EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
3,000,000 Shares
IMPAC COMMERCIAL HOLDINGS, INC.
Common Stock
UNDERWRITING AGREEMENT
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June __, 1998
PAINEWEBBER INCORPORATED
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
CIBC XXXXXXXXXXX CORP.
EVEREN SECURITIES, INC.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Impac Commercial Holdings, Inc., a Maryland corporation (the
"Company"), proposes to sell an aggregate of 3,000,000 shares (the "Firm
Shares") of the Company's Common Stock, $.01 par value per share (the "Common
Stock"), to you (collectively, the "Underwriters"). The Company has also agreed
to grant to you an option (the "Option") to purchase up to an additional 450,000
shares of Common Stock (the "Option Shares") on the terms and for the purposes
set forth in Section 1(b). The Firm Shares and the Option Shares are
hereinafter collectively referred to as the "Shares."
The initial public offering price per share for the Shares and the
purchase price per share for the Shares to be paid by the several Underwriters
shall be agreed upon by the Company and the Underwriters, and such agreement
shall be set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication among the Company and the Underwriters and shall specify such
applicable information as is indicated in Exhibit A hereto. The offering of the
Shares will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and, unless the context otherwise indicates, all references
contained herein
to "this Agreement" and to the phrase "herein" shall be deemed to include the
Price Determination Agreement.
The Company confirms as follows its agreements with the Underwriters.
1. Agreement to Sell and Purchase.
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(a) On the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions of this Agreement, the Company agrees to sell to the several
Underwriters, and each Underwriter, severally and not jointly, agrees to
purchase from the Company at the purchase price per share for the Firm Shares to
be agreed upon by the Underwriters and the Company in accordance with Section
1(c) and set forth in the Price Determination Agreement, the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I, plus such
additional number of Firm Shares which such Underwriter may become obligated to
purchase pursuant to Section 8 hereof. If the Company elects to rely on Rule
430A (as hereinafter defined), Schedule I may be attached to the Price
Determination Agreement.
(b) Subject to all the terms and conditions of this Agreement,
the Company grants the Option to the several Underwriters to purchase, severally
and not jointly, up to 450,000 Option Shares from the Company at the same price
per share as the Underwriters shall pay for the Firm Shares. The Option may be
exercised only to cover over-allotments in the sale of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time or from time
to time on or before the 30th day after the date of this Agreement (or, if the
Company has elected to rely on Rule 430A, on or before the 30th day after the
date of the Price Determination Agreement), upon written or telegraphic notice
(the "Option Shares Notice") by the Underwriters to the Company no later than
12:00 noon, New York City time, at least two and no more than five business days
before the date specified for closing in the Option Shares Notice (the "Option
Closing Date") setting forth the aggregate number of Option Shares to be
purchased and the time and date for such purchase. On an Option Closing Date,
the Company will issue and sell to the Underwriters the number of Option Shares
set forth in the Option Shares Notice, and each Underwriter will purchase such
percentage of the Option Shares as is equal to the percentage of Firm Shares
that such Underwriter is purchasing, as adjusted by the Underwriters in such
manner as they deem advisable to avoid fractional shares.
(c) If the Company has elected not to rely on Rule 430A, the
initial public offering price per share for the Firm Shares and the purchase
price per share for the Firm Shares to be paid by the several Underwriters shall
be agreed upon and set forth in the Price Determination Agreement, which shall
be dated the date hereof, and an amendment to the Registration Statement (as
hereinafter defined) containing such per
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share price information shall be filed before the Registration Statement becomes
effective. If the Company has elected to rely on Rule 430A, the initial public
offering price per share for the Firm Shares and the purchase price per share
for the Firm Shares to be paid by the several Underwriters shall be agreed upon
and set forth in the Price Determination Agreement. In the event such price has
not been agreed upon and the Price Determination Agreement has not been executed
by the close of business on the fourteenth business day following the date on
which the Registration Statement becomes effective, this Agreement shall
terminate forthwith, without liability of any party to any other party except
that Sections 4(i) and 6 shall remain in effect.
2. Delivery and Payment. Delivery of the Firm Shares shall be made
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to the Underwriters against payment of the purchase price by credit to the
account of the Company with the Depository Trust Company. Such payment shall be
made at 10:00 a.m., New York City time, on ______________________, 1998 at the
offices of ______________________________, _________________________, or at such
time on such other date at such other place, as may be agreed upon by the
Company and the Underwriters, but in no event later than 10 days after such date
(such date is hereinafter referred to as the "Closing Date").
To the extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the manner specified above) will take
place at the offices specified above for the Closing Date at the time and date
(which may be the Closing Date) specified in the Option Shares Notice. The cost
of tax stamps, if any, in connection with the issuance and delivery of the Firm
Shares and Option Shares by the Company to the respective Underwriters shall be
borne by the Company. The Company will pay and save each Underwriter and any
subsequent holder of the Shares harmless from any and all liabilities with
respect to or resulting from any failure or delay in paying Federal and state
stamp and other transfer taxes, if any, which may be payable or determined to be
payable in connection with the original issuance or sale to such Underwriter of
the Firm Shares and Option Shares.
3. Representations and Warranties of the Company.
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(a) The Company represents, warrants and covenants to each
Underwriter that:
(i) The Company meets the requirements for use of Form S-
11 under the Securities Act and the Rules and Regulations. If the registration
statement (Registration No. 333-52231) on Form S-11 relating to the Shares,
including a preliminary prospectus and such amendments to such Registration
Statement (as defined) as may have been required to the date of this Agreement
and which has been prepared by the Company, and filed with the Securities and
Exchange Commission (the "Commission") under the provisions of the Securities
Act of 1933, as amended (the
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"Act"), and the rules and regulations (collectively referred to as the "Rules
and Regulations") of the Commission thereunder, has not become effective, a
further amendment to such Registration Statement, including a form of final
prospectus, necessary to permit such Registration Statement to become effective
will be filed promptly by the Company. If such Registration Statement has become
effective, a final prospectus containing information permitted to be omitted at
the time of effectiveness by Rule 430A will be filed by the Company with the
Commission in accordance with Rule 424(b) of the Rules and Regulations and
promptly after the execution and delivery of the Price Determination Agreement.
No stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose are pending or, to the knowledge
of the Company, threatened by the Commission. Copies of such Registration
Statement and amendments and of each related preliminary prospectus have been
delivered to the Underwriters. The term "preliminary prospectus" as used herein
means a preliminary prospectus as contemplated by Rule 430 or Rule 430A ("Rule
430A") of the Rules and Regulations included at any time as part of the
registration statement. The term "Prospectus" means the prospectus as first
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations
or, if no such filing is required, the form of final prospectus included in the
Registration Statement at the Effective Date. The term "Registration Statement"
means the registration statement as amended at the time it becomes or became
effective (the "Effective Date"), including financial statements and all
exhibits and any information deemed to be included by Rule 430A or Rule 434 of
the Rules and Regulations.
(ii) On the Effective Date, the date the Prospectus is
first filed with the Commission pursuant to Rule 424(b) (if required), at all
times subsequent to and including the Closing Date and, if later, an Option
Closing Date and when any post-effective amendment to the Registration Statement
becomes effective or any amendment or supplement to the Prospectus is filed with
the Commission, the Registration Statement and the Prospectus (as amended or as
supplemented if the Company shall have filed with the Commission any amendment
or supplement thereto), including the financial statements included in the
Prospectus, did or will comply with all applicable provisions of the Securities
Act and the Rules and Regulations and will contain all statements required to be
stated therein in accordance with the Securities Act and the Rules and
Regulations. On the Effective Date and when any post-effective amendment to the
Registration Statement becomes effective, no part of the Registration Statement
or any such amendment did or will contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading. At the Effective Date,
the date the Prospectus or any amendment or supplement to the Prospectus is
filed with the Commission and at the Closing Date and, if later, an Option
Closing Date, the Prospectus did not or will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing representations and warranties in this
Section 3(a)
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do not apply to any statements or omissions made in reliance on and in
conformity with information relating to any Underwriter furnished in writing to
the Company by the Underwriters specifically for inclusion in the Registration
Statement or Prospectus or any amendment or supplement thereto. For all purposes
of this Agreement, the legend, if any, regarding stabilization set forth on the
inside front cover page of the Prospectus, the names of the Underwriters and the
amounts of the selling concession and reallowance set forth in the Prospectus
under the caption "Underwriting" and the identification of counsel to the
Underwriters in the Prospectus under the caption "Legal Matters" constitute the
only information relating to any Underwriter furnished in writing to the Company
by the Underwriters specifically for inclusion in the Registration Statement,
the preliminary prospectus or the Prospectus. The Company has not distributed
any offering material in connection with the offering or sale of the Shares
other than the Registration Statement, the preliminary prospectus, the
Prospectus or any other materials, if any, permitted by the Securities Act.
(iii) The only subsidiaries (as defined in the Rules and
Regulations) of the Company are Impac Commercial Capital Corporation ("ICCC")
and IMH/ICH Dove Street, LLC (the "Subsidiaries"). The Company and each of its
Subsidiaries is, and at the Closing Date and, if later, an Option Closing Date,
will be, a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. The Company and each of
its Subsidiaries has, and at the Closing Date and, if later, an Option Closing
Date, will have, full power and authority to conduct all the activities
conducted by it, to own or lease all the assets owned or leased by it and to
conduct its business as described in the Registration Statement and the
Prospectus. The Company and each of its Subsidiaries is, and at the Closing
Date and, if later, an Option Closing Date, will be, duly licensed or qualified
to do business and in good standing as a foreign corporation in all
jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so qualified would not
result in a material adverse effect on the Company or any of its Subsidiaries or
their respective business, properties, business prospects, condition (financial
or otherwise) or results of operations (a "Material Adverse Effect"). All of
the outstanding shares of the capital stock of the Subsidiaries, including but
not limited to the ICCC Preferred Stock, have been duly authorized and validly
issued and are fully paid and non-assessable and are owned by the Company, to
the extent described in the Prospectus, free and clear of all liens,
encumbrances and claims whatsoever. Except for the stock of the Subsidiaries
and as disclosed in the Registration Statement, the Company does not own, and at
the Closing Date and, if later, an Option Closing Date, will not own, directly
or indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity. Complete and correct
copies of the Charter and of the by-laws of the Company and each of its
Subsidiaries and all amendments thereto have been filed as exhibits to the
Registration Statement or delivered to the Underwriters or their counsel,
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and no changes therein will be made subsequent to the date hereof and prior to
the Closing Date or, if later, an Option Closing Date, except such as the
Underwriters shall approve or as may be necessary for the Company to continue to
qualify as a REIT under the Code (as such term is hereinafter defined).
(iv) All of the outstanding shares of capital stock have
been, and the Shares to be issued and sold by the Company upon such issuance
will be, duly authorized, validly issued, fully paid and nonassessable and will
not be subject to any preemptive or similar right. The description of the
Common Stock in the Registration Statement and the Prospectus is, and at the
Closing Date and, if later, an Option Closing Date, will be, complete and
accurate in all respects. Except as set forth in the Prospectus, there are no,
and at the Closing Date and, if later, an Option Closing Date, there will not
be, any options to purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or any contracts, commitments, plans
or arrangements to issue or sell, any shares of capital stock of the Company,
any shares of capital stock of any Subsidiary or any such warrants, convertible
securities or obligations. The descriptions of the Company's dividend
reinvestment plan, stock option and other stock plans or arrangements, and the
options or other rights granted and exercised thereunder, set forth in the
Prospectus accurately present the information required to be shown with respect
to such plans, arrangements, options and rights.
(v) The financial statements and schedules included in the
Registration Statement or the Prospectus present fairly the consolidated
financial condition of the Company and ICCC as of the respective dates thereof
and the consolidated results of operations and cash flows of the Company and
ICCC for the respective periods covered thereby, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the entire period involved, except as otherwise disclosed in the
Prospectus. No other financial statements or schedules of the Company are
required by the Securities Act or the Rules and Regulations to be included in
the Registration Statement or the Prospectus. KPMG Peat Marwick LLP (the
"Accountants") who have reported on such financial statements and schedules, are
independent accountants with respect to the Company as required by the
Securities Act and the Rules and Regulations. The statements included in the
Registration Statement or the Prospectus with respect to the Accountants
pursuant to Item 509 of Regulation S-K of the Rules and Regulations are true and
correct in all material respects. The selected financial data set forth in the
Prospectus under the captions "Capitalization" and "Selected Financial Data"
fairly present the information set forth therein on the basis stated therein.
(vi) Each of the Company and its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with management's
general or specific authorization; (B) transactions are recorded as necessary to
permit preparation of
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financial statements in conformity with generally accepted accounting principles
and to maintain accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific authorization; and (D)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(vii) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus and prior
to the Closing Date, and, if later, at an Option Closing Date, except as set
forth in or contemplated by the Registration Statement and the Prospectus, (A)
there has not been and will not have been any change in the capitalization of
the Company or any of its Subsidiaries, or in the business, properties, business
prospects, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries, arising for any reason whatsoever, (B) neither the
Company nor any of its Subsidiaries has incurred nor will it incur any material
liabilities or obligations, direct or contingent, nor has it entered into nor
will it enter into any material transactions other than pursuant to this
Agreement and the transactions referred to herein and (C) neither the Company
nor any of its Subsidiaries has not and will not have paid or declared any
dividends or other distributions of any kind on any class of their respective
classes of capital stock.
(viii) Neither the Company nor any of its Subsidiaries is,
and if operated in the manner described in the Prospectus will not be, an
"investment company," an entity "controlled" by an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
(ix) Except as set forth in the Registration Statement and
the Prospectus, there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or any of
its Subsidiaries or any of their respective officers in their capacity as such,
before or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding might result in a Material Adverse
Effect.
(x) The Company and each of its Subsidiaries has, and at
the Closing Date and, if later, an Option Closing Date, will have, (A) all
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to carry on its business as contemplated in the
Prospectus, (B) complied in all respects with all laws, regulations and orders
applicable to it or its business and (C) performed all its obligations required
to be performed by it, and is not, and at the Closing Date and, if later, an
Option Closing Date, will not be, in default, under any indenture, mortgage,
deed of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement,
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lease, contract or other agreement or instrument (collectively, a "contract or
other agreement") to which it is a party or by which its property is bound or
affected, the effect of any of which, individually or in the aggregate, might
result in a Material Adverse Effect. To the knowledge of the Company and each of
its Subsidiaries, no other party under any contract or other agreement to which
it is a party is in default in any respect thereunder, except for defaults
which, either individually or in the aggregate, might result in a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries is, nor at the
Closing Date and, if later, an Option Closing Date, will any of them be, in
violation of any provision of its charter or by-laws.
(xi) The Company has full corporate power and authority to
enter into this Agreement. This Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding agreement of
the Company and is enforceable against the Company in accordance with its terms,
except as the enforceability hereof may be limited by applicable bankruptcy,
insolvency, reorganization and similar laws affecting creditors' rights
generally and moratorium laws in effect from time to time and by equitable
principles restricting the availability of equitable remedies. Each of the
Management Agreement, Right of First Refusal Agreement, the Servicing Agreement,
dated February 5, 1997 between the Company and ICCC and the Contribution
Agreement constitutes a valid and binding agreement of the Company and is
enforceable against the Company in accordance with its terms, except as the
enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization and similar laws affecting creditors' rights generally and
moratorium laws in effect from time to time and by equitable principles
restricting the availability of equitable remedies. The execution and delivery
by the Company of, and the performance by the Company of its obligations under,
this Agreement and the consummation of the transactions contemplated hereby and
the application of the net proceeds from the offering and sale of the Shares in
the manner set forth in the Prospectus under "Use of Proceeds" will not result
in the creation or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of its Subsidiaries pursuant to the terms or
provisions of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give any other party a right to
terminate any of its obligations under, or result in the acceleration of any
obligation under, the charter or by-laws of the Company or any of its
Subsidiaries, any contract or other agreement to which the Company or any of its
Subsidiaries is a party or by which the Company or its Subsidiaries or any of
its properties is bound or affected, or violate or conflict with any judgment,
ruling, decree, order, statute, rule or regulation of any court or other
governmental agency or body applicable to the business or properties of the
Company or any of its Subsidiaries the effect of any of which, individually or
in the aggregate, might have a Material Adverse Effect.
(xii) No consent, approval, authorization or order of, or
any filing or declaration with, any court or governmental agency or body is
required
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in connection with the authorization, issuance, transfer, sale or delivery of
the Shares by the Company, in connection with the execution, delivery and
performance of this Agreement by the Company or in connection with the taking by
the Company of any action contemplated hereby, except such as have been obtained
under the Securities Act or the Rules and Regulations and such as may be
required under state securities or Blue Sky laws or the by-laws and rules of the
National Association of Securities Dealers, Inc. (the "NASD") in connection with
the purchase and distribution by the Underwriters of the Shares.
(xiii) The Company and each of its Subsidiaries has good
and marketable title to all properties and assets described in the Prospectus as
owned by it, free and clear of all liens, charges, encumbrances, mortgages,
security interests, claims or restrictions, except such as are described in, or
contemplated by, the Prospectus and except liens, charges, encumbrances,
mortgages, security interests, claims or restrictions which do not, either
individually or in the aggregate, result in a Material Adverse Effect. Each of
the Company and each of its Subsidiaries has valid, subsisting and enforceable
leases for the properties described in the Prospectus as leased by it, with such
exceptions as are not material and do not materially interfere with the use made
and proposed to be made of such properties by the Company and such Subsidiaries.
(xiv) There is no document or contract of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement which is not described or
filed as required. All such contracts to which the Company or any Subsidiaries
is a party have been duly authorized, executed and delivered by the Company or
such Subsidiary, constitute valid and binding agreements of the Company or such
Subsidiary and are enforceable against the Company or such Subsidiary in
accordance with the terms thereof.
(xv) No statement, representation, warranty or covenant
made by the Company in this Agreement or made in any certificate or document
required by this Agreement to be delivered to the Underwriters was or will be,
when made, inaccurate, untrue or incorrect.
(xvi) Neither the Company nor, to the knowledge of the
Company, any of its directors, officers or controlling persons has taken,
directly or indirectly, any action intended, or which might reasonably be
expected, to cause or result, under the Securities Act or otherwise, in, or
which has constituted, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(xvii) No holder of securities of the Company has rights to
the registration of any securities of the Company because of the filing of the
Registration Statement.
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(xviii) The Shares are duly authorized for listing, subject
to official notice of issuance, on the American Stock Exchange.
(xix) Neither the Company nor any of its Subsidiaries are
involved in any material labor dispute nor, to the knowledge of the Company, is
any such dispute threatened.
(xx) The Company and its Subsidiaries own, or are
licensed or otherwise have the full exclusive right to use, all material
trademarks and trade names which are used in, or necessary for the conduct of
their respective businesses as described in the Prospectus. No claims have been
asserted by any person to the use of any such trademarks or trade names or
challenging or questioning the validity or effectiveness of any such trademark
or trade name. The use, in connection with the business and operations of the
Company and its Subsidiaries, of such trademarks and trade names does not, to
the Company's knowledge, infringe on the rights of any person.
(xxi) Neither the Company nor any of its Subsidiaries nor,
to the knowledge of the Company, any officer, director, employee or agent acting
on behalf of the Company or any of its Subsidiaries has at any time (A) made any
contributions to any candidate for political office in violation of law, or
failed to disclose fully any contributions to any candidate for political office
in accordance with any applicable statute, rule, regulation or ordinance
requiring such disclosure, (B) made any payment to any local, state, federal or
foreign governmental officer or official, or other person charged with similar
public or quasi-public duties, other than payments required or allowed by
applicable law, (C) made any payment outside the ordinary course of business to
any purchasing or selling agent or person charged with similar duties of any
entity to which the Company or any of its Subsidiaries sells or from which the
Company or Subsidiary buys products for the purpose of influencing such agent or
person to buy products from or sell products to the Company or such Subsidiary,
or (D) except as described in the Prospectus, engaged in any transaction,
maintained any bank account or used any corporate funds except for transactions,
bank accounts and funds which have been and are reflected in the normally
maintained books and records of the Company or such Subsidiary.
(xxii) As of the Closing Date and, if later, an Option
Closing Date, the Company and its Subsidiaries shall be insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the business in which it engages as
described in the Prospectus; neither the Company nor any Subsidiary has been
refused any insurance coverage sought or applied for; and the Company has no
reason to believe that it or any Subsidiary will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
proposed business at a cost that would not result in a Material Adverse Effect.
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(xxiii) As of the Closing Date and, if later, an Option
Closing Date, the Company shall be, and if operated in the manner described in
the Prospectus shall remain, qualified as a real estate investment trust
("REIT") under Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the "Code"), and intends to operate in a manner so as to continue to
remain so qualified.
(xxiv) The Company has complied, and until the completion
of the distribution of the Shares will comply, with all of the provisions of
(including, without limitation, filing all forms required by) Section 517.075 of
the Florida Securities and Investor Protection Act and Regulation 3E-900.001
issued thereunder with respect to the offering and sale of the Shares.
(xxv) Each of the Servicing Agreement, the Non-Competition
Agreement and the Right of First Refusal Agreement constitutes a valid and
binding agreement of ICCC and is enforceable against ICCC in accordance with its
terms, except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization and similar laws affecting creditors'
rights generally and moratorium laws in effect from time to time and by
equitable principles restricting the availability of equitable remedies.
(xxvi) Neither the Company nor any of its Subsidiaries is,
and if operated in the manner described in the Prospectus 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.
4. Agreements of the Company. The Company agrees with the several
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Underwriters as follows:
(a) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement. The Company will cause the
Prospectus to be filed as required by Section 3(a) hereof (but only if the
Underwriters have not reasonably objected thereto by notice to the Company after
having been furnished a copy within a reasonable time prior to filing). The
Company will not, either prior to the Effective Date or thereafter during such
period as the Prospectus is required by law to be delivered in connection with
sales of the Shares by an Underwriter or dealer, file any amendment or
supplement to the Registration Statement or the Prospectus, unless a copy
thereof shall first have been submitted to the Underwriters within a reasonable
period of time prior to the filing thereof and the Underwriters shall not have
objected thereto in good faith.
(b) The Company will notify the Underwriters promptly, and will
confirm such advice in writing, (1) when any post-effective amendment to the
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Registration Statement becomes effective, (2) of any request by the Commission
for amendments or supplements to the Registration Statement or the Prospectus or
for additional information, (3) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose or the threat thereof, (4) of the
happening of any event during the period mentioned in the second sentence of
Section 4(e) that in the judgment of the Company makes any statement made in the
Registration Statement or the Prospectus untrue or that requires the making of
any changes in the Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances in which they are made, not
misleading and (5) of receipt by the Company or any representative or attorney
of the Company of any other communication from the Commission relating to the
Company, the Registration Statement, any preliminary prospectus or the
Prospectus. If at any time the Commission shall issue any order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible moment. The Company will prepare and file with the Commission, promptly
upon the Underwriters request, any amendments or supplements to the Registration
Statement or Prospectus that, in the Underwriters reasonable opinion, may be
necessary or advisable in connection with the distribution of the Shares by the
Underwriters.
(c) The Company will furnish to each of the Underwriters,
without charge, one signed copy of the Registration Statement and of any post-
effective amendment thereto, including financial statements and schedules, and
all exhibits thereto.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) As soon as possible, but in no event later than 24 hours,
after the delivery and execution of this Agreement and the Price Determination
Agreement, and thereafter from time to time, the Company will deliver to each of
the Underwriters, without charge, as many copies of the Prospectus or any
amendment or supplement thereto as the Underwriters may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by the several Underwriters and by all dealers to whom the Shares may be
sold, both in connection with the offering or sale of the Shares and for any
period of time thereafter during which the Prospectus is required by law to be
delivered in connection therewith. If during such period of time any event shall
occur which in the judgment of the Company or counsel to the Underwriters should
be set forth in the Prospectus in order to make any statement therein, in the
light of the circumstances under which it was made, not misleading, or if it is
necessary to supplement or amend the Prospectus to comply with law, the Company
will forthwith prepare and duly file with the Commission an appropriate
supplement or amendment thereto, and will deliver to each of the Underwriters,
without charge, such number of copies thereof as the Underwriters may reasonably
request.
12
(f) Prior to any public offering of the Shares by the
Underwriters, the Company will cooperate with the Underwriters and counsel to
the Underwriters in connection with the registration or qualification of the
Shares for offer and sale under the securities or Blue Sky laws of such states
and other jurisdictions of the United States as the Underwriters may request;
provided, that in no event shall the Company be obligated to file any general
consent to service of process, or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not now so qualified.
The Company will advise the Underwriters promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Common
Stock for offering, sale or trading in any jurisdiction or any initiation or
threat of any proceeding for any such purpose, and in the event of the issuance
of any order suspending such qualification, registration or exemption, the
Company, with the cooperation of the Underwriters, will make every reasonable
effort to obtain the withdrawal thereof.
(g) During the period of five years commencing on the Effective
Date, the Company will furnish to the Underwriters copies of such financial
statements and other periodic and special reports as the Company may from time
to time distribute generally to the holders of any class of its capital stock,
and will furnish to the Underwriters a copy of each annual or other report it
shall be required to file with the Commission.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the last day
of the fifteenth full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement (which need not be audited but shall
be in reasonable detail) for a period of 12 months ended commencing after the
Effective Date, and satisfying the provisions of Section 11(a) of the Securities
Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay,
or reimburse if paid by the Underwriters, all costs and expenses incident to the
performance of the obligations of the Company under this Agreement, including
but not limited to costs and expenses of or relating to (1) the preparation,
printing and filing of the Registration Statement and exhibits to it, the
Prospectus and any amendment or supplement to the Registration Statement or the
Prospectus, (2) the preparation and delivery of certificates representing the
Shares, (3) the printing of this Agreement, the Agreement Among Underwriters,
any Dealer Agreements and any Underwriters' Questionnaire, (4) furnishing
(including costs of shipping, mailing and courier) such copies of the
Registration Statement, the Prospectus and any preliminary prospectus, and all
amendments and supplements thereto, as may be requested for use in connection
with the offering and sale of the Shares by the Underwriters or by dealers to
whom Shares
13
may be sold, (5) the listing of the Shares on the American Stock Exchange, (6)
any filings required to be made by the Underwriters with the NASD, and the fees,
disbursements and other charges of counsel for the Underwriters in connection
therewith, (7) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions designated
pursuant to Section 4(f), including the fees, disbursements and other charges of
counsel to the Underwriters in connection therewith, and the preparation and
printing of preliminary, supplemental and final Blue Sky memoranda, (8) counsel
to the Company, (9) the transfer agent for the Shares and (10) the Accountants.
(j) The Company will use its best efforts to continue to qualify
as a REIT under the Code.
(k) The Company will not use the proceeds of the sale of the
Shares in such a manner as to require the Company to be registered under the
Investment Company Act.
(l) 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 of the price of the shares of
Common Stock to facilitate the sale or resale of any of the Shares.
(m) The Company will apply the net proceeds from the offering
and sale of the Shares to be sold by the Company in the manner set forth in the
Prospectus under the caption "Use of Proceeds."
(n) The Company will not, and will cause each of its executive
officers, directors and Impac Credit Mortgage Holdings, Inc. ("IMH") to enter
into agreements with the Underwriters in the form set forth in Exhibit C to the
effect that they will not, for a period of 90 days after the commencement of the
public offering of the Shares, without the prior written consent of PaineWebber
Incorporated, sell, contract to sell, grant any option to sell or otherwise
dispose of any shares of Common Stock or securities convertible into or
exchangeable for Common Stock, or warrants or other rights to acquire shares of
Common Stock, other than pursuant to stock option plans or in connection with
other employee incentive compensation arrangements.
(o) If this Agreement shall be terminated by the Company
pursuant to any of the provisions hereof (otherwise than pursuant to Section 8)
or if for any reason the Company shall be unable to perform its obligations
hereunder, the Company will reimburse the several Underwriters for all out-of-
pocket expenses (including the fees, disbursements and other charges of counsel
to the Underwriters) reasonably incurred by them in connection herewith.
14
(p) The Company will not invest in futures contracts, options on
futures contracts or options on commodities unless the Company is exempt from
the registration requirements of the Commodity Exchange Act, as amended (the
"Commodity Act"), or otherwise complies with the Commodity Act. The Company nor
the Manager will not engage in any activities bearing on the Commodity Act,
unless such activities are exempt from the Commodity Act or otherwise comply
with the Commodity Act.
(q) The Company will not take, directly or indirectly, any
action designed to cause or to result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company or facilitate the sale of resale of the
Shares; provided that any action in connection with the Company's dividend
reinvestment plan will not be deemed to be within the meaning of this Section
4(q).
5. Conditions of the Obligations of the Underwriters. In addition
-------------------------------------------------
to the execution and delivery of the Price Determination Agreement, the
obligations of each Underwriter hereunder are subject to the following
conditions:
(a) Notification that the Registration Statement has become
effective shall be received by the Underwriters not later than 5:00 p.m., New
York City time, on the date of this Agreement or at such later date and time as
shall be consented to in writing by the Underwriters and all filings required by
Rule 424 of the Rules and Regulations and Rule 430A shall have been made.
(b) (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the Commission
or such authorities and (iv) after the date hereof no amendment or supplement to
the Registration Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to the Underwriters and the Underwriters did not
object thereto in good faith, and the Underwriters shall have received
certificates, dated the Closing Date and, if later, an Option Closing Date, and
signed by the Chief Executive Officer or the Chairman of the Board of Directors
of the Company and the Chief Financial Officer of the Company (who may, as to
proceedings threatened, rely upon the best of their information and belief), to
the effect of clauses (i), (ii) and (iii).
15
(c) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) there shall not have been
a material adverse change in the general affairs, capital stock, indebtedness,
business, business prospects, properties, management, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course of
business, in each case other than as set forth in or contemplated by the
Registration Statement and the Prospectus and (ii) none of the Company or any of
its Subsidiaries shall have sustained any material loss or interference with its
business or properties from fire, explosion, flood or other casualty, whether or
not covered by insurance, or from any labor dispute or any court or legislative
or other governmental action, order or decree, which is not set forth in the
Registration Statement and the Prospectus, if in the judgment of the
Underwriters any such development makes it impracticable or inadvisable to
consummate the sale and delivery of the Shares by the Underwriters at the
initial public offering price.
(d) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or any of its
Subsidiaries or any of their respective officers or directors in their
capacities as such, before or by any Federal, state or local court, commission,
regulatory body, administrative agency or other governmental body, domestic or
foreign, in which litigation or proceeding an unfavorable ruling, decision or
finding would materially and adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries taken as a whole.
(e) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material respects at the
Closing Date and, with respect to the Option Shares, at an Option Closing Date,
as if made at the Closing Date and, with respect to the Option Shares, at an
Option Closing Date, and all covenants and agreements herein contained to be
performed on the part of the Company and all conditions herein contained to be
fulfilled or complied with by the Company at or prior to the Closing Date and,
with respect to the Option Shares, at or prior to an Option Closing Date, shall
have been duly performed, fulfilled or complied with.
(f) The Underwriters shall have received an opinion, dated the
Closing Date and, with respect to the Option Shares, an Option Closing Date, and
satisfactory in form and substance to counsel for the Underwriters, from
Freshman, Marantz, Orlanski, Xxxxxx & Xxxxx, counsel to the Company and its
Subsidiaries, to the effect set forth in Exhibit B, provided, however, that such
counsel, in rendering such opinion, shall be entitled to rely, as to matters of
Maryland law, on the opinion of Xxxxx & Wood.
16
(g) The Underwriters shall have received an opinion, dated the
Closing Date and, with respect to the Option Shares, an Option Closing Date,
from Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel to the
Underwriters, with respect to the Registration Statement, the Prospectus and
this Agreement, which opinion shall be satisfactory in all respects to the
Underwriters.
(h) On the date of the Prospectus, the Accountants shall have
furnished to the Underwriters a letter, dated the date of its delivery,
addressed to the Underwriters and in form and substance satisfactory to the
Underwriters, confirming that they are independent accountants with respect to
the Company as required by the Securities Act and the Rules and Regulations and
with respect to the financial and other statistical and numerical information
contained in the Registration Statement. At the Closing Date and, as to the
Option Shares, an Option Closing Date, the Accountants shall have furnished to
the Underwriters a letter, dated the date of its delivery, which shall confirm,
on the basis of a review in accordance with the procedures set forth in the
letter from the Accountants, that nothing has come to their attention during the
period from the date of the letter referred to in the prior sentence to a date
(specified in the letter) not more than three days prior to the Closing Date
and, as to the Option Shares, an Option Closing Date which would require any
change in their letter referred to in the prior sentence and dated the date of
the Prospectus, if it were required to be dated and delivered at the Closing
Date and an Option Closing Date.
(i) At the Closing Date and, as to the Option Shares, an Option
Closing Date, there shall be furnished to the Underwriters an accurate
certificate, dated the date of its delivery, signed by each of the Chief
Executive Officer and the Chief Financial Officer of the Company, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) Each signer of such certificate has carefully examined
the Registration Statement and the Prospectus and (A) as of the date of such
certificate, such documents are true and correct in all material respects so far
as they relate to the Company and do not omit to state a material fact relating
to the Company required to be stated therein or necessary in order to make the
statements therein not untrue or misleading and (B) in the case of the
certificate delivered at the Closing Date and, as to any Option Shares, an
Option Closing Date, since the Effective Date, no event has occurred, except
such as are described in, or contemplated by, the Prospectus, as a result of
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein relating to the Company not untrue or misleading in any
material respect;
(ii) Each of the representations and warranties of the
Company contained in this Agreement were, when originally made, and are, at the
time such certificate is delivered, true and correct in all material respects;
and
17
(iii) Each of the covenants required herein to be performed
by the Company on or prior to the delivery of such certificate has been duly,
timely and fully performed and each condition herein required to be complied
with by the Company on or prior to the date of such certificate has been duly,
timely and fully complied with.
(j) On the Closing Date and, as to any Option Shares, on an
Option Closing Date, there shall be furnished to the Underwriters an accurate
certificate, dated the date of its delivery, signed (in their respective
capacities as such) by each of the Chief Executive Officer and Chief Financial
Officer of the Company, in form and substance satisfactory to the Underwriters
to the effect that:
(i) Each signer of such certificate has carefully examined
the Registration Statement and the Prospectus and (A) as of the date of such
certificate, such documents are true and correct in all material respects so far
as they relate to ICCC and do not omit to state a material fact relating to ICCC
required to be stated therein or necessary in order to make the statements
therein not untrue or misleading and (B) in the case of the certificate
delivered at the Closing Date and, as to any Option Shares, an Option Closing
Date, since the Effective Date, no event has occurred, except such as are
described in, or contemplated by, the Prospectus, as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein relating to ICCC not untrue or misleading in any material respect;
(ii) Each of the representations and warranties of the
Company relating to ICCC contained in this Agreement were, when originally made,
and are, at the time such certificate is delivered, true and correct in all
material respects; and
(k) No proceeding by any state securities commission with
respect to the Company shall be in effect on the Closing Date or an Option
Closing Date.
(l) Prior to the Closing Date, the Shares shall have been duly
authorized for listing by the American Stock Exchange upon official notice of
issuance.
(m) The National Association of Securities Dealers, Inc. shall
have approved the underwriting terms and arrangements and such approval shall
not have been withdrawn or limited.
(n) The Company shall have furnished to the Underwriters such
certificates, in addition to those specifically mentioned herein, as the
Underwriters may have reasonably requested as to the accuracy and completeness
at the Closing Date and an Option Closing Date of any statement in the
Registration Statement or the Prospectus as to the accuracy at the Closing Date
and an Option Closing Date of the representations and warranties of the Company
herein, as to the performance by the
18
Company of its obligations hereunder, or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the Underwriters.
6. Indemnification.
---------------
(a) The Company will indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person, if any, who controls each Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all investigative, legal and other
expenses reasonably incurred in connection with, and any and all amounts paid in
settlement of, any action, suit or proceeding between any of the indemnified
parties and any indemnifying parties or between any indemnified party and any
third party, or otherwise, or any claim asserted), as and when incurred, to
which any Underwriter, or any such person, may become subject under the
Securities Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on (i) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement to the Registration Statement or the Prospectus or in
any application or other document executed by or on behalf of the Company or
based on written information furnished by or on behalf of the Company filed in
any jurisdiction in order to qualify the Shares under the securities laws
thereof or filed with the Commission, (ii) the omission or alleged omission to
state in such document a material fact required to be stated in it or necessary
to make the statements in it not misleading or (iii) any act or failure to act
or any alleged act or failure to act by any Underwriter in connection with, or
relating in any manner to, the Shares or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim, liability,
expense or damage arising out of or based upon matters covered by clause (i) or
(ii) above (provided that the Company shall not be liable under this clause
(iii) to the extent it is finally judicially determined by a court of competent
jurisdiction that such loss, claim, liability, expense or damage resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its gross negligence or willful misconduct);
provided that the Company will not be liable to the extent that such loss,
claim, liability, expense or damage arises from the sale of the Shares in the
public offering to any person by an Underwriter and is based on an untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to any Underwriter furnished in
writing to the Company by the Underwriters expressly for inclusion in the
Registration Statement, any preliminary prospectus or the Prospectus. This
indemnity agreement will be in addition to any liability that the Company might
otherwise have.
19
(b) Each Underwriter will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, each
director of the Company and each officer of the Company who signs the
Registration Statement to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only insofar as losses, claims, liabilities,
expenses or damages arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in reliance on and in
conformity with information relating to any Underwriter furnished in writing to
the Company by the Underwriters expressly for use in the Registration Statement,
the preliminary prospectus or the Prospectus. This indemnity will be in addition
to any liability that each Underwriter might otherwise have; provided, however,
that in no case shall any Underwriter be liable or responsible for any amount in
excess of the underwriting discounts and commissions received by such
Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 6, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under the foregoing provisions of this Section 6 unless, and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the indemnifying party. If any such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that it
elects by delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel (including local counsel) in any such
action, but the fees, expenses and other charges of such counsel (including such
local counsel) will be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been authorized in writing by
the indemnifying party, (2) the indemnified party has reasonably concluded
(based on advice of counsel) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the
20
indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction (and of more than
one separate firm admitted to practice in any other relevant jurisdiction) at
any one time for all such indemnified party or parties. All such fees,
disbursements and other charges will be reimbursed by the indemnifying party
promptly as they are incurred. An indemnifying party will not be liable for any
settlement of any action or claim effected without its written consent (which
consent will not be unreasonably withheld). No indemnifying party shall, without
the prior written consent of each indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding relating to the matters contemplated by this Section 6 (whether or
not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising or that may arise out of such claim, action or
proceeding. Notwithstanding any other provision of this Section 6(c), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Underwriters, the
Company and the Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Underwriters, such as persons who control the Company within the meaning of the
Securities Act, officers of the Company who signed the Registration Statement
and directors of the Company, who also may be liable for contribution) to which
the Company and any one or more of the Underwriters may be subject in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same
21
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. If, but only if, the allocation provided by
the foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Underwriters, on the
other, with respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 6(d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this Section 6(d)
shall be deemed to include, for purpose of this Section 6(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no Underwriter shall be required to contribute
any amount in excess of the underwriting discounts and commissions received by
it and no person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 6(d) are
several in proportion to their respective underwriting obligations and not
joint. For purposes of this Section 6(d), any person who controls a party to
this Agreement within the meaning of the Securities Act will have the same
rights to contribution as that party, and each officer of the Company who signed
the Registration Statement will have the same rights to contribution as the
Company, subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 6(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 6(d). Except for a settlement entered
into pursuant to the last sentence of Section 6(c) hereof, no party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
22
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company contained in
this Agreement, or in certificates or other instruments delivered pursuant
hereto, shall survive and shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of the Underwriters,
(ii) acceptance of any of the Shares and payment therefor or (iii) any
termination of this Agreement.
(f) The Company acknowledges for all purposes of this Agreement,
the legend, if any, regarding stabilization set forth on the inside front cover
page of the Prospectus, the names of the Underwriters and the amounts of the
selling concession and reallowance set forth in the Prospectus under the caption
"Underwriting" and the identification of counsel to the Underwriters in the
Prospectus under the caption "Legal Matters" constitute the only information
relating to any Underwriter furnished in writing to the Company by the
Underwriters specifically for inclusion in the Registration Statement, the
preliminary prospectus or the Prospectus.
(g) The Company agrees to indemnify each Underwriter and
controlling persons thereof to the same extent and subject to the same
conditions and to the same agreements, including with respect to contribution,
provided for in subsections (a), (b), (c), (d) and (e) of this Section 6.
7. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement shall survive the Closing Date and, if later,
an Option Closing Date, and will remain in full force and effect, regardless of
any investigation made by or on behalf of Underwriters or the Company or any of
the officers, directors or controlling persons referred to in Section 6 hereof,
and will survive delivery of and payment for the Shares pursuant to the public
offering. The provisions of Section 6 hereof shall survive the termination or
cancellation of this Agreement.
8. Termination. The obligations of the several Underwriters under
-----------
this Agreement may be terminated at any time on or prior to the Closing Date
(or, with respect to the Option Shares, on or prior to an Option Closing Date),
by notice to the Company from the Underwriters, without liability on the part of
any Underwriter to the Company, if, prior to delivery and payment for the Shares
(or the Option Shares, as the case may be), in the sole judgment of the
Underwriters, (i) trading in any of the equity securities of the Company shall
have been suspended by the Commission, the NASD, by an exchange that lists the
Shares or by the Nasdaq Stock Market, (ii) trading in securities generally on
the New York Stock Exchange or the Nasdaq Stock Market shall have been suspended
or limited or minimum or maximum prices shall have been generally established on
such exchange or over the counter market, or additional material governmental
restrictions, not in force on the date of this Agreement, shall have been
23
imposed upon trading in securities generally by such exchange or by order of the
Commission, the NASD or any court or other governmental authority, (iii) a
general banking moratorium shall have been declared by either Federal or New
York State authorities or (iv) any material adverse change in the financial or
securities markets in the United States or in political, financial or economic
conditions in the United States or any outbreak or material escalation of
hostilities or declaration by the United States of a national emergency or war
or other calamity or crisis shall have occurred the effect of any of which is
such as to make it, in the sole judgment of the Underwriters, impracticable or
inadvisable to market the Shares on the terms and in the manner contemplated by
the Prospectus.
9. Substitution of Underwriters. If any one or more of the
----------------------------
Underwriters shall fail or refuse to purchase any of the Firm Shares which it or
they have agreed to purchase hereunder, and the aggregate number of Firm Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of Firm Shares,
the other Underwriters shall be obligated, severally, to purchase the Firm
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase, in the proportions which the number of Firm Shares which
they have respectively agreed to purchase pursuant to Section 1 bears to the
aggregate number of Firm Shares which all such non-defaulting Underwriters have
so agreed to purchase, or in such other proportions as the Underwriters may
specify; provided that in no event shall the maximum number of Firm Shares which
any Underwriter has become obligated to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by more than one-ninth of the number of
Firm Shares agreed to be purchased by such Underwriter without the prior written
consent of such Underwriter. If any Underwriter or Underwriters shall fail or
refuse to purchase any Firm Shares and the aggregate number of Firm Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase exceeds one-tenth of the aggregate number of the Firm Shares and
arrangements satisfactory to the Underwriters and the Company for the purchase
of such Firm Shares are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company for the purchase or sale of any Shares under this
Agreement. In any such case either the Underwriters or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected.
Any action taken pursuant to this Section 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. Miscellaneous.
-------------
(a) Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or
24
delivered if to the Company, at the office of the Company, 00000 Xxxxxx Xxxxxx,
Xxxxx Xxx, Xxxxxxxxxx 00000, Attention: Chief Executive Officer, or if to the
Underwriters, at the offices of PaineWebber Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department. Any
such notice shall be effective only upon receipt. Any notice under Section 6 or
8 may be made by telex or telephone, but if so made shall be subsequently
confirmed in writing.
(b) This Agreement has been and is made solely for the benefit
of the several Underwriters and the Company and of the controlling persons,
directors and officers referred to in Section 6, and their respective successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" as used in this
Agreement shall not include a purchaser, as such purchaser, of Shares from any
of the several Underwriters.
(c) Any action required or permitted to be taken by the
Underwriters under this Agreement may be taken by them jointly or by PaineWebber
Incorporated.
(d) THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CONFLICT
OF LAW PRINCIPLES THEREOF.
(e) This Agreement may be signed in two or more counterparts
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
(f) In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
(g) The Company and the Underwriters each hereby irrevocably
waive any right they may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or the transactions contemplated hereby.
(h) This Agreement may not be amended nor otherwise modified or
any provision hereof waived except by an instrument in writing signed by the
Underwriters and the Company.
(i) Please confirm that the foregoing correctly sets forth the
agreement among the Company and the several Underwriters.
25
Very truly yours,
IMPAC COMMERCIAL HOLDINGS, INC.
By:_________________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
Confirmed as of the date first
above mentioned:
PAINEWEBBER INCORPORATED
By: _____________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
By: _____________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CIBC XXXXXXXXXXX CORP.
By: _____________________________
Name: Xxxxxxx X. XxXxxxxxxx
Title: Managing Director
EVEREN SECURITIES, INC.
By: _____________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
26
SCHEDULE I
UNDERWRITERS
Number of
Underwriter Firm Shares
----------- -----------
PaineWebber Incorporated
Xxxxxx, Xxxxxxxx & Company Incorporated
CIBC Xxxxxxxxxxx Corp.
EVEREN Securities, Inc.
---------
3,000,000
=========
Schedule I-1
EXHIBIT A
IMPAC COMMERCIAL HOLDINGS, INC.
-------------------------------
PRICE DETERMINATION AGREEMENT
-----------------------------
[Date]
PAINEWEBBER INCORPORATED
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
CIBC XXXXXXXXXXX CORP.
EVEREN SECURITIES, INC.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated May __, 1998
(the "Underwriting Agreement"), among Impac Commercial Holdings, Inc., a
Maryland corporation (the "Company"), and the several Underwriters named in
Schedule I thereto or hereto (the "Underwriters"). The Underwriting Agreement
provides for the purchase by the Underwriters from the Company, subject to the
terms and conditions set forth therein, of an aggregate of 3,000,000 shares (the
"Firm Shares") of the Company's common stock, par value $.01 per share. This
Agreement is the Price Determination Agreement referred to in the Underwriting
Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned
agree with the Underwriters as follows:
1. The initial public offering price per share for the Firm Shares
shall be $_______.
2. The purchase price per share for the Firm Shares to be paid by
the several Underwriters shall be $_______ representing an amount equal to the
initial public offering price set forth above, less $______ per share.
Exhibit A-1
3. Any Underwriter may allow, and any dealer may reallow, a
concession, not in excess of $.__ per share, to any Underwriter or to certain
other dealers.
The Company represents and warrants to each of the Underwriters that
the representations and warranties of the Company set forth in Section 3 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
As contemplated by the Underwriting Agreement, attached as Schedule I
is a completed list of the several Underwriters, which shall be a part of this
Agreement and the Underwriting Agreement.
This Agreement shall be governed by the laws of the State of New York
without regard to the conflict of laws principles of such state.
If the foregoing is in accordance with your understanding of the
agreement among the Underwriters and the Company, please sign and return to the
Company a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
agreement among the Underwriters and the Company in accordance with its terms
and the terms of the Underwriting Agreement.
Exhibit A-2
Very truly yours,
IMPAC COMMERCIAL HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
Confirmed as of the date
first above mentioned:
PAINEWEBBER INCORPORATED
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
EVEREN SECURITIES, INC.
CIBC XXXXXXXXXXX CORP.
By: PAINEWEBBER INCORPORATED,
as Representative of the Underwriters
By:
---------------------------------------
Title:
Exhibit A-3
EXHIBIT B
OPINION OF
FRESHMAN, MARANTZ, ORLANSKI, XXXXXX & XXXXX
1. The Company meets the requirements for use of Form S-11 under the
Securities Act and the Rules and Regulations.
2. The Company and each Subsidiary (including ICCC) has been duly
organized, is validly existing and is in good standing under the laws of the
jurisdiction of incorporation; the Company and each Subsidiary (including ICCC)
has full power and authority to conduct all the respective activities conducted
by them, to own or lease the assets owned or leased respectively by them and to
conduct their respective business as described in the Registration Statement and
the Prospectus; the Company and each Subsidiary (including ICCC) and are duly
qualified to do business in each jurisdiction wherein they own or lease real
property or in which the conduct of their business requires such qualification,
except where the failure to be so qualified would not result in a Material
Adverse Effect upon the Company or any of its Subsidiaries.
3. All of the outstanding shares of the capital stock of the
Subsidiaries, including but not limited to the ICCC Preferred Stock, have been
duly authorized and validly issued and are fully paid and non-assessable.
Except for the stock of the Subsidiaries and as disclosed in the Registration
Statement, to our best knowledge, the Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt securities
of any corporation or have any equity interest in any firm, partnership, joint
venture, association or other entity.
4. All of the outstanding shares of the capital stock of the Company
have been duly authorized, and are validly issued, fully paid and non-assessable
and are not subject to any preemptive or similar right. The authorized, issued
and outstanding capital stock of the Company is as set forth in the Registration
Statement and the Prospectus under the caption "Capitalization" and the
description of the Common Stock contained in the Prospectus is complete and
accurate in all material respects. The Shares have been duly authorized by all
requisite action on the part of the Company for issuance and sale pursuant to
the terms of the public offering and, when issued and delivered by the Company
pursuant to the terms of the public offering against payment of the
consideration set forth in the Prospectus, will be validly issued, fully paid
and non-assessable. The Shares conform in all material re spects to all
statements relating thereto contained in the Registration Statement and the
Prospectus; and the issuance of the Shares is not subject to any preemptive
rights. Except as set forth in the Prospectus, to our best knowledge, there are
no options to purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or any contracts, commitments, plans
or arrangements to issue or
Exhibit B-1
sell, any shares of capital stock of the Company, any shares of capital stock of
any Subsidiary or any such warrants, convertible securities or obligations. The
description of the Company's dividend reinvestment plan, stock option and other
stock plans or arrangements, and the options or other rights granted and
exercised thereunder, set forth in the Prospectus accurately presents the
information required to be shown with respect to such plans, arrangements,
options and rights.
5. Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the Closing
Date, and as to any Option Shares an Option Closing Date, to our best knowledge,
and except as described in or contemplated by the Prospectus, (A) there has not
been any change in the capitalization of the Company, or in the business,
properties, business prospects, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries, arising for any reason
whatsoever, (B) neither the Company nor any of its Subsidiaries has incurred any
material liabilities or obligations, direct or contingent, nor has it entered
into any material transactions other than pursuant to the Underwriting Agreement
and the transactions referred to herein and (C) the Company has not paid or
declared any dividends or other distributions of any kind on any class of its
capital stock.
6. Neither the Company nor any of its Subsidiaries is, and if
operated in the manner described in the Prospectus under the caption "Business"
will not be, an "investment company," an entity "controlled" by an "investment
company" or an "affiliated person" of, or "promotor" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act.
7. Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or, to our
knowledge, threatened against or affecting the Company or any of its
Subsidiaries or any of their respective officers in their capacity as such,
before or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding might result in a Material Adverse
Effect.
8. The Company and each of its Subsidiaries has (A) all governmental
licenses, permits, consents, orders, approvals and other authorizations
necessary to carry on its business as contemplated in the Prospectus, and (B)
performed all obligations required to be performed by it, and is not in default,
under any indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement, lease, contract or other agreement
or instrument (collectively, a "contract or other agreement") to which it is a
party or by which its property is bound or affected, the effect of any of which,
individually or in the aggregate, might result in
Exhibit B-2
a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is in
violation of any provision of its charter or by-laws.
9. The Company has full corporate power and authority to enter into
the Underwriting Agreement. The Underwriting Agreement has been duly autho
rized, executed and delivered by the Company and constitutes a valid and binding
agreement of the Company and is enforceable against the Company in accordance
with its terms, except as the enforceability hereof and thereof may be limited
by applicable bankruptcy, insolvency, reorganization and similar laws
affecting creditors' rights generally and moratorium laws in effect from time to
time and by equitable principles restricting the availability of equitable
remedies. Each of the Management Agreement, the Servicing Agreement, dated
February 5, 1997 between the Company and RAI Manager, LLC (the "Servicing
Agreement") and the Right of First Refusal Agreement constitutes a valid and
binding agreement of the Company and is enforceable against the Company in
accordance with its terms, except as the enforce ability hereof and thereof may
be limited by applicable bankruptcy, insolvency, reorganization and similar laws
affecting creditors' rights generally and moratorium laws in effect from time to
time and by equitable principles restricting the availability of equitable
remedies. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the
consummation of the transactions contemplated by the Underwriting Agreement and
the application of the net proceeds from the offering and sale of the Shares to
be sold by the Company in the manner set forth in the Prospectus under the
caption "Use of Proceeds" will not result in the creation or imposition of any
lien, charge or encum brance upon any of the assets of the Company or any of
its Subsidiaries pursuant to the terms or provisions of, or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, or give any other party a right to terminate any of its obligations
under, or result in the acceleration of any obligation under, the charter or by-
laws of the Company or any of its Subsidiaries, any contract or other agreement
to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or any of its properties is bound or
affected, or violate or conflict with any judgment, ruling, decree, order,
statute, rule or regulation of any court or other governmental agency or body
applicable to the business or properties of the Company or any of its
Subsidiaries the effect of any of which, individually or in the aggregate, would
be to have a Material Adverse Effect.
10. No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares by the Company, in connection with the execution, delivery and
performance of the Underwriting Agreement by the Company or in connection with
the taking by the Company of any other action contemplated by the Underwriting
Agreement, except such as have been obtained under the Securities Act or the
Rules and Regulations and
Exhibit B-3
such as may be required under state securities or Blue Sky laws or the by-laws
and rules of the NASD in connection with the purchase and distribution by the
Underwriters of the Shares. All references in this opinion to the Underwriting
Agreement shall include the Price Determination Agreement.
11. We hereby confirm to you that we have been advised by the
Commission that the Registration Statement has become effective under the
Securities Act and that no order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or is pending, threatened or contemplated.
12. The Company and each of its Subsidiaries has good and marketable
title to all properties and assets described in the Prospectus as owned by it
(including the assets contributed, sold or transferred to the Company pursuant
to the terms of the Contribution Agreement), free and clear of all liens,
charges, encumbrances, mortgages, security interests, claims or restrictions,
except such as are described in, or contemplated by, the Prospectus, and
except liens, charges, encumbrances, mortgages, security interests, claims or
restrictions which do not, either individually or in the aggregate, result in a
Material Adverse Effect. The Company and each of its Subsidiaries has valid,
subsisting and enforceable leases for the properties described in the
Prospectus as leased by it, with such exceptions as are not material and do
not materially interfere with the use made and proposed to be made of such
properties by the Company and the Subsidiaries.
13. The Registration Statement and the Prospectus comply in all
material respects with as to form with the requirements of the Securities Act
and the Rules and Regulations (except that we express no opinion as to financial
statements, schedules and other financial data contained in the Registration
Statement or Prospectus.
14. There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. All such contracts to which the Company or any Subsidiary is a party
have been duly authorized, executed and delivered by the Company or such
Subsidiary, constitute valid and binding agreements of the Company or such
Subsidiaries and are enforceable against the Company or such Subsidiary in
accordance with the terms thereof.
15. The Shares have been duly authorized for listing by the American
Stock Exchange upon official notice of issuance.
16. To our knowledge, no claims have been asserted by any person to
the use of any such trademarks or trade names or challenging or questioning the
validity or effectiveness of any such trademark or trade name; and the use, in
connec-
Exhibit B-4
tion with the business and operations of the Company and its Subsidiaries of
such trademarks and trade names does not, to the Company's knowledge, infringe
on the rights of any person.
17. Based upon our knowledge of the operations of the Company, the
Company has conducted its operations in a manner so as to enable it to elect to
be qualified as a real estate investment trust ("REIT") under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the "Code").
18. The Company has complied with all of the provisions of
(including, without limitation, filing all forms required by) Section 517.075 of
the Florida Securities and Investor Protection Act and Regulation 3E900.001
issued thereunder with respect to the offering and sale of the Shares.
19. Neither the Company nor any of its Subsidiaries, if operated in
the manner described in the Prospectus under the caption "Business," will 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 15(a) of the Ex change Act.
20. Each of the Servicing Agreement, Right of First Refusal
Agreement, the Non-Competition Agreement and the Assignment and Lease, dated as
of June 6, 1997 between ICCC and Impac Funding Corporation constitutes a valid
and binding agreement of the Company and is enforceable against the Company in
ac cordance with its terms, except as the enforceability hereof and thereof may
be limited by applicable bankruptcy, insolvency, reorganization and similar laws
affecting creditors' rights generally and moratorium laws in effect from time to
time and by equitable principles restricting the availability of equitable
remedies.
In addition, we have participated in conferences with officers and
other representatives of the Company and its Subsidiaries, representatives of
the indepen dent public accountants for the Company and its Subsidiaries, and
representatives of the Underwriters and counsel for the Underwriters at which
the contents of the Registration Statement and Prospectuses and related matters
were discussed and, although we 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 Prospectuses, and have not made any
independent check or verification thereof, on the basis of the foregoing, no
facts have come to our attention that have led us to believe that the
Registration Statement, as of the date it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectuses, as of their date or as of the date hereof, contained or
contains an untrue
Exhibit B-5
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances under which they were made not misleading, except
that we express no opinion or belief with respect to the financial statements,
schedules, financial data or other financial information included therein or
excluded therefrom or the exhibits to the Registration Statement.
Exhibit B-6
