CRIIMI MAE INC.
(a Maryland corporation)
Common Stock, Preferred Stock,
Debt Securities and Warrants
UNDERWRITING AGREEMENT
November 18, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
CRIIMI MAE INC., a Maryland corporation (the "Company"), proposes to
issue and sell up to $264,915,000 aggregate initial public offering price of
its (i) shares of common stock, par value $.01 per share (the "Common Stock"),
(ii) shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), (iii) debt securities (the "Debt Securities"), (iv) warrants to
purchase Preferred Stock or Common Stock (the "Warrants"), or any combination
thereof, from time to time, in or pursuant to one or more offerings on terms
to be determined at the time of sale.
The Preferred Stock will be issued in one or more series and each series
of Preferred Stock may vary, as applicable, as to the title, specific number
of shares, rank, stated value, liquidation preference, dividend rate or rates
(or method of calculation), dividend payment dates, redemption provisions,
sinking fund requirements, conversion provisions (and terms of the related
Underlying Securities (as defined below)) and any other variable terms as set
forth in the applicable articles supplementary (each, the "Articles
Supplementary") relating to such series of Preferred Stock.
The Debt Securities will be issued in one or more series as subordinated
indebtedness (the "Subordinated Debt Securities") or senior indebtedness (the
"Senior Debt Securities") under a Senior Debt Securities indenture or a
Subordinated Debt Securities indenture, as applicable, in each case between
the Company and one or more trustees, (each a "Trustee") to be negotiated by
the Company and such Trustee (collectively, the "Indenture"). Each series of
Debt Securities may vary, as applicable, as to title, aggregate principal
amount, rank, interest rate or formula and timing of payments thereof, stated
maturity date, redemption and/or repayment provisions, sinking fund
requirements, conversion provisions (and terms of the related Underlying
Securities) and any other variable terms established by or pursuant to the
applicable Indenture.
Each issue of the Warrants will be issued pursuant to a separate warrant
agreement (each, a "Warrant Agreement") between the Company and the warrant
agent identified therein (each, a "Warrant Agent"). The Warrants may vary
, as
applicable, as to, among other terms, title, type, specific number, exercise
dates or periods, exercise price(s), expiration date(s) and terms of the
related Underlying Securities.
As used herein, "Securities" shall mean the Common Stock, Preferred
Stock, Warrants, Senior Debt Securities or Subordinated Debt Securities, or
any combination thereof, initially issuable by the Company and "Underlying
Securities" shall mean the Common Stock, Preferred Stock, Warrants, Senior
Debt Securities or Subordinated Debt Securities issuable upon conversion of
the Preferred Stock, Warrants, Senior Debt Securities or Subordinated Debt
Securities, as applicable.
Whenever the Company determines to make an offering of Securities through
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), or through an underwriting syndicate managed by ▇▇▇▇▇▇▇
▇▇▇▇▇, the Company will enter into an agreement (each, "Terms Agreement")
providing for the sale of such Securities to, and the purchase and offering
thereof by, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and such other underwriters, if any, selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Underwriters," which term shall include ▇▇▇▇▇▇▇ ▇▇▇▇▇,
whether acting as sole Underwriter or as a member of an underwriting
syndicate, as well as any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of Securities shall
specify the number or aggregate principal amount, as the case may be, of
Securities to be initially issued (the "Initial Underwritten Securities"), the
name of each Underwriter participating in such offering (subject to
substitution as provided in Section 10 hereof) and the name of any Underwriter
other ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as co-manager in connection with such
offering, the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities which each such Underwriter severally agrees
to purchase, whether such offering is on a fixed or variable price basis and,
if on a fixed price basis, the initial offering price, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters, the
form, time, date and place of delivery and payment of the Initial Underwritten
Securities and any other material variable terms of the Initial Underwritten
Securities, as well as the material variable terms of any related Underlying
Securities. In addition, if applicable, such Terms Agreement shall specify
whether the Company has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any, and the
number or aggregate principal amount, as the case may be, of Securities
subject to such option (the "Option Underwritten Securities"). As used
herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of any Option Underwritten
Securities. 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 telecommunication between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting for
itself and, if applicable, as representative of any other Underwriters. Each
offering of Underwritten Securities through ▇▇▇▇▇▇▇ ▇▇▇▇▇ as sole Underwriter
or through an underwriting syndicate managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ will be governed
by this Underwriting 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. 333-38409) for the
registration of the Securities and the Underlying Securities under the
Securities Act of 1933, as amended (the "1933 Act"), 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"), and the
Company has filed such post-effective amendments thereto as may be required
prior to the execution of the applicable Terms Agreement. Such registration
statement (as so amended, if applicable) has been declared effective by the
Commission and each Indenture (if applicable) has been duly qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the
1933 ▇▇▇ ▇▇▇▇ Act Regulations (the "Rule 434 Information"), is referred to
herein as the "Registration Statement"; and the final prospectus and the
prospectus supplement relating to the offering of the Underwritten Securities,
in the form first furnished to the Underwriters by the Company for use in
connection with the offering of the Underwritten Securities, are collectively
referred to herein as the "Prospectus"; provided, however, that all references
to the "Registration Statement" and the "Prospectus" shall be deemed to
include all documents incorporated therein by reference pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the
execution of the applicable Terms Agreement; provided, further, that if the
Company files a registration statement with the Commission pursuant to
Section 462(b) of the 1933 Act Regulations (the "Rule 462 Registration
Statement"), then, after such filing, all references to "Registration
Statement" shall be deemed to include the Rule 462 Registration Statement; and
provided, further, that if the Company elects to rely upon Rule 434 of the
1933 Act Regulations, then all references to "Prospectus" shall be deemed to
include the final or preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form
first furnished to the Underwriters by the Company in reliance upon Rule 434
of the 1933 Act Regulations, and all references in this Underwriting Agreement
to the date of the Prospectus shall mean the date of the Term Sheet. A
"preliminary prospectus" shall be deemed to refer to any prospectus used
before the registration statement became effective and any prospectus that
omitted, as applicable, the Rule 430A Information, the Rule 434 Information or
other information to be included upon pricing in a form of prospectus filed
with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that
was used after such effectiveness and prior to the execution and delivery of
the applicable Terms Agreement. For purposes of this Underwriting Agreement,
all references to the Registration Statement, Prospectus, Term Sheet or
preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("▇▇▇▇▇").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is
incorporated
by reference in the Registration Statement, Prospectus or preliminary
prospectus, as the case may be; and all references in this Underwriting
Agreement to amendments or supplements to the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is incorporated by reference
in the Registration Statement, Prospectus or preliminary prospectus, as the
case may be.
SECTION 1. Representations and Warranties
(a) Representations and Warranties by the Company.
The Company represents and warrants to ▇▇▇▇▇▇▇ ▇▇▇▇▇, as of the date
hereof, and to each Underwriter named in the applicable Terms Agreement, as of
the date thereof, as of the Closing Time (as defined below) and, if
applicable, as of each Date of Delivery (as defined below) (in each case, a
"Representation Date"), as follows:
(i) Compliance with Registration Requirements.
The Company meets the requirements for use of Form S-3 under the
1933 Act. Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement 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, and any request on the part
of the Commission for additional information has been complied with. In
addition, each Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto (including
the filing of the Company's most recent Annual Report on Form 10-K with the
Commission (the "Annual Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement, any Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and will comply
in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did 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. At the date of the Prospectus, at the
Closing Time and at each Date of Delivery, if any, the Prospectus and any
amendments and supplements thereto did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. If the Company elects to rely upon
Rule 434 of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Underwritten Securities will, at the
time of such delivery, be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use
in the Registration Statement or the Prospectus.
(ii) Incorporated Documents.
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 thereunder (the "1934 Act Regulations") and,
when read together with the other information in the Prospectus (as the same
may be supplemented, updated or superseded by such incorporated documents), at
the date of the Prospectus, at the Closing Time and at each Date of Delivery,
if any, did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(iii) Independent Accountants.
The accountants who certified the financial statements and
supporting schedules included in the Registration Statement and the Prospectus
are independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) Financial Statements.
The financial statements of the Company included in the
Registration Statement and the Prospectus, together with the related schedules
and notes, as well as those financial statements, schedules and notes of any
other entity included therein, present fairly the financial position of the
Company and its consolidated subsidiaries, or such other entity, as the case
may be, at the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries, or
such other entity, as the case may be, for the periods specified. Such
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement and the Prospectus present fairly in accordance with
GAAP the information required to be stated therein. The selected financial
data and the summary financial information included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement and the Prospectus. In addition, any pro forma
financial statements of the Company and its subsidiaries and the related
notes
thereto included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in all material
respects in accordance with the Commission's rules and guidelines with respect
to pro forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein.
(v) No Material Adverse Change in Business.
Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, or business affairs of the Company
and its subsidiaries considered as one enterprise (a "Material Adverse
Effect"), whether or not arising in the ordinary course of business, (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those arising in the ordinary course of business,
which are material with respect to the Company and its subsidiaries considered
as one enterprise and (C) except for regular dividends on the Company's common
stock or preferred stock, in amounts per share that are consistent with past
practice or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(vi) Good Standing of the Company.
The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Maryland and
has corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and to enter into and
perform its obligations under, or as contemplated under, this Underwriting
Agreement and the applicable Terms Agreement. The Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not result in a
Material Adverse Effect.
(vii) Good Standing of Subsidiaries.
Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act ) each,
a "Subsidiary" and, collectively, the "Subsidiaries", if any, has been duly
organized and is validly existing as a corporation or limited partnership in
good standing under the laws of the jurisdiction of its incorporation or
formation, has corporate or limited partnership power and authority to own,
lease and operate its properties and to conduct its business as described in
the Prospectus and is duly qualified as a foreign corporation or limited
partnership to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse
Effect.
Except as otherwise stated in the Registration Statement and the Prospectus,
all of the issued and outstanding capital stock of each Subsidiary has been
duly authorized and is validly issued, fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity. None
of the outstanding shares of capital stock of any Subsidiary was issued in
violation of preemptive or other similar rights of any securityholder of such
Subsidiary.
(viii) Capitalization.
If the Prospectus contains a "Capitalization" section, the
authorized, issued and outstanding shares of capital stock of the Company is
as set forth in the column entitled "Actual" under such section (except for
subsequent issuances thereof, if any, contemplated under this Underwriting
Agreement, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). Such shares of capital
stock have been duly authorized and validly issued by the Company and are
fully paid and non-assessable, and none of such shares of capital stock were
issued in violation of preemptive or other similar rights of any
securityholder of the Company.
(ix) Qualification as a REIT.
CRIIMI MAE Inc. is organized and has been operated in
conformity with the requirements for qualification and taxation as real estate
investment trusts ("REIT") under the Internal Revenue Code of 1986, as amended
(the "Code"), for each of its taxable years beginning with its taxable year
ended December 31, 1989 and its current organization and method of operation
will enable it to continue to meet the requirements for qualification as a
REIT.
(x) Authorization of this Underwriting Agreement and Terms
Agreement.
This Underwriting Agreement has been, and the applicable
Terms Agreement as of the date thereof will have been, duly authorized,
executed and delivered by the Company.
(xi) Authorization of Common Stock.
If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Common Stock, such Underwritten Securities
have been, or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to this Underwriting
Agreement and such Terms Agreement. Such Underwritten Securities, when issued
and delivered by the Company pursuant to this Underwriting Agreement and such
Terms Agreement against payment of the consideration therefor specified in
such Terms Agreement, will be validly issued, fully paid and non-assessable
and will not be subject to preemptive or other similar rights of any
securityholder of the Company. No holder of such Underwritten Securities will
be subject to personal liability by reason of being such a holder.
(xii) Authorization of Preferred Stock.
If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Preferred Stock such Underwritten
Securities have been, or as of the date of such Terms Agreement will have
been, duly authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. The applicable Preferred
Stock, when issued and delivered by the Company pursuant to this Underwriting
Agreement and such Terms Agreement against payment of the consideration
therefor, will be validly issued, fully paid and non-assessable and will not
be subject to preemptive or other similar rights of any securityholder of the
Company. No holder of Preferred Stock will be subject to personal liability
by reason of being such a holder. The applicable Articles Supplementary for
such Preferred Stock will be in full force and effect prior to the Closing
Time.
(xiii) Authorization of Senior Debt Securities or Subordinated Debt
Securities.
If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities or Subordinated Debt
Securities, such Underwritten Securities have been, or as of the dates of such
Terms Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Underwriting Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will constitute
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws relating to or affecting rights of creditors
generally or by general equitable principles, and except further as
enforcement thereof may be limited by (A) requirements that a claim with
respect to any Debt Securities denominated other than in U.S. dollars (or a
foreign or composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States. Such Underwritten
Securities will be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the applicable Indenture.
(xiv) Authorization of the Indentures.
If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities or Subordinated Debt
Securities or if Preferred Stock is convertible into Debt Securities, each
applicable Indenture has been, or prior to the issuance of the Debt Securities
thereunder will have been, duly authorized, executed and delivered by the
Company and, upon such authorization, execution and delivery, will constitute
a valid and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws relating to or affecting rights of
creditors
generally or by general equitable principles.
(xv) Authorization of Warrants.
If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Warrants, such Underwritten Securities have
been, or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to this Underwriting
Agreement and such Terms Agreement. Such Underwritten Securities, when issued
and authenticated in the manner provided for the applicable Warrant Agreement
and delivered against payment of the consideration therefor specified in such
Terms Agreement, will constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by such Warrant Agreement and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(xvi) Authorization of Warrant Agreement.
If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Warrants, each applicable Warrant Agreement
has been, or prior to the issuance of such Underwritten Securities will have
been, duly authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles.
(xvii) Descriptions of the Underwritten Securities, Underlying
Securities and Indentures.
The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and each applicable Indenture, as of the date of
the Prospectus, and any Underlying Securities, when issued and delivered in
accordance with the terms of the related Underwritten Securities, will conform
in all material respects to the statements relating thereto contained in the
Prospectus and will be in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration Statement.
(xviii) Absence of Defaults and Conflicts.
Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or other organizational documents or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease 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 may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result
in a Material Adverse Effect. The execution, delivery and performance of this
Underwriting Agreement, the applicable Terms Agreement and each applicable
Indenture, and any other agreement or instrument entered into or issued or to
be entered into or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein and in
the Registration Statement and the Prospectus (including the issuance and sale
of the Underwritten Securities and the use of the proceeds from the sale of
the Underwritten Securities as described under the caption "Use of Proceeds")
and compliance by the Company with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate action and do not and
will not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment Event
(as defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the Company
or any subsidiary pursuant to any Agreements and Instruments except for such
conflicts, breaches, defaults, events or liens, charges or encumbrances that
would not result in a Material Adverse Effect nor will such action result in
any violation of the provisions of the charter, by-laws or other
organizational documents of the Company or any of its subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations except for such violations of any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations that would not result in a Material
Adverse Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(xix) Absence of Labor Dispute.
No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal customers or
contractors, which, in either case, may reasonably be expected to result in a
Material Adverse Effect.
(xx) Absence of Proceedings.
There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or to the knowledge of the Company threatened, against
or affecting the Company or any subsidiary thereof which is required to be
disclosed in the Registration Statement and the Prospectus (other than as
stated therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the assets, properties or operations thereof or the
consummation of the transactions contemplated under this Underwriting
Agreement, the applicable Terms Agreement or any applicable Indenture, or the
performance by the Company of its obligations hereunder and thereunder. The
aggregate of all pending legal or governmental proceedings to which the
Company or any subsidiary thereof is a party or of which any of their
respective assets, properties or operations is the subject which are not
described in the Registration Statement and the Prospectus, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(xxi) Accuracy of Exhibits.
There are no contracts or documents which are required to
be described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which
have not been so described and/or filed as required.
(xxii) Absence of Further Requirements.
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 Company of its obligations under this Underwriting Agreement or the
applicable Terms Agreement or in connection with the transactions contemplated
under this Underwriting Agreement, such Terms Agreement or any applicable
Indenture except such as have been already obtained or as may be required
under state securities laws.
(xxiii) Possession of Intellectual Property.
The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate trademarks, service marks, trade names
or other intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice or otherwise has
knowledge of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling
or finding) or invalidity or inadequacy, singly or in the aggregate, would
result in a Material Adverse Effect.
(xxiv) Possession of Licenses and Permits.
The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure to possess any such Governmental
License would not have a Material Adverse Effect. The Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly
or in the aggregate, result in a Material Adverse Effect. All of the
Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xxv) Title to Property.
The Company and its subsidiaries have good and marketable
title to all real property owned by the Company and its subsidiaries and good
title to all other properties owned by them, in each case, free and clear of
all mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except (A) as otherwise stated in the Registration
Statement and the Prospectus or (B) those which do not, singly or in the
aggregate, materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company or
any of its subsidiaries. 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 subsidiary holds properties described in the
Prospectus, 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 such subsidiary of the
continued possession of the leased or subleased premises under any such lease
or sublease.
(xxvi) Commodity Exchange Act.
If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Debt Securities or if any related
Underlying Securities include Debt Securities, as the case may be, such Debt
Securities, upon issuance, will be excluded or exempted under, or beyond the
purview of, the Commodity Exchange Act, as amended (the "Commodity Exchange
Act"), and the rules and regulations of the Commodity Futures Trading
Commission under the Commodity Exchange Act (the "Commodity Exchange Act
Regulations").
(xxvii) Investment Company Act.
The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxviii) Environmental Laws.
Except as otherwise stated in the Registration Statement
and the Prospectus and except such violations or other matters as described in
this paragraph as would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products, asbestos,
PCBs, radioactive materials, or infectious, carcinogenic or mutagenic
materials (collectively, "Hazardous Materials") or to the generation,
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or, to the
Company's knowledge, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, proceedings or, to the Company's knowledge,
investigations relating to any Environmental Law against the Company or any of
its subsidiaries, and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to any Hazardous Materials or the violation of any
Environmental Laws.
(xxix) Tax Compliance.
The Company has filed or caused to be filed all federal,
state, local and foreign income tax returns which have been required to be
filed (except in any case in which the failure to so file would not have a
Material Adverse Effect) and has paid all taxes required to be paid for any
other assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good faith.
(xxx) Absence of Price Manipulation.
Neither the Company nor any of its directors, officers or
controlling persons, has taken or will take, directly or indirectly, any
action resulting in a violation of Regulation M or designed to cause or result
in, or that has constituted or that reasonably might be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Underwritten Securities.
(xxxi) Compliance with Cuba Act.
The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder or is exempt
therefrom.
(xxxii) Insurance.
The Company maintains insurance of the types and in the
amounts generally deemed adequate for its business, including, but not limited
to, insurance covering real and personal property owned or leased by the
Company against theft, forgery, damage, destruction, acts of vandalism and all
other risks customarily insured against, all of which insurance is in full
force and effect, except where the failure to maintain such insurance or have
such insurance in full force and effect would not have a Material Adverse
Effect.
(xxxii) Accounting Controls.
The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management's general or
specific authorization, (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (C) access to
assets is permitted only in accordance with management's general or specific
authorization and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxxiii) Absence of Registration Rights.
There are no persons with registration rights or other
similar rights to have any securities registered pursuant to the Registration
Statement, except for certain current and former members of management,
otherwise registered by the Company under the 1933 Act.
(xxxiv) Solvency.
The Company is, and immediately after the Closing Time will
be, Solvent. As used herein, the term "Solvent" means, with respect to the
Company on a particular date, that on such date (A) the fair market value of
the assets of the Company is greater than the total amount of liabilities
(including contingent liabilities) of the Company, (B) the present fair
salable value of the assets of the Company is greater than the amount that
will be required to pay the probable liabilities of the Company on its debts
as they become absolute and matured, (C) the Company is able to realize upon
its assets and pay its debts and other liabilities, including contingent
obligations, as they mature, and (D) the Company does not have unreasonably
small capital.
(xxxv) Distribution of Offering Material.
The Company has not distributed and, prior to the later to occur
of (i) the Closing Time and (ii) completion of the distribution of the
Securities, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement, any
preliminary prospectus, the Prospectus or other materials, if any, permitted
by the 1933 Act and approved by the Underwriters.
(xxxvi) Absence of Unlawful Contributions.
The Company has not at any time during the last five years (i)
made any unlawful contribution to any candidate for foreign office, or failed
to disclose fully any contribution in violation of law, or (ii) made any
payment to any federal or state governmental officer or official, or other
person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any jurisdiction
thereof.
(xxxvii) Transactions Between Company and Officers and Directors.
All material transactions between the Company and the officers and
directors of the Company and its affiliates required to be disclosed in the
Registration Statement and Prospectus have been accurately disclosed in all
material respects in the Registration Statement and Prospectus and the
documents incorporated therein by reference.
(xxxviii) ERISA Underwritten Securities.
None of the assets of the Company are, nor will such assets, as of
the Closing Date, constitute, "plan assets" under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")
(b) Officers' Certificates.
Any certificate signed by any officer of the Company or any subsidiary
and delivered to any Underwriter or to counsel for the Underwriters in
connection with the offering of the Underwritten Securities shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing
(a) Underwritten Securities.
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) Option Underwritten Securities.
In addition, subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement, an option
to the Underwriters, severally and not jointly, to purchase up to the number
or aggregate principal amount, as the case may be, of the Option Underwritten
Securities set forth therein at a price per Option Underwritten Security equal
to the price per Initial Underwritten Security, less an amount equal to any
dividends or distributions declared by the Company and paid or payable on the
Initial Underwritten Securities but not payable on the Option Underwritten
Securities. Such option, if granted, will expire 30 days after the date of
such Terms Agreement, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company setting forth the
number or aggregate principal amount, as the case may be, of Option
Underwritten 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 Underwritten Securities. Any such time and date of payment and
delivery (each, a "Date of Delivery") shall be mutually agreed upon by the
Company and by ▇▇▇▇▇▇▇ ▇▇▇▇▇, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will purchase
that proportion of the total number or aggregate principal amount, as the case
may be, of Option Underwritten Securities then being purchased which the
number or aggregate principal amount, as the case may be, of Initial
Underwritten Securities each such Underwriter has severally agreed to purchase
as set forth in such Terms Agreement bears to the total number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities,
subject to such adjustments as ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its discretion shall make to
eliminate any sales or purchases of a fractional number or aggregate principal
amount, as the case may be, of Option Underwritten Securities.
(c) Payment.
Payment of the purchase price for, and delivery of the Initial
Underwritten Securities shall be made at the office of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., or at such other place as shall be agreed upon by
▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date hereof (unless postponed in accordance with
the provisions of Section 10 hereof), or such other time not later than ten
business days after such date as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the
Company (such time and date of payment and delivery being herein called
"Closing Time"). In addition, in the event that the Underwriters have
exercised their option, if any, to purchase any or all of the Option
Underwritten Securities, payment of the purchase price for, and delivery of
such Option Underwritten Securities, shall be made at the above-mentioned
offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., or at such other place as shall be agreed
upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company, on the relevant Date of Delivery as
specified in the notice from ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company against delivery
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose check has not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration.
The Underwritten Securities or certificates for the Underwritten
Securities, as applicable, shall be in such denominations and registered in
such names as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may request in writing at least one full business
day prior to the Closing Time or the relevant Date of Delivery, as the case
may be. The Underwritten Securities or certificates for the Underwritten
Securities, as applicable, will be made available for examination and
packaging by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in The City of New York not later than 9:00 A.M.
(Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company
The Company covenants with ▇▇▇▇▇▇▇ ▇▇▇▇▇ and with each Underwriter
participating in the offering of Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements
of Rule 430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act
Regulations, if and as applicable, and will notify the Underwriters
immediately, and confirm the notice in writing, of (i) the effectiveness of
any post-effective amendment to the Registration Statement or the filing of
any supplement or amendment to the Prospectus, (ii) the receipt of any
comments from the Commission, (iii) 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 (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Underwritten
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424 within the period
specified therein and will take such steps as it deems necessary to ascertain
promptly whether the prospectus transmitted for filing under Rule 424 was
received for filing by the Commission and, in the event that it was not, it
will promptly file the Prospectus. 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.
(b) Filing of Amendments.
The Company will give ▇▇▇▇▇▇▇ ▇▇▇▇▇ notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing
under Rule 462(b) of the 1933 Act Regulations), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which ▇▇▇▇▇▇▇ ▇▇▇▇▇ or counsel for the Underwriters
shall reasonably object by notice to the Company.
(c) Delivery of Registration Statements.
The Company has furnished or will deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel
for the Underwriters, without charge, 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) and conformed
copies of all consents and certificates of experts, and will also deliver to
▇▇▇▇▇▇▇ ▇▇▇▇▇, without charge, a conformed copy of the Registration Statement,
as amended, (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses.
The Company will deliver to each Underwriter, without charge, as many
copies of each preliminary prospectus as such Underwriter may reasonably
request, and the Company hereby consents to the use of such copies for
purposes permitted by the 1933 Act and this Agreement. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus as such Underwriter may reasonably
request. If applicable, the Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws.
The Company will comply with the 1933 Act and the 1933 Act Regulations
and the 1934 Act and the 1934 Act Regulations so as to permit the completion
of the distribution of the Underwritten Securities as contemplated in this
Underwriting Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time when the Prospectus
is required by the 1933 Act or the 1934 Act to be delivered in connection with
sales of the Underwritten Securities, any event shall occur or condition
shall
exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement in order
that the Registration Statement 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 or 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 a 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 such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to the
Underwriters, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications.
The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Underwritten Securities and any related
Underlying Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as ▇▇▇▇▇▇▇
▇▇▇▇▇ may reasonably designate and to maintain such qualifications in effect
for a period of not less than one year from the date of the applicable Terms
Agreement; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities or any related Underlying
Securities 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 a period of not less than one year from the date
of such Terms Agreement.
(g) Reservation of Securities.
If the applicable Terms Agreement specifies that any related Underlying
Securities include Common Stock or Preferred Stock, 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 and/or Preferred Stock, as
applicable, for the purpose of enabling the Company to satisfy any obligations
to issue such Underlying Securities upon conversion of the Preferred Stock,
Senior Debt Securities or Subordinated Debt Securities, as applicable.
(h) Use of Proceeds.
The Company will use the net proceeds received by it from the sale of the
Underwritten Securities in the manner specified in the Prospectus under "Use
of Proceeds."
(i) Listing.
The Company will use its best efforts to effect the listing of the
Underwritten Securities and any related Underlying Securities, prior to the
Closing Time, on any national securities exchange or quotation system if and
as specified in the applicable Terms Agreement.
(j) Restriction on Sale of Securities.
Between the date of the applicable Terms Agreement and the Closing Time
or such other date specified in such Terms Agreement, the Company will not,
without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly,
issue, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of the securities specified in such Terms Agreement, except as
specified in such Terms Agreement.
(k) Reporting Requirements.
The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, will file all documents required
to be filed with the Commission pursuant to the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
(l) Earnings Statement.
With respect to each sale of the 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 12-month period beginning not later than the
first day of the Company's fiscal quarter next following the "effective date
of the registration statement" (as defined in such Rule 158).
(m) Prohibited Actions.
Except for the authorization of actions permitted to be taken by the
Underwriters as contemplated herein or in the Prospectus, the Company will not
(i) take, directly or indirectly, any action designed to cause or to result
in, or that would reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Underwritten Securities, (ii) sell, bid for or purchase
the Underwritten Securities or pay any person any compensation for soliciting
purchases of the Underwritten Securities or (iii) pay or agree to pay to any
person any compensation for soliciting another to purchase any other
securities of the Company.
(n) Delivery of Reports.
During the period from Closing Time until five years after Closing Time,
the Company will deliver to the Underwriters, (i) promptly upon their becoming
available, copies of all current, regular and periodic reports of the Company
mailed to its stockholders or filed with any securities exchange or with the
Commission or any governmental authority succeeding to any of the Commission's
functions, and (ii) such other information concerning the Company or any
Subsidiary as you may reasonably request.
(o) Change in Representations and Warranties.
Prior to Closing Time and if not described in the Prospectus, the Company
will notify you in writing immediately if any event occurs that renders any
of the representations and warranties of the Company contained herein
inaccurate or incomplete in any respect.
(p) Rumors.
If at any time during the 25-day period after any amendment to the
Registration Statement becomes effective or during the period prior to the
final Date of Delivery, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your reasonable
opinion the market price of the Underwritten Securities has been or is likely
to be materially affected (regardless of whether such rumor, publication or
event necessitates supplements to or amendments of the Prospectus), the
Company will, after written notice from you advising the Company to that
effect, promptly prepare, consult with you concerning the substance of, and
disseminate a press release or other public statement, reasonably satisfactory
to you, responding to or commenting on such rumor, publication or event.
(q) Securities Laws Disclosure.
From the date hereof until notice of termination pursuant to Section 9(a)
hereof is received by you, the Company shall furnish to the Underwriters and
Underwriter's counsel, as promptly as practicable after filing, copies of any
document filed with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act.
SECTION 4. Payment of Expenses
(a) Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Underwriting Agreement or the applicable Terms
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any Terms
Agreement, any Agreement among Underwriters, the Indentures and such other
documents as may be required in connection with the offering, purchase, sale
and delivery of the Underwritten Securities or any related Underlying
Securities, (iii) the preparation, issuance and delivery of the Underwritten
Securities and any related Underlying Securities, any certificates for the
Underwritten Securities or such Underlying Securities, as applicable, to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustees, and their
respective counsel, (v) the qualification of the Underwritten Securities and
any related Underlying Securities under state securities laws in accordance
with the provisions of Section 3(f) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey and any Legal Investment Survey, and any
amendment thereto (subject to any limitation on such fees and expenses set
forth in the applicable Terms Agreement), (vi) the printing and delivery to
the Underwriters of copies of each preliminary prospectus, any Term Sheet, and
the Prospectus and any amendments or supplements thereto, (vii) the fees
charged by nationally recognized statistical rating organizations for the
rating of the Underwritten Securities and any related Underlying Securities,
if applicable, (viii) the fees and expenses incurred with respect to the
listing of the Underwritten Securities and any related Underlying Securities,
if applicable, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review,
if any, by the National Association of Securities Dealers, Inc. (the "NASD")
of the terms of the sale of the Underwritten Securities and any related
Underlying Securities, and (x) the fees and expenses of any Underwriter acting
in the capacity of a "qualified independent underwriter" as defined in Rule
2720(b)(15) of the NASD's Conduct Rules, if applicable.
(b) Termination of Agreement.
If the applicable Terms Agreement is terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in
accordance with the provisions of Section 5 or Section 9(b)(i) hereof, the
Company shall reimburse the Underwriters for all of their reasonable out-of-
pocket expenses, including the reasonable fees and disbursements of counsel
for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations
The obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are subject
to the accuracy of the representations and warranties of the Company contained
in Section 1 hereof or in certificates of any officer of the Company or any of
its subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement.
The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the 1933 Act and 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, and any request on the part of the Commission for
additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to
the description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters shall have
been filed with the Commission in accordance with Rule 424(b)(1), (2), (3),
(4) or (5), as applicable (or any required post-effective amendment providing
such information shall have been filed and declared effective in accordance
with the requirements of Rule 430A) or, if the Company has elected to rely
upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the Rule 434
Information shall have been filed with the Commission in accordance with Rule
424(b)(7).
(b) Opinion of Counsel for Company.
At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received the opinion, dated as
of Closing Time, of ▇▇▇▇▇▇▇ & Berlin, Chartered, Washington, D.C., counsel for
the Company, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters, to the effect set forth in Exhibit B hereto
and to such further effect as counsel to the Underwriters may reasonably
request. In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the District of
Columbia, the federal law of the United States and the General Corporation Law
of the State of Delaware, upon the opinions of counsel satisfactory to the
Underwriters. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(c) Opinion of Counsel for Underwriters.
At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received the favorable opinion,
dated as of Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters, with respect to the matters set forth in (1),
(6), (7) to (13) (the second sentence only in each case), as applicable, (21),
(22) and the penultimate paragraph of Exhibit B hereto. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the District of Columbia, the federal law
of the United States and the General Corporation Law of the State of Delaware,
upon the opinions of counsel satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(d) Officers' Certificate.
At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, or business affairs of
the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial officer or chief accounting officer of the Company,
dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1
are true and correct with the same force and effect as though expressly made
at and as of the Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(e) Accountant's Comfort Letter.
At the time of the execution of the applicable Terms Agreement, ▇▇▇▇▇▇▇
▇▇▇▇▇ shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter dated such date,
in form and substance satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, together with signed or
reproduced copies of such letter for each of the other Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(f) Bring-down Comfort Letter.
At Closing Time, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP a letter, dated as of Closing Time, to the effect that they reaffirmed the
statements made in the letter furnished pursuant to subsection (e) of this
Section 5, except that the specified date referred to shall be a date not more
than three business days prior to the Closing Time.
(g) Ratings.
At Closing Time and at any relevant Date of Delivery, the Underwritten
Securities shall have the rating accorded by any "nationally recognized
statistical rating organization", as defined by the Commission for purposes of
Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in the
applicable Terms Agreement, and the Company shall have delivered to ▇▇▇▇▇▇▇
▇▇▇▇▇ a letter, dated as of such date, from each such rating organization, or
other evidence reasonably satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, confirming that the
Underwritten Securities have such ratings. Since the time of execution of
such Terms Agreement, there shall not have occurred a downgrading in the
rating assigned to the Underwritten Securities or any of the Company's other
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Underwritten Securities or
any of the Company's other securities.
(h) Approval of Listing.
At Closing Time, the Underwritten Securities shall have been approved for
listing, subject only to official notice of issuance, if and as specified in
the applicable Terms Agreement.
(i) No Objection.
If the Registration Statement or an offering of Underwritten Securities
has been filed with the NASD for review, the NASD shall not have raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(j) Lock-up Agreements.
On the date of the applicable Terms Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have
received, in form and substance satisfactory to it, each lock-up agreement, if
any, specified in such Terms Agreement as being required to be delivered by
the persons listed therein.
(k) Over-Allotment Option.
In the event that the Underwriters are granted an over-allotment option
by the Company in the applicable Terms Agreement and the Underwriters exercise
their Option to purchase all or any portion of the Option Underwritten
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company or any of its
subsidiaries hereunder shall be true and correct as of each Date of Delivery,
and, at the relevant Date of Delivery, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received:
(1) A certificate, dated such Date of Delivery, of the President or a
Vice President of the Company and the chief financial officer or
chief accounting officer of the Company, confirming that the
certificate delivered at the Closing Time pursuant to Section
5(d) hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of ▇▇▇▇▇▇▇ & Berlin, Chartered, Washington,
D.C., counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Underwritten Securities and otherwise to
the same effect as the Opinion required by Section 5(b) hereof.
(3) The favorable Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(4) A letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in form and substance
satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to Section 5(f) hereof,
except that the "specified date" on the letter furnished pursuant
to this paragraph shall be a date not more than three business
days prior to such Date of Delivery.
(l) Additional Documents.
At Closing Time and at each Date of Delivery, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties,
or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale of
the Underwritten Securities as herein contemplated shall be reasonably
satisfactory in form and substance to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the
Underwriters.
(m) Termination of Terms Agreement.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
(or, with respect to the Underwriters' exercise of any applicable
over-allotment option for the purchase of Option Underwritten Securities on a
Date
of Delivery after the Closing Time, the obligations of the Underwriters to
purchase the Option Underwritten Securities on such Date of Delivery) may be
terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ by notice to the Company at any time at or prior
to the Closing Time (or such Date of Delivery, as applicable), 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 8 shall survive
any such termination and remain in full force and effect.
SECTION 6. Indemnification
(a) Indemnification of Underwriters.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(1) 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 430A Information and the Rule 434 Information deemed to be a
part thereof, if applicable, 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 any preliminary prospectus or the
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;
(2) 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;
and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇),
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 (1) or (2)
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 any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), including the 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto); provided, further, that the foregoing indemnity with
respect to the preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) shall not inure to the benefit of any Underwriter from
whom the person asserting any such loss, claim, damage or liability purchased
the Underwritten Securities or any Underlying Securities, if applicable, that
are the subject thereof if such person did not receive a copy of the
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
at, or prior to, the confirmation of the sale to such person in any case where
such delivery is required by the 1933 Act or any Blue Sky or other state
securities act, and the untrue statement or omission, or alleged untrue
statement or omission, of a material fact contained in such preliminary
prospectus or Prospectus (or any amendment or supplement thereto) was
corrected in the document the Underwriter did not deliver.
(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, 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 430A Information and the Rule 434 Information deemed to be
a part thereof, if applicable, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by such Underwriter through
▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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)(2) 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.
SECTION 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 such Underwritten Securities (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, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
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 the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or 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 underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) 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 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 or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in
the applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery
All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company submitted pursuant hereto or thereto shall remain
operative and in full force and effect, regardless of any investigation made
by or on behalf of any Underwriter or controlling person, or by or on behalf
of the Company, and shall survive delivery of and payment for the Underwritten
Securities.
SECTION 9. Termination
(a) Underwriting Agreement.
This Underwriting Agreement (excluding the applicable Terms Agreement)
may be terminated for any reason at any time by the Company or by ▇▇▇▇▇▇▇
▇▇▇▇▇ upon the giving of 30 days' prior written notice of such termination to
the other party hereto.
(b) Terms Agreement.
▇▇▇▇▇▇▇ ▇▇▇▇▇ may terminate the applicable Terms Agreement, by notice to
the Company, at any time at or prior to the Closing Time or any relevant Date
of Delivery, if (i) 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 Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, or 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) there has occurred any
material adverse change in the financial markets in the United States or, if
the Underwritten Securities or any related Underlying Securities include Debt
Securities denominated or payable in, or indexed to, one or more foreign or
composite currencies, in the international financial markets, or 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, impracticable to
market the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or limited by the Commission or the New York Stock Exchange or,
if trading generally on the New York Stock Exchange or the American Stock
Exchange or in the Nasdaq National Market has been suspended or limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv)
a banking moratorium has been declared by either Federal or New York
authorities or, if the Underwritten Securities or any related Underlying
Securities include Debt Securities denominated or payable in, or indexed to,
one or more foreign or composite currencies, by the relevant authorities in
the related foreign country or countries.
(c) Liabilities.
If this Underwriting Agreement or the applicable Terms Agreement is
terminated pursuant to this Section 9, 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 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters
If one or more of the Underwriters shall fail at the Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Securities"), then ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall not have completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10 percent of the number
or
aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in
the proportions that their respective underwriting obligations
under such Terms Agreement bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10 percent of the number or
aggregate
principal amount, as the case may be, of Underwritten Securities
to be purchased on such date pursuant to such Terms Agreement,
such Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase,
and the Company to sell, such Option Underwritten Securities
on
such Date of Delivery) shall terminate without liability on the
part of any non-defaulting Underwriter
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Company shall have
the right to postpone the Closing Time or the relevant Date of Delivery, as
the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any
other documents or arrangements.
SECTION 11. Notices
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be
directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ attention of: ▇▇▇▇ ▇▇▇▇▇, Director, with a copy to ▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇,
Attention: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., and notices to the Company shall be
directed to it at: The CRI Building, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President, with a
copy to ▇▇▇▇▇▇▇ & Berlin, Chartered, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
SECTION 12. Parties
This Underwriting Agreement and the applicable Terms Agreement shall each
inure to the benefit of and be binding upon the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and,
upon execution of such Terms Agreement, any other Underwriters and their
respective successors. Nothing expressed or mentioned in this Underwriting
Agreement or such Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than the Underwriters and the Company
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any
provision herein or therein contained. This Underwriting Agreement and such
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME
THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will
become a binding agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company in accordance
with its terms.
Very truly yours,
CRIIMI MAE Inc.
By: /s/ H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:President
CONFIRMED AND ACCEPTED,
as of the date first
above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Authorized Signatory
TABLE OF CONTENTS
Page
SECTION 1. REPRESENTATIONS AND WARRANTIES 4
(a) Representations and Warranties by the Company. 4
(i) Compliance with Registration Requirements. 4
(ii) Incorporated Documents. 5
(iii) Independent Accountants. 6
(iv) Financial Statements. 6
(v) No Material Adverse Change in Business. 7
(vi) Good Standing of the Company. 7
(vii) Good Standing of Subsidiaries. 7
(viii) Capitalization. 8
(ix) Qualification as a REIT. 8
(x) Authorization of this Underwriting Agreement
and Terms Agreement. 8
(xi) Authorization of Common Stock. 8
(xii) Authorization of Preferred Stock. 9
(xiii) Authorization of Senior Debt Securities
or Subordinated Debt Securities. 9
(xiv) Authorization of the Indentures. 10
(xv) Authorization of Warrants. 10
(xvi) Authorization of Warrant Agreement. 10
(xvii) Descriptions of the Underwritten Securities,
Underlying Securities and Indentures. 10
(xviii) Absence of Defaults and Conflicts. 11
(xix) Absence of Labor Dispute. 12
(xx) Absence of Proceedings. 12
(xxi) Accuracy of Exhibits. 12
(xxii) Absence of Further Requirements. 12
(xxiii) Possession of Intellectual Property. 12
(xxiv) Possession of Licenses and Permits. 13
(xxv) Title to Property. 13
(xxvi) Commodity Exchange Act. 14
(xxvii) Investment Company Act. 14
(xxviii) Environmental Laws. 14
(xxvix) Tax Compliance. 15
(xxx) Absence of Price Manipulation. 15
(xxxi) Compliance with Cuba Act. 15
(xxxii) Insurance. 15
(xxxiii) Accounting Controls. 15
(xxxiv) Absence of Registration Rights. 16
(xxxv) Solvency. 16
(xxxvi) Distribution of Offering Material. 16
(xxxvii) Absence of Unlawful Contributions. 16
(xxxviii) Transactions Between Company and Officers
and Directors. 16
(xxxix) ERISA Underwritten Securities. 16
(b) Officers' Certificates. 17
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING 17
(a) Underwritten Securities. 17
(b) Option Underwritten Securities. 17
(c) Payment. 18
(d) Denominations; Registration. 18
SECTION 3. COVENANTS OF THE COMPANY 19
(a) Compliance with Securities Regulations
and Commission Requests. 19
(b) Filing of Amendments. 19
(c) Delivery of Registration Statements. 19
(d) Delivery of Prospectuses. 20
(e) Continued Compliance with Securities Laws. 20
(f) Blue Sky Qualifications. 21
(g) Reservation of Securities. 21
(h) Use of Proceeds. 21
(i) Listing. 21
(j) Restriction on Sale of Securities. 21
(k) Reporting Requirements. 22
(l) Earnings Statement. 22
(m) Prohibited Actions. 22
(n) Delivery of Reports. 22
(o) Change in Representations and Warranties. 22
(p) Rumors. 23
(q) Securities Laws Disclosure. 23
SECTION 4. PAYMENT OF EXPENSES 23
(a) Expenses. 23
(b) Termination of Agreement. 24
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS 24
(a) Effectiveness of Registration Statement. 24
(b) Opinion of Counsel for Company. 25
(c) Opinion of Counsel for Underwriters. 25
(d) Officers' Certificate. 25
(e) Accountant's Comfort Letter. 26
(f) Bring-down Comfort Letter. 26
(g) Ratings. 26
(h) Approval of Listing. 26
(i) No Objection. 26
(j) Lock-up Agreements. 27
(k) Over-Allotment Option. 27
(l) Additional Documents. 27
(m) Termination of Terms Agreement. 28
SECTION 6. INDEMNIFICATION 28
(a) Indemnification of Underwriters. 28
(b) Indemnification of Company, Directors and Officers. 29
(c) Actions against Parties; Notification. 30
(d) Settlement without Consent if Failure to Reimburse. 30
SECTION 7. CONTRIBUTION 31
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
TO SURVIVE DELIVERY 32
SECTION 9. TERMINATION 33
(a) Underwriting Agreement. 33
(b) Terms Agreement. 33
(c) Liabilities. 33
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS 33
SECTION 11. NOTICES 35
SECTION 12. PARTIES 35
SECTION 13. GOVERNING LAW AND TIME 35
SECTION 14. EFFECT OF HEADINGS 36