Exhibit 1.1
10,000,000 SHARES
of
CLASS A COMMON STOCK
CLARION COMMERCIAL HOLDINGS, INC.
UNDERWRITING AGREEMENT
May __, 1998
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
CIBC XXXXXXXXXXX CORP.
EVEREN SECURITIES, INC.
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Clarion Commercial Holdings, Inc., a corporation organized and
existing under the laws of Maryland (the "Company"), whose assets are managed
by Clarion Capital, LLC, a limited liability corporation organized and
existing under the laws of New York (the "Manager"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the several
underwriters named in Schedule I attached hereto (the "Underwriters") an
aggregate of 10,000,000 shares (the "Firm Shares") of its Class A common
stock, par value $.001 per share (the "Class A Common Stock"), and for the
sole purpose of covering over-allotments in connection with the sale of the
Firm Shares, at the option of the Underwriters, up to an additional 1,500,000
shares (the "Additional Shares") of Class A Common Stock on the terms set
forth in Section 2(c). The Firm Shares and any Additional Shares purchased
by the Underwriters are referred to herein as the "Shares." Bear, Xxxxxxx &
Co. Inc. ("Bear Xxxxxxx"), Xxxxxx Brothers Inc., CIBC Xxxxxxxxxxx Corp. and
EVEREN Securities, Inc. have agreed to act as representatives of the several
Underwriters (in such capacity, the "Representatives") in connection with the
purchase of the Shares. The Shares are more fully described in the
Registration Statement referred to below.
1. Representations and Warranties.
1.1 Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and may have filed an
amendment or amendments thereto, on Form S-11 (No. 333-47887), for the
registration of the Shares under the Securities Act of 1933, as amended (the
"Securities Act"). Such registration statement, including the prospectus,
financial statements and schedules, exhibits and all other documents filed as
a part thereof, as amended at the time of effectiveness of the registration
statement, including any information deemed to be a part thereof as of the
time of effectiveness pursuant to paragraph (b) of Rule 430A or Rule 434 of
the Rules and Regulations of the Commission under the Securities Act (the
"Securities Act Regulations") and including any registration statement filed
pursuant to Rule 462(b) of the Securities Act Regulations (a "Rule 462(b)
Registration Statement") increasing the size of the offering, is herein
called the "Registration Statement" and the prospectus, in the form first
filed with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations or filed as part of the Registration Statement at the time of
effectiveness if no Rule 424(b) or Rule 434 filing is required, is herein
called the "Prospectus." The term "Preliminary Prospectus" as used herein
means any preliminary prospectus relating to the Registration Statement as
described in Rule 430 of the Securities Act Regulations. In addition, all
references in this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a Preliminary Prospectus and the Prospectus, or any
amendments or supplements to any of the foregoing, shall be deemed to include
any copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis, and Retrieval System.
(b) At the time of the effectiveness of the Registration Statement
or the effectiveness of any post-effective amendment to the Registration
Statement, when the Prospectus is first filed with the Commission pursuant to
Rule 424(b) or Rule 434 of the Securities Act Regulations, when any
supplement to or amendment of the Prospectus is filed with the Commission and
at the Closing Date and the Additional Closing Date, if any (as hereinafter
respectively defined), the Registration Statement and the Prospectus and any
amendments thereof and supplements thereto complied or will comply in all
material respects with the applicable provisions of the Securities Act and
the Securities Act Regulations and do not or will not contain an untrue
statement of a material fact and do not or will not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein (i) in the case of the Registration Statement, not
misleading and (ii) in the case of the Prospectus, in light of the
circumstances under which they were made, not misleading. When any related
Preliminary Prospectus was first filed with the Commission (whether filed as
part of the Registration Statement for the registration of the Shares or any
amendment thereto or pursuant to Rule 424(a) of the Securities Act
Regulations) and when any amendment thereof or supplement thereto was first
filed with the Commission, such Preliminary Prospectus and any amendments
thereof and supplements thereto complied in all material respects with the
applicable provisions of the Securities Act and the Securities Act
Regulations and did not contain an untrue statement of a material fact and
did not omit to state any material fact necessary in order to make the
statements therein in light of the circumstances under which they were made
not misleading. No representation and warranty is made in this subsection
(b), however, with respect to any information contained in or omitted from
the Registration Statement or the Prospectus or any related Preliminary
Prospectus or any amendment thereof or supplement thereto in reliance upon
and in conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through you as herein stated
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expressly for use in connection with the preparation thereof. If Rule 434 is
used, the Company will comply with the requirements of Rule 434.
(c) Deloitte & Touche LLP, whose reports are contained in the
Registration Statement, are independent public accountants with respect to
the Company as required by the Securities Act and the Securities Act
Regulations.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth
in the Registration Statement and the Prospectus, there has been no material
adverse change in the business, business prospects, properties, operations,
financial condition or results of operations of the Company and its
Subsidiaries (as defined herein), taken as a whole (any such change being
referred to herein as a "Material Adverse Change"), whether or not arising
from transactions in the ordinary course of business, and since the date of
the latest statement of financial condition included in the Registration
Statement and the Prospectus, neither the Company nor any of its Subsidiaries
has incurred or undertaken any liabilities or obligations, direct or
contingent, which are material to the Company and its Subsidiaries, taken as
a whole , except for liabilities or obligations which are set forth in or
contemplated by the Registration Statement and the Prospectus.
(e) This Agreement and the Management Agreement (the "Management
Agreement") to be entered into on or prior to the Closing Date between the
Company and the Manager and the transactions contemplated herein and therein
have been duly and validly authorized by the Company, and this Agreement has
been and the Management Agreement has been or will be duly and validly
executed and delivered by the Company. [Representation and warranty may be
expanded to cover additional agreements between the Company and Clarion
Partners or the Affiliated Funds].
(f) The execution, delivery, and performance of this Agreement and
the Management Agreement and the consummation of the transactions
contemplated hereby and thereby do not and will not (i) conflict with or
result in a breach of any of the terms and provisions of, or constitute a
default (or an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
of its Subsidiaries pursuant to any agreement, instrument, franchise, license
or permit to which the Company or any of its Subsidiaries is a party or by
which the Company, any of its Subsidiaries or any of their respective
properties or assets may be bound or (ii) violate or conflict with any
provision of the articles of incorporation or bylaws of the Company or any of
its Subsidiaries or (iii) violate or conflict with any judgment, decree,
order, statute, rule or regulation of any court or any public, governmental
or regulatory agency or body
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having jurisdiction over the Company or any of its Subsidiaries or any of
their respective properties or assets, except, with respect to clauses (i)
and (iii) above, for those violations or conflicts that would not have a
material adverse effect on the business, business prospects, properties,
operations, financial condition or results of operations of the Company and
its Subsidiaries, taken as a whole (any such effect being referred to herein
as a "Material Adverse Effect"), or a material adverse effect on the
transactions contemplated by this Agreement. No consent, approval,
authorization, order, registration, filing, qualification, license or permit
of or with any court or any public, governmental or regulatory agency or body
having jurisdiction over the Company, any of its Subsidiaries or any of their
respective properties or assets is required for the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, including the issuance, sale and delivery of the Shares
to be issued, sold and delivered by the Company hereunder, and such consents,
approvals, authorizations, orders, registrations, filings, qualifications,
licenses and permits as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Shares by the
Underwriters. [Representation and warranty may be expanded to cover additional
agreements between the Company and Clarion Partners or the Affiliated Funds.]
(g) Except as otherwise disclosed in the Prospectus, all of the
outstanding shares of Class A Common Stock and the Company's Class B common
stock, par value $.001 per share (the "Class B Common Stock" and together
with the Class A Common Stock, the "Common Stock") are duly and validly
authorized and issued, fully paid and nonassessable and were not issued and
are not now in violation of or subject to any preemptive rights. The Shares,
when issued, delivered and sold in accordance with this Agreement, will be
duly and validly issued and outstanding, fully paid and nonassessable, and
will not have been issued in violation of or be subject to any preemptive
rights. The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus under the caption "Capitalization." The
Common Stock, including the Shares, conforms to the description thereof
contained in the Registration Statement and the Prospectus.
(h) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Maryland. Each
of the Company and its Subsidiaries has been duly qualified and is in good
standing as a foreign corporation or limited partnership in each jurisdiction
in which the character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good standing
which will not in the aggregate have a Material Adverse Effect on the Company
or a material adverse effect on the transactions contemplated by this
Agreement. The Company and each of its Subsidiaries has all requisite power
and authority, and all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from all public,
regulatory or governmental agencies and bodies, to own, lease and operate its
properties and conduct its business as now being conducted and as described
in the Registration Statement and the Prospectus, except for the absence of
which in the aggregate would not have a Material Adverse Effect on the
Company or a material adverse effect on the transactions contemplated by this
Agreement, and no such consent, approval, authorization, order, registration,
qualification, license or permit contains a materially burdensome restriction
not adequately disclosed in the Registration Statement and the Prospectus.
(i) Each of CCHI General, Inc. and CCHI Limited, Inc. (together,
the "Corporate Subsidiaries") has been duly organized and is validly existing
under the laws of the State of Delaware with full power and authority to
conduct its business as described in the Registration Statement and the
Prospectus; CCHI Limited Partnership (the "Operating Partnership," and
together with the Corporate Subsidiaries, the "Subsidiaries") has been duly
organized and is validly existing as a limited partnership under the laws of
the State of Delaware under the Delaware Revised Uniform Limited Partnership
Act with full power and authority to own its properties and conduct its
business as described in the Registration Statement and the Prospectus. Other
than the Subsidiaries, the Company
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has no other subsidiaries nor does it control any other corporation,
partnership, limited liability company, joint venture, association or other
business organization.
(j) Except as described in the Prospectus, there is no litigation
or governmental proceeding to which the Company or any of its Subsidiaries is
a party or to which any property of the Company or its Subsidiaries is
subject or which is pending or, to the knowledge of the Company or any of its
Subsidiaries, contemplated against the Company which might result in any
Material Adverse Change of the Company, which might materially and adversely
affect the transactions contemplated by this Agreement or which is required
to be disclosed in the Registration Statement or the Prospectus and is not so
disclosed. The description of litigation matters in the Prospectus under the
caption "The Company--Legal Proceedings" is complete and accurate in all
material respects.
(k) The Company has not taken, directly or indirectly, any action
designed to cause or result in, or which constitutes or which might
reasonably be expected to constitute, the stabilization or manipulation of
the price of the shares of Common Stock to facilitate the sale or resale of
any of the Shares.
(l) The statement of financial condition, including the notes
thereto, included in the Registration Statement and the Prospectus presents
fairly the financial position of the Company on the dates indicated and the
results of operations for the periods specified; said statement of financial
condition has been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; and no other statement of financial
condition, financial statements or supporting schedules are required to be
included in the Registration Statement. The financial data set forth in the
Prospectus under the caption "Capitalization" fairly present the information
set forth therein on a basis consistent with that of the audited financial
statements continued in the Registration Statement.
(m) Except as otherwise disclosed in the Prospectus, no holder of
securities of the Company has any rights to the registration of securities of
the Company or securities of any other person that are convertible,
exchangeable or exercisable for securities of the Company because of the
filing of the Registration Statement or otherwise in connection with the sale
of the Shares contemplated hereby other than the right of a lender pursuant
to a registration rights agreement with the Company to demand registration of
Shares that have been pledged by a holder of such Shares as security for a
loan that is in default.
(n) Each of the Company and its Subsidiaries has good and
marketable title to all the properties and assets reflected as owned in the
financial statements referred to in subsection (l) above or elsewhere in the
Prospectus, in each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects, except such as are
described in the Prospectus and such as do not materially and adversely
affect the value of such property and do not materially interfere with the
use made or proposed to be made of such property by the Company or its
Subsidiaries. The real property, improvements, equipment and personal
property held under lease by the Company or its Subsidiaries are held under
valid, subsisting and enforceable leases, with such exceptions as are not
material and do not materially interfere with the use made or proposed to be
made of such real property, improvements, equipment or personal property by
the Company or its Subsidiaries, as the case may be.
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(o) Each of the Company and its Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns and has
paid all taxes required to be paid by it and, if due and payable, any related
or similar assessment, fine or penalty levied against it, except insofar as
the failure to file such returns would not have a Material Adverse Effect on
the Company or a material adverse effect on the transactions contemplated by
this Agreement. Each of the Company and its Subsidiaries has made adequate
charges, accruals and reserves in their respective financial statements in
respect of all federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company or its Subsidiaries, as
the case may be, has not been finally determined, except to the extent of any
inadequacy that would not have a Material Adverse Effect on the Company or a
material adverse effect on the transactions contemplated by this Agreement.
(p) Each of the Company and its Subsidiaries 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 authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (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 existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(q) Except as otherwise disclosed in the Prospectus, there are no
business relationships or related-party transactions of the type described in
Item 404 of Regulation S-K of the Commission involving the Company or its
Subsidiaries, except for such transactions that would be considered
immaterial under such Item 404. The descriptions in the Prospectus under the
caption "Certain Transactions with Related Parties" are complete and accurate
in all material respects.
(r) The Company will elect to be taxed as a "real estate
investment trust" (a "REIT") under Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended (the "Code"), effective beginning in its
taxable year 1998. The Company has not taken any action that would prevent
it from qualifying as a REIT under the Code, and from and after the Closing
Date, the Company shall conduct its operations in a manner so as to enable it
to elect to be qualified, and thereafter maintain its qualification, as a
REIT under the Code.
(s) Prior to the date of the Preliminary Prospectus, the Shares
were duly approved (subject to issuance thereof) for listing on the New York
Stock Exchange (the "NYSE").
(t) The Company is not, and after giving effect to the issue and
sale of the Shares by the Company and the application of the net proceeds of
the offering contemplated hereby as described under "Use of Proceeds" in the
Prospectus will not be, an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act").
(u) Neither the Company nor its officers, directors, employees and
agents have distributed or will distribute prior to the Closing Date any
offering material in connection with the
6
offering and sale of the Shares other than the Preliminary Prospectus, the
Prospectus, the Registration Statement or other materials permitted by the
Securities Act.
(v) The Company is not and will not be a "broker" within the
meaning of Section 3(a)(4) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or a "dealer" within the meaning of Section 3(a)(5) of
the Exchange Act or required to be registered pursuant to Section l5(a) of
the Exchange Act.
(w) Neither the Company nor any affiliate has incurred any
liability for a fee, commission or other compensation on account of the
employment of a broker or finder in connection with the transactions
contemplated by this Agreement, other than as disclosed in the Prospectus.
(x) Prior to the filing of the Registration Statement, the Company
entered into purchase agreements (the "Purchase Agreements") in connection
with the issuance and sale by the Company of 1,000,000 shares of Class A
Common Stock (the "Private Shares") to certain purchasers as described in the
Prospectus under the caption "Private Placement." Each Purchase Agreement
upon its execution constituted a legal and binding obligation of the Company,
enforceable in accordance with its terms.
(y) Neither the Company nor any person authorized to act on the
Company's behalf has, directly or indirectly, taken any action which would
prevent the offering and sale of the Private Shares from complying with the
requirements of all applicable securities laws or render unavailable the
exemption from the registration requirements of the Securities Act provided
by Section 4(2) thereof relied upon in making any offer or sale of the
Private Shares, or the state securities or Blue Sky laws of jurisdictions in
which the Private Shares will be offered. The offer and sale of the Private
Shares, in the manner and under the circumstances described in the Prospectus
under the caption "Private Placement," do not require registration of the
Private Shares under the Securities Act.
(z) The offer and sale of the Private Shares should not be
integrated with the offering of the Shares pursuant to the Registration
Statement.
Any certificate signed by an officer of the Company and delivered
to the Representatives or their counsel shall be deemed to be a
representation and warranty by the Company as to the matters covered thereby.
1.2 Representations and Warranties of the Manager. The Manager
represents and warrants to, and agrees with, the Underwriters that:
(a) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth
in the Registration Statement and the Prospectus, there has been no Material
Adverse Change of the Manager whether or not arising from transactions in the
ordinary course of business.
(b) This Agreement and the Management Agreement to be entered into
on or prior to the Closing Date between the Company and the Manager, and the
Clarion Capital Sub-
7
Advisory Agreement (the "Clarion Agreement") to be entered into on or prior
to the Closing Date between the Manager and Clarion Partners, LLC, and the
transactions contemplated herein and therein have been duly and validly
authorized by the Manager and this Agreement has been, and each of the
Management Agreement and the Clarion Agreement has been or will be, duly and
validly executed and delivered by the Manager. [Representation and warranty
may be expanded to cover additional agreements, if any, with the Manager.]
(c) The execution, delivery, and performance of this Agreement,
the Management Agreement and the Clarion Agreement and the consummation of
the transactions contemplated hereby and thereby do not and will not (i)
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Manager pursuant to any agreement, instrument, franchise, license or
permit to which the Manager is a party or by which it or any of its
properties or assets may be bound or (ii) violate or conflict with any
provision of the certificate of incorporation or bylaws of the Manager or
(iii) violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or
body having jurisdiction over the Manager or any of its properties or assets,
except, with respect to clauses (i) and (iii) above, for those violations or
conflicts that would not have a Material Adverse Effect on the Manager, or a
material adverse effect on the transactions contemplated by this Agreement.
No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the
Manager or any of its properties or assets is required for the execution,
delivery and performance of this Agreement by the Manager.
[Representation and warranty may be expanded to cover additional agreements,
if any, with the Manager.]
(d) The Manager has been duly organized and is validly existing as
a limited liability corporation in good standing under the laws of the State
of New York. The Manager has been duly qualified and is in good standing as
a foreign corporation, in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or
conduct of its business makes such qualification necessary, except for those
failures to be so qualified or in good standing which will not in the
aggregate have a Material Adverse Effect on the Manager or a material adverse
effect on the transactions contemplated by this Agreement. The Manager has
all requisite power and authority, and all necessary consents, approvals,
authorizations, orders, registrations, qualifications, licenses and permits
of and from all public, regulatory or governmental agencies and bodies, to
own, lease and operate its properties and conduct its business as now being
conducted and as described in the Registration Statement and the Prospectus,
except for the absence of which in the aggregate would not have a Material
Adverse Effect on the Manager or a material adverse effect on the
transactions contemplated by this Agreement, and no such consent, approval,
authorization, order, registration, qualification, license or permit contains
a materially burdensome restriction not adequately disclosed in the
Registration Statement and the Prospectus.
(e) The Manager has no subsidiaries.
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(f) Except as described in the Prospectus, there is no litigation
or governmental proceeding to which the Manager is a party or to which any
property of the Manager is subject or which is pending or, to the knowledge
of the Manager, contemplated against the Manager which might result in any
Material Adverse Change of the Manager, which might materially and adversely
affect the transactions contemplated by this Agreement or which is required
to be disclosed in the Registration Statement or the Prospectus and is not so
disclosed.
(g) The Manager has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or which constitutes
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate the
sale or resale of the Shares.
(h) The Manager has filed all necessary federal, state and foreign
income and franchise tax returns and has paid all taxes required to be paid
by it and, if due and payable, any related or similar assessment, fine or
penalty levied against it, except insofar as the failure to file such returns
would not have a Material Adverse Effect on the Manager or a material adverse
effect on the transactions contemplated by this Agreement. The Manager has
made adequate charges, accruals and reserves in its financial statements in
respect of all federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Manager has not been finally
determined, except to the extent of any inadequacy that would not have a
Material Adverse Effect on the Manager or a material adverse effect on the
transactions contemplated by this Agreement.
(i) The Manager is insured by recognized financially sound and
reputable institutions with policies in such amounts and with such
deductibles and covering such risks that the Manager believes are adequate to
insure against potential losses, with such policies including, without
limitation, policies covering errors and omissions and fidelity bonds. The
Manager has no reason to believe that it will not be able (i) to renew its
existing insurance coverage as and when such policies expire or (ii) to
obtain comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted and at a cost that would
not result in a Material Adverse Change of the Manager. The Manager has not
been denied any insurance coverage for which it has sought or applied.
(j) Except as otherwise disclosed in the Prospectus, there are no
business relationships or related-party transactions of the type described in
Item 404 of Regulation S-K of the Commission involving the Company or its
Subsidiaries and the Manager, except for such transactions that would be
considered immaterial under such Item 404. The descriptions in the
Prospectus under the caption "Certain Transactions with Related Parties" are
complete and accurate in all material respects.
(k) The Manager is not and will not be an "investment company" or
a company "controlled" by an "investment company" within the meaning of the
Investment Company Act
(l) The Manager is not and will not be a "broker" within the
meaning of Section 3(a)(4) of the Exchange Act or a "dealer" within the
meaning of Section 3(a)(5) of the Exchange Act or required to be registered
pursuant to Section 15(a) of the Exchange Act.
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Any certificate signed by an officer of the Manager and delivered
to the Representatives or their counsel shall be deemed to be a
representation and warranty by the Manager as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters and the
Underwriters, severally and not jointly, agree to purchase from the Company,
at a purchase price per share of $_______, the number of Firm Shares set
forth opposite the respective names of the Underwriters in Schedule I hereto
plus any additional number of Shares which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Shares shall be made at the office of Bear Xxxxxxx, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, or at such other place as shall be agreed
upon by you and the Company, at 10:00 a.m. on the third or fourth business
day (as permitted under Rule 15c6-1 of the rules and regulations of the
Commission under the Exchange Act (the "Exchange Act Regulations")) (unless
postponed in accordance with the provisions of Section 9 hereof following the
date of the effectiveness of the Registration Statement (or, if the Company
has elected to rely upon Rule 430A of the Securities Act Regulations, the
third or fourth business day (as permitted under Rule 15c6-1 of the Exchange
Act Regulations) after the determination of the public offering price of the
Shares), or such other time not later than ten business days after such date
as shall be agreed upon by you and the Company (such time and date of payment
and delivery being herein called the "Closing Date"). Payment shall be made
to the Company by wire transfer in same-day funds, against delivery to you
for the respective accounts of the Underwriters of certificates for the
Shares to be purchased by them. Certificates for the Shares shall be
registered in such name or names and in such authorized denominations as you
may request in writing at least 48 hours prior to the Closing Date. The
Company will permit you to examine and package such certificates for delivery
at least 24 hours prior to the Closing Date.
(c) In addition, the Company hereby grants to the Underwriters the
option to purchase up to 1,500,000 Additional Shares at the same purchase
price per share to be paid by the Underwriters to the Company for the Firm
Shares as set forth in this Section 2, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the Underwriters. This option
may be exercised at any time, in whole or in part, on or before the thirtieth
day following the date of the Prospectus, by written notice by you to the
Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised and the date and time, as
reasonably determined by you, when the Additional Shares are to be delivered
(such date and time being herein sometimes referred to as the "Additional
Closing Date"); provided, however, that the Additional Closing Date shall not
be earlier than the Closing Date or earlier than the second full business day
after the date on which the option shall have been exercised nor later than
the eighth full business day after the date on which the option shall have
been exercised (unless such time and date are postponed in accordance with
the provisions of Section 9 hereof). Certificates for the Additional Shares
shall be registered in such name or names and in such authorized
denominations as you may request in writing at least 48 hours prior to the
Additional Closing Date. The Company will permit
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you to examine and package such certificates for delivery at least 24 hours
prior to the Additional Closing Date.
(d) The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same ratio to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 9 hereof) bears to the total number of Firm
Shares being purchased from the Company, subject, however, to such
adjustments to eliminate any fractional shares as you in your sole discretion
shall make.
(e) Payment for the Additional Shares shall be made by wire
transfer in same-day funds at the office Bear Xxxxxxx, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, or such other location as may be mutually acceptable, upon
delivery of the certificates for the Additional Shares to you for the
respective accounts of the Underwriters.
3. Offering. Upon your authorization of the release of the Firm
Shares, the Underwriters propose to offer the Shares for sale to the public
upon the terms set forth in the Prospectus.
4. Covenants of the Company. The Company covenants and agrees with
the Underwriters that:
(a) The Company will notify you immediately (and, if requested by
you, will confirm such notice in writing) (i) when any post-effective
amendment to the Registration Statement becomes effective, (ii) of any
request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for any additional information,
(iii) of the mailing or the delivery to the Commission for filing of the
Prospectus or any amendment of or supplement to the Registration Statement or
the Prospectus or any document to be filed pursuant to the Exchange Act
during any period when the Prospectus is required to be delivered under the
Securities Act, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of the initiation, or the threatening, of
any proceedings therefor, (v) of the receipt of any comments or inquiries
from the Commission relating to the Registration Statement or the Prospectus,
and (vi) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time,
the Company will make every reasonable effort to prevent the issuance of any
such stop order and, if issued, to obtain the lifting of such order as soon
as possible. The Company will not file any post-effective amendment to the
Registration Statement or use any amendment of or supplement to the
Prospectus (including any revised prospectus which the Company proposes for
use by the Underwriters in connection with the offering of the Shares which
differs from the prospectus filed with the Commission pursuant to Rule 424(b)
of the Securities Act Regulations, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of the Securities Act
Regulations) to which the Representatives or counsel for the Underwriters
shall reasonably object, and will furnish the Representatives with copies of
any such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be.
11
(b) If any event shall occur as a result of which the Prospectus
would, in the judgment of the Underwriters or the Company include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary at any time to
amend or supplement the Prospectus or Registration Statement to comply with
the Securities Act or the Securities Act Regulations, the Company will notify
you promptly and prepare and file with the Commission an appropriate
amendment or supplement (in form and substance reasonably satisfactory to
you) which will correct such statement or omission or which will effect such
compliance.
(c) The Company has delivered to each of you one signed copy of
the Registration Statement as originally filed, including exhibits and all
amendments thereto, and the Company will promptly deliver to each of the
Underwriters, from time to time during the period that the Prospectus is
required to be delivered under the Securities Act or the Exchange Act, such
number of copies of the Prospectus and the Registration Statement, and all
amendments of and supplements to such documents, if any, as you may
reasonably request.
(d) The Company will endeavor in good faith, in cooperation with
you, to qualify the Shares for offering and sale under the securities laws
relating to the offering or sale of the Shares of such jurisdictions as you
may designate and to maintain such qualification in effect for so long as
required for the distribution thereof; provided, however, that in no event
shall the Company be obligated in connection therewith to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified, to
execute a general consent to service of process or subject itself to taxation
in respect of doing business in any jurisdiction in which it is not otherwise
so subject.
(e) The Company will make generally available (within the meaning
of Section 11(a) of the Securities Act) to its security holders and to you as
soon as practicable, but not later than 45 days after the end of its fiscal
quarter in which the first anniversary date of the effective date of the
Registration Statement occurs (or if such fiscal quarter is the Company's
fourth fiscal quarter, not later than 90 days after the end of such quarter),
an earnings statement (in form complying with the provisions of Rule 158 of
the Securities Act Regulations) covering a period of at least twelve
consecutive months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) of the Securities Act Regulations).
(f) During the period of 180 days from the date of the Prospectus,
the Company will not, directly or indirectly without your prior written
consent, issue, sell, offer or agree to sell, grant any option to purchase,
or otherwise dispose (or announce any offer, sale, grant of an option to
purchase or other disposition) of, any shares of Common Stock (or any
securities convertible into, exchangeable or exercisable for shares of Common
Stock), other than the Company's sale of Shares hereunder, the Company's
issuance of Common Stock upon the exercise of presently outstanding stock
options, the grant of options under the Company's 1998 Stock Incentive Plan
and the Company's issuance of Common Stock upon the exercise of stock options
granted in connection with the offering contemplated hereby under the 1998
Stock Incentive Plan.
(g) The Company will obtain the undertaking of each of its
officers and directors, the Manager and its officers and directors, the
purchasers in the private placement described in the
12
Prospectus under the caption "Private Placement," and such other persons as
have been heretofore designated by you and listed on Schedule II attached
hereto that, during the period of 180 days (or such shorter period as
expressly agreed to by Bear Xxxxxxx) from the date of the Prospectus, each of
them will not, directly or indirectly, without your prior written consent,
issue, sell, offer or agree to sell, grant any option to purchase, or
otherwise dispose (or announce any offer, sale, grant of an option to
purchase or other disposition) of, any shares of Common Stock (or any
securities convertible into, exercisable for or exchangeable for shares of
Common Stock) other than in connection with Shares pledged pursuant to a
lending arrangement under which the holder has defaulted and the lender is
exercising its right to dispose of such Shares.
(h) During a period of three years from the date of the
Prospectus, the Company will furnish to you copies of (i) all reports to its
stockholders; and (ii) all reports, financial statements and proxy or
information statements filed by the Company with the Commission or any
national securities exchange or quotation system.
(i) The Company will apply the proceeds from the sale of the
Shares as set forth under the caption "Use of Proceeds" in the Prospectus.
(j) If the Company elects to rely upon Rule 462(b) of the
Securities Act Regulations, the Company shall file the Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) of
the Securities Act Regulations by 10:00 p.m., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing, either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) of the Securities Act Regulations.
(k) The Company will not at any time, directly or indirectly, take
any action intended, or which might reasonably be expected, to cause or
result in, or which will constitute, stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of any
of the Shares.
(l) The Company will continue to meet the requirements to qualify
as a REIT and will not revoke its election to be a REIT unless and until the
Board determines that such revocation is advantageous to the Company.
(m) The Company will use its best efforts to effect the listing of
the Common Stock on the NYSE.
(n) The Company will not and will not allow any person authorized
to act on the Company's behalf to take any action that would prevent the
offering and sale of the Private Shares from complying in all respects with
the requirements of all applicable securities laws or render unavailable the
exemption from the registration requirements of the Securities Act provided
by Section 4(2) thereof relied upon in making any offer or sale of the
Private Shares, or the state securities or Blue Sky laws of any jurisdiction
in which the Private Shares will be offered.
13
5. Payment of Expenses. Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, the
Company hereby agrees to pay all costs and expenses incident to the
performance of the obligations of the Company hereunder, including those in
connection with (i) preparing, printing, duplicating, filing and
distributing the Registration Statement, as originally filed and all
amendments thereof (including all exhibits thereto), any Preliminary
Prospectus, the Prospectus and any amendments or supplements thereto
(including, without limitation, fees and expenses of the Company's
accountants and counsel), the underwriting documents (including this
Agreement and the Agreement Among Underwriters) and all other documents
related to the public offering of the Shares (including those supplied to
the Underwriters in quantities as hereinabove stated), (ii) the issuance,
transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the qualification of the
Shares under state Blue Sky laws, including the costs of printing and
mailing a preliminary and final "Blue Sky Memorandum" and the fees of
counsel in connection therewith and such counsel's disbursements in relation
thereto, (iv) listing the Shares on the NYSE, (v) filing fees of the
Commission and the National Association of Securities Dealers, Inc. (the
"NASD"), (vi) the cost of printing certificates representing the Shares and
(vii) the cost and charges of any transfer agent.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Manager herein
contained, as of the date hereof and as of the Closing Date (for purposes of
this Section 6 "Closing Date" shall refer to the Closing Date for the Firm
Shares and any Additional Closing Date, if different, for the Additional
Shares), to the absence from any certificates, opinions, written statements
or letters furnished to you or to Stroock & Stroock & Xxxxx LLP
("Underwriters' Counsel") pursuant to this Section 6 of any misstatement or
omission, to the performance by the Company and the Manager of their
respective obligations hereunder, and to the following additional
conditions:
(a) On the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
Securities Act or proceedings therefor initiated or threatened by the
Commission. The Prospectus shall have been filed or transmitted for filing
with the Commission pursuant to Rule 424(b) of the Securities Act Regulations
within the prescribed time period, and prior to the Closing Date the Company
shall have provided evidence satisfactory to the Underwriters of such timely
filing or transmittal.
(b) On the Closing Date you shall have received the opinion of
Shulman, Rogers, Gandal, Pordy & Xxxxx, P.A., Maryland counsel for the
Company, dated the Closing Date addressed to the Underwriters and in form and
substance satisfactory to Underwriters' Counsel, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Maryland.
(ii) The statements in the Prospectus under the caption
"Certain Provisions of Maryland Law and the Company's Charter and
Bylaws" and in Item 34 of the Registration Statement, to the
extent that such statements constitute matters of law, summaries
of legal matters, the Company's charter or bylaw provisions, legal
14
proceedings, or legal conclusions, have been reviewed by such
counsel and, as of the date of the Prospectus and as of the date
hereof, fairly present and summarize, in all material respects,
the matters referred to therein.
(c) On the Closing Date you shall have received the opinion of
Shearman & Sterling, counsel for the Company and the Manager, dated the
Closing Date addressed to the Underwriters and in form and substance
satisfactory to Underwriters' Counsel, to the effect that:
(i) To their best knowledge and information, each of the
Company and its Subsidiaries is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, except for where the failure so
to qualify or to be in good standing would not result in a Material
Adverse Effect on the Company or a material adverse effect on the
transactions contemplated by this Agreement.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and conduct its business as now being
conducted and as described in the Registration Statement and the
Prospectus.
(iii) The Manager has been duly incorporated and is
validly existing as a limited liability company in good standing under
the laws of the State of New York.
(iv) The Manager is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except for
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect on the Manager or a material
adverse effect on the transactions contemplated by this Agreement.
(v) The Manager has all requisite power and authority to
own, lease and operate its properties and conduct its business as now
being conducted and as described in the Registration Statement and the
Prospectus.
(vi) Each of the Corporate Subsidiaries has been duly
organized and is validly existing as a corporation under the laws of
the State of Delaware with corporate power and authority to conduct its
business as described in the Registration Statement and the Prospectus.
The Operating Partnership has been duly organized and is validly
existing as a limited partnership under the laws of the State of
Delaware under the Delaware Revised Uniform Limited Partnership Act
with partnership power and authority to own its properties and conduct
its business as described in the Registration Statement and the
Prospectus.
(vii) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Description of Capital Stock." All of the outstanding shares of
Common Stock are duly and validly authorized and issued, are fully paid
and nonassessable. The issued and outstanding Shares to be delivered
on the Closing Date have been duly authorized and, when delivered by
the Company in accordance with this
15
Agreement, will be validly issued and fully paid and nonassessable, and
the issuance of the Shares is not subject to any preemptive rights,
except as otherwise disclosed in the Prospectus. The Common Stock,
including the Shares, conforms to the descriptions thereof contained in
the Registration Statement and the Prospectus.
(viii) The Shares to be sold under this Agreement to the
Underwriters are duly approved for listing on the NYSE, subject only to
official notice of issuance, and such approval has been in effect since
a date prior to the date of the Preliminary Prospectus.
(ix) The Management Agreement and the transactions
contemplated therein have been duly authorized by the Company and the
Manager, and the Management Agreement has been duly authorized,
executed and delivered by the Company and the Manager and constitutes
the valid and binding agreement of the Company and the Manager,
enforceable in accordance with its terms. The Clarion Agreement and the
transactions contemplated therein have been duly authorized by the
Manager, and the Clarion Agreement has been duly authorized, executed
and delivered by the Manager and constitutes the valid and binding
agreement of the Manager, enforceable in accordance with its terms.
(x) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and the Manager and constitutes
the valid and binding agreement of the Company and the Manager,
enforceable in accordance with its terms.
(xi) To the best of their knowledge and information, except
as disclosed in the Prospectus, there are no actions, suits,
proceedings or investigations pending or threatened against or
affecting the Company, the Subsidiaries or the Manager or any of their
respective properties or businesses, at law or in equity, or before any
government or administrative body or agency, in the State of New York,
which, alone or in the aggregate, could result in any Material Adverse
Effect or challenge the right, power, authority or ability of the
Company, the Subsidiaries or the Manager to carry out the transactions
contemplated in each of the Registration Statement, the Underwriting
Agreement, the Management Agreement and the Clarion Agreement.
(xii) No consent, approval, authorization or order of, or
qualification with any governmental body or agency of the United States
of America or the State of New York is required for the issuance and
sale of the Shares by the Company pursuant to the Underwriting
Agreement or the performance by the Company or the Manager of its
respective obligations under the Underwriting Agreement, the Management
Agreement and the Clarion Agreement or the consummation by the Company,
the Subsidiaries or the Manager of the transactions contemplated
thereby, except (x) such as may be required under state securities or
blue sky laws in connection with the purchase and distribution of the
Shares by the Underwriters (as to which such counsel need express no
opinion) and (y) such as have been obtained or made under the
Securities Act or the rules of the New York Stock Exchange.
(xiii) The execution and delivery by the Company and the
Manager of the Underwriting Agreement, the Management Agreement and the
Clarion Agreement (to which
16
either is a party) and the consummation of the transactions
contemplated thereby and in the Registration Statement (including the
issuance and sale of the Shares and the use of the proceeds from the
sale of the Shares as described in the Prospectus under the caption
"Use of Proceeds"), and the performance by the Company and the Manager
of their respective obligations under the Underwriting Agreement, the
Management Agreement and the Clarion Agreement, each in accordance with
its terms, do not, to our knowledge, constitute a violation of or a
default under any material contracts of the Company and the Manager
previously identified to us, result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company, any of its Subsidiaries or the Manager pursuant to any
agreement, instrument, franchise, license or permit known to such
counsel to which the Company, the Subsidiaries or the Manager is a
party or by which any of such entities or their respective properties
or assets may be bound that is material to the Company, any of its
Subsidiaries or the Manager or violate or conflict with any provisions
of the articles of incorporation or bylaws of the Company or its
Subsidiaries or the certificate of incorporation or bylaws of the
Manager. We do not express any opinion, however, as to whether the
execution, delivery or performance by the Company and the Manager of
the Underwriting Agreement, the Management Agreement and the Clarion
Agreement will constitute a violation of or a default under any
covenant, restriction or provision with respect to financial ratios or
tests or any aspect of the financial condition or results of operations
of the Company or the Manager.
(xiv) The issuance and sale of the Shares by the Company,
the execution and delivery of the Underwriting Agreement, the
Management Agreement and the Clarion Agreement (to which either is a
party) by the Company and the Manager, the compliance by the Company
with all of the provisions of the Shares, the Underwriting Agreement
and the Management Agreement, and the consummation by the Company of
the transactions therein contemplated in accordance with the terms
thereof, will not violate any Applicable Law or any Applicable Order.
The term "Applicable Laws" means those laws, rules and regulations of
the States of Maryland and New York and of the United States of America
which, in the experience of such counsel, are normally applicable to
transactions of the type contemplated by the Underwriting Agreement,
the Management Agreement and the Clarion Agreement, but without having
made any special investigation concerning any other laws, rules or
regulations. The term "Applicable Orders" means any administrative
order or decree of any State of Maryland or New York or federal court
or governmental authority or agency having jurisdiction over the
Company or the Manager, the existence of which has been specifically
disclosed to such counsel in writing prior to the date hereof.
(xv) The Registration Statement, including any Rule 462(b)
Registration Statement, the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to
the Registration Statement, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates
(other than the financial statements and schedules and other financial
data included therein or omitted therefrom, as to which no opinion need
be expressed) complied as to form in all material respects with the
requirements of the Securities Act and the Securities Act Regulations.
17
(xvi) The Registration Statement, including any Rule
462(b) Registration Statement, has been declared effective under the
Securities Act, and to the best of their knowledge and information, no
stop order suspending the effectiveness of the Registration Statement
or the Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings therefor have been instituted or are
pending or threatened by the Commission. Any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act Regulations has been made in the manner and within the
time period required by such Rule.
(xvii) To the best knowledge of such counsel and except as
described in the Prospectus, no holder of securities of the Company has
any rights to the registration of securities of the Company or
securities of any other person that are convertible, exchangeable or
exercisable for securities of the Company because of the filing of the
Registration Statement or otherwise in connection with the sale of the
Shares contemplated hereby.
(xviii) To the best knowledge of such counsel, the
descriptions in the Prospectus under the caption "Certain Relationships
and Related Party Transactions and Conflicts of Interest" are complete
and accurate in all material respects.
(xix) The Company has been organized in conformity with
the requirements for qualification as a REIT under Sections 856 through
860 of the Code, and, to the best knowledge of such counsel, the
Company has not taken any action that would prevent it from qualifying
as a REIT under the Code, and the Company conducts its operations in a
manner so as to enable it to elect to be qualified, and thereafter
maintain its qualification, as a REIT under the Code.
(xx) The Company is not, and after giving effect to the issue
and sale of the Shares by the Company and the application of the
proceeds of the offering contemplated hereby as described under "Use of
Proceeds" in the Prospectus will not be, an "investment company" or a
company "controlled" by an "investment company" within the meaning of
the Investment Company Act, or a "broker" within the meaning of Section
3(a)(4) of the Exchange Act or a "dealer" within the meaning of Section
3(a)(5) of the Exchange Act or required to be registered pursuant to
Section 15(a) of the Exchange Act. The Manager is not and will not be
an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act or a "broker"
within the meaning of Section 3(a)(4) of the Exchange Act or a "dealer"
within the meaning of Section 3(a)(5) of the Exchange Act or required
to be registered pursuant to Section 15(a) of the Exchange Act.
(xxi) The statements in the Prospectus under the captions
"Risk Factors-- REIT Asset and Income Requirements May Limit the
Company's Investments," " -- REIT Distribution Requirements May Limit
the Company's Operations," " -- Phantom Income May Result in Additional
Tax Liability," " -- Taxable Mortgage Pool Risk; Increased
18
Taxation to Stockholders," " -- Failure to Maintain Investment Company
Act Exemption Would Adversely Affect Results of Operations," " --
Ownership Limitation May Restrict Business Combination Opportunities,"
"Federal Income Tax Considerations," "ERISA Considerations," and
"Description of Capital Stock" to the extent that such statements
constitute matters of law, summaries of legal matters, the Company's
charter or bylaw provisions, legal proceedings, or legal conclusions,
have been reviewed by such counsel and, as of the date of the
Prospectus and as of the date hereof, fairly present and summarize, in
all material respects, the matters referred to therein.
(xxii) Each of the Purchase Agreements and the
transactions contemplated therein have been duly and validly authorized
by the Company and the Purchase Agreement have been duly and validly
executed and delivered by the Company and constituted, upon their
execution, valid and binding agreements of the Company, enforceable in
accordance with their terms.
(xxiii) Based upon the prospective Purchasers'
representations contained in the Purchase Agreements and assuming the
offer and sale of the Private Shares has been conducted in the manner
prescribed by the Purchase Agreements, the offer and sale of the
Private Shares is exempt from the registration requirements of the
Securities Act. The offer and sale of the Private Shares should not be
integrated with the offering of the Shares pursuant to the Registration
Statement.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of
the Company and the Manager, representatives of the independent public
accountants for the Company and the Underwriters at which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although they are not passing upon, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in
the Registration Statement or Prospectus, and they have not made any
independent check or verification thereof, on the basis of the foregoing, no
facts have come to the attention of such counsel which would lead such
counsel to believe that either the Registration Statement at the time it
became effective (except for financial statements and schedules and other
financial statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion) or any subsequent amendment thereof
made prior to the Closing Date as of the date of such amendment contained an
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus (except for financial statements and
schedules and other financial or statistical data included therein, as to
which counsel need express no opinion) as of its date (or any subsequent
amendment thereof or subsequent supplement thereto made prior to the Closing
Date as of the date of such amendment or supplement) and as of the Closing
Date contained or contains an untrue statement of a material fact or omitted
or omits to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters
involving the application of laws other than the laws of the United States,
New York and any other jurisdictions in which they are admitted to the extent
such counsel deems proper and to the extent specified in such
19
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' Counsel) of other counsel reasonably
acceptable to Underwriters' Counsel, familiar with the applicable laws;
provided, that such opinion shall expressly state that the Underwriters may
rely on such opinion as if it were addressed to them. In rendering such
opinion, such counsel may rely as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and the
Manager and certificates or other written statements of officers of
departments of various jurisdictions having custody of documents respecting
the existence or good standing of the Company, the Subsidiaries and the
Manager; provided that copies of any such statements or certificates shall be
delivered to Underwriters' Counsel and such opinion shall state that such
counsel and the Underwriters are justified in so relying upon any such
certificate. The opinion of such counsel for the Company shall state that
the opinion of any such other counsel is in form satisfactory to such counsel
and, in their opinion, you and they are justified in relying thereon.
(d) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be satisfactory
in form and substance to you and to Underwriters' Counsel, and the
Underwriters shall have received from said Underwriters' Counsel a favorable
opinion, dated as of the Closing Date with respect to the issuance and sale
of the Shares, the Registration Statement and the Prospectus and such other
related matters as you may reasonably require, and the Company shall have
furnished to Underwriters' Counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) At the Closing Date you shall have received a certificate of
the Chief Executive Officer and Chief Financial Officer of the Company on
behalf of the Company and a certificate of the Chief Executive Officer and
Chief Financial Officer of the Manager on behalf of the Manager, each dated
the Closing Date, to the effect that (i) the condition set forth in
subsection (a) of this Section 6 has been satisfied, (ii) as of the date
hereof and as of the Closing Date the representations and warranties of the
Company and the Manager, respectively, set forth in Section 1 hereof are true
and correct, (iii) as of the Closing Date the obligations of the Company and
the Manager, respectively, to be performed hereunder on or prior thereto have
been duly performed and (iv) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company and the Manager have not sustained any material loss or interference
with their respective businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding, and there has not been
any Material Adverse Change of the Company or the Manager, except in each
case as described in or contemplated by the Prospectus.
(f) You shall have received at the time this Agreement is executed
and at the Closing Date, a letter from Deloitte & Touche LLP, independent
public accountants for the Company, dated as of the date of this Agreement
and as of the Closing Date, respectively, addressed to the Underwriters and
in form and substance satisfactory to you, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to financial statements and certain information
of the Company and its subsidiaries contained in the Registration Statement
and the Prospectus.
20
(g) Prior to the Closing Date the Company and the Manager shall
have furnished to you such further information, certificates and documents as
you may reasonably request.
(h) You shall have received from each person who is a director or
officer of the Company, the Manager and its officers and directors, the
purchasers in the private placement described in the Prospectus under the
caption "Private Placement," and such other persons as have been heretofore
designated by you and listed on Schedule II hereto an agreement to the effect
that such person will not, directly or indirectly, without Bear Xxxxxxx prior
written consent, issue, sell, offer or agree to sell, grant any option to
purchase, or otherwise dispose (or announce any offer, sale, grant of an
option to purchase or other disposition) of, any shares of Common Stock (or
any securities convertible into, exchangeable or exercisable for shares of
Common Stock) for a period of 180 days (or such shorter period as expressly
agreed to by Bear Xxxxxxx) after the date of the Prospectus.
(i) At the Closing Date, the Shares shall have been approved for
listing on the NYSE.
(j) On the Closing Date, the Company shall have delivered
satisfactory evidence to the Underwriters that forthwith following receipt of
the proceeds of the offering contemplated hereby, the Company will complete
the purchase of the Initial Investments described under the caption
"Investment Objectives and Policies--Initial Investments."
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
canceled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
canceled by you at, or at any time prior to, the Additional Closing Date.
Notice of such cancellation shall be given to the Company in writing, or by
telephone, telecopy, telex or telegraph, confirmed in writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including, without limitation, attorneys' fees and
any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
as originally filed or any amendment thereof, or any related Preliminary
Prospectus or the Prospectus, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged omission
to
21
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that the
Company will not be liable in any such case (i) to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of any Underwriter through you expressly for use therein and (ii) with
respect to any Preliminary Prospectus to the extent that any such loss,
liability, claim, damage or expense results from the fact that an Underwriter
sold Shares to a person as to whom there was not sent or given, at or prior
to written confirmation of such sale, a copy of the Prospectus as then
amended or supplemented in any case where such delivery is required by the
Securities Act if the Company has previously furnished copies thereof to such
Underwriter and the loss, liability, claim, damage or expense of the
Underwriters results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was corrected in the Prospectus
as then amended. This indemnity agreement will be in addition to any
liability which the Company may otherwise have including under this Agreement.
(b) The Manager agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including, without limitation, attorneys' fees and
any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any related Preliminary
Prospectus or the Prospectus, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged omission
to state thereunder a material fact required to be stated therein or
necessary to make the statements thereunder not misleading; provided,
however, that the Manager will not be liable in any such case (i) to the
extent, but only to the extent, that any such loss, liability, claim, damage
or expense arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information to the Company by or
on behalf of any Underwriter through you expressly for use therein and (ii)
with respect to any Preliminary Prospectus to the extent that any such loss,
liability, claim, damage or expense results from the fact that an Underwriter
sold Shares to a person as to whom there was not sent or given, at or prior
to written confirmation of such sale, a copy of the Prospectus as then
amended or supplemented in any case where such delivery is required by the
Securities Act if the Company has previously furnished copies thereof to such
Underwriter and the loss, liability, claim, damage or expense of the
Underwriters results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was corrected in the Prospectus
as then amended. This indemnity agreement will be in addition to any
liability which the Manager may otherwise have including under this Agreement.
22
(c) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the
Company, each of the officers of the Company who shall have signed the
Registration Statement and each other person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, against any losses, liabilities, claims, damages
and expenses whatsoever as incurred (including, without limitation,
attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending, against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof, or any
related Preliminary Prospectus or the Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through you expressly for
use therein; provided, however, that in no case shall any Underwriter be
liable or responsible for any amount in excess of the underwriting discount
applicable to the Shares purchased by such Underwriter hereunder. This
indemnity will be in addition to any liability which any Underwriter may
otherwise have including under this Agreement. The Company acknowledges that
the statements set forth in the last paragraph of the cover page, the
stabilization language on page 2 and the statements set forth in the first
and ninth paragraphs under the caption "Underwriting" in the Prospectus
constitute the only information furnished in writing by or on behalf of any
Underwriter expressly for use in the Registration Statement, as originally
filed or in any amendment thereof, any related Preliminary Prospectus or the
Prospectus or in any amendment thereof or supplement thereto, as the case may
be.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve
it from any liability which it may have under this Section 7, except to the
extent that it has been prejudiced in any material respect by such failure,
or from any liability that it may have otherwise). In case any such action
is brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with
counsel satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by
one of the indemnifying parties in connection with the defense of such
action,
23
(ii) the indemnifying parties 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 or parties shall
have reasonably concluded (based on an opinion of counsel) that there may be
defenses available to it or them which are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything
in this subsection to the contrary notwithstanding, an indemnifying party
shall not be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such consent was not
unreasonably withheld.
8. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof
is for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company,
the Manager and the Underwriters shall contribute to the aggregate losses,
claims, damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claims asserted, but after deducting in
the case of losses, claims, damages, liabilities and expenses suffered by the
Company or the Manager any contribution received by the Company or the
Manager from persons, other than the Underwriters, who may also be liable for
contribution, including persons who control the Company or the Manager within
the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, officers of the Company who signed the Registration Statement
and directors of the Company) as incurred to which the Company, the Manager
and one or more of the Underwriters may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Company and the
Manager on the one hand and the Underwriters on the other hand from the
offering of the Shares or, if such allocation is not permitted by applicable
law or indemnification is not available as a result of the indemnifying party
not having received notice as provided in Section 7 hereof, in such
proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the Manager
on the one hand and the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Manager on the one hand and the Underwriters on the other hand shall be
deemed to be in the same proportion as (x) the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and (y) the underwriting discounts and
commissions received by the Underwriters, respectively, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company and the Manager on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company and the Manager on the one hand or the Underwriters on the other
hand and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Manager on the one hand and the Underwriters on the other hand agree
that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the
24
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
Section 8, (i) in no case shall any Underwriter be liable or responsible for
any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder, and (ii) 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. Notwithstanding the provisions
of this Section 8 and the preceding sentence, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. For purposes of
this Section 8, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act shall have the same rights to contribution as such Underwriter, and each
person, if any, who controls the Company or the Manager within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as
the Company or the Manager, as the case may be, subject in each case to
clauses (i) and (ii) of this Section 8. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution
may be made against another party or parties, notify each party or parties
from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 8 or otherwise. No party shall be liable for contribution with
respect to any action or claim settled without its consent; provided,
however, that such consent was not unreasonably withheld.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and
if the Firm Shares or Additional Shares with respect to which such default
relates do not (after giving effect to arrangements, if any, made by you
pursuant to subsection (b) below) exceed in the aggregate 10% of the number
of Firm Shares or Additional Shares, the Firm Shares or Additional Shares
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase shall be purchased by the non-defaulting Underwriters in
proportion to the respective proportions which the numbers of Firm Shares set
forth opposite their respective names on Schedule I hereto bear to the
aggregate number of Firm Shares set forth opposite the names of the
nondefaulting Underwriters.
(b) In the event that such default relates to more than 10% of the
Firm Shares or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including
any non-defaulting Underwriter or Underwriters who so agree) to purchase such
Firm Shares or Additional Shares, as the case may be, to which such default
relates on the terms contained herein. In the event that within five
calendar days after such a default you do not arrange for the purchase of the
Firm Shares or Additional Shares, as the case may be, to which such default
relates as provided in this Section 9, this Agreement, or in the case of a
default with respect to the
25
Additional Shares, the obligations of the Underwriters to purchase and of the
Company to sell the Additional Shares, shall thereupon terminate, without
liability on the part of the Company or the Manager with respect thereto
(except in each case as provided in Sections 5, 7(a), 7(b) or 8 hereof) or
the Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as
aforesaid, you or the Company shall have the right to postpone the Closing
Date or Additional Closing Date, as the case may be, for a period, not
exceeding five business days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus or in any
other documents and arrangements, and the Company agrees to file promptly any
amendment or supplement to the Registration Statement or the Prospectus
which, in the opinion of Underwriters' Counsel, may thereby be made necessary
or advisable. The term "Underwriter" as used in this Agreement shall include
any party substituted under this Section 9 with like effect as if it had
originally been a party to this Agreement with respect to such Firm Shares or
Additional Shares.
10. Survival of Representations and Agreements. All representations
and warranties, covenants and agreements of the Underwriters, the Company
and the Manager contained in this Agreement, including the agreements
contained in Section 5 hereof, the indemnity agreements contained in Section
7 hereof, and the contribution agreements contained in Section 8 hereof,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling
person thereof or by or on behalf of the Company, any of its officers and
directors, the Manager or any controlling person of the Company or the
Manager, and shall survive delivery of and payment for the Shares to and by
the Underwriters. The representations contained in Section 1 hereof and the
agreements contained in Sections 5, 7, 8 and 11(d) hereof shall survive the
termination of this Agreement, including termination pursuant to Section 9
or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution of
this Agreement.
(b) You shall have the right to terminate this Agreement at any
time prior to the Closing Date or terminate the obligations of the
Underwriters to purchase the Additional Shares at any time prior to the
Additional Closing Date, as the case may be, if (i) any domestic or
international event or act or occurrence has materially disrupted, or in your
opinion will in the immediate future materially disrupt, the market for the
Company's securities or securities in general; or (ii) if trading on the
NYSE, the American Stock Exchange (the "AMEX") or the Nasdaq National Market
("Nasdaq") shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities
shall have been required, on the NYSE, the AMEX or Nasdaq by such exchanges
or by order of the Commission or any other governmental authority having
jurisdiction; or (iii) if a banking moratorium has been declared by a state
or federal authority; or (iv) there shall have occurred any Material Adverse
Change with respect to the Company or the Manager; or (v) (A) if the United
States becomes engaged in hostilities or there is an escalation of
hostilities
26
involving the United States or there is a declaration of a national
emergency or war by the United States or (B) if there shall have been such
change in political, financial or economic conditions, if the effect of any
such event in clause (A) or (B) in your judgment makes it impracticable or
inadvisable to proceed with the offering, sale and delivery of the Firm
Shares or the Additional Shares, as the case may be, on the terms
contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be
by telephone, telecopy, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to Section 9(b) or 11(b)(i), (ii),
(iii) or (v) hereof), or if the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth herein is not satisfied or because of any refusal, inability or failure
on the part of the Company to perform any agreement herein or comply with any
provision hereof, the Company will, subject to demand by you, reimburse the
Underwriters for up to $______ of out-of-pocket expenses (including the fees
and expenses of their counsel) incurred by the Underwriters in connection
herewith.
12. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, telecopied, telexed or telegraphed
and confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc.,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx; if
sent to the Company or the Manager, shall be mailed, delivered, telecopied,
telexed or telegraphed and confirmed in writing to the Company or the
Manager, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X.
Xxxxxx.
13. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company, the Manager and the
controlling persons, directors, officers, employees and agents referred to
in Sections 7 and 8 hereof, and their respective successors and assigns, and
no other person shall have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of this Agreement
or any provision herein contained. The "term successors and assigns" shall
not include a purchaser, in its capacity as such, of Shares from any of the
Underwriters.
14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
27
If the foregoing correctly sets forth the understanding among you, the
Company and the Manager, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement
among us.
Very truly yours,
Clarion Commercial Holdings, Inc.
BY:
----------------------------------
Name:
Title:
Clarion Capital, LLC
BY:
----------------------------------
Name:
Title:
Accepted as of the date first above written:
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Cibc Xxxxxxxxxxx Corp.
Everen Securities, Inc.
On behalf of themselves and the other Under-
writers named in Schedule I hereto.
Bear, Xxxxxxx & Co. Inc.
By:
------------------------------------------
Name: Xxxxxxx Parish
Title: Senior Managing Director
28
SCHEDULE I
Name of Underwriter Number of Firm
------------------- Shares to be Purchased
----------------------
Bear, Xxxxxxx & Co. Inc.............
Xxxxxx Brothers Inc.................
CIBC Xxxxxxxxxxx Corp...............
EVEREN Securities, Inc..............
Total............................... 10,000,000
----------
----------
I-1
SCHEDULE II
II-1