Exhibit 1.1
NEWCASTLE INVESTMENT CORP.
Common Stock, Warrants to Purchase Common Stock, Preferred Stock
and Depositary Shares
UNDERWRITING AGREEMENT
----------------------
January 17, 2007
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Newcastle Investment Corp., a corporation organized and existing under
the laws of Maryland (the "Company"), proposes to issue and sell shares of
Common Stock, $.01 par value per share (the "Common Stock"), or warrants to
purchase a number of shares of Common Stock (the "Common Stock Warrants"), or
both, or shares of Preferred Stock, $.01 par value per share (the "Preferred
Shares"), from time to time, in one or more offerings on terms to be determined
at the time of sale. The Preferred Shares may be offered in the form of
depositary shares (the "Depositary Shares") represented by depositary receipts
(the "Depositary Receipts"). The Common Stock Warrants will be issued pursuant
to a Common Stock Warrant Agreement (the "Warrant Agreement") between the
Company and a warrant agent (the "Warrant Agent"). Each series of Preferred
Shares may vary as to the specific number of shares, title, stated value,
liquidation preference, issuance price, ranking, dividend rate or rates (or
method of calculation), dividend payment dates, any redemption or sinking fund
requirements, any conversion provisions and any other variable terms as set
forth in the applicable articles supplementary (each, the "Articles
Supplementary") relating to such Preferred Shares. As used herein, "Securities"
shall mean the Common Stock, the Common Stock Warrants, the Preferred Shares,
the Depositary Shares and the Depositary Receipts; and "Warrant Securities"
shall mean the Common Stock issuable upon exercise of Common Stock Warrants. As
used herein, "you" and "your," unless the context otherwise requires, shall
mean the parties to whom this Agreement is addressed together with the other
parties, if any, identified in the applicable Terms Agreement (as hereinafter
defined) as additional co-managers with respect to Underwritten Securities (as
hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you
as have authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters," which term shall include you whether acting alone in the sale
of the Underwritten Securities or as a member of an underwriting syndicate and
any Underwriter substituted pursuant to Section 9 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify the number of
Underwritten Securities of each class or series to be initially issued,
including the number of Common Stock Warrants, if any (the "Initial
Underwritten Securities"), whether the Initial Underwritten Securities shall be
in the form of Depositary Shares and the fractional amount of Preferred Shares
represented by each Depositary Share, the names of the Underwriters
participating in such offering (subject to substitution as provided in Section
9 hereof), the number of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, the names of such of you or such
other Underwriters acting as co-managers, if any, in connection with such
offering, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters from the Company, any initial public offering
price, the time, date and place of delivery and payment, any delayed delivery
arrangements and any other variable terms of the Initial Underwritten
Securities (including, but not limited to, current ratings (in the case of
Preferred Shares and Depositary Shares only), designations, liquidation
preferences, conversion provisions, redemption provisions and sinking fund
requirements and the terms of the Warrant Securities and the terms, prices and
dates upon which such Warrant Securities may be purchased). In addition, each
Terms Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Underwritten Securities to cover
over-allotments, if any, and the number of Underwritten Securities subject to
such option (the "Option Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of the Option Securities agreed to be purchased by the Underwriters as
provided herein, if any. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written communication between you and the Company. Each offering of
Underwritten Securities through you or through an underwriting syndicate
managed by you will be governed by this Agreement, as supplemented by the
applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-109597), including
the related preliminary prospectus or prospectuses, for the registration of up
to $750,000,000 of the Securities and Warrant Securities and debt securities of
the Company, under the Securities Act of 1933, as amended (the "1933 Act"), and
pre-effective amendment no. 1 thereto, and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"). Such registration statement
was declared effective by the Commission on November 3, 2003. In connection
with the execution and delivery of the applicable Terms Agreement, the Company
will prepare and file with the Commission a prospectus supplement relating to
the Underwritten Securities in accordance with the provisions of Rule 430B
("Rule 430B") of the 1933 Act Regulations and paragraph (b) of Rule 424 ("Rule
424(b)") (without reliance on Rule 424(b)(8)) of the 1933 Act Regulations. Any
information included in such prospectus supplement that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of and included in such registration statement pursuant to Rule 430B is
referred to as "Rule 430B Information." Each prospectus used in connection with
the offering of the Underwritten Securities omitting Rule 430B Information is
herein called a "preliminary prospectus." Such registration statement, at each
time of effectiveness under the 1933 Act and the 1933 Act Regulations prior to
the execution of the applicable Terms Agreement, including the amendments
thereto to such time, the exhibits and any schedules thereto at such time, the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act at such time and the documents otherwise deemed to be a part
thereof or included or incorporated therein by the 1933 Act Regulations, is
herein called the "Registration Statement"; provided, however, that the term
"Registration Statement" shall be deemed to include information contained in
the final prospectus supplement relating to the Underwritten Securities that is
retroactively deemed to be a part of such registration statement (as amended)
as of the time specified in Rule 430B of the 1933 Act Regulations. The
prospectus included in the Registration Statement, as supplemented by the final
prospectus supplement relating to the Underwritten Securities in the form first
furnished or made available to the Underwriters for use in connection with an
offering of the Underwritten Securities, including the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at the
time of the execution of the applicable Terms Agreement, is herein called the
"Prospectus." All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any 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, any
preliminary prospectus or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to mean
and include the filing of any document under the Securities Exchange Act of
1934, as amended (the "1934 Act"), which is or is deemed to be incorporated by
reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be, after the most recent effective date prior to
the execution of the applicable Terms Agreement, in the case of the
Registration Statement, or the respective issue dates in the case of the
Prospectus and any preliminary prospectus. If the Company files a registration
statement to register a portion of the Securities and Warrant Securities and
relies on Rule 462(b) for such registration statement to become effective upon
filing with the Commission (the "Rule 462 Registration Statement"), then any
reference to "Registration Statement" herein shall be deemed to be to both the
registration statement referred to above (No. 333-109597) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the 1933 Act. All references in this Agreement to the Registration
Statement, the Rule 462(b) Registration Statement, any preliminary prospectus
or the Prospectus, or any amendments or supplements to any of the foregoing,
shall be deemed to include any copy thereof filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval System ("▇▇▇▇▇").
The Company and Fortress Investment Group LLC, a limited liability
company organized and existing under the laws of Delaware and the manager of
the Company (the "Manager"), each confirms as follows its agreements with you.
1. Representations and Warranties.
(a) Representations and Warranties of the Company. The Company
represents and warrants to you, as of the date hereof, and to you and each
Underwriter named in the applicable Terms Agreement, as of the date thereof,
the Applicable Time (as hereinafter defined), the Closing Time (as hereinafter
defined) and each Date of Delivery, if any (as hereinafter defined) (in each
case, a "Representation Date"), as follows:
(i) The Company meets the requirements for use of Form S-3 under the
1933 Act. The Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration Statement or
any part thereof has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission or by the state securities
authority of any jurisdiction, and any request on the part of the Commission
for additional information has been complied with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at each deemed effective
date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933
Act Regulations, the Registration Statement and any amendments and supplements
thereto complied, complies and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and 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. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment or
supplement was first used, at the Closing Time and at any Date of Delivery
included, includes or will include an untrue statement of a material fact or
omitted, omits or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
Any preliminary prospectus (including the prospectus filed as part of
the Registration Statement or any amendment thereto) complied when filed with
the Commission in all material respects with the 1933 Act and the 1933 Act
Regulations and any such preliminary prospectus and the Prospectus delivered or
made available to the Underwriters for use in connection with the offering of
Underwritten Securities was and will, at the time of such delivery, be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
As of the Applicable Time, any Issuer Free Writing Prospectus (as
defined below) issued at or prior to the Applicable Time and the Statutory
Prospectus (as defined below), all considered together (collectively, the
"General Disclosure Package"), did not or will not, as the case may be, include
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.
The representations and warranties in the preceding three paragraphs
shall not apply to statements in or omissions from the Registration Statement
or any post-effective amendment thereto or the Prospectus or any amendments or
supplements thereto, or the General Disclosure Package, made in reliance upon
and in conformity with information furnished to the Company in writing by or on
behalf of any Underwriter through you expressly for use in the Registration
Statement or any post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, or the General Disclosure Package.
As used in this subsection and elsewhere in this Agreement:
"Applicable Time" shall have the meaning set forth in the applicable
Terms Agreement with respect to the Underwritten Securities specified therein.
"Issuer Free Writing Prospectus" means any "issuer free writing
prospectus," as defined in Rule 433 of the 1933 Act Regulations ("Rule 433"),
relating to any particular issuance of Underwritten Securities (including any
identified on Schedule I to the applicable Terms Agreement) that (i) is
required to be filed with the Commission by the Company, (ii) is a "road show
that is a written communication" within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission or (iii) is exempt from
filing pursuant to Rule 433(d)(5)(i) because it contains a description of the
Underwritten Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the
Company's records pursuant to Rule 433(g).
"Statutory Prospectus" as of any time means the prospectus that is
included in the Registration Statement immediately prior to that time and the
preliminary prospectus supplement relating to a particular issuance of
Underwritten Securities set forth in the applicable Terms Agreement, including
the documents incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof.
(ii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act Regulations"),
and, when read together with the other information in the Prospectus, (a) at
the time the Registration Statement became effective, (b) at the earlier of the
time the Prospectus was first used and the date and time of the first contract
of sale of the Securities in this offering and (c) as of the applicable
Representation Date or during the period specified in Section 3(a)(vi), did not
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) As of the date of the execution and delivery of the applicable
Terms Agreement (with such date being used as the determination date for
purposes of this clause), the Company was not and is not an Ineligible Issuer
(as defined in Rule 405 of the 1933 Act Regulations), without taking account of
any determination by the Commission pursuant to Rule 405 of the 1933 Act
Regulations that it is not necessary that the Company be considered an
Ineligible Issuer.
(iv) Each Issuer Free Writing Prospectus identified on Schedule I to
the applicable Terms Agreement, as of its date of first use and at all
subsequent times through the completion of the public offer and sale of the
Underwritten Securities or until any earlier date that the Company notified or
notifies the Underwriters as described in Section 3(a)(vi), did not, does not
and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference therein and any
preliminary or other prospectus deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to statements in
or omissions from any such Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through you specifically for use therein.
(v) Ernst & Young LLP, the accountants who have certified the
financial statements included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, are independent
registered public accountants as required by the 1933 Act, the 1933 Act
Regulations and the Public Company Accounting Oversight Board (United States).
(vi) Subsequent to the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the
Prospectus (excluding any documents incorporated therein by reference pursuant
to the 1934 Act after the execution of the applicable Terms Agreement), except
as set forth in the Registration Statement, the General Disclosure Package and
the Prospectus, there has been no material adverse change or any development
involving a prospective material adverse change in the business, properties,
operations, condition (financial or other) or results of operations of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business and since the date of the
latest balance sheet presented or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, neither the
Company nor any of its subsidiaries has incurred or undertaken any liabilities
or obligations, direct or contingent, which are material to the Company and its
subsidiaries taken as a whole, except for liabilities or obligations which are
reflected in or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus (excluding any documents
incorporated therein by reference pursuant to the 1934 Act after the execution
of the applicable Terms Agreement).
(vii) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and, if applicable, the deposit of the Preferred
Shares in accordance with the provisions of a Deposit Agreement (each, a
"Deposit Agreement"), among the Company, the financial institution named in the
Deposit Agreement (the "Depositary") and the holders of the Depositary Receipts
issued thereunder, have, as of each Representation Date, been duly authorized
by the Company and such Underwritten Securities have been duly authorized for
issuance and sale pursuant to this Agreement and such Underwritten Securities,
when issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth in the applicable Terms Agreement or any
Delayed Delivery Contract (as hereinafter defined), will be validly issued,
fully paid and non-assessable and will not be subject to preemptive or other
similar rights; the Preferred Shares, if applicable, conform to the provisions
of the Articles Supplementary; and the Underwritten Securities being sold
pursuant to the applicable Terms Agreement conform in all material respects to
all statements relating thereto contained in the General Disclosure Package and
the Prospectus.
(viii) If applicable, the Common Stock Warrants have been duly
authorized and, when issued and delivered pursuant to this Agreement and
countersigned by the Warrant Agent as provided in the Warrant Agreement, will
have been duly executed, countersigned, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Warrant Agreement under which they are to be issued;
the issuance of the Warrant Securities upon exercise of the Common Stock
Warrants will not be subject to preemptive or other similar rights; and the
Common Stock Warrants conform in all material respects to all statements
relating thereto contained in the General Disclosure Package and the
Prospectus.
(ix) If applicable, the shares of Common Stock issuable upon
conversion of any of the Preferred Shares or the Depositary Shares, or the
Warrant Securities, will have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary corporate action and
such shares, when issued upon such conversion or exercise, will be duly and
validly issued and will be fully paid and non-assessable, and the issuance of
such shares upon such conversion or exercise will not be subject to preemptive
or other similar rights; the shares of Common Stock issuable upon conversion of
any of the Preferred Shares or the Depositary Shares, or the Warrant
Securities, conform in all material respects to the descriptions thereof in the
General Disclosure Package and the Prospectus.
(x) The applicable Warrant Agreement, if any, and the applicable
Deposit Agreement, if any, will have been duly authorized, executed and
delivered by the Company prior to the issuance of any applicable Underwritten
Securities, and each constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in equity or
at law); and the Warrant Agreement, if any, and the Deposit Agreement, if any,
each conforms in all material respects to all statements relating thereto
contained in the General Disclosure Package and the Prospectus.
(xi) If applicable, upon execution and delivery of the Depositary
Receipts pursuant to the terms of the Deposit Agreement, the persons in whose
names such Depositary Receipts are registered will be entitled to the rights
specified therein and in the Deposit Agreement, except as enforcement of such
rights may be limited by bankruptcy, insolvency or other similar laws relating
to or affecting creditors' rights generally and by general equity principles
(regardless of whether enforcement is considered in a proceeding in equity or
at law).
(xii) The amended and restated management and advisory agreement (the
"Management Agreement"), dated as of June 23, 2003, between the Company and the
Manager has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company enforceable in
accordance with its terms, except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other laws affecting
enforcement of creditors' rights or by general equitable principles.
(xiii) The execution, delivery, and performance of this Agreement, the
applicable Terms Agreement, any Warrant Agreement or any Deposit Agreement and
the consummation of the transactions contemplated hereby and thereby do not and
will not (i) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, any indenture, mortgage,
deed of trust, loan agreement or other agreement, instrument, franchise,
license or permit to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or their respective properties
or assets may be bound and which is material to the business of the Company and
its subsidiaries taken as a whole or (ii) violate or conflict with any
provision of the charter, by-laws, limited liability company agreement or
partnership agreement, as the case may be, of the Company or any of the
subsidiaries listed on Schedule I hereto (the "Subsidiaries") or any judgment,
decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of the Subsidiaries or any of their respective properties or assets. The
Company has no other significant subsidiaries (as such term is defined in Rule
1-02 of Regulation S-X) that are not set forth on Schedule I hereto. No
consent, approval, authorization, order, registration, filing, qualification,
license or permit of or with any court or any public, governmental or
regulatory agency or body having jurisdiction over the Company or any of the
Subsidiaries or any of their respective properties or assets is required for
the execution, delivery and performance of this Agreement, the applicable Terms
Agreement, any Warrant Agreement or any Deposit Agreement, or the consummation
of the transactions contemplated hereby or thereby, by the Registration
Statement, the General Disclosure Package and the Prospectus, including the
issuance, sale and delivery of the Underwritten Securities to be issued, sold
and delivered by the Company pursuant to the applicable Terms Agreement, any
Warrant Agreement or any Deposit Agreement, except the registration under the
1933 Act of the Underwritten Securities and such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses and
permits as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Underwritten Securities by
you.
(xiv) The authorized, issued and outstanding stock of the Company is
as set forth in the Statutory Prospectus and the Prospectus under
"Capitalization" or in the latest balance sheet incorporated by reference
therein (except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans, dividend reinvestment plans, employee and
director stock option plans or the exercise of convertible securities referred
to in the Registration Statement, the General Disclosure Package and the
Prospectus), and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable
and were not issued in violation of or subject to any preemptive or similar
rights that entitle or will entitle any person to acquire any Underwritten
Securities from the Company upon issuance thereof by the Company, except for
such rights as may have been fully satisfied or waived prior to the
effectiveness of the Registration Statement.
(xv) The Company and each of the Company's subsidiaries has been duly
organized and is validly existing as a corporation, partnership, limited
liability company or real estate investment trust in good standing under the
laws of its respective jurisdiction of organization. Each of the Company and
its subsidiaries is duly qualified to do business and is in good standing as a
foreign corporation, partnership, limited liability company or real estate
investment trust in each jurisdiction in which the character or location of its
properties (owned, leased or licensed) or the nature or conduct of its business
makes such qualification necessary, except for those failures to be so
qualified or in good standing which will not in the aggregate have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or properties of the Company and its subsidiaries taken as
a whole (a "Material Adverse Effect"). Each of the Company and its subsidiaries
has all requisite power and authority, and all necessary consents, approvals,
authorizations, orders, registrations, qualifications, licenses and permits of
and from all public, regulatory or governmental agencies and bodies
(collectively, "Governmental Licenses"), to own, lease and operate their
respective properties and conduct their respective businesses as are now being
conducted and as described in the Registration Statement, the General
Disclosure Package and the Prospectus, except where the failure to possess any
such Governmental Licenses would not in the aggregate have a Material Adverse
Effect; and no such consent, approval, authorization, order, registration,
qualification, license or permit contains a materially burdensome restriction
not adequately disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus.
(xvi) Except as described in the Registration Statement, the General
Disclosure Package and the Prospectus, there is no legal or governmental
proceeding to which the Company or any of its subsidiaries is a party, or any
property of the Company or any of its subsidiaries is the subject which,
singularly or in the aggregate, if determined adversely to the Company or any
of its subsidiaries, are reasonably likely to have a Material Adverse Effect,
and to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened or contemplated by
others.
(xvii) Neither the Company nor any of its affiliates have taken nor
will take, directly or indirectly, any action designed to cause or result in,
or which constitutes or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of Common Stock to
facilitate the sale or resale of the Underwritten Securities.
(xviii) The financial statements, including the notes thereto, and
supporting schedules included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries as of the
dates indicated and condition and results of operations for the periods
specified; except as otherwise stated in the Registration Statement, the
General Disclosure Package and the Prospectus, said financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved; and the
financial statements, including the notes thereto, and supporting schedules
included or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus present fairly the information
required to be stated therein.
(xix) The pro forma financial statements, including the notes thereto,
included or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus have been prepared in accordance
with the applicable requirements of the 1933 Act and the 1933 Act Regulations
with respect to pro forma financial statements and include all adjustments
necessary to present fairly the pro forma financial position of the Company at
the respective dates indicated and the results of operations for the respective
periods specified. The assumptions used in preparing the pro forma financial
statements provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those assumptions, and
the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts. All
historical financial statements and information and all pro forma financial
statements and information required by the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the 1934 Act Regulations are included, or incorporated by
reference, in the Registration Statement, the General Disclosure Package and
the Prospectus. All disclosures contained in the Registration Statement, the
General Disclosure Package or the Prospectus, if any, regarding "non-GAAP
financial measures" (as such term is defined by the rules and regulations of
the Commission) comply with Regulation G under the 1934 Act and Item 10 of
Regulation S-K of the 1933 Act Regulations, to the extent applicable.
(xx) No relationship, direct or indirect, exists between or among any
of the Company or any affiliate of the Company, on the one hand, and any
director, officer, stockholder, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by the 1933 Act,
the 1934 Act, the 1933 Act Regulations and the 1934 Act Regulations to be
described in the Registration Statement, the General Disclosure Package or the
Prospectus which is not so described or is not described as required. There are
no outstanding loans, advances (except normal advances for business expenses in
the ordinary course of business) or guarantees of indebtedness by the Company
to or for the benefit of any of the officers or directors of the Company or any
of their respective family members, except as disclosed or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus.
(xxi) The Company and its Subsidiaries maintain a system of internal
accounting and other controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access
to assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accounting for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xxii) No holder of securities of the Company has any rights to the
registration of securities of the Company because of the filing of the
Registration Statement or otherwise in connection with the sale of the
Underwritten Securities contemplated in the applicable Terms Agreement.
(xxiii) The Company is not, and upon consummation of the transactions
contemplated in this Agreement, the applicable Terms Agreement and in the
Prospectus will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(xxiv) (A) The Company and its subsidiaries have good and marketable
fee simple title or leasehold title, as the case may be, to all real property
owned or leased, as applicable, by the Company or any subsidiary, and good
title to all other properties owned by them (collectively, the "Properties"),
and any improvements thereon and all other assets that are required for the
operation of such properties in the manner in which they currently are
operated, free and clear of all liens, encumbrances, claims, security interests
and defects, except such as are Permitted Encumbrances (as hereinafter
defined); (B) all liens, charges, encumbrances, claims or restrictions on or
affecting any of the Properties and the assets of any of the Company or its
subsidiaries that are required to be disclosed in the Registration Statement,
the General Disclosure Package or the Prospectus are disclosed therein; (C)
each of the Properties complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and regulations
and laws relating to access to the Properties), except if and to the extent
disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus and except for such failures to comply that would not in the
aggregate have a Material Adverse Effect; (D) there are in effect for the
Properties and the assets of each of the Company and its subsidiaries insurance
policies covering the risks and in amounts that are commercially reasonable for
the Properties and the types of assets owned by the Company and its
subsidiaries and that are consistent with the types and amounts of insurance
typically maintained by prudent owners of properties similar to such assets in
the markets in which such assets are located, and neither the Company nor any
of its subsidiaries has received from any insurance company notice of any
material defects or deficiencies affecting the insurability of any such assets
or any notices of cancellation or intent to cancel any such policies; and (E)
neither the Company nor any of its subsidiaries has knowledge of any pending or
threatened litigation, moratorium, condemnation proceedings, zoning change, or
other similar proceeding or action that could in any manner affect the size of,
use of, improvements on, construction on, access to or availability of
utilities or other necessary services to the Properties, except such
proceedings or actions that would not have a Material Adverse Effect. All of
the leases and subleases material to the business of the Company and its
subsidiaries considered as one enterprise, and under which the Company or any
of its subsidiaries holds the Properties, are in full force and effect, and
neither the Company nor any of its subsidiaries has received any notice of any
material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any of its subsidiaries under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the
Company or any of its subsidiaries of the continued possession of the leased or
subleased premises under any such lease or sublease. "Permitted Encumbrance"
shall mean (a) liens on Properties securing any of the Company or any
subsidiaries obligations, (b) other liens which are expressly described in the
Registration Statement, the General Disclosure Package and the Prospectus and
(c) customary easements and encumbrances and other exceptions to title which do
not materially impair the operation, development or use of the Properties for
the purposes intended therefor as contemplated in the Registration Statement,
the General Disclosure Package and the Prospectus.
(xxv) Except as disclosed in the Registration Statement, the General
Disclosure Package and the Prospectus or as would not have a Material Adverse
Effect: (A) each Property, including, without limitation, the Environment (as
defined below) associated with such Property, is free of any Hazardous
Substance (as hereinafter defined) in violation of any Environmental Law (as
defined below) applicable to such Property, except for Hazardous Substances
that would not result in a Material Adverse Effect; (B) neither the Company nor
any of its subsidiaries has during the period of its ownership caused or
suffered to occur any Release (as defined below) of any Hazardous Substance
into the Environment on, in, under or from any Property in violation of any
Environmental Law applicable to such Property, and no condition exists on, in,
under or, to the knowledge of the Company or any of its subsidiaries adjacent
to, any Property that could result in the incurrence of material liabilities or
any material violations of any Environmental Law applicable to such Property,
or give rise to the imposition of any Lien (as hereinafter defined) under any
Environmental Law; (C) neither the Company nor any of its subsidiaries is
engaged in any manufacturing at the Properties that (1) requires the use,
handling, transportation, storage, treatment or disposal of any Hazardous
Substance (other than cleaning solvents and similar materials and other than
insecticides and herbicides that are used in the ordinary course of operating
the Properties and in compliance with all applicable Environmental Laws) or (2)
requires permits or is otherwise regulated pursuant to any Environmental Law;
(D) neither the Company nor any of its subsidiaries has received any notice of
a claim under or pursuant to any Environmental Law applicable to a Property or
under common law pertaining to Hazardous Substances on or originating from any
Property; (E) neither the Company nor any of its subsidiaries has received any
notice from any Governmental Authority (as hereinafter defined) claiming any
violation of any Environmental Law that is uncured or unremediated as of the
date hereof; and (F) no Property is included or, to the knowledge of the
Company or any of its subsidiaries, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as hereinafter defined) by the
United States Environmental Protection Agency (the "EPA") or on the
Comprehensive Environmental Response, Compensation, and Liability Information
System database maintained by the EPA, and has not otherwise been identified by
the EPA as a potential CERCLA removal, remedial or response site or included
or, to the knowledge of the Company or any of its subsidiaries, proposed for
inclusion on, any similar list of potentially contaminated sites pursuant to
any other applicable Environmental Law nor has the Company or any of its
subsidiaries received any written notice from the EPA or any other Governmental
Authority proposing the inclusion of any Property on such list; and (G) there
are no underground storage tanks located on or in any Property which have not
been disclosed to the Underwriters.
As used herein, the term "Hazardous Substance" shall include, without
limitation, any hazardous substance, hazardous waste, toxic or dangerous
substance, pollutant, solid waste or similarly designated materials, including,
without limitation, oil, petroleum or any petroleum-derived substance or waste,
asbestos or asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation or any constituent
of any such substance, pollutant or waste, including any such substance,
pollutant or waste identified or regulated under any Environmental Law
(including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49 C.F.R. ss.
172.101, as heretofore amended, or in the EPA's List of Hazardous Substances
and Reportable Quantities, 40 C.F.R. Part 302, as heretofore amended);
"Environment" shall mean any surface water, drinking water, ground water, land
surface, subsurface strata, river sediment, buildings, structures, and ambient
workplace and indoor air; "Environmental Law" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. ss. 9601 et seq.) ("CERCLA"), the Resource Conservation and Recovery Act
of 1976, as amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as
amended (42 U.S.C. ss. 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. ss. 1251, et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. ss. 2601, et seq.), the Occupational Safety and Health Act of 1970, as
amended (29 U.S.C. ss. 651, et seq.), the Hazardous Materials Transportation
Act, as amended (49 U.S.C. ss. 1801, et seq.), and all other federal, state and
local laws, ordinances, regulations, rules, orders, decisions and permits
relating to the protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any federal, state
or local governmental office, agency or authority having the duty or authority
to promulgate, implement or enforce any Environmental Law; "Lien" shall mean,
with respect to any Property, any mortgage, deed of trust, pledge, security
interest, lien, encumbrance, penalty, fine, charge, assessment, judgment or
other liability in, on or affecting such Property; and "Release" shall mean any
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the abandonment
or discard of barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or previously
containing any Hazardous Substance or any release, emission, discharge or
similar term, as those terms are defined or used in any Environmental Law.
(xxvi) The Company and each of its subsidiaries have accurately
prepared and timely filed all federal, state and other tax returns that are
required to be filed by it and have paid or made provision for the payment of
all taxes, assessments, governmental or other similar charges, including
without limitation, all sales and use taxes and all taxes which such entity is
obligated to withhold from amounts owing to employees, creditors and third
parties, with respect to the periods covered by such tax returns (whether or
not such amounts are shown as due on any tax return), except, in all cases, for
any such amounts that the Company is contesting in good faith and except in any
case in which the failure to so file or pay would not in the aggregate have a
Material Adverse Effect. No deficiency assessment with respect to a proposed
adjustment of the Company's or any of its subsidiaries' federal, state, or
other taxes is pending or, to the best of the Company's knowledge, threatened
which could reasonably be expected in the aggregate to have a Material Adverse
Effect. There is no tax lien, whether imposed by any federal, state, or other
taxing authority, outstanding against the assets, properties or business of the
Company or any of its subsidiaries, other than tax liens for taxes not yet due.
(xxvii) There are no contracts or other documents which are required
to be described in the Registration Statement, the General Disclosure Package
or the Prospectus or to be filed as exhibits thereto which have not been so
described and filed as required.
(xxviii) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter, by-laws, limited liability company agreement,
certificate of limited partnership or partnership agreement, as the case may
be, (ii) is in default under, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of their properties or
assets is subject or (iii) is in violation in any respect of any statute or any
judgment, decree, order, rule or regulation of any court or governmental or
regulatory agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets, except in the case of (ii)
or (iii) above any violation or default that would not have a Material Adverse
Effect.
(xxix) The Company and each of its subsidiaries own or possess
adequate right to use all trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses, know-how and
other intellectual property (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective businesses as being
conducted and as described in the Registration Statement, the General
Disclosure Package and the Prospectus, except where the failure to own or
possess such right would not in the aggregate have a Material Adverse Effect,
and have no reason to believe that the conduct of their respective businesses
will conflict with, and have not received any notice of any claim of conflict
with, any such right of others which claim, if the subject of an unfavorable
decision, ruling or judgment, could in the aggregate reasonably be expected to
result in a Material Adverse Effect.
(xxx) No labor disturbance by the employees of the Company, the
Manager or any of their respective subsidiaries exists or, to the best of the
Company's knowledge, is imminent which might be expected to have a Material
Adverse Effect.
(xxxi) The Company does not have, and does not anticipate incurring
any liabilities under, the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as amended from
time to time (the "Code").
(xxxii) The statistical and market-related data included or
incorporated by reference in the Registration Statement and the Prospectus are
based on or derived from sources which the Company believes to be reliable and
accurate.
(xxxiii) Commencing with its taxable year ended December 31, 2002, the
Company has been and, upon the sale of the Underwritten Securities pursuant to
the applicable Terms Agreement, the Company will continue to be organized and
operated in conformity with, the requirements for qualification and taxation as
a real estate investment trust (a "REIT") under the Code, and the Company's
proposed method of operation as described in the General Disclosure Package and
the Prospectus will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code, and no actions have been
taken (or not taken which are required to be taken) which would cause such
qualification to be lost.
(xxxiv) The Company is in compliance with applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(xxxv) The Company has established and maintains "disclosure controls
and procedures" (as defined in Rules 13a-15(e) and 15d-15(e) under the 1934
Act); the Company's "disclosure controls and procedures" are reasonably
designed to ensure that all information (both financial and non-financial)
required to be disclosed by the Company in the reports that it files or submits
under the 1934 Act is recorded, processed, summarized and reported within the
time periods specified in the 1934 Act Regulations, and that all such
information is accumulated and communicated to the Company's management as
appropriate to allow timely decisions regarding required disclosure and to make
the certifications of the Chief Executive Officer and Chief Financial Officer
of the Company required under the 1934 Act with respect to such reports.
(xxxvi) Since the date of the filing of the Company's Annual Report on
Form 10-K for the year ended December 31, 2005, the Company's auditors and the
audit committee of the Board of Directors of the Company (or persons fulfilling
the equivalent function) have not been advised of (i) any significant
deficiencies in the design or operation of internal controls which could
adversely affect the Company's ability to record, process, summarize and report
financial data nor any material weaknesses in internal controls; (ii) any
fraud, whether or not material, that involves management or other employees who
have a significant role in the Company's internal controls.
(xxxvii) Since the date of the filing of the Company's Annual Report
on Form 10-K for the year ended December 31, 2005, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses.
(xxxviii) Neither the Company nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
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.
(xxxix) The Company acknowledges and agrees that each Underwriter is
acting solely in the capacity of an arm's length contractual counterparty to
the Company with respect to the offering of Underwritten Securities
contemplated hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Company or any other person. Additionally, no Underwriter is advising the
Company or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company shall consult with its own
advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated
hereby, and no Underwriter shall have any responsibility or liability to the
Company with respect thereto. Any review by an Underwriter of the Company, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of such Underwriter and shall not be
on behalf of the Company.
(b) Representations and Warranties of the Manager. The Manager
represents and warrants to you, as of the date hereof, and to you and each
Underwriter named in the applicable Terms Agreement, as of each Representation
Date as follows:
(i) The information concerning the Manager and its affiliates (other
than the Company and its subsidiaries) included or incorporated by reference in
the Registration Statement, the General Disclosure Package and the Prospectus
is true and correct in all material respects.
(ii) The Manager has been duly organized and is validly existing as a
limited liability company and is in good standing under the laws of Delaware.
The Manager is duly qualified to do business and is in good standing as a
foreign limited liability company in each jurisdiction in which the character
or location of its properties (owned, leased or licensed) or the nature or
conduct of its business makes such qualification necessary, except for those
failures to be so qualified or in good standing which will not in the aggregate
have a Material Adverse Effect. The Manager has all requisite power and
authority, and all necessary Governmental Licenses, to own, lease and operate
its properties and conduct its business as it is now being conducted, except
where the failure to possess such Governmental Licenses will not in the
aggregate have a Material Adverse Effect, and no such consent, approval,
authorization, order, registration, qualification, license or permit contains a
materially burdensome restriction not adequately disclosed or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus.
(iii) This Agreement, the related Terms Agreement and the Management
Agreement have each been duly and validly authorized, executed and delivered by
the Manager. The Management Agreement constitutes a valid and binding agreement
of the Manager, enforceable in accordance with its terms, except to the extent
that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other laws affecting enforcement of creditors' rights or by
general equitable principles.
(iv) The Manager is not (i) in violation of its charter or limited
liability company agreement or (ii) in default under, and no event has occurred
which, with notice or lapse of time or both, would constitute such a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon, any property or assets of the Manager or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which
it is bound or to which any of its property or assets is subject or in
violation in any respect of any statute or any judgment, decree, order, rule or
regulation of any court or governmental or regulatory agency or body having
jurisdiction over the Manager or any of its subsidiaries or any of their
properties or assets, except in the case of (ii) above any default or event
that would not have a Material Adverse Effect.
(v) Except as described in the Registration Statement, the General
Disclosure Package and the Prospectus, there is no legal or governmental
proceeding to which the Manager or any of its subsidiaries is a party, or of
which any property of the Manager or any of its subsidiaries is the subject
which, singularly or in the aggregate, if determined adversely to the Manager
or any of its subsidiaries, are reasonably likely to have a Material Adverse
Effect, and to the best of the Manager's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened or
contemplated by others.
(vi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Manager
of its obligations hereunder which have not been made or the failure of which
to have been made in the aggregate would not have a Material Adverse Effect.
(vii) The Manager is not prohibited by the Investment Advisers Act of
1940, as amended (the "Advisers Act"), or the rules and regulations thereunder,
from acting under the Management Agreement as contemplated by the Registration
Statement, the General Disclosure Package and the Prospectus.
(viii) With respect to each taxable year ended December 31, 2001 and
2002, Newcastle Investment Holdings Corp. ("NIH"), a corporation which was
organized and existed under the laws of the State of Maryland, operated in
conformity with the requirements for qualification and taxation as a REIT under
the Code. NIH qualified as a REIT for its taxable years ended December 31, 2001
and 2002.
2. Purchase, Sale and Delivery of the Underwritten Securities.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement relating to
the Initial Underwritten Securities, an option to the Underwriters named in
such Terms Agreement, severally and not jointly, to purchase up to the number
of Option Securities set forth therein at the same price per Option Security as
is applicable to the Initial Underwritten Securities less the amount of any
distribution payable with respect to an Initial Underwritten Security but not
payable with respect to an Option Security. Such option, if granted, will
expire 30 days or such lesser number of days as may be specified in the
applicable Terms Agreement after the Representation Date relating to the
Initial Underwritten Securities, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Underwritten
Securities upon notice by you to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time, date and place of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall be
determined by you, but shall not be later than three full business days and not
be earlier than two full business days after the exercise of said option,
unless otherwise agreed upon by you and the Company. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of Option Securities then being purchased which the number of Initial
Underwritten Securities each such Underwriter has severally agreed to purchase
as set forth in the applicable Terms Agreement bears to the total number of
Initial Underwritten Securities (except as otherwise provided in the applicable
Terms Agreement), subject to such adjustments as you in your discretion shall
make to eliminate any sales or purchases of fractional Initial Underwritten
Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at
the office of Sidley Austin LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or at such other place as shall be agreed upon by you and the Company, at 10:00
A.M., New York City time, on the third or fourth business day (as permitted
under Rule 15c6-1 under the ▇▇▇▇ ▇▇▇) (unless postponed in accordance with the
provisions of Section 9) specified in the applicable Terms Agreement or at such
other time as shall be agreed upon by you and the Company (each such time and
date being referred to as a "Closing Time"). In addition, in the event that any
or all of the Option Securities are purchased by the Underwriters, payment of
the purchase price for, and delivery of certificates representing, such Option
Securities, shall be made at the above-mentioned offices of Sidley Austin LLP,
or at such other place as shall be agreed upon by you and the Company on each
Date of Delivery as specified in the notice from you to the Company. Unless
otherwise specified in the applicable Terms Agreement, payment shall be made by
wire transfer in Federal (same day) funds to the Company upon delivery of
certificates for the Underwritten Securities to you, through the facilities of
the Depository Trust Company, if applicable, for the respective accounts of the
Underwriters for the Underwritten Securities to be purchased by them against
receipt therefor signed by you. The Underwritten Securities or, if applicable,
the Depositary Receipts evidencing the Depositary Shares, shall be in such
authorized denominations and registered in such names as you may request in
writing at least one business day prior to the applicable Closing Time or Date
of Delivery, as the case may be. The Underwritten Securities, which may be in
temporary form, will be made available for examination and packaging by you on
or before the first business day prior to the Closing Time or Date of Delivery,
as the case may be.
(d) If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types
described in the General Disclosure Package and the Prospectus. At the Closing
Time, the Company will enter into Delayed Delivery Contracts (for not less than
the minimum number of Underwritten Securities per Delayed Delivery Contract
specified in the applicable Terms Agreement) with all purchasers proposed by
the Underwriters and previously approved by the Company as provided below, but
not for an aggregate number of Underwritten Securities in excess of that
specified in the applicable Terms Agreement. The Underwriters will not have any
responsibility for the validity or performance of Delayed Delivery Contracts.
You shall submit to the Company, at least two business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least two business days prior to the Closing Time,
of the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the number of Underwritten Securities
to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered by
you to the Company; provided, however, that the total number of Underwritten
Securities to be purchased by all Underwriters shall be the total number of
Underwritten Securities covered by the applicable Terms Agreement, less the
number of Underwritten Securities covered by Delayed Delivery Contracts.
3. Covenants.
(a) Covenants of the Company. The Company covenants and agrees with
you and each Underwriter participating in the offering of Underwritten
Securities as follows:
(i) The Company will comply with the requirements of Rule 430B. The
Company will promptly transmit copies of the Prospectus, properly completed,
and any supplement thereto to the Commission for filing pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed therein
(without reliance on Rule 424(b)(8)), and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such Prospectus. The Company will
furnish to the Underwriters named therein as many copies of the Prospectus as
you shall reasonably request.
(ii) The Company will notify you immediately, and if written notice is
requested by you, confirm such notice in writing as soon as reasonably
practicable, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any supplement
or amendment to the Prospectus or any document to be filed pursuant to the 1934
Act, (iii) the receipt of any comments from the Commission, (iv) any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (v) the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose; and the Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(iii) The Company has given you notice of any filings made pursuant to
the 1934 Act or 1934 Act Regulations that were made within 48 hours prior to
the Applicable Time; the Company will give you notice of its intention to make
any such filing from the Applicable Time to the Closing Time and will furnish
you with copies of any such documents a reasonable amount of time prior to such
proposed filing and will not file or use any such document to which you or
counsel for the Underwriters shall reasonably object. At any time when the
Prospectus is required to be delivered (or but for the exemption in Rule 172
under the 1933 Act would be required to be delivered) under the 1933 Act or the
1934 Act in connection with sales of the Underwritten Securities, the Company
will give you notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment, supplement or any revision to either
any preliminary prospectus (including any prospectus included in the
Registration Statement at the time the Registration Statement first became
effective or any amendment thereto at the time it became effective) or the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and
the Company will furnish you with copies of any such amendment or supplement or
other documents proposed to be filed or used a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or other documents in a form to which you or counsel
for the Underwriters shall reasonably object. If requested by the Underwriters,
the Company will prepare a final term sheet (the "Final Term Sheet") reflecting
the final terms of the Underwritten Securities and shall file with the
Commission such Final Term Sheet as an "issuer free writing prospectus"
pursuant to Rule 433 prior to the close of business within two business days
after the date of the applicable Terms Agreement; provided that the Company
shall furnish the Underwriters with copies of such Final Term Sheet a
reasonable amount of time prior to such proposed filing and will not use or
file any such document to which you or counsel to the Underwriters shall
reasonably object.
(iv) The Company has furnished or will deliver to each Underwriter as
many signed and conformed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) as such Underwriter reasonably requests.
(v) The Company has furnished to each Underwriter, without charge, as
many copies of each preliminary prospectus as such Underwriter reasonably
requested, and the Company has furnished to each Underwriter, without charge,
as many copies of each Issuer Free Writing Prospectus, if any, as such
Underwriter reasonably requested, and the Company hereby consents to the use of
such copies of each preliminary prospectus and each Issuer Free Writing
Prospectus, if any, by the Underwriters for purposes permitted by the 1933 Act.
The Company will furnish to each Underwriter, from time to time during the
period when the Prospectus is required to be delivered (or but for the
exemption in Rule 172 under the 1933 Act would be required to be delivered)
under the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations.
(vi) If at any time when the Prospectus is required to be delivered
(or but for the exemption in Rule 172 under the 1933 Act would be required to
be delivered) under the 1933 Act or the 1934 Act in connection with sales of
the Underwritten Securities any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel for the Underwriters
or counsel for the Company, to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, then the Company will promptly prepare
and, subject to Section 3(a)(iii), file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1933 Act, the 1934 Act
or otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply with such
requirements, and the Company will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement. If at any time after the date
of the applicable Terms Agreement, an event or development occurs as a result
of which the General Disclosure Package contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time it
is used, not misleading, the Company will promptly notify the Underwriters and
will promptly amend or supplement in a manner reasonably satisfactory to the
Underwriters, at its own expense, the General Disclosure Package to eliminate
or correct such untrue statement or omission. If at any time following the
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 contained in the Registration
Statement (or any other registration statement relating to the Underwritten
Securities) or the Statutory Prospectus or any preliminary prospectus 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 the light of the circumstances prevailing at that subsequent time,
not misleading, the Company will promptly notify the Underwriters and will
promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or omission.
The Underwriters' delivery of any such amendment or supplement shall not
constitute a waiver of any of the conditions in Section 5 hereof.
(vii) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Underwritten Securities, the Warrant Securities, if any, and the
shares of Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as you may designate. In each jurisdiction
in which the Underwritten Securities, the Warrant Securities, if any, and the
shares of Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities and the Warrant Securities, if any;
provided, however, that the Company shall not be obligated to (A) qualify as a
foreign entity in any jurisdiction where it is not so qualified, (B) file any
general consent to service of process, or (C) take any action that would
subject it to income taxation in any such jurisdiction.
(viii) With respect to each sale of Underwritten Securities, the
Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the provisions of Rule
158 of the 1933 Act Regulations) covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in such Rule 158) of the Registration Statement.
(ix) The Company, during the period when the Prospectus is required to
be delivered (or but for the exemption in Rule 172 under the 1933 Act would be
required to be delivered) under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, will file all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act
within the time period prescribed by the 1934 Act and the 1934 Act Regulations.
(x) The Company represents and agrees that, unless it obtains the
prior written consent of the Underwriters, such consent not to be unreasonably
withheld, and each Underwriter agrees that, unless it obtains the prior written
consent of the Company and the other Underwriters, such consent not to be
unreasonably withheld, it has not made and will not make any offer relating to
the Underwritten Securities that would constitute an "issuer free writing
prospectus", as defined in Rule 433, or that would otherwise constitute a "free
writing prospectus," as defined in Rule 405, in each case required to be filed
with the Commission; provided, however, that prior to the preparation of the
Prospectus or, if applicable, the Final Term Sheet in accordance with Section
3(a)(i) or 3(a)(iii), as the case may be, the Underwriters are authorized to
use the information with respect to the final terms of the Underwritten
Securities in communications orally conveying information relating to the
offering to investors. Any such free writing prospectus consented to by the
Company and the Underwriters is hereinafter referred to as a "Permitted Free
Writing Prospectus." The Company represents that it has treated or 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 Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely filing with the Commission where required, legending and
record keeping.
(xi) During the period of 14 days from the date of the Prospectus, the
Company will not, directly or indirectly, without your prior written consent,
(a) issue, sell, offer or agree to sell, grant any option for the sale of,
pledge, make any short sale or maintain any short position, establish or
maintain a "put equivalent position" (within the meaning of Rule 16a-1(h) under
the 1934 Act), enter into any swap, derivative transaction or other arrangement
that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock (whether any such transaction is
to be settled by delivery of Common Stock, other securities, cash or other
consideration) or otherwise dispose of, any Common Stock (or any securities
convertible into, exercisable for or exchangeable for Common Stock) or interest
therein of the Company or of any of its subsidiaries, other than the Company's
sale of Underwritten Securities pursuant to the applicable Terms Agreement and
the Company's issuance of Common Stock (i) upon the exercise of presently
outstanding options, (ii) in connection with acquisitions by the Company or a
subsidiary, and (iii) in connection with the grant and exercise of options
under, or the issuance and sale of shares pursuant to, employee stock option
plans in effect on the date hereof or (b) file a registration statement under
the 1933 Act registering shares of Common Stock (or any securities convertible
into, exercisable for or exchangeable for Common Stock) or any interest in
shares of Common Stock, except for a registration statement on Form S-8 with
respect to shares of Common Stock issuable under the Newcastle Investment Corp.
Nonqualified Stock Option and Incentive Award Plan, as amended from time to
time.
(xii) If the Preferred Shares or Depositary Shares are convertible
into shares of Common Stock or if Common Stock Warrants are issued, the Company
will reserve and keep available at all times, free of preemptive or other
similar rights, a sufficient number of shares of Common Stock or Preferred
Shares, as the case may be, for the purpose of enabling the Company to satisfy
any obligations to issue such shares upon conversion of the Preferred Shares or
the Depositary Shares, as the case may be, or upon exercise of the Common Stock
Warrants.
(xiii) If the Underwritten Securities are Common Stock, Preferred
Shares or Depositary Shares, the Company will use its best efforts to list such
shares of Common Stock, Preferred Shares or Depositary Shares, as the case may
be, on the New York Stock Exchange or such other national securities exchange
on which the Company's shares of Common Stock are then listed. If the Preferred
Shares or Depositary Shares are convertible into shares of Common Stock, the
Company will use its best efforts to list the shares of Common Stock issuable
upon conversion of the Preferred Shares or Depositary Shares on the New York
Stock Exchange or such other national securities exchange on which the
Company's shares of Common Stock are then listed.
(xiv) The Company will apply the net proceeds from the sale of the
Underwritten Securities as set forth under "Use of Proceeds" in the Prospectus.
(xv) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for each of its
taxable years for so long as the Board of Directors of the Company deems it in
the best interests of the Company's shareholders to remain so qualified.
(b) Covenant of the Manager. The Manager covenants and agrees with you
and each Underwriter participating in the offering of Underwritten Securities,
and with the Company that, during any time when the Prospectus is required to
be delivered (or but for the exemption in Rule 172 under the 1933 Act would be
required to be delivered) under the 1933 Act or the 1934 Act in connection with
sales of Underwritten Securities, it shall notify you and the Company of the
occurrence of any material events respecting its activities, affairs or
condition, financial or otherwise, if, but only if, as a result of any such
event it is necessary, in the opinion of counsel for the Underwriters or
counsel for the Company, to (i) amend or supplement the Prospectus in order to
make the Prospectus not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser (unless the exemption in Rule 172
under the 1933 Act applies), (ii) amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, (iii) amend or supplement the General
Disclosure Package in order to make the General Disclosure Package not
misleading in the light of the circumstances existing at the time it is used or
(iv) amend or supplement an Issuer Free Writing Prospectus to eliminate or
correct a conflict with the information contained in the Registration Statement
or the Statutory Prospectus or any preliminary prospectus or to make the Issuer
Free Writing Prospectus not misleading in the light of the circumstances
prevailing at the time it is used, the Manager will forthwith supply such
information to the Company as shall be necessary for the Company to prepare an
amendment or supplement to the Registration Statement, the Prospectus, the
General Disclosure Package or the Issuer Free Writing Prospectus, as the case
may be, and then the Company will promptly prepare and, subject to Section
3(a)(iii), file with the Commission such amendment or supplement, whether by
filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or conflict or to make
the Registration Statement and Prospectus comply with such requirements, as the
case may be, and the Company will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
4. Payment of Expenses.
(a) Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company will pay
all expenses incident to the performance of its obligations under this
Agreement or the applicable Terms Agreement, including (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto, (ii) the reproduction and filing of this Agreement, the applicable
Terms Agreement and, if applicable, a Deposit Agreement or a Warrant Agreement,
(iii) the preparation, issuance and delivery of the Underwritten Securities and
the Warrant Securities, if any, to the Underwriters, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification
of the Underwritten Securities, the Warrant Securities and the Common Shares
issuable upon conversion of Preferred Shares or the Depositary Shares, if any,
under securities laws and real estate syndication laws in accordance with the
provisions of Section 3(a)(vii), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky Survey (if applicable), (vi)
the reproduction and delivery to the Underwriters of copies of any Blue Sky
Survey (if applicable), (vii) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, each preliminary prospectus, the Prospectus, any Permitted Free
Writing Prospectus and any amendments or supplements thereto, (viii) the
providing and delivery to the Underwriters of copies of the applicable Warrant
Agreement, if any, (ix) any fees charged by nationally recognized statistical
rating organizations for the rating of the Securities, (x) the fees and
expenses, if any, incurred with respect to the listing of the Underwritten
Securities, or the Common Shares issuable on conversion of the Preferred Shares
or the Depositary Shares, if any, on any national securities exchange, (xi) the
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc. (the "NASD") (if applicable)
and (xii) all travel expenses of the Company's officers and employees and any
other expense of the Company incurred in connection with attending or hosting
meetings with prospective purchasers of the Underwritten Securities (other than
as shall have been specifically approved by the Underwriters to be paid for by
the Underwriters). The Company also will pay or cause to be paid: (i) the cost
of preparing stock certificates; (ii) the cost and charges of any transfer
agent or registrar; and (iii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 4. It is understood, however, that except as
provided in this Section 4 and Section 6 hereof, the Underwriters will pay all
of their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Underwritten Securities by them, and any
advertising expenses connected with any offers they may make.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5, Section 8(a)(i),
the first clause of Section 8(a)(iii) or Section 8(a)(vi) hereof, the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the
Underwriters, incurred in connection herewith.
5. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase Underwritten Securities pursuant to the applicable
Terms Agreement, shall be subject to the accuracy of the representations and
warranties of the Company and the Manager herein contained as of the date
hereof, the Applicable Time and as of the Closing Time, to the absence from any
certificates, opinions, written statements or letters furnished to you or to
Sidley Austin LLP ("Underwriters' Counsel") pursuant to this Section 5 of any
misstatement or omission to the performance by the Company and the Manager of
their respective obligations hereunder, and to each of the following additional
terms and conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) each
preliminary prospectus and the Prospectus containing the Rule 430B Information
shall have been filed with the Commission in the manner and within the time
period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a
post-effective amendment providing such information shall have been filed and
become effective in accordance with the requirements of Rule 430B), (iii) any
material required to be filed by the Company pursuant to Rule 433(d) of the
1933 Act Regulations shall have been filed with the Commission within the
applicable time periods prescribed for such filings under Rule 433, (iv) if
Preferred Shares or Depositary Shares are being offered, the rating assigned by
any nationally recognized statistical rating organization to any preferred
stock of the Company, including such Preferred Shares or Depositary Shares, as
the case may be, as of the date of the applicable Terms Agreement shall not
have been lowered or withdrawn since the date of the applicable Terms Agreement
nor shall any such rating organization have publicly announced that it has
placed any such preferred stock of the Company on what is commonly termed a
"watch list" for possible downgrading, (v) there shall not have come to your
attention any facts that would cause you to believe that (A) the General
Disclosure Package, at the Applicable Time, or (B) the Prospectus, at the time
it was required to be delivered (or but for the exemption in Rule 172 under the
1933 Act would be required to be delivered) to purchasers of the Underwritten
Securities, included an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in light of
the circumstances existing at such time, not misleading and (vi) the
Underwritten Securities or the Common Stock issuable upon conversion thereof,
as applicable in accordance with Section 3(a)(xiii) hereof, shall be approved
for listing on or before the 30th day after Closing Time in accordance with
such Section 3(a)(xiii).
(b) At the Closing Time you shall have received the written opinion of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company and the
Manager, dated the Closing Time and based upon certificates containing certain
factual representations and covenants of the Company, addressed to the
Underwriters substantially in the form attached hereto as Annex I.
(c) At the Closing Time you shall have received the written opinion of
DLA Piper US LLP, special Maryland counsel to the Company, dated the Closing
Time, addressed to the Underwriters substantially in the form attached hereto
as Annex II.
(d) All proceedings taken in connection with the sale of the
Underwritten Securities as contemplated by this Agreement and the applicable
Terms Agreement shall be satisfactory in form and substance to you and to
Underwriters' Counsel, and the Underwriters shall have received from
Underwriters' Counsel a favorable opinion, dated as of the Closing Time, with
respect to the issuance and sale of the Underwritten Securities, the
Registration Statement, the General Disclosure Package and the Prospectus and
such other related matters as you may reasonably require, and the Company shall
have furnished to Underwriters' Counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering such opinion,
Underwriters' Counsel may rely upon the opinion of DLA Piper US LLP as to
matters of Maryland law.
(e) At the Closing Time you shall have received a certificate of the
Chief Executive Officer and Chief Financial Officer of the Company, dated the
Closing Time to the effect that (i) the condition set forth in subsection (a)
of this Section 5 has been satisfied, (ii) as of the date hereof and as of the
Closing Time, the representations and warranties of the Company set forth in
Section 1(a) hereof are accurate, (iii) as of the Closing Time, the obligations
of the Company to be performed hereunder on or prior thereto have been duly
performed and (iv) subsequent to the respective dates as of which information
is given in the Registration Statement, the General Disclosure Package and the
Prospectus (excluding any documents incorporated by reference pursuant to the
1934 Act after the execution of the applicable Terms Agreement), the Company
and its subsidiaries have not sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not been any
material adverse change, or any development involving a material adverse
change, in the business, properties, operations, condition (financial or
otherwise), or results of operations of the Company and its subsidiaries taken
as a whole, except in each case as described in or contemplated by the
Registration Statement, the General Disclosure Package and the Prospectus.
(f) At the Closing Time you shall have received a certificate of the
Chief Executive Officer and Chief Financial Officer of the Manager, dated the
Closing Time to the effect that (i) as of the date hereof and as of the Closing
Time, the representations and warranties of the Manager set forth in Section
1(b) hereof are accurate, (ii) as of the Closing Time, the obligations of the
Manager to be performed hereunder on or prior thereto have been duly performed
and (iii) subsequent to the date of the Registration Statement, the General
Disclosure Package and the Prospectus (excluding any documents incorporated by
reference pursuant to the 1934 Act after the execution of the applicable Terms
Agreement), there has not been any material adverse change in the business,
properties, operations, condition (financial or otherwise), or results of
operations of the Manager and its subsidiaries taken as a whole that could
reasonably be expected in the aggregate to have a Material Adverse Effect.
(g) At the time this Agreement and the applicable Terms Agreement are
executed, you shall have received a letter agreement from the Manager, Fortress
Principal Investment Holdings LLC ("FPIH"), Fortress Principal Investment
Holdings II LLC ("FPIH II") and Fortress Investment Holdings LLC ("FIH"), and
each director, officer or related party of the Company and the Manager
designated by you and listed on Schedule II hereto, substantially in the forms
attached hereto as Annex III and Annex IV, respectively.
(h) At the time that the applicable Terms Agreement is executed and at
the Closing Time, you shall have received a comfort letter from Ernst & Young
LLP, independent registered public accountants for the Company, dated,
respectively, as of the date of the applicable Terms Agreement and as of the
Closing Time, addressed to the Underwriters and in form and substance
satisfactory to the Underwriters and Underwriters' Counsel.
(i) The Company shall have complied with the provisions of Section
3(a)(v) hereof with respect to the furnishing of prospectuses.
(j) The Company shall have furnished the Underwriters and
Underwriters' Counsel with such other certificates, opinions or other documents
as they may have reasonably requested.
(k) In the event the Underwriters exercise their option provided in a
Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company and the Manager contained herein and the statements in any certificates
furnished by the Company or the Manager hereunder shall be true and correct as
of each Date of Delivery, and, at the relevant Date of Delivery, you shall have
received:
(i) A certificate, dated such Date of Delivery, of the Chief Executive
Officer and Chief Financial Officer of the Company, confirming that the
certificate delivered at Closing Time pursuant to Section 5(e) hereof remains
true and correct as of such Date of Delivery.
(ii) A certificate, dated such Date of Delivery, of the Chief
Executive Officer and Chief Financial Officer of the Manager, confirming that
the certificate delivered at Closing Time pursuant to Section 5(f) hereof
remains true and correct as of such Date of Delivery.
(iii) The favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, counsel for the Company and the Manager, in form and substance
satisfactory to Underwriters' Counsel, dated such Date of Delivery, relating to
the Option Securities and otherwise substantially to the same effect as the
opinion required by Section 5(b) hereof.
(iv) The favorable opinion of DLA Piper US LLP, special Maryland
counsel to the Company, in form and substance satisfactory to Underwriters'
Counsel, dated such Date of Delivery, relating to the Option Securities and
otherwise substantially to the same effect as the opinion required by Section
5(c) hereof.
(v) The favorable opinion of Underwriters' Counsel, dated such Date of
Delivery, relating to the Option Securities and otherwise to the same effect as
the opinion required by Section 5(d) hereof.
(vi) A letter from Ernst & Young LLP, independent public accountants
for the Company, in form and substance satisfactory to you and dated such Date
of Delivery, substantially the same in scope and substance as the letter
furnished to you pursuant to Section 5(h) hereof.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to
Closing Time, which notice shall be confirmed in writing by the Underwriters as
soon as reasonably practicable if so requested by the Company, and such
termination shall be without liability of any party to any other party except
as provided in Section 4 and except that Sections 1, 6, 7 and 10 shall survive
any such termination and remain in full force and effect pursuant to Section
10.
6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its affiliates, as such term is defined in
Rule 501(b) under the 1933 Act (each, an "Affiliate"), its selling agents and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430B Information, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact included in the
General Disclosure Package, any preliminary prospectus, the Prospectus or any
Issuer Free Writing Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(d)
below) any such settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430B Information, or
in the General Disclosure Package, any preliminary prospectus, the Prospectus
or any Issuer Free Writing Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section 6, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430B
Information, or in the General Disclosure Package, any preliminary prospectus,
the Prospectus or any Issuer Free Writing Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430B
Information, or in the General Disclosure Package, such preliminary prospectus,
the Prospectus or such Issuer Free Writing Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected by
you, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (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 hand from the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, 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 hand in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the Underwritten Securities pursuant to the applicable Terms
Agreement (before deducting expenses) received by the Company and the total
underwriting discount received by the Underwriters, in each case as set forth
on the cover of the Prospectus bear to the aggregate initial public offering
price of the Underwritten Securities as set forth on the cover of the
Prospectus.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities pursuant to the applicable Terms
Agreement 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 any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each Underwriter's Affiliates and selling agents shall have
the same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number
of Initial Underwritten Securities set forth opposite their respective names in
the applicable Terms Agreement.
8. Termination of Agreement.
(a) Termination; General. This Agreement (excluding the applicable
Terms Agreement) may be terminated for any reason at any time by the Company or
by you upon the giving of 30 days' written notice of such termination to the
other party hereto. The Underwriters may also terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of such Terms Agreement
or since the respective dates as of which information is given in the General
Disclosure Package and the Prospectus (excluding any documents incorporated
therein by reference pursuant to the 1934 Act after the execution of the
applicable Terms Agreement), any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as
to make it, in the judgment of the Underwriters, impracticable or inadvisable
to market the Underwritten Securities or to enforce contracts for the sale of
the Underwritten Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the New York Stock Exchange has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by said
exchange or by such system or by order of the Commission, the NASD or any other
governmental authority having jurisdiction, or (iv) if a material disruption
has occurred in commercial banking or securities settlement or clearance
services in the United States, or (v) if a banking moratorium has been declared
by either Federal or New York authorities, or (vi) if Preferred Shares or
Depositary Shares are being offered and the rating assigned by any nationally
recognized statistical rating organization to any preferred stock of the
Company, including such Preferred Shares or Depositary Shares, as the case may
be, as of the date of the applicable Terms Agreement shall have been lowered or
withdrawn since such date or if any such rating organization shall have
publicly announced that it has placed any such preferred stock of the Company
on what is commonly termed a "watch list" for possible downgrading.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 8, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 10 shall survive such termination and remain in full force
and effect.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement, and if the Underwritten Securities with respect to which such
default relates do not (after giving effect to arrangements, if any, made by
you pursuant to subsection (b) below) exceed in the aggregate 10% of the number
of the Underwritten Securities, the Underwritten Securities to which the
default relates shall be purchased by the non-defaulting Underwriters in
proportion to the respective proportions which the numbers of the Underwritten
Securities set forth opposite their respective names in the applicable Terms
Agreement bear to the aggregate number of Underwritten Securities set forth
opposite the names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of the
Underwritten Securities, you may in your discretion arrange for yourself or for
another party or parties (including any non-defaulting Underwriter or
Underwriters who so agree) to purchase such Underwritten Securities, to which
such default relates on the terms contained herein. In the event that within
five calendar days after such a default you do not arrange for the purchase of
the Underwritten Securities to which such default relates as provided in this
Section 9, this Agreement or, in the case of a default with respect to Option
Securities, the obligations of the Underwriters to purchase and of the Company
to sell the Option Securities shall thereupon terminate, without liability on
the part of the Company with respect thereto (except in each case as provided
in Sections 4, 6(a) and 7 hereof) or the Underwriters, but nothing in this
Agreement shall relieve a defaulting Underwriter or Underwriters of its or
their liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
(c) In the event that the Underwritten Securities to which the default
relates are to be purchased by the non-defaulting Underwriters, or are to be
purchased by another party or parties as aforesaid, you or the Company shall
have the right to postpone the Closing Time, as the case may be, for a period,
not exceeding five business days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents and arrangements, and the Company agrees to file promptly
any amendment or supplement to the Registration Statement or the Prospectus
which, in the opinion of Underwriters' Counsel, may thereby be made necessary
or advisable. The term "Underwriter" as used in this Agreement shall include
any party substituted under this Section 9 with like effect as if it had
originally been a party to this Agreement and the applicable Terms Agreement
with respect to such Underwritten Securities.
10. Survival of Representations and Agreements. All representations
and warranties, covenants and agreements of the Underwriters, the Company and
the Manager contained in this Agreement, including the agreements contained in
Section 4, the indemnity agreements contained in Section 6 and the contribution
agreements contained in Section 7, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or any controlling person thereof or by or on behalf of the Company or the
Manager, any of their respective officers, directors, partners or members or
any controlling person thereof, and shall survive delivery of and payment for
the Underwritten Securities to and by the Underwriters. The representations
contained in Section 1 and the agreements contained in this Section 10 and
Sections 4, 6 and 7 hereof shall survive the termination of this Agreement and
the applicable Terms Agreement, including termination pursuant to Section 5 or
9 hereof.
11. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed, delivered, or faxed
and confirmed in writing, to such Underwriter c/o Morgan ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, Attention: Equity Syndicate
Desk, Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to Sidley Austin LLP, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
(b) if sent to the Company or the Manager, shall be mailed, delivered,
or faxed and confirmed in writing c/o Fortress Investment Group, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Secretary, with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇;
provided, however, that any notice to an Underwriter pursuant to Section 6
shall be delivered or sent by mail or facsimile transmission to such
Underwriter at its address set forth in its acceptance facsimile to you, which
address will be supplied to any other party hereto by you upon request. Any
such statements, requests, notices or agreements shall take effect at the time
of receipt thereof.
12. Parties. This Agreement and the applicable Terms Agreement shall
inure solely to the benefit of, and shall be binding upon, the Underwriters,
the Company and the Manager and the controlling persons, directors, officers,
employees and agents referred to in Sections 6 and 7, and their respective
successors and assigns, and no other person shall have or be construed to have
any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provision herein contained. The term
"successors and assigns" shall not include a purchaser, in its capacity as
such, of Underwritten Securities from any of the Underwriters.
13. Governing Law. This Agreement and the applicable Terms Agreement
shall be governed by and construed in accordance with the laws of the State of
New York, but without regard to principles of conflicts of law.
14. Counterparts. This Agreement and the applicable Terms 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 instrument.
15. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement and the applicable Terms Agreement.
16. Time is of the Essence. Time shall be of the essence of this
Agreement and the applicable Terms Agreement. As used herein, the term
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
[signature page follows]
If the foregoing correctly sets forth the understanding between you,
on the one hand, and the Company and the Manager, on the other hand, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us.
Very truly yours,
NEWCASTLE INVESTMENT CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
FORTRESS INVESTMENT GROUP LLC,
solely with respect to Sections 1(b),
3(b), 5(f), 5(g), 5(k)(ii), 10 and 12
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Operating Officer
Accepted as of the date first
above written
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Director