7,500,000 Shares RESOURCE CAPITAL CORP. Common Stock UNDERWRITING AGREEMENT
Exhibit
1.1
EXECUTION
COPY
7,500,000
Shares
Common
Stock
May 19,
2010
Deutsche
Bank Securities Inc.
▇.▇.
▇▇▇▇▇▇ Securities Inc.,
as representatives of the
several Underwriters named in Schedule
A
c/o
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.
▇▇▇▇▇▇ Securities Inc.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
1. Introductory. Resource
Capital Corp., a Maryland corporation (the
"Company")
proposes to issue and sell 7,500,000 shares (the "Firm
Securities") of its common stock, par value $0.001 per share (the
"Securities")
to Deutsche Bank Securities Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (the "Representatives")
and the other underwriters named in Schedule
A hereto (collectively, the "Underwriters"). The
Company also proposes to sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 1,125,000 additional shares of its
Securities, as set forth below (such 1,125,000 additional shares being
hereinafter referred to as the "Optional
Securities" and, together with the Firm Securities, the "Offered
Securities"). The Company and Resource Capital Manager, Inc.
(the "Manager")
hereby agree with the Underwriters as follows:
2. Representations
and Warranties of the Company and the
Manager
(a) The
Company represents and warrants to, and agrees with, the several Underwriters
that:
(i) A
registration statement on Form S-3 (No. 333-146626) relating to the
Offered Securities, including a related prospectus, has been filed with the
Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations thereunder (the "Securities
Act Regulations"). The Company has prepared and filed such amendments to
the registration statement and such amendments
or supplements to the related prospectus as may have been required to the date
hereof, and will file such additional amendments or supplements as may hereafter
be required. The registration statement has been
declared
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effective
under the Securities Act by the Commission. The registration
statement, as amended at the time it was declared effective by the Commission
(and, if the Company files a post-effective amendment to such registration
statement which becomes effective prior to the First Closing Date (as defined
below), such registration statement as so amended) and including all information
deemed to be a part of the registration statement pursuant to incorporation by
reference, Rule 430B of the Securities Act Regulations or otherwise, is
hereinafter called the "Registration
Statement." Any registration statement filed pursuant to Rule
462(b) of the Securities Act Regulations is hereinafter called the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the 462(b) Registration
Statement. The term "Base
Prospectus" means the prospectus dated June 6, 2008 included in the
Registration Statement, including all information incorporated by reference
therein. The term "Prospectus
Supplement" means the prospectus supplement specifically relating to the
Offered Securities in the form first filed with the Commission pursuant to Rule
424 under the Securities Act, including all information incorporated by
reference therein. The term "Prospectus"
means the Base Prospectus together with the Prospectus
Supplement. The term "Preliminary
Prospectus" means any preliminary form of the Prospectus in the form
filed with the Commission pursuant to Rule 424 of the Securities Act
Regulations. All references in this Agreement to financial statements
and schedules and other information which is "contained," "included,"
"described" or "stated" in the Registration Statement, the Preliminary
Prospectus or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement, the Preliminary Prospectus or Prospectus, as the case
may be.
The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
The term
"General
Disclosure Package" means (i) the Base Prospectus and the Preliminary
Prospectus, as most recently amended or supplemented immediately prior to the
Initial Sale Time (as defined herein), (ii) the pricing information identified
in Schedule
B hereto, and (iii) any other Free Writing Prospectus (as defined herein)
that the parties hereto shall hereafter expressly agree to treat as part of the
General Disclosure Package.
The term
"Issuer
Free Writing Prospectus" means any issuer free writing prospectus, as
defined in Rule 433 of the Securities Act Regulations, including the electronic
road show related to the Offered Securities posted on ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
on May 17, 2010. The term "Free
Writing Prospectus" means any free writing prospectus, as defined in Rule
405 of the Securities Act Regulations.
(ii) As
of the date hereof, the Company (i) is subject to the requirement to file
reports pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder (the
"Exchange
Act Regulations"), (ii) has filed all reports and other materials
required to be filed by Sections 13(a), 14 or 15(d) of the Exchange Act during
the preceding 12 months, (iii) has filed an Annual Report on Form 10-K required
under Section 13(a) or 15(d) under the Exchange Act for its most recently
completed fiscal year; (iv) is not, and during the past three years was not (nor
was any predecessor), (a) a blank check company as defined in
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Rule 419(a)(2),
(b) a shell company, other than abusiness combination related shell company,
each as defined in Rule 405, or (c) a registrant for an offering of ▇▇▇▇▇ stock
as defined in Rule 3a51-1 of the Exchange Act Regulations, and (v) makes
its periodic and current reports filed pursuant to Section 13 or Section 15(d)
of the Exchange Act readily available and accessible on a web site maintained by
or for the Company and containing information about the Company; each document
incorporated by reference in the Prospectus and the General Disclosure Package,
when it became effective or was filed with the Commission, as applicable,
conformed in all material respects to the requirements of the Securities Act and
the Securities Act Regulations, or the Exchange Act and the Exchange Act
Regulations, as applicable, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Prospectus and
the General Disclosure Package or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
applicable, will conform in all material respects to the requirements of the
Securities Act and the Securities Act Regulations, or the Exchange Act and the
Exchange Act Regulations, as applicable, and will not include an 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, in the
light of the circumstances under which they were made, not
misleading.
(iii) (a)
At the original effectiveness of the Registration Statement, (b) at the earliest
time after the original effectiveness of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Offered
Securities and (c) at the date of this Agreement, the Company was not and
is not an "ineligible issuer," as defined in Rule 405 and the Company has
not received notice that the Commission objects to the use of the Registration
Statement as a shelf registration statement.
(iv) The
Preliminary Prospectus when filed and the Registration Statement as of each
effective date and as of the date hereof complied or will comply, and the
Prospectus and any further amendments or supplements to the Registration
Statement, the Preliminary Prospectus or the Prospectus will, when they become
effective or are filed with the Commission, as the case may be, comply, in all
material respects with the requirements of the Securities Act and the Securities
Act Regulations.
(v) The
Registration Statement, as of each effective date and as of the date hereof, did
not, does not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and the Preliminary Prospectus does not,
and the Prospectus or any amendment or supplement thereto will not, as of the
applicable filing date, the date hereof and at the First Closing Date and on
each Optional Closing Date (if any), contain an 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;
provided, however, that the Company makes no warranty or representation with
respect to any statement contained in or omitted from the Registration
Statement, the Preliminary Prospectus or the Prospectus in reliance upon and in
conformity with the information concerning the Underwriters and furnished in
writing by or on behalf of the Underwriters through the Representatives to the
Company
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expressly
for use therein (that information being limited to that described in the last
sentence of Section 8(b) hereof).
(vi) As
of 7:30 (New York time) on the date of this Agreement (the "Initial
Sale Time"), the General Disclosure Package did not, and at the time of
each sale of Offered Securities and at the First Closing Date and each Optional
Closing Date, the General Disclosure Package will not, contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; as of its issue date or date of first use
and at all subsequent times through the Initial Sale Time, each Issuer Free
Writing Prospectus did not, and at the time of each sale of Offered Securities
and at the First Closing Date and each Optional Closing Date, each such Issuer
Free Writing Prospectus will not, contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in or omitted from the
General Disclosure Package in reliance upon and in conformity with the
information concerning the Underwriters and furnished in writing by or on behalf
of the Underwriters through the Representatives to the Company expressly for use
therein (that information being limited to that described in the last sentence
of Section 8(b) hereof).
(vii) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Offered Securities or
until any earlier date that the Company notified or notifies the Underwriters as
described in the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement, including any document
incorporated by reference therein that has not been superseded or
modified. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement, including any document
incorporated by reference therein that has not been superseded or modified, or
included or would include an untrue statement of a material fact or omitted or
would omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances prevailing at that subsequent time, not
misleading, (i) the Company has promptly notified or will promptly notify
the Underwriters and (ii) the Company has promptly amended or will promptly
amend or supplement such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission. The foregoing two
sentences do not apply to statements in or omissions from any Issuer Free
Writing Prospectus in reliance upon and in conformity with written information
furnished to the Company by any Underwriter specifically for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described in the last sentence of
Section 8(b) hereof.
(viii) The
Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Maryland with full power and authority
to own, lease or operate its assets and to conduct its business as described in
the General Disclosure Package and the Prospectus and to execute and deliver
this Agreement and to consummate the transactions contemplated hereby (including
the issuance, sale and delivery of the Offered Securities) and
thereby.
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(ix) Each
subsidiary of the Company (collectively, the "Subsidiaries") has
been duly incorporated or formed and is an existing corporation or limited
liability company in good standing under the laws of the jurisdiction of its
incorporation or formation, with power and authority (corporate and
other) to own, lease or operate its assets and conduct its business as
described in the General Disclosure Package and the Prospectus; all of the
issued and outstanding capital stock or membership interests, as applicable, of
each Subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable; and except as disclosed in the General Disclosure Package
and the Prospectus, the capital stock or membership interests, as applicable, of
each Subsidiary is owned entirely by the Company, directly or through
subsidiaries, and is free from liens, encumbrances and
defects. Except as disclosed in the Registration Statement, the
General Disclosure Package or the Prospectus, the Company does not own any
capital stock of or other equity interest in any other corporation, limited
liability company, partnership, joint venture, trust or other entity or
association.
(x) The
Company had, as of the date of the Prospectus, the duly authorized and
outstanding capitalization as set forth in the General Disclosure Package and
the Prospectus under the caption "Capitalization;" all of the issued and
outstanding shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and have been issued
in compliance with all federal and state securities laws and, except as
disclosed in the General Disclosure Package and the Prospectus, free of
preemptive rights and other rights to subscribe for or purchase securities;
except as disclosed in the General Disclosure Package and the Prospectus, there
are no outstanding (i) securities or obligations of the Company or the
Subsidiaries convertible into or exchangeable for any capital stock of the
Company or the Subsidiaries, (ii) warrants, rights or options to subscribe
for or purchase from the Company or the Subsidiaries any such capital stock or
any such convertible or exchangeable securities or obligations or
(iii) obligations of the Company or the Subsidiaries to issue or sell any
shares of capital stock, partnership interests or membership interests, as
applicable, any such convertible or exchangeable securities or obligation, or
any such warrants, rights or options.
(xi) The
Offered Securities have been duly authorized for issuance and sale and, when
issued by the Company and delivered against payment therefor in accordance with
the terms of this Agreement, will be validly issued, fully paid and
non-assessable, free and clear of any pledge, lien, encumbrance, security
interest or other claim, and the issuance, sale and delivery of the Offered
Securities by the Company is not subject to any preemptive right, co-sale right,
registration right, resale right, right of first refusal or other similar rights
arising by operation of law, under the Company Charter Documents, as such term
is defined in Section 2(xviii), (other than as set forth therein) or under
any agreement to which the Company is a party or otherwise, other than as
provided for in the Lock-Up Agreements (as defined below).
(xii) Each
of the Company and the Subsidiaries is duly qualified or licensed by, and is in
good standing in, each jurisdiction in which it currently conducts its business
or in which it owns or leases property or maintains an office and in which such
qualification or licensing is necessary and in which the failure, individually
or in the aggregate, to be so qualified or licensed could have, individually or
in the aggregate, a material adverse effect on the condition (financial or
other), business, earnings, management, properties, results of operations (as
described in the General Disclosure
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Package
and the Prospectus), assets or prospects of the Company, the Manager and the
Subsidiaries taken as a whole (a "Material
Adverse Effect").
(xiii) Each
of the Company and the Subsidiaries has good and marketable title in fee simple
to all real property and good title to all personal property owned by it, in
each case free and clear of all liens, security interests, pledges, charges,
encumbrances, mortgages and defects, except such as are disclosed in the General
Disclosure Package and the Prospectus or such as would not reasonably be
expected to materially and adversely affect the value of such property or
interfere with the use made or proposed to be made of such property by the
Company; any real property or personal property held under lease by the Company
is held under a lease which is valid, binding and enforceable against the
Company and, to the Company's knowledge, the other party thereto, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and by general principles of equity, or
as otherwise disclosed in the General Disclosure Package and the Prospectus or
exceptions that are not, individually or in the aggregate, material to the
Company and would not reasonably be expected to interfere with the use made or
proposed to be made of such property by the Company.
(xiv) Each
of the Company and the Subsidiaries is in compliance with all applicable
federal, state, local and foreign laws, rules, regulations, orders, decrees and
judgments, including those relating to transactions with affiliates except where
the failure to so comply could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
(xv) Neither
the Company nor any of the Subsidiaries has any employees.
(xvi) Except
as otherwise disclosed in the General Disclosure Package and the Prospectus,
there are no outstanding loans or advances or guarantees of indebtedness by the
Company to or for the benefit of any of the officers, directors, affiliates or
representatives of the Company or any of the members of the families of any of
them.
(xvii) Except
for the Underwriter's discount and any other compensation payable by the Company
to the Underwriters in connection with the transactions contemplated herein or
as otherwise disclosed in the General Disclosure Package and the Prospectus, the
Company has not incurred any liability for any brokerage commissions, finder's
fees or similar payments in connection with the transactions herein
contemplated.
(xviii) Each
of the Company and the Subsidiaries is not (a) in breach of, or in default
under (nor has any event occurred which with notice, lapse of time, or both
would constitute a breach of, or default under), its articles of incorporation,
by-laws, certificate of formation, operating agreement or similar organizational
documents, as applicable (collectively, the "Company
Charter Documents") or (b) in breach or default (nor has any
event occurred which with notice, lapse of time or both would constitute a
breach or default) in the performance or observance of any of its
obligations, agreements, covenants or conditions contained in any license,
indenture, mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or the Subsidiaries is a party or
by which it or its assets may be bound or affected except, in the case of
clause (b) only, for breaches or defaults that could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect;
the execution, delivery and performance of this Agreement, the issuance, sale
and delivery of the Offered
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Securities
by the Company, the consummation by the Company of the transactions contemplated
hereby and compliance by the parties thereto (other than the
Underwriters) with the terms and provisions hereunder will not conflict
with, or result in any breach of or constitute a default under (nor constitute
any event which with notice, lapse of time, or both would constitute a breach
of, or default under), (A) any provision of the Company Charter Documents,
(B) any of the Company's and the Subsidiaries' and any of their respective
affiliates' obligations under any provision of any license, indenture, mortgage,
deed of trust, bank loan or credit agreement or other agreement or instrument to
which any such party is a party or by which it or its assets may be bound or
affected or (C) under any federal, state, local or foreign law, regulation
or rule or any decree, judgment, permit or order applicable to the Company or
the Subsidiaries except, in the case of clauses (B) and (C) only, for
such conflicts, breaches or defaults that could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
(xix) This
Agreement has been duly authorized, executed and delivered by the Company,
assuming due authorization, execution and delivery of this Agreement by the
Underwriters, is a legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity, and except to
the extent that the indemnification provisions hereof may be limited by federal
or state securities laws and public policy considerations in respect thereof;
the Amended and Restated Management Agreement (the "Management
Agreement"), dated June 30, 2008, as amended, by and among the Company, the Manager and
Resource America, Inc. ("Resource
America"), has been duly authorized, executed and delivered by the
Company, and is a legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity, and
except to the extent that the indemnification provisions thereof may be limited
by federal or state securities laws and public policy considerations in respect
thereof.
(xx) The
capital stock of the Company, including the Offered Securities, conforms in all
material respects to the descriptions thereof contained in the General
Disclosure Package and the Prospectus; the form of certificates used to evidence
the Offered Securities complies in all material respects with all applicable
statutory requirements and any requirements of the New York Stock Exchange (the
"NYSE") and
with any applicable requirements of the Company Charter Documents and has been
duly authorized and approved by the directors of the Company.
(xxi) Except
for the Registration Rights Agreement (the "Registration
Rights Agreement"), dated March 8, 2005, as amended, among the Company on
one hand, and Credit Suisse First Boston LLC for the benefit of the Holders (as
defined therein), on the other hand, the Management Agreement or as disclosed in
the General Disclosure Package, there are no contracts, agreements or
understandings between the Company and any person granting such person the right
to require the Company to file a registration statement under the Securities Act
with respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the securities
registered pursuant to a registration statement or in any securities
being
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registered
pursuant to any other registration statement filed by the Company under the
Securities Act.
(xxii) The
Company has applied to list the Offered Securities on the NYSE subject to
official notice of issuance.
(xxiii) No
approval, authorization, consent or
order of or filing with any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency is required for the
execution, delivery and performance by the Company of this Agreement, the
consummation by the Company of the transactions contemplated hereby, or the
issuance, sale and delivery of the Offered Securities as contemplated
hereby, except such as have been obtained and made, or as may be required, under
the Securities Act, under the listing requirements of the NYSE, under the rules
and regulations of the Financial Industry Regulatory Authority ("FINRA"),
and such as may be required under state or foreign securities laws.
(xxiv) Each
of the Company and the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule, and has obtained all
necessary licenses, authorizations, consents and approvals from other persons,
required in order to conduct its business as it is being conducted at this time,
and will obtain all necessary licenses, authorizations, consents and approvals
and make all necessary filings required under any federal, state, local or
foreign law, regulation or rule, and will obtain all necessary licenses,
authorizations, consents and approvals from other persons, required in order to
conduct its business as it is proposed to be conducted as described in the
General Disclosure Package and the Prospectus except, in each case, where the
failure to obtain any such license, authorization, consent or approval could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect; each of the Company and the Subsidiaries is not in violation of,
or in default under, any of its obligations under any such license,
authorization, consent or approval of any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Company
and the Subsidiaries except where such violation or default could not reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect.
(xxv) The
Company and the Subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other intellectual property
(collectively, "intellectual
property rights") necessary to conduct the business now operated by
them, or presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the Company or any
of the Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xxvi) The
descriptions in each of the Registration Statement, the Prospectus and the
General Disclosure Package of the legal or governmental proceedings, contracts,
leases and other legal documents therein described present fairly the
information required to be shown, and there are no legal or governmental
proceedings, contracts, leases, or other documents of a character required to be
described in the Registration Statement, the Prospectus or the General
Disclosure Package or to be filed as exhibits to the Registration Statement
which are not described or filed as required; all agreements between the Company
or any of the Subsidiaries and third parties expressly referenced in both
the
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Prospectus
and the General Disclosure Package are legal, valid and binding obligations of
the Company or one or more of the Subsidiaries, enforceable in accordance with
their respective terms, except to the extent enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and by general equitable principles.
(xxvii) The
Offered Securities conform in all material respects to the description thereof
contained in the Registration Statement, the Prospectus and the General
Disclosure Package.
(xxviii) There
are no actions, suits, proceedings, inquiries or investigations pending or, to
the knowledge of the Company, threatened against the Company or the
Subsidiaries, or any of their respective assets, and to the knowledge of the
Company, its respective directors, officers or employees at law or in equity, or
before or by any federal, state, local or foreign governmental or regulatory
commission, board, body, arbitration panel, authority or agency the adverse
outcome of which could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(xxix) Since
the date of the Prospectus, except as disclosed therein, there has not been
(a) any event, circumstance or change that could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, (b) any
transaction, other than in the ordinary course of business, which is material to
the Company contemplated or entered into by or on behalf of the Company or the
Subsidiaries, (c) any liability or obligation, contingent or otherwise,
directly or indirectly incurred by the Company or the Subsidiaries, other than
liabilities and obligations incurred in the ordinary course of business,
(d) any dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock, (e) any purchase or pledge by
the Company or the Subsidiaries of any of the Company's or the Subsidiaries'
outstanding capital stock or (f) any change in the capital stock, long-term
debt (including off-balance sheet activities or transactions) or, outside
the ordinary course of business, short-term debt of the Company or the
Subsidiaries.
(xxx) The
Company is not, and the sale of the Offered Securities as herein contemplated
and the receipt of the net proceeds therefrom will not cause the Company to
become, an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended (the "1940
Act").
(xxxi) Neither
the Company nor any of its directors, officers, representatives or affiliates
has taken, directly or indirectly, any action intended, or which might
reasonably be expected, to cause or result in, or which has constituted, any
unlawful stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities; and the
Company acknowledges that the Underwriters may engage in passive market making
transactions in the Offered Securities on the NYSE in accordance with Regulation
M under the Exchange Act.
(xxxii) ▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP is an independent registered public accounting firm with respect to
the Company within the meaning of the Securities Act and the applicable
Securities Act Regulations, and the rules and regulations of the Public Company
Accounting Oversight Board ("PCAOB") of
the United States.
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(xxxiii) There
are no transfer taxes or other similar fees or charges under federal law
required to be paid in connection with the execution and delivery of this
Agreement or the issuance by the Company or sale by the Company of the Offered
Securities.
(xxxiv) The
Company has not taken any action, nor have any other steps been taken nor have
any legal proceedings been commenced, nor to the knowledge of the Company,
threatened, against the Company, for the winding up, liquidation or dissolution
of the Company.
(xxxv) Each
of the independent directors named in the Prospectus satisfies the independence
standards established by the Commission and the NYSE.
(xxxvi) The
Company's investment guidelines and operating policies described in the General
Disclosure Package and the Prospectus accurately reflect the current intentions
of the Company and the Manager with respect to the operation of the Company's
business, and no material deviation from such guidelines or policies is
contemplated.
(xxxvii) The
Company has not authorized anyone to make any representations regarding the
offer and sale of the Offered Securities, or regarding the Company in connection
therewith, except as set forth in the General Disclosure Package and the
Prospectus or any related marketing materials developed jointly and approved by
the Company and the Underwriters; the Company has not received notice of any
stop order or other similar order or decree preventing the use of any Issuer
Free Writing Prospectus or the Prospectus or any amendment or supplement
thereto, and no proceeding for that purpose has commenced or is pending or, to
the Company's knowledge, is contemplated; and the Company has complied to the
Commission's satisfaction with any request on the part of the Commission for
additional information.
(xxxviii) The
Company has made a timely election to be subject to tax as a real estate
investment trust (a "REIT") pursuant
to Sections 856 through 860 of the Internal Revenue Code of 1986, as amended
(the "Code"), for
its taxable year ended December 31, 2005 and, commencing with its initial
taxable year ended December 31, 2005, the Company has been organized and
operated in conformity with the requirements for qualification and taxation as a
REIT under the Code, and the Company's current and proposed method of operation
will enable it to continue to meet the requirements for qualification and
taxation as a REIT under the Code; and all statements regarding the Company's
qualification and taxation as a REIT and descriptions of the Company's
organization and current and proposed method of operation set forth in the
General Disclosure Package and the Prospectus are true, complete and correct in
all material respects.
(xxxix) The
Company and each of the Subsidiaries have properly filed on a timely basis all
federal, state, local and foreign income and franchise tax returns, if any such
returns were required to be filed, through the date hereof, any such returns are
correct and complete, and the Company has paid all taxes shown as due thereon;
and no tax deficiency has been asserted against the Company or any of the
Subsidiaries, nor does the Company or any of the Subsidiaries know of any tax
deficiency which could reasonably be expected to be asserted against it; all tax
liabilities, if any, are adequately provided for on the consolidated books of
the Company.
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(xl) The
Company and the Subsidiaries, in the aggregate, carry, or are covered by,
insurance (issued by insurers of recognized financial responsibility to the best
knowledge of the Company and the Manager) against such losses and risks and
in such amounts as are generally deemed adequate for the respective businesses
in which they are engaged; neither the Company nor any of the Subsidiaries has
been refused any insurance coverage sought or applied for; and neither the
Company nor any of the Subsidiaries has any reason to believe that the Company
or the Subsidiaries would 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 business at a cost that would not,
individually or in the aggregate, have a Material Adverse Effect, except as
described in or contemplated by the General Disclosure Package and the
Prospectus. All such insurance is fully in force on the date hereof
and will be fully in force at the First Closing Date and any Optional Closing
Date.
(xli) The
Company and each of the Subsidiaries are in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"),
and the employee benefits provisions of the Code with which compliance is
intended; no "reportable event" (as defined in ERISA) has occurred with
respect to any "pension plan" (as defined in ERISA) for which the Company
or any of the Subsidiaries have or would reasonably be expected to have any
liability; the Company and the Subsidiaries have not incurred and do not expect
to incur liability under (x) Title IV of ERISA with respect to termination
of, or withdrawal from, any "pension plan" or (y) Sections 412 or 4971 of
the Code; and each "pension plan" for which the Company would have any liability
that is intended to be qualified under Section 401(a) of the Code has
received a determination letter from the Internal Revenue Service to the effect
that it is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which would cause the plan to not be
adversely affected by such determination.
(xlii) Except
as set forth in the General Disclosure Package and the Prospectus, (a) no
person has any preemptive rights, co-sale rights, registration rights, resale
rights, rights of first refusal or other similar rights arising by operation of
law to purchase any shares of common stock or shares of any other capital stock
or other equity interests of the Company or the Subsidiaries, and (b) no
person has the right to act as an underwriter or as a financial advisor to the
Company or the Subsidiaries in connection with the offer and sale of the Offered
Securities or capital stock or other equity interests of the
Subsidiaries.
(xliii) Each
of the Company and the Subsidiaries are in compliance, in all material respects,
with applicable Environmental Laws (as defined below) and each is in
compliance, in all material respects, with the material terms of any required
permits, licenses, authorizations and approvals required under, applicable
Environmental Laws, except to the extent that failure to so comply or to hold
such permits, authorizations or approvals would not reasonably be expected to
have a Material Adverse Effect; there are no past or present or, to the
Company's knowledge, reasonably anticipated material future events, conditions,
circumstances, activities, practices, actions, omissions or plans that could
reasonably be expected to give rise to any material costs or liabilities to the
Company or the Subsidiaries under, or to interfere with or prevent compliance by
the Company or the Subsidiaries with, applicable Environmental Laws; except as
would not reasonably be expected to have a Material Adverse Effect, and except
that no
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representation
is made with respect to any property underlying loans originated or held by the
Company or any of the Subsidiaries, other than properties on which the Company
or any Subsidiary has foreclosed and currently holds as an asset, neither
the Company nor any of the Subsidiaries (a) is the subject of any
investigation, (b) has received any notice or claim, (c) is a party to
or affected by any pending or threatened action, suit or proceeding, (d) is
bound by any judgment, decree or order or (e) has entered into any
agreement, in each case relating to any alleged violation of any applicable
Environmental Law or any actual or alleged release or, to the knowledge of the
Company, threatened release or cleanup at any location of any Hazardous
Materials (as defined below) (as used herein, "Environmental
Law" means any federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, decree, judgment, injunction, or other binding
requirement, or common law, relating to health, safety or the protection,
cleanup or restoration of the environment or natural resources, including those
relating to the distribution, processing, generation, treatment, storage,
disposal, transportation, other handling or release or threatened release of
Hazardous Materials, and "Hazardous
Materials" means any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that is regulated by
or may give rise to liability under any Environmental Law).
(xliv) The
assets of the Company and the Subsidiaries do not constitute "plan assets" (as
defined in ERISA) of an ERISA regulated employee benefit plan.
(xlv) The
financial statements, including the notes thereto, included in (or incorporated
by reference into) each of the Registration Statement, the Prospectus and the
General Disclosure Package present fairly the consolidated financial position of
the entities to which such financial statements relate (the "Covered
Entities") as of the dates indicated and the consolidated results of
operations and changes in financial position and cash flows of the Covered
Entities for the periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles as applied in the
United States ("GAAP")
and on a consistent basis during the periods involved and in accordance with
Regulation S-X promulgated by the Commission; the financial statement schedules
included in (or incorporated by reference into) the Registration Statement, the
Prospectus and the General Disclosure Package fairly present the information
shown therein and have been compiled on a basis consistent with the financial
statements included in each of the Registration Statement, the Prospectus and
the General Disclosure Package; no other financial statements or supporting
schedules are required to be included in the Registration Statement, the
Prospectus or the General Disclosure Package; the unaudited pro forma financial
information (including the related notes), if any, included in each of the
Registration Statement, the Prospectus and the General Disclosure Package
complies as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Securities Act Regulations, and
management of the Company believes that the assumptions underlying the pro forma
adjustments are reasonable; such pro forma adjustments have been properly
applied to the historical amounts in the compilation of the information and such
information fairly presents with respect to the Company and the Subsidiaries,
the information purported to be shown therein at the respective dates and with
the respective adjustments specified; and no other pro forma financial
information is required to be included in (or incorporated by reference into)
the Registration Statement, the Prospectus or the General Disclosure
Package.
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(xlvi) The
Company has been subject to the reporting requirements of either Section 13
or Section 15(d) of the Exchange Act, and has timely filed all reports
with the Commission on the Electronic Data Gathering, Analysis, and Retrieval
("▇▇▇▇▇") system
during the last 12 calendar months prior to the date of this
Agreement. At the time such reports were filed, they complied in all
material respects with the requirements of the Securities Act and the Exchange
Act and the Securities Act Regulations and the Exchange Act Regulations, as
applicable, and did not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(xlvii) The
Company is eligible to use Free Writing Prospectuses in connection with this
offering pursuant to Rules 164 and 433 under the Securities Act; any Free
Writing Prospectus that the Company is required to file pursuant to Rule 433(d)
under the Securities Act Regulations has been, or will be, filed with the
Commission in accordance with the requirements of the Securities Act and the
Securities Act Regulations; and each Free Writing Prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d) under the Securities
Act Regulations or that was prepared by or on behalf of or used by the Company
complies or will comply in all material respects with the requirements of the
Securities Act and the Securities Act Regulations.
(xlviii) Except
for the electronic road show related to the Offered Securities posted on
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ on May 17, 2010, the Company has not prepared, used
or referred to, and will not, without the prior consent of the Representatives,
prepare, use or refer to, any Free Writing Prospectus.
(xlix) The
Preliminary Prospectus, the Prospectus and any Issuer Free Writing Prospectuses
(to the extent any such Issuer Free Writing Prospectus was required to be filed
with the Commission) delivered to the Underwriters for use in connection with
the public offering of the Offered Securities contemplated herein have been and
will be identical to the versions of such documents transmitted to the
Commission for filing via ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(l) To
the Company's or any of the Subsidiaries' knowledge, except for ▇▇▇▇▇▇▇▇
Securities, Inc. and Anthem, Inc., there are no affiliations or associations
between any member of FINRA and any of the Company's or any of the Subsidiaries'
officers, directors or 5% or greater securityholders, except as set forth in the
Prospectus.
(li) Each
of the Company and the Subsidiaries (i) makes and keeps accurate books and
records in all material respects and (ii) maintains internal accounting
controls which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B) transactions
are recorded as necessary to permit preparation of its and the Subsidiaries'
financial statements in conformity with GAAP and to maintain accountability for
its and the Subsidiaries' assets, (C) access to its assets is permitted
only in accordance with management's authorization, (D) the reported
accountability for its and the Subsidiaries' assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences and (E) management is made aware of all material
transactions concerning the Company and the Subsidiaries and their respective
properties; the Company and the Subsidiaries' internal controls over financial
reporting are effective and the Company and the
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Subsidiaries
are not aware of any material weakness in their internal controls over financial
reporting.
(lii) The
Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange Act), which
(i) are designed to ensure that material information relating to the
Company, including the Subsidiaries, is made known to each of the Company's
principal executive officer and principal financial officer by others within
those entities, particularly during the preparation of the Registration
Statement and the Prospectus; (ii) have been evaluated by the Company for
effectiveness as of the date of the filing of the Registration Statement and the
Prospectus with the Commission; and (iii) are effective in all material respects
to perform the functions for which they were established.
(liii) No
relationship, direct or indirect, exists between or among the Company or any of
the Subsidiaries on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or any of the Subsidiaries on the other
hand, which is required by the Securities Act and the Securities Act Regulations
to be described in the Registration Statement, the Prospectus or the General
Disclosure Package, which is not so described.
(liv) Neither
the Company nor any of the Subsidiaries nor any officer or director purporting
to act on behalf of the Company or any of the Subsidiaries has at any time (i)
made any contributions to any candidate for political office, or failed to
disclose fully any such contributions, in violation of law, (ii) made any
payment to any state, federal or foreign governmental officer or official, or
other person charged with similar public or quasi-public duties, other than
payments required or allowed by applicable law, (iii) made any payment outside
the ordinary course of business to any investment officer or loan broker or
person charged with similar duties of any entity to which the Company or any of
the Subsidiaries sells or from which the Company or any of the Subsidiaries buys
loans or servicing arrangements for the purpose of influencing such agent,
officer, broker or person to buy loans or servicing arrangements from or sell
loans to the Company or any of the Subsidiaries, or (iv) engaged in any
transactions, maintained any bank account or used any corporate funds except for
transactions, bank accounts and funds which have been and are reflected in the
normally maintained books and records of the Company and the
Subsidiaries.
(lv) Neither
the Company nor the Subsidiaries, or, to the knowledge of the Company and the
Manager, any director, officer, agent, employee or other person associated with
or acting on behalf of the Company or the Subsidiaries has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee, or other person charged with similar public or quasi-public duties
from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the "FCPA");
or (iv) made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment; and the Company, the Subsidiaries and, to the knowledge
of the Company, its affiliates have conducted their businesses in compliance in
all material respects with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
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(lvi) The
operations of the Company and the Subsidiaries are and have been conducted at
all times in compliance with applicable financial record keeping and reporting
requirements and the money laundering statues and rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the "Money
Laundering Laws") and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the
Company or any of the Subsidiaries with respect to the Money Laundering Laws is
pending, or to the best knowledge of the Company, threatened.
(lvii) Neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is currently subject to any sanctions administered by the Office of
Foreign Asset Control of the U.S. Treasury Department ("OFAC");
and the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any
Subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(lviii) To
the knowledge of the Company, neither it nor any of the Subsidiaries nor any of
its or the Subsidiaries' properties or assets has any immunity from the
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution or
otherwise) under the laws of New York.
(lix) No
Subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such
Subsidiary's capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary's property or assets to the Company or any other Subsidiary of the
Company, except as described in or contemplated by the General Disclosure
Package and the Prospectus.
(lx) There
is and has been no failure on the part of the Company, the Subsidiaries and any
of the directors or officers of the Company and the Subsidiaries, in their
capacities as such, to comply in all material respects with any applicable
provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
promulgated in connection therewith (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act"), including Section 402 related to loans and Sections 302 and
906 related to certifications.
(lxi) Any
industry, statistical and market-related data included in the Registration
Statement, the General Disclosure Package and the Prospectus are based on or
derived from sources that the Company believes to be reliable and accurate, and
the Company has obtained the written consent to the use of such data from such
sources to the extent required.
(lxii) Except
as described in the General Disclosure Package and the Prospectus, with respect
to stock options or other equity incentive grants granted subsequent to the
adoption of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act pursuant to the equity-based compensation
plans of either of the Company or the Subsidiaries (the "Equity
Plans"), (i) no stock options have been granted with an exercise
price based upon a price of the
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common
stock of the Company on a date occurring prior to the date of approval of such
grant, (ii) each such grant was made in accordance with the material terms
of the Equity Plans, the Exchange Act and all other applicable laws and
regulatory rules or requirements, and (iii) each such grant has been
properly accounted for in accordance with GAAP in the financial statements
(including the related notes) of the Company and disclosed in the Company's
filings with the Commission.
(lxiii) Accompanied
by delivery of the Prospectus, any advertising, sales literature or other
promotional material (including "prospectus wrappers", "broker kits," "road show
slides" and "road show scripts" and "electronic road show
presentations") authorized in writing by or prepared by the Company and
used in connection with the public offering of the Offered Securities
(collectively, "sales
material") does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Moreover, accompanied by
delivery of the Prospectus, all sales material complied and will comply in all
material respects with the applicable requirements of the Securities Act and the
rules and interpretations of FINRA.
(lxiv) Any
certificate signed by any officer of the Company or any of the Subsidiaries
delivered pursuant to this Agreement to the Representatives or to counsel for
the Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
(b) The
Manager represents and warrants to, and agrees with, the several Underwriters
that:
(i) The
Manager is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware with full power and authority
to own, lease or operate its assets and to conduct its business as described in
the General Disclosure Package and the Prospectus and to execute and deliver
this Agreement and to consummate the transactions contemplated hereby and
thereby.
(ii) The
Manager is duly qualified or licensed by, and is in good standing in, each
jurisdiction in which it currently conducts its business or in which it owns or
leases property or maintains an office and in which such qualification or
licensing is necessary and in which the failure, individually or in the
aggregate, to be so qualified or licensed could have, individually or in the
aggregate, a Material Adverse Effect.
(iii) The
Manager is in compliance with all applicable federal, state, local and foreign
laws, rules, regulations, orders, decrees and judgments, including those
relating to transactions with affiliates, except where the failure to so comply
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(iv) The
Manager is not (a) in breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both would constitute a breach of,
or default under), its articles of incorporation or by-laws (collectively, the
"Manager
Charter Documents") or (b) in breach or default (nor has any
event occurred which with notice, lapse of time or both would constitute a
breach or default) in the performance or observance of any of its
obligations, agreements, covenants or conditions contained in any license,
indenture, mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Manager is a party or by which it or its
assets may
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be bound
or affected except, in the case of clause (b) only, for breaches or
defaults that could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; the execution, delivery and performance of
this Agreement, the consummation by the Manager of the transactions contemplated
hereby and compliance by the parties thereto (other than the
Underwriters) with the terms and provisions hereunder will not conflict
with, or result in any breach of or constitute a default under (nor constitute
any event which with notice, lapse of time, or both would constitute a breach
of, or default under) (A) any provision of the Manager Charter Documents,
(B) any of the Manager's and any of its respective affiliates' obligations
under any provision of any license, indenture, mortgage, deed of trust, bank
loan or credit agreement or other agreement or instrument to which any such
party is a party or by which it or its assets may be bound or affected or
(C) under any federal, state, local or foreign law, regulation or rule or
any decree, judgment, permit or order applicable to the Manager except, in the
case of clauses (B) and (C) only, for such conflicts, breaches or
defaults that could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(v) No
approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority
or agency is required for the execution, delivery and performance by the Manager
of this Agreement, the consummation by the Manager of the transactions
contemplated hereby, or the issuance, sale and delivery of the Offered
Securities by the Company as contemplated hereby, except such as have been
obtained and made, or as may be required, under the Securities Act, under the
rules and regulations of FINRA, and such as may be required under state or
foreign securities laws.
(vi) The
Manager has all necessary licenses, authorizations, consents and approvals and
has made all necessary filings required under any federal, state, local or
foreign law, regulation or rule, and has obtained all necessary licenses,
authorizations, consents and approvals from other persons, required in order to
conduct its business as it is being conducted at this time, and will obtain all
necessary licenses, authorizations, consents and approvals and make all
necessary filings required under any federal, state, local or foreign law,
regulation or rule, and will obtain all necessary licenses, authorizations,
consents and approvals from other persons, required in order to conduct its
business as it is proposed to be conducted as described in the General
Disclosure Package and the Prospectus except, in each case, where the failure to
obtain any such license, authorization, consent or approval could not reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect; the Manager is not in violation of, or in default under, any of its
obligations under any such license, authorization, consent or approval of any
federal, state, local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Manager except where such violation or default could
not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(vii) No
labor dispute with the employees of the Manager exists or, to the knowledge of
the Manager, is imminent and the Manager is not aware of any existing or
imminent labor disturbance by the employees of any of its principal suppliers,
contractors or customers that, in any such case, might have a Material Adverse
Effect.
(viii) There
are no actions, suits, proceedings, inquiries or investigations pending or, to
the knowledge of the Manager, threatened against the Manager or any
of
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its
respective assets, and to the knowledge of the Manager, its respective
directors, officers or employees, at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory commission, board,
body, arbitration panel, authority or agency the adverse outcome of which could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(ix) Since
the date of the Prospectus, there has not been any event, circumstance or change
that could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(x) The
Manager and its subsidiaries, in the aggregate, carry or are covered by
insurance (issued by insurers of recognized financial responsibility to the best
knowledge of the Manager) against such losses and risks and in such amounts
as are generally deemed adequate for the respective businesses in which they are
engaged; neither the Manager nor any of its subsidiaries has been refused any
insurance coverage sought or applied for; and neither the Manager nor any of its
subsidiaries has any reason to believe that the Manager or its subsidiaries
would 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 business at a cost that would not, individually or in
the aggregate have a Material Adverse Effect, except as described in or
contemplated by the General Disclosure Package and the
Prospectus. All such insurance is fully in force on the date hereof
and will be fully in force at the First Closing Date and any Optional Closing
Date.
(xi) Neither
the Manager, nor, to the knowledge of the Manager, any director, officer, agent,
employee or other person associated with or acting on behalf of the Manager has
(i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee, or other person charged with similar
public or quasi-public duties from corporate funds; (iii) violated or is in
violation of any provision of the FCPA; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment; and the Manager
and, to the knowledge of the Manager, its affiliates have conducted their
businesses in compliance in all material respects with the FCPA and have
instituted and maintain policies and procedures designed to ensure, and which
are reasonably expected to continue to ensure, continued compliance
therewith.
(xii) This
Agreement has been duly authorized, executed and delivered by the Manager and,
assuming due authorization, execution and delivery of this Agreement by the
Underwriters, is a legal, valid and binding agreement of the Manager,
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity, and except to
the extent that the indemnification provisions hereof may be limited by federal
or state securities laws and public policy considerations in respect thereof;
the Management Agreement has been duly authorized, executed and delivered by the
Manager and, assuming due authorization, execution and delivery by such other
parties, constitutes a legal, valid and binding agreement of the Manager
enforceable against the Manager in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and by general principles of equity, and
except to the extent
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that the
indemnification provisions thereof may be limited by federal or state securities
laws and public policy considerations in respect thereof.
(xiii) The
Manager is not prohibited by the Investment Advisers Act of 1940, as amended, or
the rules and regulations thereunder, from performing its obligations under the
Management Agreement as described in the Registration Statement, the General
Disclosure Package and the Prospectus.
3. Purchase,
Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $4.96125 per share, the amount of Firm
Securities set forth opposite the name of such Underwriter in Schedule A
hereto.
The
Company will deliver the Firm Securities to the Underwriters, against payment of
the purchase price in Federal (same day) funds by wire transfer to accounts
specified by the Company, at the office of ▇▇▇▇▇▇▇▇ Chance US LLP, ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 A.M. (New York time) on May 25, 2010, or at
such other time not later than three full business days thereafter as the
Representatives and the Company determine, such time being herein referred to as
the "First
Closing Date." For purposes of Rule 15c6-1 under the
Exchange Act, the First Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds and
delivery of securities for all the Offered Securities sold pursuant to the
offering. The Firm Securities so to be delivered will be in such
denominations and registered in such names as the Representatives
request. The Firm Securities will be delivered through the book-entry
facilities of The Depository Trust Company ("DTC"),
unless the Representatives shall otherwise instruct.
In
addition, upon written notice from the Representatives given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities provided
that the purchase price for any Optional Securities shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Firm Securities but not payable on such Optional
Securities. The Company agrees to sell to the Underwriters the number
of Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such
Optional Securities shall be purchased from the Company for the account of each
Underwriter in the same proportion as the number of Firm Securities set forth
opposite such Underwriter's name bears to the total number of Firm Securities
(subject to adjustment by the Representatives to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless
the Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by the Representatives to the Company.
Each time
for the delivery of and payment for the Optional Securities, being herein
referred to as an "Optional
Closing Date", which may be the First Closing Date (the First Closing
Date and each Optional Closing Date, if any, being sometimes referred to as a
"Closing
Date"), shall be determined by the Representatives but shall be not later
than five full
business days after written notice of election to purchase Optional Securities
is given. The Company will deliver the Optional Securities being
purchased on each Optional Closing Date to the Representatives for the accounts
of the several Underwriters, against payment of the purchase price therefor in
Federal (same day) funds by wire transfer to an account specified by the
Company, at the above office of ▇▇▇▇▇▇▇▇ Chance US LLP. The
certificates for the
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Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as the Representatives
request upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the above office of ▇▇▇▇▇▇▇▇ Chance
US LLP at a reasonable time in advance of such Optional Closing
Date.
4. Offering
by the Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain
Agreements of the Company and the Manager. The Company and the Manager,
for so long as the Manager is the manager under the Management Agreement, hereby
jointly and severally agree with the several Underwriters that:
(a) The
Company will furnish such information as may be required and otherwise to
cooperate in qualifying the Offered Securities for offering and sale under the
securities or blue sky laws of such jurisdictions (both domestic and foreign) as
the Representatives may designate and to maintain such qualifications in effect
as long as requested by the Representatives for the distribution of the Offered
Securities, provided that the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under the laws of
any such jurisdiction (except service of process with respect to the offering
and sale of the Offered Securities).
(b) If,
at the time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement to be declared effective
before the offering of the Offered Securities may commence, the Company will
endeavor to cause such post-effective amendment to become effective as soon as
possible and will advise the Representatives promptly and, if requested by the
Representatives, will confirm such advice in writing, when such post-effective
amendment has become effective.
(c) The
Company will prepare the Prospectus in a form approved by the Underwriters and
file such Prospectus with the Commission pursuant to Rule 424(b) under the
Securities Act not later than 10:00 A.M. (New York time), on the day following
the execution and delivery of this Agreement or on such other day as the parties
may mutually agree and to furnish promptly (and with respect to the initial
delivery of such Prospectus, not later than 10:00 A.M. (New York time) on the
day following the execution and delivery of this Agreement or on such other day
as the parties may mutually agree to the Underwriters copies of the Prospectus
(or of the Prospectus as amended or supplemented) in such quantities and at such
locations as the Underwriters may reasonably request for the purposes
contemplated by the Securities Act Regulations, which Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the version transmitted to the Commission for filing via ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(d) The
Company will furnish a copy of each proposed Free Writing Prospectus to the
Representatives and counsel for the Underwriters and obtain the consent of the
Representatives prior to referring to, using or filing with the Commission any
Free Writing Prospectus pursuant to Rule 433(d) under the Securities
Act.
(e) The
Company will comply with the requirements of Rules 164 and 433 of the Securities
Act Regulations applicable to any Issuer Free Writing Prospectus, including
timely filing with the Commission, legending and record keeping, as
applicable.
(f) The
Company will advise the Representatives immediately, confirming such advice in
writing, of (i) the receipt of any comments from, or any request by, the
Commission for amendments or supplements to the Registration Statement, the
Preliminary Prospectus, the Prospectus or
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any
Issuer Free Writing Prospectus, or for additional information with respect
thereto, (ii) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus, or of the suspension of the qualification of the
Offered Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes and, if
the Commission or any other government agency or authority should issue any such
order, to make every reasonable effort to obtain the lifting or removal of such
order as soon as possible, (iii) any examination pursuant to Section 8(e) of the
Securities Act concerning the Registration Statement, or (iv) if the Company
becomes subject to a proceeding under Section 8A of the Securities Act in
connection with the public offering of Offered Securities contemplated herein,
to advise the Representatives promptly of any proposal to amend or supplement
the Registration Statement, the Preliminary Prospectus, the Prospectus or any
Issuer Free Writing Prospectus and to file no such amendment or supplement to
which the Representatives shall reasonably object in writing.
(g) The
Company will arrange for the qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Representatives designate and will
continue such qualifications in effect so long as required for the
distribution.
(h) The
Company will not offer, sell, contract to sell, pledge or otherwise dispose of
(or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Company or any of its affiliates or any person in privity with the Company),
directly or indirectly, including the filing (or participation in the filing) of
a registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any other
Securities, or any securities convertible into, or exercisable, or exchangeable
for, the Securities, or publicly announce an intention to effect such
transaction, without the prior written consent of the Representatives, for a
period of 60 days after the date of this Agreement (the "Lock-Up
Period"); provided,
however, that the Company may issue and sell the Securities pursuant to
any employee stock option plan, stock ownership plan or dividend reinvestment
plan of the Company in effect as of the date of this Agreement and the Company
may issue the Securities issuable upon the conversion of securities or the
exercise of warrants or options outstanding as of the date of this
Agreement. Notwithstanding the foregoing, if (1) during the last
17 days of the Lock-Up Period, the Company issues earnings results or material
news or a material event relating to the Company occurs or (2) prior to the
expiration of the Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the
Lock-Up Period, the restrictions imposed in this subsection (h) shall continue
to apply until the expiration of the 18-day period beginning on the issuance of
the earnings results or the occurrence of the material news or material
event. The Company will provide the Representatives and each
individual subject to the Lock-Up Period with prior notice of any such
announcement that gives rise to an extension of the Lock-Up Period.
(i) The
Company agrees with the several Underwriters that the Company will pay all
expenses incident to the performance of the Company's obligations under this
Agreement, for any filing fees, taxes and other expenses (including fees and
disbursements of its counsel) in connection with (i) the preparation
of the Preliminary Prospectus and the Prospectus, and any amendments or
supplements thereto, and the printing and furnishing of copies of each thereof
to the Underwriters (including costs of mailing and shipment), (ii) the
preparation, issuance, sale and delivery of the Offered Securities, including
any stock or other transfer taxes or duties payable upon the sale of the Offered
Securities to the Underwriters, (iii) the qualification of the Offered
Securities for offering and sale under state laws and the determination of their
eligibility for investment under state law as aforesaid (including any filing
fees and the reasonable legal fees and filing fees and other disbursements of
counsel for the Underwriters solely
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with
respect to blue sky matters) and the printing and furnishing of copies of
any blue sky surveys or legal investment surveys to the Underwriters and to
dealers, (iv) the filing fee incident to the review by FINRA of the Offered
Securities, (v) the fees and expenses of any transfer agent or registrar
for the Offered Securities, (vi) any travel expenses of the Company's
officers and employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities, including the cost of any aircraft chartered in connection with
attending or hosting such meetings, (vii) expenses incurred for preparing,
printing and distributing any Issuer Free Writing Prospectuses to investors or
prospective investors; (viii) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company and (ix) all other costs and expenses
incident to the performance by the Company of its obligations
hereunder.
(j) The
Company agrees to furnish to the Underwriters for a period of five years
from the First Closing Date (if such reports are not available to the public
electronically on the Commission's website) (i) copies of all annual,
quarterly and current reports of the Company and (ii) such other material
reports and documents of the Company as the Underwriters may reasonably request;
provided, however, that the Company shall have no obligation under clause
(ii) for so long as the Company is subject to Sections 13 or 15(d) of
the Exchange Act.
(k) The
Company's board of directors shall be comprised of a majority of independent
directors, as such term is defined under the rules and regulations of the NYSE
and the Commission, at the First Closing Date.
(l) The
Company and the Manager agree to make all necessary filings required under any
federal, state, local or foreign law, regulation or rule, and obtain and
maintain all necessary licenses, authorizations, consents and approvals from
other persons, required in order to conduct its business as described in the
Prospectus, except when the failure to make a necessary filing or to maintain a
license, authorization, consent or approval could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(m) The
Company will advise the Underwriters promptly of the happening of any event or
development known to the Company within the time during which a Prospectus
relating to the Securities (or in lieu thereof the notice referred to in Rule
173(a) under the Securities Act Regulations) is required to be delivered under
the Securities Act Regulations which, in the judgment of the Company or in the
reasonable opinion of the Representatives or counsel for the Underwriters, (i)
would require the making of any change in the Prospectus or the General
Disclosure Package so that the Prospectus or the General Disclosure Package
would not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, (ii) as a result of which any Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration
Statement relating to the Shares or (iii) if it is necessary at any time to
amend or supplement the Prospectus or the General Disclosure Package to comply
with any law and, during such time, to promptly prepare and furnish to the
Underwriters copies of the proposed amendment or supplement before filing any
such amendment or supplement with the Commission and thereafter promptly furnish
at the Company's own expense to the Underwriters and to dealers, copies in such
quantities and at such locations as the Representatives may from time to time
reasonably request of an appropriate amendment or supplement to the Prospectus
or the General Disclosure Package so that the Prospectus or the General
Disclosure Package as so amended or supplemented will not, in the light of the
circumstances when it (or in lieu thereof the notice referred to in Rule 173(a)
under the Securities Act Regulations) is so delivered, be misleading or, in the
case of any Issuer Free Writing Prospectus, conflict with the
information
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contained
in the Registration Statement, or so that the Prospectus or the General
Disclosure Package will comply with the law.
(n) The
Company will file promptly with the Commission any amendment or supplement to
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
Issuer Free Writing Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission.
(o) Prior
to filing with the Commission any amendment or supplement to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing
Prospectus, the Company will furnish a copy thereof to the Representatives and
counsel for the Underwriters and obtain the consent of the Representatives to
the filing.
(p) The
Company will furnish promptly to the Representatives a signed copy of the
Registration Statement, as initially filed with the Commission, and of all
amendments or supplements thereto (including all exhibits filed therewith or
incorporated by reference therein) and such number of conformed copies of the
foregoing as the Representatives may reasonably request.
(q) The
Company will furnish to the Representatives, not less than two business days
before filing with the Commission, during the period referred to in paragraph
(m) above, a copy of any document proposed to be filed with the Commission
pursuant to Section 13, 14, or 15(d) of the Exchange Act and during the period
of five years hereafter to file all such documents in the manner and within the
time periods required by the Exchange Act and the Exchange Act
Regulations.
(r) The
Company will make generally available to its security holders and to deliver to
the Representatives as soon as practicable, but in any event not later than the
end of the fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement, an earnings statement complying
with the provisions of Section 11(a) of the Securities Act (in form, at the
option of the Company, complying with the provisions of Rule 158 of the
Securities Act Regulations,) covering a period of 12 months beginning after the
effective date of the Registration Statement.
(s) If,
at any time during the 90-day period after the date of the Prospectus, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which, in the reasonable opinion of the Representatives, the market
price of the Common Stock has been or is likely to be materially affected
(regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus) and after written notice from the
Representatives advising the Company to the effect set forth above, to forthwith
prepare, consult with the Representatives concerning the substance of, and
disseminate a press release or other public statement, reasonably satisfactory
to the Representatives, responding to or commenting on such rumor, publication
or event.
(t) The
Company will comply with all of the provisions of any undertakings in the
Registration Statement.
(u) The
Company will use its best efforts to meet the requirements to qualify, for its
taxable year ending December 31, 2010 and thereafter, for taxation as a REIT
under the Code.
(v) The
Company will use its best efforts to effect the listing of the Offered
Securities on the NYSE.
(w) The
Company will apply the net proceeds from the sale of the Offered Securities in
the manner set forth under the caption "Use of Proceeds" in the General
Disclosure Package and
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the
Prospectus and the Company does not intend to use any of the proceeds from the
sale of the Offered Securities hereunder to repay any outstanding debt owed to
any affiliate of any Underwriter.
(x) The
Company will use its commercially reasonable efforts in cooperation with the
Representatives to obtain permission for the Offered Securities to be eligible
for clearance and settlement through DTC.
(y) The
Company will use its best efforts to conduct its affairs in such a manner so as
not to become required to register as an investment company under the 1940
Act.
(z) The
Company will not take, directly or indirectly, any action prohibited by Rule 102
of Regulation M under the Securities Act in connection with the
distribution of the Offered Securities contemplated hereby.
(aa) The
Company has and will maintain a transfer agent and registrar for the Offered
Securities.
6. Free
Writing Prospectuses. (a) The Company represents and
agrees that, unless it obtains the prior consent of the Representatives, and
each Underwriter represents and agrees that, unless it obtains the prior consent
of the Company and the Representatives, it has not made and will not make any
offer relating to the Offered Securities that would constitute an Issuer Free
Writing Prospectus, or that would otherwise constitute a "free writing
prospectus," as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the
Company and the Representatives is hereinafter referred to as a "Permitted
Free Writing Prospectus." The Company represents that it has
treated and agrees that it will treat each Permitted Free Writing Prospectus as
an "issuer free writing prospectus," as defined in Rule 433, and has complied
and will comply with the requirements of Rules 164 and 433 applicable to
any Permitted Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping. The Company
represents that it has satisfied and agrees that it will satisfy the conditions
in Rule 433 to avoid a requirement to file with the Commission any electronic
road show.
7. Conditions
of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Firm Securities on the First
Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties of the Company and the Manager herein (as though made on such Closing
Date), to the accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company and the Manager of
their obligations hereunder and to the following additional conditions
precedent:
(a) The
Representatives shall have received a letter, dated as of the date of this
Agreement, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in form and substance reasonably satisfactory
to the Representatives, confirming that they are an independent registered
public accounting firm within the meaning of the Securities Act and the
applicable Securities Act Regulations and the rules and regulations of the PCAOB
and containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement, the General Disclosure Package, the Prospectus and each Issuer Free
Writing Prospectus (other than any Issuer Free Writing Prospectus that is an
"electronic road show," as defined in Rule 433(h)).
(b) The
Prospectus shall have been filed with the Commission in accordance with the
Securities Act Regulations and Section 5(c) of this
Agreement.
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(c) Prior
to such Closing Date (i) no stop order suspending the effectiveness of the
Registration Statement or any order preventing or suspending the use of the
Prospectus or any document in the General Disclosure Package shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, shall be contemplated by the
Commission nor shall there be any suspension of the qualification of the Offered
Securities for sale in any jurisdiction or institution or threatening of any
proceeding for such purpose and (ii) all requests for additional information on
the part of the Commission shall have been complied with to the reasonable
satisfaction of the Representatives.
(d) Subsequent
to the execution and delivery of this Agreement there shall not have occurred
(i) any change, or any development or event involving a prospective change, in
the condition (financial or other), business, earnings, properties, results of
operations (as described in the Prospectus), assets or prospects of the Company
and the Subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including the Representatives, is
material and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the Offered
Securities; (ii) any downgrading in the rating of any debt securities or
preferred stock of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred stock of
the Company (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(iii) any change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in the
judgment of a majority in interest of the Underwriters including the
Representatives, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on the NYSE
or The Nasdaq Global Select Market, or any setting of minimum prices for trading
on such exchange; (v) any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (vi) any banking
moratorium declared by U.S. Federal or New York authorities; (vii) any
major disruption of settlements of securities or clearance services in the
United States or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any declaration of
war by Congress or any other national or international calamity or emergency if,
in the judgment of the Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(e) The
Representatives shall have received an opinion, dated such Closing Date, of
Ledgewood, counsel for the Company, in the form reasonably satisfactory to the
Representatives as set forth on Exhibit A hereto. In
rendering such opinion, Ledgewood may rely as to the incorporation of the
Company and all other matters governed by Maryland law upon the opinion of DLA
Piper US LLP.
(f) The
Representatives shall have received an opinion, dated such Closing Date, of DLA
Piper US LLP, special Maryland counsel for the Company, in the form reasonably
satisfactory to the Representatives as set forth on Exhibit B
hereto.
(g) The
Representatives shall have received a tax opinion, dated such Closing Date, of
Ledgewood, counsel for the Company, in the form reasonably satisfactory to the
Representatives as set forth on Exhibit C hereto.
(h) The
Representatives shall have received from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the
Underwriters, such opinion or opinions, dated such Closing Date, with respect to
the incorporation of the Company, the validity of the Offered Securities
delivered on such Closing Date, the Registration Statements, the General
Disclosure Package and the Prospectus and other related matters as the
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Representatives may require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling them
to pass upon such matters. In rendering such opinion, ▇▇▇▇▇▇▇▇ Chance
US LLP may rely as to the incorporation of the Company and all other matters
governed by Maryland law upon the opinion of DLA Piper US LLP referred to
above.
(i) The
Representatives shall have received a certificate, dated such Closing Date, of
the Chief Executive Officer or President and a principal financial or accounting
officer of the Company in which such officers, to the best of their knowledge
after reasonable investigation, shall state that (i) the representations
and warranties of the Company and the Manager in this Agreement are true and
correct; (ii) the Company and the Manager have complied with all agreements
and satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to such Closing Date; (iii) no stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment
thereto and no order directed at any document incorporated by reference therein
has been issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and (iv) subsequent to the respective dates
of the most recent financial statements in the General Disclosure Package, there
has been no Material Adverse Effect except as set forth in the General
Disclosure Package and the Prospectus or as described in such
certificate. In addition to the matters set forth in this subsection
(i), the certificate shall also address certain matters, representations,
warranties, covenants agreements and conditions addressed in this Agreement or
as may be reasonably requested.
(j) The
Representatives shall have received a letter, dated such Closing Date, of ▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will be a
date not more than three days prior to such Closing Date for the purposes of
this subsection.
(k) On
or prior to the date of this Agreement, the Representatives shall have received
lock-up letters in substantially the form attached hereto as Exhibit D
(the "Lock-Up
Agreements") from each of the executive officers and directors of the
Company, members of the Company's investment committee, the Manager, and
Resource America.
(l) FINRA
shall have confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and
arrangements.
(m) The
Offered Securities shall have been approved for listing on the NYSE, subject
only to official notice of issuance.
(n) The
Company shall have furnished to the Representatives at the First Closing Date
and each Optional Closing Date (if any) such further customary information,
opinions, certificates, letters and documents as the Representatives may
reasonably request.
The
Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Representatives may in their sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
If any of
the conditions specified in this Section 7 shall not have been fulfilled when
and as provided in this Agreement, or if any of the opinions and certificates
mentioned hereof or elsewhere in this Agreement shall not be reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled
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at, or
any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
8. Indemnification
and Contribution. a) The Company and the Manager,
jointly and severally, will indemnify and hold harmless each Underwriter, its
partners, members, directors, officers and its affiliates and each person, if
any who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any breach of any of the representations and warranties of the
Company or the Manager contained herein or any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement
(or any amendment or part thereof), any Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein (with respect to the Prospectus only, in light of the
circumstances under which they were made) not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company and the Manager will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below.
(b) Each
Underwriter will severally and not jointly indemnify and hold harmless the
Company and the Manager, and their directors and officers and each person, if
any, who controls the Company and the Manager within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, against
any losses, claims, damages or liabilities to which the Company or the Manager
may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
(or any amendment or part thereof), any Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and the Manager in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each Underwriter: the information
contained in the third paragraph under the caption "Underwriting."
(c) Promptly
after receipt by an indemnified party under this Section of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under subsection (a) or
(b) above, notify the indemnifying party of the commencement thereof; but
the failure to notify the indemnifying party shall not relieve it from any
liability that it may have under subsection (a) or (b) above except to the
extent that it has been materially prejudiced by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from
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any
liability that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought
against any indemnified party and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section, as the case may be, for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
(i) includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an indemnified
party.
(d) If
the indemnification provided for in this Section is unavailable or insufficient
to hold harmless an indemnified party under subsection (a) or (b) above,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. 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 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. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Underwriters, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The
obligations of the Company and the Manager under this Section shall be in
addition to any liability which the Company and the Manager may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Securities Act; and the
obligations of the Underwriters under this Section shall be in addition to any
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liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company, to each officer of
the Company who has signed a Registration Statement and to each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act.
9. Default
of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
Closing Date or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date,
the Representatives may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing
Date. If any Underwriter or Underwriters so default and the aggregate
number of shares of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to the Representatives and the Company for
the purchase of such Offered Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Company, except as provided in
Section 10 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein will relieve a defaulting Underwriter
from liability for its default.
10. Survival
of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers, of the Manager and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company, the Manager or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to
Section 9 or if for any reason the purchase of the Offered Securities by
the Underwriters is not consummated, the Company shall remain responsible for
the expenses to be paid or reimbursed by them pursuant to
Section 5(i) and the respective obligations of the Company and the
Underwriters pursuant to Section 8 shall remain in effect, and if any
Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated as a result of the failure of any condition
specified in Section 7 hereof, the Company will reimburse the Underwriters
for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
11. Notices. All
communications hereunder will be in writing and, if sent to the Underwriters,
will be mailed, delivered or telegraphed and confirmed to Deutsche Bank
Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention:
Equity Capital Markets Syndicate Desk (fax: (▇▇▇) ▇▇▇-▇▇▇▇) with a
copy to the General Counsel (fax: (▇▇▇) ▇▇▇-▇▇▇▇) and ▇.▇. ▇▇▇▇▇▇
Securities Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(fax: (▇▇▇) ▇▇▇ ▇▇▇▇); Attention Equity Syndicate Desk,
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇; provided, however, that any notice to an Underwriter pursuant to
Section 8 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
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12. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
13. Absence
of Fiduciary Relationship. The
Company acknowledges and agrees that:
(a) the
Underwriters have been retained solely to act as underwriters in connection with
the sale of the Offered Securities and that no fiduciary, advisory or agency
relationship between the Company and the Underwriters has been created in
respect of any of the transactions contemplated by this Agreement or the
Prospectus, irrespective of whether the Underwriters have advised or are
advising the Company on other matters;
(b) the
price of the Offered Securities set forth in this Agreement was established by
the Company following discussions and arms-length negotiations with the
Underwriters and the Company is capable of evaluating and understanding and
understand and accept the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c) the
Company has been advised that the Underwriters and their affiliates are engaged
in a broad range of transactions which may involve interests that differ from
those of the Company and that the Underwriters have no obligation to disclose
such interests and transactions to the Company by virtue of any fiduciary,
advisory or agency relationship; and
(d) the
Company waives, to the fullest extent permitted by law, any claims the Company
may have against the Underwriters, for breach of fiduciary duty or alleged
breach of fiduciary duty and agree that the Underwriters shall have no liability
(whether direct or indirect) to the Company in respect of such a fiduciary
duty claim or to any person asserting a fiduciary duty claim on behalf of or in
right of the Company, including stockholders, employees or creditors of the
Company.
14. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
15. Applicable Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York, without regard to principles of conflicts of
laws.
The
Company hereby submits to the non-exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
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If the
foregoing is in accordance with the Representatives' understanding of our
agreement, kindly sign and return to the Company and the Manager, one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company and the several Underwriters in accordance with its terms.
Very
truly yours,
|
|
By:
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Title: Senior
Vice President
|
|
|
and
Chief Financial Officer
|
RESOURCE
CAPITAL MANAGER, INC.
|
|
By:
|
|
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
|
Title: Chief
Legal Officer and Secretary
|
Signature
Page to the Underwriting Agreement
The
foregoing Underwriting Agreement is hereby confirmed and accepted as of the date
first above written.
DEUTSCHE
BANK SECURITIES INC.
|
By:
|
|
|
Authorized Signatory |
|
By:
|
|
|
Authorized Signatory |
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
|
By:
|
|
|
Authorized Signatory |
For
themselves and as Representatives of the Underwriters named in Schedule
A hereto.
SCHEDULE
A
|
Underwriter
|
Number
of Firm Securities to be Purchased
|
|||
|
Deutsche
Bank Securities
Inc.
|
3,000,000 | |||
|
▇.▇.
▇▇▇▇▇▇ Securities
Inc.
|
3,000,000 | |||
|
FBR
Capital Markets &
Co.
|
750,000 | |||
|
JMP
Securities
LLC
|
750,000 | |||
|
Total
|
7,500,000 | |||
Sch.
A
SCHEDULE
B
Pricing
Information
Offering
size: 7,500,000
shares (or 8,625,000 shares if the Underwriters exercise theiroption
to purchase the Optional Securities)
Price per
share: $5.25
Sch.
B