(k) The Company shall have delivered to FBR at the Closing Time a true
and correct certificate of its chief executive officer and chief financial
officer to that effect that the representations and warranties of the Company,
VWT LP and VWP LLC set forth in this Agreement (i) to the extent such
representations and warranties are subject to qualifications and exceptions
contained therein relating to knowledge, materiality or Material Adverse Effect,
shall be true and correct in all respects as of the Closing Time as though made
on and as of such date (except to the extent that such representations and
warranties speak as of another date, in which case such representations and
warranties shall be true and correct as of such other date), and (ii) to the
extent such representations and warranties are not subject to
21
any such qualifications or exceptions, shall be true and correct in all material
respects as of the Closing Time as though made on and as of such date (except to
the extent such representations and warranties speak as of another date, in
which case such representations and warranties shall be true and correct in all
material respects as of such other date); the conditions set forth in paragraph
(i) and paragraph (j) shall have been satisfied and be true and correct as of
the Closing Time; each of the Company, VWT LP and VWP LLC shall have complied,
in all material respects, with all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied under this Agreement at or
prior to the Closing Time, each Secondary Closing Time or each Date of Delivery,
as the case may be.
(l) On or before the Closing Time, FBR shall have received the
Registration Rights Agreement executed by the Company and such agreement shall
be in full force and effect.
(m) At the time of execution and delivery of this Agreement or prior
to Closing, FBR shall have received from each of the officers and directors of
the Company and each other person as FBR may reasonably request a written
agreement (a "Lock-up Agreement") in substantially the form attached hereto as
Exhibit I.
(n) Each Subscription Agreement shall remain in full force and effect
and no event shall have occurred giving any party the right to terminate any
Subscription Agreement pursuant to the terms thereof.
(o) The Company shall furnish to FBR at the Closing Time, each
Secondary Closing Time and each Date of Delivery, as the case may be and, if
necessary, a waiver and exemption of the ownership limitations set forth in the
Company's charter with respect to (i) the issuance and sale of the Resale Shares
to FBR and (ii) the Shares contemplated to be purchased by one or more of FBR's
affiliates, as described in the Final Memorandum, from the Company's Board of
Directors, in form and substance reasonably satisfactory to FBR.
(p) The Resale Shares shall have been designated as PORTAL-eligible
securities by PORTAL.
(q) The formation transactions of the Company and its Subsidiaries
described in the Memorandum, including the transactions contemplated by the
Contribution Agreement, shall have been completed and all filings required in
connection therewith shall have been made.
(r) At each Secondary Closing Time and Date of Delivery, as the case
may be, FBR shall have received:
(i) A certificate, dated as of each Secondary Closing Time or
Date of Delivery, as the case may be, of the chief executive officer and
the chief financial officer of the Company, substantially to the same
effect as the certificate delivered at Closing Time pursuant to subsection
(h) of this Section 6, subject to any exceptions that, in the reasonable
judgment of FBR, are not material.
(ii) The opinion of Xxxxxxxx Chance LLP, in each case, in form
and substance satisfactory to FBR, dated as of each Secondary Closing Time
or Date of Delivery, as the case may be, relating to the Regulation D
Shares or the Option Shares, respectively, and otherwise substantially to
the same effect as the opinions required by subsection (a) of this Section
6.
(iii) The opinion of Xxxxxxx LLP, in form and substance
satisfactory to FBR, dated as of each Secondary Closing Time or Date of
Delivery, as the case may be, relating to the
22
Regulation D Shares or the Option Shares, respectively, and otherwise
substantially to the same effect as the opinion required by subsection (b)
of this Section 6.
(iv) The opinion of Xxxxxxxx Chance LLP, in form and substance
satisfactory to FBR, dated as of each Secondary Closing Time or Date of
Delivery, as the case may be, relating to the Regulation D Shares or the
Option Shares, respectively, and otherwise substantially to the same effect
as the opinion required by subsection (c) of this Section 6.
(v) The opinion of Xxxxxxx & Xxxxxxx LLP, in form and substance
satisfactory to FBR, dated as of each Secondary Closing Time or Date of
Delivery, as the case may be, relating to the Regulation D Shares or the
Option Shares, respectively, and otherwise substantially to the same effect
as the opinion required by subsection (d) of this Section 6.
(vi) A "comfort" letter from Deloitte & Touche LLP, in form and
substance satisfactory to FBR, dated as of each Secondary Closing Time or
Date of Delivery, as the case may be, substantially the same in scope and
substance as the letter furnished to FBR pursuant to subsection (e) of this
Section 6, except that the "specified date" in the letter furnished
pursuant to this subsection (o)(v) shall be a date not more than five days
prior to such Secondary Closing Time or Date of Delivery.
In the event that any "comfort" letter referred to in
subsection (e) of this Section 6 or this subsection (o)(v) sets forth any
such changes, decreases or increases that, in the reasonable discretion of
FBR, are likely to result in a Material Adverse Effect, it shall be a
further condition to the obligations of FBR that such letters shall be
accompanied by a written explanation of the Company as to the significance
thereof, unless FBR deems such explanation unnecessary. References to the
offering memorandum with respect to any "comfort" letter referred to in
this Section 6 shall include any amendment or supplement thereto at the
date of such letter.
(vii) the opinion of Hunton & Xxxxxxxx LLP, in form and substance
satisfactory to FBR, dated as of each Secondary Closing Time or Date of
Delivery, as the case may be, relating to the Regulation D Shares or the
Option Shares, respectively, and otherwise substantially to the same effect
as the opinions required by subsection (f) of this Section 6.
(s) The Company shall have furnished to FBR such other documents and
certificates as to the accuracy and completeness of any statement in the Final
Memorandum or any amendment or supplement thereto, and any additional matters as
FBR may reasonably request, as of the Closing Time, any Secondary Closing Time
or any Date of Delivery.
7. Termination. The obligations of FBR hereunder shall be subject to
termination in the absolute discretion of FBR, at any time prior to the Closing
Time, any Secondary Closing Time or any Date of Delivery, if (i) any of the
conditions specified in Section 6 shall not have been fulfilled when and as
required by this Agreement to be fulfilled, (ii) trading in any securities of
the Company has been suspended by the Commission or if trading in securities
generally on any exchange or national quotation system shall have been suspended
or minimum prices shall have been established on such exchange or quotation
system, (iii) there has been a material disruption in the securities settlement,
payment or clearance services in the United States, (iv) a banking moratorium
shall have been declared either by the United States or New York State
authorities, (v) if the Company, the Subsidiaries or any material portion of the
properties which comprises the Properties as described in the Final Memorandum
shall have sustained a substantial loss by earthquake, fire, flood, accident or
other calamity or act of God which renders it impracticable or inadvisable, in
the judgment of FBR, to market the Shares, (vi) if the United
23
States shall have declared a national emergency or war or there shall have
occurred any national or international act of terror, outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic, political or other conditions of such magnitude in its effect on the
national or international financial markets as, in the judgment of FBR, to make
it impracticable or inadvisable to market the Shares, or (vii) upon the
occurrence of any of the following events: (A) the death, disability or other
change in circumstance of any member of the management of the Company, (B) any
change, event, circumstance, development or effect attributable to conditions
generally affecting the real estate industry, wine industry or vineyard industry
and having a Material Adverse Effect, or (C) any change in generally accepted
accounting principles for companies operating in the real estate industry, wine
industry or vineyard industry and having a Material Adverse Effect, if in any
case, in the reasonable judgment of FBR, such occurrence makes it impracticable
or inadvisable to market the Shares.
If the sale by FBR of the Resale Shares, as contemplated by this Agreement,
is not carried out by FBR for any reason permitted under this Agreement or if
such sale is not carried out because the Company shall be unable to comply with
any of the terms of this Agreement, (A) the Company shall not be under any
obligation or liability to FBR under this Agreement (except to the extent
provided in Sections 5(k), 8 and 9 hereof), and (B) FBR shall be under no
obligation or liability to the Company or any of its affiliates under this
Agreement (except to the extent provided in Section 8 hereof).
8. Indemnity.
(a) Each of the Company and the Subsidiaries, jointly and severally,
agrees to indemnify, defend and hold harmless FBR and its affiliates, and their
respective directors, officers, representatives and agents, and any person who
controls FBR within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, from and against any loss, expense, liability or claim
(including the reasonable cost of defense or investigation and any amounts paid
in settlement of any claim or litigation) that, jointly or severally, FBR or any
such affiliate, director, officer, representative or agent or any such
controlling person may incur under the Securities Act, the Exchange Act or
otherwise, insofar as such loss, expense, liability or claim arises out of or is
based upon (i) any untrue statement or alleged untrue statement made by the
Company herein, (ii) any breach by the Company of any covenant set forth in
Section 5 hereof or (iii) any untrue statement or alleged untrue statement of a
material fact contained in the Memorandum or any omission or alleged omission to
state a material fact required to be stated in the Memorandum or necessary to
make the statements made therein, in light of the circumstances under which they
were made not misleading, except insofar as any such loss, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and made in reliance upon and in
conformity with information furnished in writing by FBR to the Company expressly
for use in such Memorandum (that information being limited to that described in
the last sentence of Section 8(b) hereof).
(b) FBR agrees to indemnify, defend and hold harmless the Company, its
Subsidiaries and their directors, officers, partners, representatives and agents
and any person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any loss,
expense, liability or claim (including the reasonable cost of defense or
investigation and any amounts paid in settlement of any claim or litigation)
that, jointly or severally, the Company, the Selling Stockholder, their
respective directors, officers, representatives and agents or any such
controlling person may incur under the Securities Act, the Exchange Act or
otherwise, insofar as such loss, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
contained in and made in reliance upon and in conformity with information
furnished in writing by FBR to the Company expressly for use in the Memorandum,
such information being limited to the following: (i) the second paragraph
immediately preceding FBR's name at the bottom of the cover page, (ii) under the
section heading "Plan of Distribution -- General," the second sentence of
24
the first paragraph, the second paragraph, the fourth paragraph, and (iii) under
the section heading "Plan of Distribution -- Additional Allotments, Price
Stabilization, Short Positions and Penalty Bids," the first sentence of the
first paragraph.
(c) If any action is brought against any person or entity (each an
"Indemnified Party"), in respect of which indemnity may be sought pursuant to
Section 8(a) or (b) above, the Indemnified Party shall promptly notify the
party(ies) obligated to provide such indemnity (each an "Indemnifying Party") in
writing of the institution of such action and the Indemnifying Party(ies) shall
assume the defense of such action, including the employment of counsel and
payment of expenses; provided that the failure so to notify the Indemnifying
Party(ies) will not relieve the Indemnifying Party(ies) from any liability which
the Indemnifying Party(ies) may have to any Indemnified Party, except to the
extent the Indemnifying Party(ies) did not otherwise know of such action and
such failure results in the forfeiture by the Indemnifying Party(ies) of rights
and defenses that would have had material value in the defense. The Indemnified
Party(ies) shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of the
Indemnified Party(ies) unless (i) the employment of such counsel shall have been
authorized in writing by the Indemnifying Party(ies) in connection with the
defense of such action, (ii) the Indemnifying Party(ies) shall not have employed
counsel to have charge of the defense of such action within a reasonable time
after notice of commencement of the action, or (iii) such Indemnified Party(ies)
shall have reasonably concluded (based on the advice of counsel) that counsel
selected by the Indemnifying Party(ies) has an actual conflict of interest or
there may be defenses available to the Indemnified Party(ies) that are different
from or additional to those available to the Indemnifying Party(ies) (in which
case the Indemnifying Party(ies) shall not have the right to direct the defense
of such action on behalf of the Indemnified Party(ies)). In any of the events
specified in clauses (i) through (iii) in the preceding sentence, such fees and
expenses shall be borne by the Indemnifying Party(ies) and paid as incurred (it
being understood, however, that the Indemnifying Party(ies) shall not be liable
for the fees and expenses of more than one separate firm of counsel (in addition
to local counsel) for the Indemnified Party(ies) in any one action or series of
related actions in the same jurisdiction representing the Indemnified Parties
who are parties to such action). Anything in this subsection to the contrary
notwithstanding, the Indemnifying Party(ies) shall not be liable for any
settlement or compromise of any such claim or action effected without its
written consent. The Indemnifying Party(ies) shall have the right to settle any
such claim or action for itself and any Indemnified Party so long as the
Indemnifying Party(ies) pays any settlement or compromise payment and such
settlement or compromise (i) includes a complete and unconditional release of
the Indemnified Party(ies) from all losses, expenses, claims, damages,
injunctions, liability and other obligations with respect to any claims that are
the subject matter of such action 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 of the Indemnified Parties.
(d) If the indemnification provided for in this Section 8 is otherwise
applicable but unavailable to an Indemnified Party under subsections (a) and (b)
of this Section 8 in respect of any losses, expenses, liabilities or claims
referred to therein, then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company (taken together with the Subsidiaries)
and FBR from the offering of the Shares or (ii) if (but only if) the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company (taken
together with the Subsidiaries) and FBR, in connection with the statements or
omissions which resulted in such losses, expenses, liabilities or claims, as
well as any other relevant equitable considerations. The relative benefits
received by the Company (taken together with the Subsidiaries) and FBR shall be
deemed to be in the same proportion as the total proceeds from the offering (net
of FBR's initial purchaser's discount and
25
placement fee, but before deducting expenses) received by the Company and/or the
Selling Stockholder bear to the initial purchaser's discount and placement fee
received by FBR. The relative fault of the Company (taken together with the
Subsidiaries) and FBR shall be determined by reference to, among other things,
whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the Company, the
Subsidiaries or FBR and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages
and liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
(e) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 8 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in subsection (e) of this Section 8.
Notwithstanding the provisions of this Xxxxxxx 0, XXX shall not be required to
contribute any amount in excess of the sum of (i) the aggregate amount of any
Placement Fee actually received by FBR, plus (ii) the aggregate amount of the
initial purchaser's discount (as described in the Final Memorandum) with respect
to the Resale Shares purchased by FBR. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person, if
any, who controls FBR within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
FBR.
(f) The indemnity and contribution agreements contained in this
Section 8, the other covenants, warranties and representations of the Company
and the Subsidiaries contained elsewhere in this Agreement, including, without
limitation, this Section 8(f) and Section 9 (Engagement Letter), Section 10
(Notices), Section 11 (Governing Law; Headings), Section 12 (Parties in
Interest), and Section 13 (Counterparts) shall remain in full force and effect
regardless of any investigation made by or on behalf of FBR or its affiliates,
or their respective directors, officers, representatives and agents, or any
person who controls FBR within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, or by or on behalf of the Company or the
Subsidiaries or their respective directors, officers, representatives or agents
or any person who controls the Company or the Subsidiaries within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the issuance, sale and delivery of
the Shares. Each of the parties to this Agreement agrees promptly to notify the
other parties of the commencement of any litigation or proceeding against it
and, in the case of the Company or the Subsidiaries, against any of their
respective officers and directors, in connection with the sale and delivery of
the Shares, or in connection with the Memorandum.
9. Engagement Letter. The Company hereby agrees to be bound, as if an
original party thereto, by and under the engagement letter, dated as of January
10, 2005 (the "Engagement Letter"), between VWP LLC and FBR, any all of the
obligations, agreements, covenants, representations and warranties of VWP LLC
thereunder, and all of such obligations, agreements, covenants, representations
and warranties shall survive the execution, delivery, any termination and the
performance of this Agreement and the consummation of the transaction
contemplated hereby without any modification thereof; provided that (i) to the
extent there is a conflict between the provisions of the Engagement Letter and
the provisions of this Agreement, the provisions of this Agreement shall prevail
to that extent, and (ii) the indemnification provisions in the Engagement Letter
and the Appendices thereto shall be superseded and replaced by the
indemnification and contribution provisions in Section 8 of this Agreement with
respect to the transactions contemplated by this Agreement.
26
10. Notices. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing delivered by facsimile (with receipt
confirmed), overnight courier or registered or certified mail, return receipt
requested, or by telegram and:
(a) if to FBR, shall be sufficient in all respects if delivered or
sent to Friedman, Billings, Xxxxxx & Co., Inc., 0000 Xxxxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: Compliance Department, (facsimile:
703-312-9698); with a copy to Hunton & Xxxxxxxx LLP, 000 X. Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx XxXxx, Esq., (facsimile:
804-343-4543); and
(b) if to the Company, shall be sufficient in all respects if
delivered to the Company at the offices of the Company at: 0000 Xxxxx Xxxxxx,
#00, Xxx Xxxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial Officer
(facsimile: (000) 000-0000), with a copy to Xxxxxxxx Chance US LLP, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx X. Xxxxxxxxx (facsimile: (212)
878-8375).
11. GOVERNING LAW; HEADINGS. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE (INCLUDING SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND
CONFLICTS OF LAWS RULES). The section headings in this Agreement have been
inserted as a matter of convenience of reference and are not a part of this
Agreement.
12. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of FBR, the Company and the Subsidiaries and the
controlling persons, directors, officers, representatives and agents referred to
in Section 8 hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, in its capacity as such, from FBR) shall acquire or have
any right under or by virtue of this Agreement.
13. Counterparts. This Agreement may be signed by the parties in one or
more counterparts and delivered by facsimile, which together shall constitute
one and the same agreement among the parties.
14. Knowledge. "Knowledge" or "known" with respect to the Company or its
Subsidiaries shall mean the knowledge of the Company, each Subsidiary and each
of their directors and executive officers after due inquiry.
[Signature Page Follows]
27
If the foregoing correctly sets forth the understanding among the Company,
VWT LP, VWP LLC and FBR, please so indicate in the space provided below for the
purpose, whereupon this letter shall constitute a binding agreement between the
Company, VWT LP, VWP LLC and FBR.
Very truly yours,
VINTAGE WINE TRUST INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
VINTAGE WINE TRUST LP
By: VINTAGE WINE BUSINESS TRUST I,
its General Partner
By: /s/ Xxxxxxx X. Shell
------------------------------------
Name: Xxxxxxx X. Shell
Title: Authorized Person
VWP LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Person
[SIGNATURE PAGE TO PURCHASE/PLACEMENT AGREEMENT]
Accepted and agreed to as
of the date first above written:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Managing Director
[SIGNATURE PAGE TO PURCHASE/PLACEMENT AGREEMENT]
