Underwriting Agreement 4,200,000 Shares representing assigned limited partnership interests America First Tax Exempt Investors, L.P. October 6, 2009
Exhibit
1.1
4,200,000
Shares representing assigned limited partnership interests
America
First Tax Exempt Investors, L.P.
October
6, 2009
Deutsche
Bank Securities Inc.
RBC
Capital Markets Corporation
▇▇▇▇▇▇▇▇▇▇▇
& Co. Inc.
As
Representatives of the
Several Underwriters
c/o
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As the
Representatives of the several underwriters named in
Schedule I hereto
Ladies
and Gentlemen:
America
First Tax Exempt Investors, L.P., a Delaware limited partnership (the “Issuer”),
proposes to sell to the several underwriters (the “Underwriters”) named in Schedule I hereto for
whom you are acting as representatives (the “Representatives”) an aggregate of
4,200,000 shares representing assigned limited partnership interests of the
Issuer (the “Firm Securities”). The respective amounts of the Firm Securities to
be so purchased by the several Underwriters are set forth opposite their names
in Schedule I
hereto. In addition, solely for the purpose of covering over-allotments, the
Issuer proposes to sell at the Underwriters’ option an aggregate of up to
630,000 additional shares representing assigned limited partnership interests
(the “Option Securities”) as set forth below.
As the
Representatives, you have advised the Issuer (a) that you are authorized to
enter into this Agreement on behalf of the several Underwriters and (b) that the
several Underwriters are willing, acting severally and not jointly, to purchase
the number of Firm Securities set forth opposite their respective names in Schedule I, plus
their pro rata portion of the Option Securities if you elect to exercise the
over-allotment option in whole or in part for the accounts of the several
Underwriters. The Firm Securities and the Option Securities (to the extent the
aforementioned option is exercised) are herein collectively called the “Shares.”
The Underwriters intend to conduct a public offering of the Shares (the
“Offering”).
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1.
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REPRESENTATIONS AND
WARRANTIES OF THE ISSUER.
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The
Issuer represents and warrants to each of the Underwriters as
follows:
(a) The
Issuer meets the requirements for use of Form S-3 under the Securities Act of
1933, as amended (the “Securities Act”) and has filed with the Securities and
Exchange Commission (the “Commission”) a registration statement on Form S-3 (No.
333-139864), as amended, for the registration of the Shares under the Securities
Act, and the offering thereof from time to time in accordance with Rule 430B or
Rule 415 of the rules and regulations of the Commission under the Securities Act
(the “Securities Act Rules and Regulations”). Such registration statement (as so
amended, if applicable) has been declared effective by the Commission. The
registration statement and prospectus may have been amended or supplemented
prior to the date of this Agreement; any such amendment or supplement was
prepared and filed, and any such amendment, filed after the effective date of
such registration statement has been declared effective. No stop order
suspending the effectiveness of the registration statement has been issued, and
no proceeding for that purpose has been instituted or threatened by the
Commission. A prospectus supplement (the “Prospectus Supplement”) setting forth
the terms of the Offering, sale and plan of distribution of the Shares and
additional information concerning the Issuer and its business has been or will
be prepared and, together with the prospectus included in the registration
statement, will be filed pursuant to Rule 424(b) of the Securities Act Rules and
Regulations on or before the second business day after the date hereof (or such
earlier time as may be required by the Securities Act Rules and Regulations).
The registration statement, as it may have heretofore been amended and at the
time it became effective, including the information, if any, deemed to be a part
thereof pursuant to Rule 430B of the Securities Act Rules and Regulations, is
referred to herein as the “Registration Statement,” and the final form of
prospectus included in the Registration Statement, as supplemented by the
Prospectus Supplement, in the form filed by the Issuer with the Commission
pursuant to Rule 424(b) under the Securities Act Rules and Regulations, is
referred to herein as the “Prospectus.” Any Registration Statement filed by the
Issuer pursuant to Rule 462(b) of the Securities Act is hereinafter called the
“Rule 462(b) Registration Statement” and from and after the date and time of
filing the Rule 462(b) Registration Statement, the term “Registration Statement”
shall include the Rule 462(b) Registration Statement. Copies of the Registration
Statement and the Prospectus, any amendments or supplements thereto and all
documents incorporated by reference therein that were filed with the Commission
on or prior to the date of this Agreement (including one fully executed copy of
the Registration Statement and of each amendment thereto) have been delivered to
the Underwriters and their counsel. Any preliminary Prospectus Supplement
relating to the offering of the Shares (a “Preliminary Prospectus Supplement”),
preliminary prospectus or prospectus subject to completion included in the
Registration Statement or filed with the Commission pursuant to Rule 424 under
the Securities Act and the Securities Act Rules and Regulations is hereafter
called a “Preliminary Prospectus.” “Issuer Free Writing Prospectus” means any
“issuer free writing prospectus,” as defined in Rule 433 of the Securities Act
Rules and Regulations, relating to the Shares in the form filed or required to
be filed with the Commission or, if not required to be filed, in the form
retained in the Issuer’s records pursuant to Rule 433(g) of the Securities Act
Rules and Regulations. “General Use Issuer Free Writing Prospectus” means any
Issuer Free Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being specified as such in Schedule II to this
Agreement. “Limited Use Issuer Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
“Applicable Time” means 8:30 A.M. (Eastern Time) on October 7, 2009. Any
reference herein to the Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), on or before the effective date of the Registration Statement, the date
of such Preliminary Prospectus or the date of the Prospectus, as the case may
be, and any reference herein to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include (i) the filing of any
document under the Exchange Act after the effective date of the Registration
Statement, the date of such Preliminary Prospectus or the date of the
Prospectus, as the case may be, which is incorporated therein by reference and
(ii) any such document so filed. For purposes of this Agreement, all references
to the Registration Statement, the Prospectus, Prospectus Supplement,
Preliminary Prospectus Supplement, Preliminary Prospectus or Issuer Free Writing
Prospectus or to any amendment or supplement thereto shall be deemed to include
any copy filed with the Electronic Data Gathering Analysis and Retrieval System
(▇▇▇▇▇), and such copy shall be identical in content to any Prospectus delivered
to the Underwriters for use in connection with the Offering.
(b) Each part
of the Registration Statement (and any post-effective amendment thereto),
including the filing with the Commission of the Issuer’s most recent Annual
Report on Form 10-K and Quarterly Reports on Form 10-Q, at the Closing Date and,
if later, at any Option Closing Date (each as hereinafter defined), and the
Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission and at the Closing Date and, if later, at any Option
Closing Date, conformed or will conform in all material respects with the
requirements of the Securities Act, the Securities Act Rules and Regulations,
the Exchange Act and the rules and regulations of the Commission under the
Exchange Act (the “Exchange Act Rules and Regulations” and, together with the
Securities Act Rules and Regulations, the “Rules and Regulations”) and did not
or 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; the Prospectus and any amendment or supplement thereto,
on the date of the filing thereof with the Commission and at the Closing Date
and, if later, at any Option Closing Date, did not or 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. When any related Preliminary Prospectus was
first filed with the Commission (whether filed as part of the Registration
Statement for the registration of the Shares or any amendment thereto or
pursuant to Rule 424(a) under the Securities Act) and when any amendment thereof
or supplement thereto was first filed with the Commission, such Preliminary
Prospectus and any amendments thereof and supplements thereto complied in all
material respects with the applicable provisions of the Securities Act, the
Securities Act Rules and Regulations, the Exchange Act and the Exchange Act
Rules and Regulations and did not contain an untrue statement of a material fact
and did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. No representation and
warranty is made in this subsection (b) however, with respect to any information
contained in or omitted from the Registration Statement or the Prospectus or any
related Preliminary Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Issuer by or on behalf of the Underwriters specifically for use therein. The
parties acknowledge and agree that such information provided by or on behalf of
the Underwriters consists solely of (i) the public offering price of the Shares
presented on the cover page of the Prospectus Supplement and Prospectus and
under the heading “Underwriting” in the Prospectus Supplement and the Prospectus
(ii) the list of Underwriters and their respective participation in the sale of
the Shares, (iii) the third paragraph under the heading “Underwriting” in the
Prospectus related to concessions and reallowances, (iv) the underwriting
discounts and commissions in the fifth paragraph under the heading
“Underwriting” in the Prospectus (iv) and the tenth through fifteenth paragraphs
under the heading “Underwriting” related to stabilization, short positions and
penalty bids (collectively, the “Underwriters’ Information”). The Issuer has not
distributed, and prior to the later of the Closing Date and the completion of
the distribution of the Shares, will not distribute, any offering material in
connection with the Offering or sale of the Shares other than the Registration
Statement, the Preliminary Prospectus Supplement, the Prospectus or any other
materials, if any, permitted by the Securities Act (which were disclosed to the
Underwriters and Underwriters’ counsel and are listed on Schedule III hereof
other than documents referred to in clause (C) of Section 1(d)).
(c) At the
time of filing the Registration Statement and at the date of this Agreement, the
Issuer was not and is not an “ineligible issuer,” as defined in Rule 405 of the
Securities Act Rules and Regulations, including as a result of (i) the Issuer in
the preceding three years having been convicted of a felony or misdemeanor or
having been made the subject of a judicial or administrative decree or order as
described in Rule 405 of the Securities Act Rules and Regulations and (ii) the
Issuer in the preceding three years having been the subject of a bankruptcy
petition or insolvency or similar proceeding, having had a registration
statement be the subject of a proceeding under Section 8 of the Securities Act
or being the subject of a proceeding under Section 8A of the Securities Act in
connection with the offering of the Shares, all as described in Rule 405 of the
Securities Act Rules and Regulations.
(d) As of the
Applicable Time, neither (i) (A) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time, (B) the Preliminary
Prospectus and (C) the documents mutually agreed to by the Issuer and the
Underwriters, considered together with the final pricing information included on
the cover page of the Prospectus (collectively, the “Disclosure Package”), nor
(ii) any individual Limited Use Issuer Free Writing Prospectus, when considered
together with the Disclosure Package, included any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to statements
contained in or omitted from any prospectus included in the Registration
Statement or any Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Issuer by or on behalf
of the Underwriters specifically for use therein. The parties acknowledge and
agree that such information provided by or on behalf of the Underwriters
consists solely of the Underwriters’ Information.
(e) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the Offering and sale of the Shares or until any
earlier date that the Issuer notified or notifies the Underwriters as described
in the next sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information then contained
in the Registration Statement. If at any time following issuance of an Issuer
Free Writing Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement or included or
would include an untrue statement of a material fact or omitted or would omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances prevailing at that subsequent time, not misleading,
(i) the Issuer has promptly notified or will promptly notify the Underwriters
and (ii) the Issuer has promptly amended or will promptly amend or supplement
such Issuer Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission. The foregoing two sentences do not apply to
statements contained in or omitted from any Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to the
Issuer by or on behalf of the Underwriters specifically for use therein. The
parties acknowledge and agree that such information provided by or on behalf of
the Underwriters consists solely of Underwriters’ Information.
(f) The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement, the Preliminary Prospectus 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 Exchange Act and
the Exchange Act Rules and Regulations and, when read together with the other
information in the Preliminary Prospectus and the Prospectus, at the time the
Registration Statement and any amendments thereto become effective, at the
Applicable Time, at the date of the Prospectus and at the Closing Date, 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, in the light of the circumstances under which they were made, not
misleading.
(g) This
Agreement has been duly authorized, executed and delivered by the Issuer, and
constitutes a valid, legal, and binding obligation of the Issuer, enforceable in
accordance with its terms, except as rights to indemnity hereunder may be
limited by federal or state securities laws and except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally, and subject to general principles
of equity. The Issuer has full power and authority to enter into this Agreement
and to authorize, issue and sell the Shares as contemplated by this
Agreement.
(h) The
Issuer has been duly organized and is validly existing as a limited partnership
in good standing under the laws of the State of Delaware, with the necessary
power and authority to own or lease its properties and conduct its business as
described in the Prospectus and the Disclosure Package. The Issuer is duly
qualified to transact business and is in good standing in all jurisdictions in
which the conduct of its business requires such qualification; except where the
failure to be so qualified or to be in good standing would not have a material
adverse effect on the condition (financial or otherwise), properties, assets,
liabilities, rights, operations, earnings, business, management or prospects of
the Issuer, whether or not arising from transactions in the ordinary course of
business (a “Material Adverse Effect”).
(i) The
Issuer has four wholly-owned subsidiaries, America First LP Holding Corp.,
America First LP Holding Corp. II and America First LP Holding Corp. III and
Greens of ▇▇▇▇ ▇▇▇▇ – AmFirst LP Holding Corp. (the “Subsidiaries”), each of
which is a Nebraska corporation that acts as a limited partner of one or more of
the limited partnership described below (collectively, the “Property
Partnerships”). America First LP Holding Corp. owns 99% limited partnership
interests in each of the following Ohio limited partnerships: Crescent Village
Townhomes Limited Partnership, Eagle Ridge Townhomes Limited Partnership,
Meadowbrook Apartments Limited Partnership, Post Wood Townhomes Limited
Partnership, Post Wood Townhomes II Limited Partnership and Willow Bend
Townhomes Limited Partnership. America First LP Holding Corp. II owns a 99%
limited partnership interest in Churchland Courtyard Apartments, L.P., a
Virginia limited partnership. America First LP Holding Corp. III owns a 99%
limited partnership interest in ▇▇▇▇▇ Place Apartments, A Limited Partnership, a
Georgia limited partnership. Greens of ▇▇▇▇ ▇▇▇▇ – AmFirst LP Holding corp. owns
a 99% limited partnership interest in Greens of ▇▇▇▇ ▇▇▇▇ Limited Partnership,
an Ohio limited partnership. Except for the Issuer’s direct ownership interest
in the Subsidiaries and indirect ownership interests in the Property
Partnerships, it does not own or control, directly or indirectly, any shares of
capital stock and does not have any other equity or proprietary interest in any
other corporation or any equity interest in any partnership, joint venture,
association, trust, limited liability company or other non-corporate business
entity.
(j) The
outstanding shares representing assigned limited partnership interests of the
Issuer have been duly authorized and validly issued and are fully paid and
non-assessable. The Shares to be issued and sold by the Issuer have been duly
authorized and when issued and paid for as contemplated herein will be validly
issued, fully paid and non-assessable; and no preemptive rights of holders exist
with respect to any of the Shares or the issue and sale thereof. Neither the
filing of the Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than those which
have been waived or satisfied, for or relating to the registration of any shares
representing assigned limited partnership interests.
(k) All of
the Shares conform to the description thereof contained in the Prospectus and
the Disclosure Package. No holders of shares representing assigned limited
partnership interests or any other securities or any other ownership interests
of the Issuer have rights to the registration of such securities under the
Registration Statement that have not been waived.
(l) The
consolidated financial statements of the Issuer, together with related notes and
schedules as set forth in the Registration Statement, the Prospectus and the
Disclosure Package, or incorporated by reference therein, present fairly the
financial position and the results of operations and cash flows of the Issuer,
at the indicated dates and for the indicated periods. Such financial statements
and related schedules have been prepared in accordance with U.S. generally
accepted principles of accounting, consistently applied throughout the periods
involved (including the application of FIN 46, “Consolidation of Variable
Interest Entities” (“FIN 46R”)), except as disclosed therein, and all
adjustments necessary for a fair presentation of results for such periods have
been made. The summary financial and statistical data included in the
Registration Statement, the Prospectus and the Disclosure Package or
incorporated by reference therein present fairly the information shown therein
and such data have been compiled on a basis consistent with the financial
statements presented therein and the books and records of the Issuer. The
statistical, industry-related and market-related data included in the
Registration Statement, the Prospectus and the Disclosure Package are based on
or derived from sources which the Issuer reasonably and in good faith believes
are reliable and accurate. All disclosures contained in the Registration
Statement, the Prospectus and the Disclosure Package regarding “non-GAAP
financial measures” (as such term is defined by the Rules and Regulations)
comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under
the Act, to the extent applicable. The Issuer and the Subsidiaries do not have
any material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations or any “variable interest entities” within the
meaning of Financial Accounting Standards Board Interpretation No. 46R), not
disclosed in the Registration Statement, the Prospectus and the Disclosure
Package. There are no financial statements (historical or pro forma) that are
required to be included in the Registration Statement, the Prospectus and the
Disclosure Package that are not included as required.
(m) The
Issuer maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorization, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets, (iii) access to assets is permitted only in accordance with management’s
general or specific authorization and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. Except as disclosed in the
Registration Statement, the Prospectus and the Disclosure Package, neither the
Issuer nor any of the Subsidiaries is aware of (i) any material weakness in its
internal control over financial reporting or (ii) any change in internal control
over financial reporting that has materially affected, or is reasonably likely
to materially affect, the Issuer’s internal control over financial
reporting.
(n) Each of
Deloitte & Touche LLP, which has audited the consolidated financial
statements of the Issuer, and ▇▇▇▇, Sapper & ▇▇▇▇▇▇, LLP, which has audited
certain financial statements of certain entities, the financial statements of
which are presented on a consolidated basis with those of the Issuer, and
delivered their respective opinions with respect to the audited financial
statements included in the Registration Statement and the Prospectus or
incorporated by reference therein is an independent registered public accounting
firm with respect to the Issuer within the meaning of the Securities Act, the
Rules and Regulations and the Public Company Accounting Oversight Board (United
States) (the “PCAOB”).
(o) There is
no action, suit, claim or proceeding pending or, to the knowledge of the Issuer,
threatened against the Issuer before any court or administrative agency or
otherwise (i) that is required to be described in the Registration Statement,
the Prospectus or the Disclosure Package and is not so described or (ii) which,
if determined adversely to the Issuer, might have a Material Adverse Effect or
prevent the consummation of the transactions contemplated hereby, except as set
forth in the Registration Statement, the Prospectus and the Disclosure
Package.
(p) The
Issuer does not directly own any real property nor does it have any direct
leases or subleases with respect to any real property (except that the Issuer
has indirect ownership interests in the Property Partnerships (as set forth in
Section 1(i)), which in turn own real property and have leases or subleases with
respect to real property). The Issuer has good and marketable title to all of
the assets, including all investments owned by the Issuer reflected in the
financial statements (or as described in the Prospectus and the Disclosure
Package) hereinabove described, including, without limitation, the Property
Partnerships and the Issuer’s portfolio of tax exempt bonds which finance the
properties listed in the Prospectus and the Disclosure Package, subject to no
lien, mortgage, pledge, charge or encumbrance of any kind except those reflected
in such financial statements (or as described in the Prospectus and the
Disclosure Package) or which are not material in amount and do not interfere
with the use made or proposed to be made of such assets, including the
investments.
(q) The
Issuer does not maintain or contribute to any “pension plan” (within the meaning
of Section 3(2) of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”)) that is subject to Title IV of ERISA or any “multiemployer
plan” (within the meaning of Section 4001(a)(3) of ERISA). The Issuer does not
maintain any “pension plan” (within the meaning of Section 3(2) of ERISA). The
Issuer does not maintain and is not required to contribute to a “welfare plan”
(as defined in Section 3(1) of ERISA) which provides retiree or other
post-employment welfare benefits or insurance coverage (other than “continuation
coverage” (as defined in Section 602 of ERISA) or as otherwise required by
applicable law). The Issuer does not maintain any “employee benefit plan”
(within the meaning of Section 3(3) of ERISA).
(r) The
Issuer has filed all Federal, State, local and foreign tax returns which have
been required to be filed and has paid all taxes indicated by said returns and
all assessments received by it to the extent that such taxes have become due and
are not being contested in good faith and for which an adequate reserve for
accrual has been established in accordance with U.S. generally accepted
accounting principles. All tax liabilities have been adequately provided for in
the financial statements of the Issuer, and the Issuer does not know of any
actual or proposed additional material tax assessments. There are no transfer
taxes or other similar fees or charges under Federal law or the laws of any
state, or any political subdivision thereof, required to be paid by the Issuer
in connection with the execution and delivery of this Agreement or the issuance
or sale by the Issuer of the Shares.
(s) Since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, as it may be amended or supplemented, there has not been any
material adverse change or any development involving a prospective change which
has had or is reasonably likely to have a Material Adverse Effect, whether or
not occurring in the ordinary course of business, and there has not been any
material transaction entered into or any material transaction that is probable
of being entered into by the Issuer, other than transactions in the ordinary
course of business and changes and transactions described in the Prospectus and
the Disclosure Package. The Issuer has no material contingent obligations that
are not disclosed in the Issuer’s financial statements included in the
Registration Statement and the Prospectus or incorporated by reference
therein.
(t) The
Issuer is not or with the giving of notice or lapse of time or both, will not
be, in violation of or in default under its Certificate of Limited Partnership
or Agreement of Limited Partnership or under any agreement, lease, contract,
indenture or other instrument or obligation to which it is a party or by which
it is bound and which default has had or is reasonably likely to have a Material
Adverse Effect. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated and the fulfillment of the
terms hereof will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any contract, indenture, or other
agreement or instrument to which the Issuer is a party, or of the Certificate of
Limited Partnership or Agreement of Limited Partnership or any other
organizational documents of the Issuer or any order, rule or regulation
applicable to the Issuer of any court or of any regulatory body or
administrative agency or other governmental body having
jurisdiction.
(u) Each
approval, consent, order, authorization, designation, declaration or filing by
or with any regulatory, administrative or other governmental body necessary in
connection with the execution and delivery by the Issuer of this Agreement and
the consummation of the transactions herein contemplated (except such additional
steps as may be required by the Commission, the Financial Industry Regulatory
Authority (the “FINRA”) or such additional steps as may be necessary to qualify
the Shares for public offering by the Underwriters under state securities or
Blue Sky laws) has been obtained or made and is in full force and
effect.
(v) The
Issuer has all material licenses, certifications, permits, franchises,
approvals, clearances and other regulatory authorizations (“Permits”) from
governmental authorities as are necessary to conduct its businesses as currently
conducted in the manner described in the Prospectus and the Disclosure Package.
There is no claim, proceeding or controversy, pending or, to the knowledge of
the Issuer, threatened, involving the status of or sanctions under any of the
Permits. The Issuer has fulfilled and performed all of its material obligations
with respect to the Permits, and no event has occurred which allows, or after
notice or lapse of time would allow, the revocation, termination, modification
or other impairment of the rights of the Issuer under such Permit. None of the
Permits contains any restriction that is materially burdensome on the
Issuer.
(w) To the
Issuer’s knowledge, there are no affiliations or associations between any member
of the FINRA and any of the executive officers or managers of The Burlington
Capital Group, LLC (“Burlington”) (such persons hereinafter referred to as
“Issuer’s Management”), or any holder of 5% or more of the outstanding shares
representing assigned limited partnership interests in the Issuer, except as set
forth in the Registration Statement.
(x) Neither
the Issuer, nor to the Issuer’s knowledge, any of its affiliates, has taken or
will take, directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares representing assigned
limited partnership interests to facilitate the sale or resale of the Shares.
The Issuer acknowledges that the Underwriters may engage in passive market
making transactions in the Shares on The Nasdaq Global Market in accordance with
Regulation M under the Exchange Act.
(y) The
Issuer is not required to register as an “investment company” under the
Investment Company Act of 1940, and the rules and regulations of the Commission
thereunder (collectively, the “1940 Act”).
(z) The
Issuer carries, or is covered by, insurance in such amounts and covering such
risks as is adequate for the conduct of its businesses and as is customary for
companies engaged in similar industries in similar situations. All policies of
insurance insuring the Issuer or any of its businesses or assets or Issuer’s
Management are in full force and effect, and the Issuer is in compliance with
the terms of such policies in all material respects. There are no claims by the
Issuer under any such policy or instrument as to which an insurance company is
denying liability or defending under a reservation of rights
clause.
(aa) Except as
described in the Prospectus and the Disclosure Package and as would not, singly
or in the aggregate, result in a Material Adverse Effect, to Issuer’s knowledge,
(i) none of the properties, directly or indirectly, securing the Issuer’s
investments (the “Securing Properties”) is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or rule
of common law or 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 containing materials or mold
(collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, “Environmental Laws”), (ii) the Securing
Properties have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to
any Environmental Laws against the Securing Properties and (iv) 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 Securing
Properties relating to Hazardous Materials or Environmental Laws.
(bb) Other
than as contemplated by this Agreement, the Issuer has not incurred any
liability for any finder’s or broker’s fee, or agent’s commission in connection
with the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(cc) There are
no statutes, regulations, contracts or other documents (including, without
limitation, any voting agreement) that are required to be described in the
Registration Statement, the Prospectus or the Disclosure Package or to be filed
as exhibits to the Registration Statement that are not described or filed as
required. Other than as described in the Prospectus Supplement, the Issuer has
not sent or received any notice indicating the termination of or intention to
terminate any of the contracts or agreements referred to or described in the
Registration Statement, the Prospectus or the Disclosure Package, or filed as an
exhibit to the Registration Statement, and no such termination has been
threatened by the Issuer or any other party to any such contract or
agreement.
(dd) No
payments or inducements have been made or given, directly or indirectly, to any
federal or local official or candidate for, any federal or state office in the
United States or foreign offices by the Issuer, by any member of Issuer’s
Management or agents or, to the knowledge of the Issuer, by any other person in
connection with any opportunity, contract, permit, certificate, consent, order,
approval, waiver or other authorization relating to the business of the Issuer,
except for such payments or inducements as were lawful under applicable laws,
rules and regulations. The Issuer, nor, to the knowledge of the Issuer, any
member of Issuer Management or any agent, employee or other person associated
with or acting on behalf of the Issuer, (i) has used any of the Issuer’s funds
for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity, (ii) made any direct or indirect unlawful
payment to any government official or employee from the Issuer’s funds, (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977 or (iv) made any bribe, unlawful rebate, payoff, influence payment,
kickback or other unlawful payment in connection with the business of the
Issuer.
(ee) The
Issuer owns, licenses, or otherwise has rights in all United States and foreign
patents, trademarks, service marks, tradenames, copyrights, trade secrets and
other proprietary rights necessary for the conduct of its business as currently
carried on and as proposed to be carried on as described in the Prospectus and
the Disclosure Package (collectively, and together with any applications or
registrations for the foregoing, the “Intellectual Property”). Except as
specifically described in the Prospectus and the Disclosure Package, (i) no
third parties have obtained rights to any such Intellectual Property from the
Issuer, other than licenses granted in the ordinary course and those that would
not have a Material Adverse Effect, (ii) to the Issuer’s knowledge, there is no
infringement or misappropriation by third parties of any such Intellectual
Property and (iii) there is no pending or, to the Issuer’s knowledge, threatened
action, suit, proceeding or claim by others challenging the Issuer’s rights in
or to any such Intellectual Property, and the Issuer is unaware of any facts
which would form a basis for any such claim.
(ff) The
conduct of business by the Issuer complies, and at all times has complied, in
all material respects with federal, state, local and foreign laws, statutes,
ordinances, rules, regulations, decrees, orders, Permits and other similar items
(“Laws”) applicable to its business, including, without limitation, any
licensing and certification Laws covering any aspect of the business of the
Issuer. The Issuer has not received any notification asserting, nor has
knowledge of, any present or past failure to comply with or violation of any
such Laws.
(gg) The
information contained in the Registration Statement and the Prospectus regarding
the Issuer’s expectations, plans and intentions, and any other information that
constitutes “forward-looking” information within the meaning of the Securities
Act and the Exchange Act were made by the Issuer on a reasonable basis and
reflect the Issuer’s good faith belief and/or estimate of the matters described
therein.
(hh) Any
certificate signed by any officer of the Issuer and delivered to the
Representatives or counsel for the Underwriters in connection with the Offering
contemplated hereby shall be deemed a representation and warranty by the Issuer
to each Underwriter and shall be deemed to be a part of this Section 1 and
incorporated herein by this reference.
(ii) The
Issuer is in compliance with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and is actively taking steps to ensure that
it will be in compliance with other provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that
will become applicable to the Issuer.
(jj) The
Issuer has established and maintains “disclosure controls and procedures” (as
defined in Rules 13a−15(e) and 15d−15(e) of the Exchange Act; the Issuer’s
“disclosure controls and procedures” are reasonably designed to ensure that all
information (both financial and non-financial) required to be disclosed by the
Issuer in the reports that it will file or furnish under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified
in the Rules and Regulations, and that all such information is accumulated and
communicated to the Issuer’s Management as appropriate to allow timely decisions
regarding required disclosure and to make the certifications of the Chief
Executive Officer and Chief Financial Officer of Burlington with respect to the
Issuer required under the Exchange Act with respect to such
reports.
(kk) There are
no outstanding loans, advances (except normal advances for business expenses in
the ordinary course of business) or guarantees of indebtedness by the Issuer to
or for the benefit of any member of Issuer’s Management or any of their
respective family members, except as disclosed in the Prospectus and the
Disclosure Package. The Issuer has not directly or indirectly extended or
maintained credit, arranged for the extension of credit, or renewed an extension
of credit, in the form of a personal loan to or for any member of Issuer’s
Management.
(ll) The
section entitled “Management’s Discussion and Analysis of Financial Condition
and Results of Operations – Critical Accounting Policies” included or
incorporated by reference in the Issuer’s Quarterly Reports on Form 10-Q or
Annual Reports on Form 10-K, incorporated by reference in the Registration
Statement, the Prospectus and the Disclosure Package, and any information
appearing in a Current Report on Form 8-K incorporated by reference in the
Registration Statement and the Prospectus, accurately and fully describes the
accounting policies of the Issuer which the Issuer believes are the most
important in the portrayal of the financial condition and results of operations
of the Issuer and which require management’s most difficult, subjective or
complex judgments.
(mm) Neither
the Issuer nor any of its affiliates has, prior to the date hereof, made any
offer or sale of any securities which could be “integrated” for purposes of the
Securities Act or the Securities Act Rules and Regulations with the offer and
sale of the Shares pursuant to the Registration Statement. Except as disclosed
in the Prospectus and the Disclosure Package, neither the Issuer nor any of its
affiliates has sold or issued any security during the six-month period preceding
the date of the Prospectus, including but not limited to any sales pursuant to
Rule 144A or Regulation D or S under the Securities Act.
(nn) The
Issuer is a limited partnership and has been and is treated as a publicly traded
partnership that is not taxable as a corporation and not as either a corporation
or an association taxable as a corporation for federal income tax purposes, and
the holders of the Shares will be treated as partners for U.S. federal income
tax purposes.
(oo) None of
the information on (or hyperlinked from) the Issuer’s website at ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇
includes or constitutes a “free writing prospectus” as defined in Rule 405 under
the Act and the Issuer does not maintain or support any website other than ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇.
(pp) The
operations of the Issuer and its subsidiaries are and have been conducted at all
times in compliance with applicable financial record-keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and
regulations thereunder (collectively, the “Money Laundering Laws”), and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Issuer or any or its
subsidiaries with respect to the Money Laundering Laws is pending or, to the
Issuer’s knowledge, threatened.
(qq) Neither
the Issuer nor, to the Issuer’s knowledge, any director, officer, agent,
employee or affiliate of the Issuer is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Issuer will not directly or indirectly use the
proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(rr) There are
no relationships or related-party transactions involving the Issuer or any other
person required to be described in the Prospectus which have not been described
as required.
Any
representation made on the basis of the Issuer’s knowledge in this Section 1
shall mean the actual knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇.
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2.
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PURCHASE, SALE AND
DELIVERY OF THE FIRM
SECURITIES.
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(a) On the
basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Issuer agrees to sell to the
Underwriters and each Underwriter agrees, severally and not jointly, to
purchase, at a price of $4.75 per Share, the number of Firm Securities set forth
opposite the name of each Underwriter in Schedule I hereof,
subject to adjustments in accordance with Section 9 hereof.
(b) Payment
for the Firm Securities to be sold hereunder is to be made by wire transfer
payable in same-day funds against delivery of certificates therefor to the
Representatives for the several accounts of the Underwriters. Such payment and
delivery are to be made through the facilities of the Depository Trust Company
at 10:00 A.M., New York time, on the third business day after the date of this
Agreement or at such other time and date not later than five business days
thereafter as you and the Issuer shall agree upon, such time and date being
herein referred to as the “Closing Date.” As used herein, “business day” means a
day on which the New York Stock Exchange is open for trading and on which banks
in New York are open for business and are not permitted by law or executive
order to be closed.
(c) In
addition, on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Issuer hereby
grants an option to the several Underwriters to purchase the Option Securities
at the price per share as set forth in the first paragraph of this Section less
an amount per share equal to any dividends or distributions declared by the
Issuer and payable on the Firm Securities but not payable on the Option
Securities. The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and (ii) only once
thereafter within 30 days after the date of this Agreement, by you, as the
Representatives of the several Underwriters, to the Issuer setting forth the
number of Option Securities as to which the several Underwriters are exercising
the option, the names and denominations in which the Option Securities are to be
registered and the time and date at which such certificates are to be delivered.
The time and date at which certificates for Option Securities are to be
delivered shall be determined by the Representatives but shall not be earlier
than three nor later than 10 full business days after the exercise of such
option, nor in any event prior to the Closing Date (such time and date being
herein referred to as the “Option Closing Date”). If the date of exercise of the
option is three or more days before the Closing Date, the notice of exercise
shall set the Closing Date as the Option Closing Date. The number of Option
Securities to be purchased by each Underwriter shall be in the same proportion
to the total number of Option Securities being purchased as the number of Firm
Securities being purchased by such Underwriter bears to the total number of Firm
Securities, adjusted by you in such manner as to avoid fractional shares. The
option with respect to the Option Securities granted hereunder may be exercised
only to cover over-allotments in the sale of the Firm Securities by the
Underwriters. You, as the Representatives of the several Underwriters, may
cancel such option at any time prior to its expiration by giving written notice
of such cancellation to the Issuer. To the extent, if any, that the option is
exercised, payment for the Option Securities shall be made on the Option Closing
Date in same day funds through the facilities of the Depository Trust Company
drawn to the order of the Issuer.
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3.
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OFFERING BY THE
UNDERWRITERS.
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It is
understood that the several Underwriters are to make the Offering as soon as the
Representatives deem it advisable to do so. The Firm Securities are to be
offered to the public upon the terms and conditions set forth in the Disclosure
Package and Prospectus Supplement. To the extent, if at all, that any Option
Securities are purchased pursuant to Section 2 hereof, the Underwriters will
offer them to the public on the foregoing terms.
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4.
|
COVENANTS.
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(a) The
Issuer covenants and agrees with the several Underwriters that it will (i)
prepare and timely file with the Commission under Rule 424(b) of the Rules and
Regulations a Prospectus in a form approved by the Representatives, including
any supplement thereto, containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rule 430B of the
Rules and Regulations, (ii) not file any amendment to the Registration Statement
or supplement to the Prospectus, any Preliminary Prospectus, any Rule 462(b)
Registration Statement or any Issuer Free Writing Prospectus of which the
Representatives shall not previously have been advised and furnished with a copy
or to which the Representatives shall have reasonably objected in writing or
which is not in compliance with the Rules and Regulations, and (iii) file on a
timely basis all reports and any definitive proxy or information statements
required to be filed by the Issuer with the Commission subsequent to the date of
the Prospectus and prior to the termination of the offering of the Shares by the
Underwriters.
(b) The
Issuer has not distributed and without the prior consent of the Representatives,
it will not distribute any prospectus or other offering material (including,
without limitation, any offer relating to the Shares that would constitute a
Free Writing Prospectus and content on the Issuer’s website that may be deemed
to be a prospectus or other offering material) in connection with the Offering
and sale of the Shares, other than the materials referred to in Section 1(a).
Each Underwriter represents and agrees that it has not made and, without the
prior consent of the Issuer and the Representatives, it will not make, any offer
relating to the Shares that would constitute an Issuer Free Writing Prospectus.
Any such Issuer Free Writing Prospectus the use of which has been consented to
by the Issuer and the Representatives is listed on Schedule II or Schedule III hereto.
The Issuer has complied and will comply with the requirements of Rule 433 under
the Securities Act applicable to any Issuer Free Writing Prospectus, including
timely filing with the Commission or retention where required and legending. The
Issuer represents that it has satisfied and agrees that it will satisfy the
conditions under Rule 433 under the Securities Act to avoid a requirement to
file with the Commission any electronic road show. The Issuer agrees that if at
any time following issuance of an Issuer Free Writing Prospectus any event
occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, any
Preliminary Prospectus or the Prospectus or would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances then prevailing, not
misleading, the Issuer will give prompt notice thereof to the Representatives
and, if requested by the Representatives, will prepare and furnish without
charge to each Underwriter an Issuer Free Writing Prospectus or other document
which will correct such conflict, statement or omission; provided, however, that
this representation and warranty shall not apply to any statements or omissions
in an Issuer Free Writing Prospectus made in reliance upon and in conformity
with information furnished in writing to the Issuer by an Underwriter through
the Representatives expressly for use therein.
(c) The
Issuer will not take, directly or indirectly, any action designed to cause or
result in, or that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price of any securities of
the Issuer.
(d) The
Issuer will advise the Representatives promptly (i) when the Registration
Statement or any post-effective amendment thereto shall have become effective,
(ii) of receipt of any comments from the Commission, (iii) of any request of the
Commission for amendment of the Registration Statement or for supplement to the
Prospectus or for any additional information and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus or of the institution of any proceedings
for that purpose. The Issuer will use its best efforts to prevent the issuance
of any such stop order preventing or suspending the use of the Prospectus and to
obtain as soon as possible the lifting thereof, if issued.
(e) The
Issuer will cooperate with the Representatives in endeavoring to qualify the
Shares for sale under the securities laws of such jurisdictions as the
Representatives may reasonably have designated in writing and will make such
applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Issuer shall not be required
to qualify as a foreign partnership or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required to file
such a consent. The Issuer will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to continue
such qualifications in effect for so long a period as the Representatives may
reasonably request for distribution of the Shares.
(f) The
Issuer will deliver to, or upon the order of, the Representatives, from time to
time, as many copies of any Preliminary Prospectus as the Representatives may
reasonably request. The Issuer will deliver to, or upon the order of, the
Representatives during the period when delivery of a Prospectus is required
under the Securities Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Representatives may reasonably
request. The Issuer will deliver to the Representatives at or before the Closing
Date, four signed copies of the Registration Statement and all amendments
thereto including all exhibits filed therewith, and will deliver to the
Representatives such number of copies of the Registration Statement (including
such number of copies of the exhibits filed therewith that may reasonably be
requested) and of all amendments thereto, as the Representatives may reasonably
request.
(g) The
Issuer will comply with the Rules and Regulations so as to permit the completion
of the distribution of the Shares as contemplated in this Agreement and the
Prospectus. If during the period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, any event shall occur as a result of
which, in the judgment of the Issuer or in the reasonable opinion of the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing
at the time the Prospectus is delivered to a purchaser, not misleading, or, if
it is necessary at any time to amend or supplement the Prospectus to comply with
any law, the Issuer promptly will prepare and file with the Commission an
appropriate amendment to the Registration Statement or supplement to the
Prospectus so that the Prospectus as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with the law.
(h) The
Issuer will make generally available to its security holders, as soon as it is
practicable to do so, but in any event not later than 15 months after the
effective date of the Registration Statement, an earning statement (which need
not be audited) in reasonable detail, covering a period of at least 12
consecutive months beginning after the effective date of the Registration
Statement, which earning statement shall satisfy the requirements of Section
11(a) of the Securities Act and Rule 158 of the Securities Act Rules and
Regulations and will advise you in writing when such statement has been so made
available.
(i) Prior to
the Closing Date, the Issuer will furnish to the Underwriters, as soon as they
have been prepared by or are available to the Issuer, a copy of any unaudited
interim financial statements of the Issuer for any period subsequent to the
period covered by the most recent financial statements appearing in the
Registration Statement and the Prospectus or incorporated by reference
therein.
(j) The
Issuer will use its best efforts to list and continue to have listed subject to
notice of issuance, the Shares on The Nasdaq Global Market.
(k) The
Issuer shall apply the net proceeds of its sale of the Shares as described under
the heading “Use of Proceeds” in the Prospectus and the Disclosure
Package.
(l) The
Issuer shall not invest or otherwise use the proceeds received by the Issuer
from its sale of the Shares in such a manner as would require the Issuer to
register as an investment company under the 1940 Act.
(m) The
Issuer will maintain a transfer agent and, if necessary under the jurisdiction
of incorporation of the Issuer, a registrar for Shares.
(n) The
Issuer will comply with all effective applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(o) The
Issuer shall continue to operate its business so as to properly be treated as a
publicly traded partnership that is not taxable as a corporation or as an
association taxable as a corporation for federal income tax
purposes.
(p) No
offering, sale, short sale or other disposition of any equity securities of the
Issuer or other securities convertible into or exchangeable or exercisable for
equity securities of the Issuer (or agreement for such) will be made for a
period of 60 days after the date of the Prospectus, directly or indirectly, by
the Issuer otherwise than hereunder or with the prior written consent of the
Representatives. Notwithstanding the foregoing, if (1) during the last 17 days
of the 60-day restricted period, the Issuer issues an earnings release or
material news or a material event relating to the Issuer occurs; or (2) prior to
the expiration of the 60-day restricted period, the Issuer announces that it
will release earnings results during the 16-day period following the last day of
the 60-day restricted period, then in each case the restrictions imposed by this
Agreement shall continue to apply until the expiration of the 18-day period
beginning on the date of the release of the earnings results or the occurrence
of material news or a material event relating to the Issuer, as the case may be,
unless the Representatives waive, in writing, such extension.
(q) The
Issuer has caused Burlington and certain of its officers and directors to
furnish to you, on or prior to the date of this agreement, a letter or letters,
substantially in the form attached hereto as Exhibit A (the
“Lock-Up Agreements”).
(r) Prior to
the date of this agreement, the Issuer has suspended any and all share
repurchase programs relating to its equity securities, including the Securities
Purchase Plan entered into between Burlington and RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇, dated
December 19, 2007, in accordance with the requirements of Regulation
M.
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5.
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COSTS AND
EXPENSES.
|
The
Issuer will pay all costs, expenses and fees incident to the performance of the
obligations of the Issuer under this Agreement, including, without limiting the
generality of the foregoing, the following: accounting fees of the Issuer; the
fees and disbursements of counsel for the Issuer; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the Registration
Statement, Preliminary Prospectuses, any Issuer Free Writing Prospectus, the
Prospectus, any selling memorandum used by the Underwriters and any invitation
letter distributed by the Underwriters, the Blue Sky Survey, if any, and any
supplements or amendments thereto; the filing fees of the Commission; the filing
fees and expenses (including legal fees and disbursements) incident to securing
any required review by the FINRA of the terms of the sale of the Shares; and the
expenses, including the fees and disbursements of counsel for the Underwriters,
incurred in connection with the qualification of the Shares under state
securities or Blue Sky laws, if any.
The
Issuer shall not, however, be required to pay for any of the Underwriters
expenses (other than those related to qualification under FINRA regulation and
state securities or Blue Sky laws) except that, if this Agreement shall not be
consummated because the conditions in Section 6 hereof are not satisfied, or
because this Agreement is terminated by the Representatives pursuant to Section
11 hereof, or by reason of any failure, refusal or inability on the part of the
Issuer to perform any undertaking or satisfy any condition of this Agreement or
to comply with any of the terms hereof on its part to be performed, unless such
failure to satisfy said condition or to comply with said terms be due to the
default or omission of any Underwriter, then the Issuer shall reimburse the
several Underwriters for reasonable out-of-pocket expenses, including all fees
and disbursements of counsel, reasonably incurred in connection with
investigating, marketing and proposing to market the Shares or in contemplation
of performing their obligations hereunder; but the Issuer shall not in any event
be liable to any of the several Underwriters for damages on account of loss of
anticipated profits from the sale by them of the Shares.
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6.
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CONDITIONS OF
OBLIGATIONS OF THE
UNDERWRITERS.
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The
several obligations of the Underwriters to purchase the Firm Securities on the
Closing Date and the Option Securities, if any, on the Option Closing Date are
subject to the accuracy, as of the Closing Date and the Option Closing Date, if
any, of the representations and warranties of the Issuer contained herein, and
to the performance by the Issuer of its covenants and obligations hereunder and
to the following additional conditions:
(a) The
Registration Statement and all post-effective amendments thereto shall have
become effective and any and all filings required by Rule 424 and Rule 430B of
the Rules and Regulations shall have been made, and any request of the
Commission for additional information (to be included in the Registration
Statement or otherwise) shall have been disclosed to the Representatives and
complied with to their reasonable satisfaction. All material required to be
filed by the Issuer pursuant to Rule 433(d) under the Securities Act shall have
been filed with the Commission within the applicable time period prescribed for
such filing by Rule 433 under the Securities Act; if the Issuer has elected to
rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration
Statement shall have become effective by 10:00 A.M., Washington, D.C. time, on
the date of this Agreement. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
no proceedings for that purpose shall have been taken or, to the knowledge of
the Issuer, shall be contemplated by the Commission; no stop order suspending or
preventing the use of the Prospectus Supplement, Prospectus or any Issuer Free
Writing Prospectus shall have been initiated or, to the knowledge of the Issuer,
shall be contemplated by the Commission; all requests for additional information
on the part of the Commission shall have been complied with to your reasonable
satisfaction; and no injunction, restraining order, or order of any nature by a
Federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance of the Shares.
(b) The
Representatives shall have received on the Closing Date and each Option Closing
Date, if any, the opinions of ▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the Issuer dated the
Closing Date or the Option Closing Date, if any, addressed to the Underwriters
(and stating that it may be relied upon by Fried, Frank, Harris, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters) to the effect that:
(i) The
Issuer has been duly organized and is validly existing as a limited partnership
in good standing under the laws of the State of Delaware with the necessary
power and authority to conduct its business as described in the Prospectus and
the Disclosure Package and is registered as a foreign limited partnership in
existence in the State of Nebraska.
(ii) The
Shares have been duly authorized and will be validly issued, fully paid and
non-assessable when issued and paid for as contemplated by this Agreement. All
of the Shares conform to the description thereof contained in the Prospectus and
the Disclosure Package; and no preemptive rights of holders exist with respect
to any of the Shares or the issue or sale thereof.
(iii) Except as
described in or contemplated by the Prospectus and the Disclosure Package, to
the knowledge, after due investigation of such counsel after due investigation,
there are no outstanding securities of the Issuer convertible or exchangeable
into or evidencing the right to purchase or subscribe for any shares
representing assigned limited partnership interests or the other ownership
interests of the Issuer and there are no outstanding or authorized options,
warrants or rights of any character obligating the Issuer to issue any shares
representing assigned limited partnership interests or any securities
convertible or exchangeable into or evidencing the right to purchase or
subscribe for any shares representing assigned limited partnership interests. To
the knowledge of such counsel, no holder of any securities of the Issuer or any
other person has the right, contractual or otherwise, which has not been
satisfied or effectively waived, to cause the Issuer to sell or otherwise issue
to them, or to permit them to underwrite the sale of, any of the Shares or the
right to have any other securities of the Issuer included in the Registration
Statement or the right, as a result of the filing of the Registration Statement,
to require registration under the Securities Act of any other securities of the
Issuer.
(iv) The
Registration Statement and any 462(b) Registration Statement have become
effective under the Securities Act; any required filing of the Prospectus
pursuant to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); and to the knowledge of such counsel’s, no stop order
suspending the effectiveness of the Registration Statement has been issued under
the Securities Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of such counsel, threatened, by the
Commission;
(v) The
Registration Statement, the Prospectus and each amendment or supplement thereto
comply as to form in all material respects with the requirements of the
Securities Act and the applicable Securities Act Rules and Regulations
thereunder (except that such counsel need express no opinion as to the financial
statements and related schedules therein).
(vi) The
statements under the captions “Terms of the Partnership Agreement,” “Description
of Shares,” “U.S. Federal Income Tax Considerations,” “Additional U.S. Federal
Income Tax Considerations” and “ERISA Considerations” in the Prospectus and the
Disclosure Package, insofar as such statements constitute a summary of documents
referred to therein or matters of law, fairly and accurately summarize such
matters in all material respects.
(vii) Such
counsel does not know of any contracts or documents required to be filed as
exhibits to the Registration Statement or described in the Registration
Statement, Prospectus or the Disclosure Package which are not so filed or
described as required, and such contracts and documents as are summarized in the
Registration Statement, the Prospectus and the Disclosure Package are fairly and
accurately summarized in all material respects.
(viii) Such
counsel knows of no material legal or governmental actions, suits,
investigations or proceedings pending or threatened against the Issuer or to
which the Issuer is a party except as set forth in the Registration Statement,
the Prospectus and the Disclosure Package.
(ix) The
execution and delivery of this Agreement and the consummation of the
transactions herein contemplated do not and will not (A) conflict with or
constitute or result in any violation of the Certificate of Limited Partnership
or the Agreement of Limited Partnership of the Issuer, (B) constitute or result
in any violation of the Delaware Revised Uniform Limited Partnership Act, the
laws of the State of Nebraska or Federal law, or (C) result in a breach or
violation of the terms or provisions of, or constitute a default under, any
indenture, loan agreement or other agreement or instrument known to such counsel
to which the Issuer is a party or by which the Issuer may be bound.
(x) This
Agreement has been duly authorized, executed and delivered by the
Issuer.
(xi) No
consent, approval, order, authorization, designation, declaration or filing by
or with any regulatory, administrative or other governmental body is necessary
in connection with the execution and delivery of this Agreement and the
consummation of the transactions herein contemplated (other than as may be made
or obtained under the Securities Act and such as may be required by the FINRA or
as required by state securities and Blue Sky laws as to which such counsel need
express no opinion).
(xii) The
Issuer is not, and will not become or be required to register as, an investment
company under the 1940 Act as a result of the consummation of the transactions
contemplated by this Agreement, and application of the net proceeds therefrom as
described in the Prospectus and the Disclosure Package.
(xiii) The
Issuer will be treated as a partnership for United States federal income tax
purposes.
In
rendering such opinion, ▇▇▇▇▇ ▇▇▇▇ LLP may rely as to matters governed by the
laws of states other than Delaware or Nebraska or Federal laws, on local counsel
in such jurisdictions, provided that ▇▇▇▇▇ ▇▇▇▇ LLP shall state that they
believe that they and the Underwriters are justified in relying on such other
counsel. In addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that (i) any part of the Registration
Statement, at the time it became effective under the Securities Act (but after
giving effect to any modifications incorporated therein pursuant to Rule 430A
and 430B under the Securities Act) and as of the Closing Date or the Option
Closing Date, as applicable, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) that the Disclosure Package, as
of the Applicable Time, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of circumstances under which they were made, not
misleading or (iii) the Prospectus, or any supplement thereto, on the date it
was filed pursuant to the Rules and Regulations and as of the Closing Date or
the Option Closing Date, as applicable, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they are made, not
misleading (except that such counsel need express no view as to financial
statements and related schedules therein).
(c) The
Representatives shall have received from Fried, Frank, Harris, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion dated the Closing Date
and the Option Closing Date, if any, with respect to such matters as the
Representatives reasonably may request, and such counsel shall have received
such papers and information as they request to enable them to pass upon such
matters.
(d) You shall
have received, on each of the dates hereof, the Closing Date and the Option
Closing Date, if any, a letter dated the date hereof, the Closing Date or the
Option Closing Date, if any, in form and substance satisfactory to you, from
Deloitte & Touche LLP confirming that they are an independent registered
public accounting firm with respect to the Issuer within the meaning of the
Securities Act and the applicable published Rules and Regulations thereunder and
the PCAOB and stating that in their opinion the financial statements audited by
them and included in the Registration Statement or incorporated by reference
therein comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related published Rules
and Regulations; and containing such other statements and information as is
ordinarily included in accountants’ “comfort letters” to Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement and the Prospectus or
incorporated by reference therein.
(e) The
Representatives shall have received on the Closing Date and the Option Closing
Date, if any, a certificate or certificates of Burlington’s Chief Executive
Officer and Chief Financial Officer to the effect that, as of the Closing Date
or the Option Closing Date, if any, each of them severally represents as
follows:
(i) The
Registration Statement has become effective under the Securities Act and no stop
order suspending the effectiveness of the Registration Statement has been
issued, and no proceedings for such purpose have been taken or are, to his or
her knowledge, contemplated by the Commission;
(ii) The
representations and warranties of the Issuer contained in Section 1 hereof are
true and correct as of the Closing Date or the Option Closing Date, if
any;
(iii) All
filings required to have been made pursuant to Rules 424 or 430A and 430B under
the Securities Act have been made;
(iv) They have
carefully examined the Registration Statement and the Prospectus and, in their
opinion, as of the effective date of the Registration Statement, the statements
contained in the Registration Statement were true and correct, and such
Registration Statement and Prospectus did not omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, and since the effective date of the Registration
Statement, no event has occurred which should have been set forth in a
supplement to or an amendment of the Prospectus which has not been so set forth
in such supplement or amendment; and
(v) Since the
respective dates as of which information is given in the Disclosure Package, (A)
there has not been any material adverse change or any development involving a
prospective change, which has had or is reasonably likely to have a Material
Adverse Effect, whether or not arising in the ordinary course of business; (B)
the Issuer shall not have sustained any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Disclosure Package,
and (C) there shall not have been any change in the securities of
Issuer.
(f) The
Issuer shall have furnished to the Representatives such further certificates and
documents confirming the representations and warranties, covenants and
conditions contained herein and related matters as the Representatives may
reasonably have requested.
(g) The Firm
Securities and the Option Securities, if any, shall have been approved for
designation upon notice of issuance on The Nasdaq Global Market.
(h) The
FINRA, upon review of the terms of the Offering, shall not have objected to the
Offering, its terms or the Underwriters’ participation.
(i) The
Lock-Up Agreements described in Section 4(q) are in full force and
effect.
The
opinions and certificates mentioned in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in all material respects
satisfactory to the Representatives and to Fried, Frank, Harris, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
If any of
the conditions hereinabove provided for in this Section shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the
obligations of the Underwriters hereunder may be terminated by the
Representatives.
In such
event, the Issuer and the Underwriters shall not be under any obligation to each
other (except to the extent provided in Sections 5 and 8 hereof).
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7.
|
CONDITIONS OF THE
OBLIGATIONS OF THE ISSUER.
|
The
obligations of the Issuer to sell and deliver the portion of the Shares required
to be delivered as and when specified in this Agreement are subject to the
conditions that at the Closing Date or the Option Closing Date, if any, no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and in effect or proceedings therefor initiated or
threatened.
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8.
|
INDEMNIFICATION.
|
(a) The
Issuer agrees:
(i) to
indemnify and hold harmless each Underwriter, the directors and officers of each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act,
against any losses, claims, damages or liabilities to which such Underwriter or
any such controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Disclosure Package, any
Issuer Free Writing Prospectus, the Prospectus or any amendment or supplement
thereto, (ii) with respect to the Registration Statement or any amendment or
supplement thereto, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) with respect to any Preliminary Prospectus, the Disclosure
Package, any Issuer Free Writing Prospectus, the Prospectus or any amendment or
supplement thereto, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made;
provided, however, that the Issuer will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or alleged
omission made in the Registration Statement, any Preliminary Prospectus, the
Disclosure Package, any Issuer Free Writing Prospectus, the Prospectus, or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Issuer by or through the Representatives
specifically for use in the preparation thereof, such information being listed
in Section 13 below.
(ii) to
reimburse each Underwriter, each Underwriters’ directors and officers, and each
such controlling person upon demand for any legal or other out-of- pocket
expenses reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim, damage or
liability, action or proceeding or in responding to a subpoena or governmental
inquiry related to the offering of the Shares, whether or not such Underwriter
or controlling person is a party to any action or proceeding. In the event that
it is finally judicially determined that the Underwriters were not entitled to
receive payments for legal and other expenses pursuant to this subparagraph, the
Underwriters will promptly return all sums that had been advanced pursuant
hereto.
(b) Each
Underwriter severally and not jointly will indemnify and hold harmless the
Issuer and each member of the Issuer’s Management who have signed the
Registration Statement and each person, if any, who controls the Issuer within
the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities to which the Issuer or
any such director, officer, or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Disclosure Package, any Issuer Free Writing Prospectus, the Prospectus, or such
amendment or supplement (ii) with respect to the Registration Statement or any
amendment or supplement thereto, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) with respect to any Preliminary
Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus, the
Prospectus or any amendment or supplement thereto, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made; and will reimburse any legal or other
expenses reasonably incurred by the Issuer or any such director, officer, or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any Preliminary
Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus, the
Prospectus, or such amendment or supplement in reliance upon and in conformity
with written information furnished to the Issuer by or through the
Representatives specifically for use in the preparation thereof, such
information being listed in Section 13 below.
(c) In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
this Section, such person (the “indemnified party”) shall promptly notify the
person against whom such indemnity may be sought (the “indemnifying party”) in
writing. No indemnification provided for in Section 8(a) or (b) shall be
available to any party who shall fail to give notice as provided in this
Subsection if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was materially prejudiced
by the failure to give such notice, but the failure to give such notice shall
not relieve the indemnifying party or parties from any liability which it or
they may have to the indemnified party for contribution or otherwise than on
account of the provisions of Section 8(a) or (b). In case any such proceeding
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred (or within 30 days of presentation) the fees and
expenses of the counsel retained by the indemnified party in the event (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action.
It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate counsel for all such
indemnified parties. Such counsel shall be designated in writing by you in the
case of parties indemnified pursuant to Section 8(a) and by the Issuer in the
case of parties indemnified pursuant to Section 8(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. In addition, the indemnifying party will not, without the prior
written consent of the indemnified party, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action or proceeding
of which indemnification may be sought hereunder (whether or not any indemnified
party is an actual or potential party to such claim, action or proceeding)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action
or proceeding.
(d) To the
extent the indemnification provided for in this Section is unavailable to or
insufficient to hold harmless an indemnified party under Section 8(a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Issuer on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law then each indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Issuer on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, (or actions or proceedings in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Issuer on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Issuer bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer on the one hand or
the Underwriters on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The
Issuer and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Subsection 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 Subsection. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to above in
this Subsection shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Subsection, (i) no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts and commissions applicable to the Shares
purchased by such Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations in this Subsection
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) In any
proceeding relating to the Registration Statement, any Preliminary Prospectus,
the Disclosure Package, any Issuer Free Writing Prospectus, the Prospectus or
any supplement or amendment thereto, each party against whom contribution may be
sought under this Section hereby consents to the jurisdiction of any court
having jurisdiction over any other contributing party, agrees that process
issuing from such court may be served upon him or it by any other contributing
party and consents to the service of such process and agrees that any other
contributing party may join him or it as an additional defendant in any such
proceeding in which such other contributing party is a party.
(f) Any
losses, claims, damages, liabilities or expenses for which an indemnified party
is entitled to indemnification or contribution under this Section shall be paid
by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section and the representations and warranties of
the Issuer set forth in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, the Issuer, any member of
the Issuer’s Management or any persons controlling the Issuer, (ii) acceptance
of any Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter, or to the Issuer, its directors or
officers, or any person controlling the Issuer, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section.
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9.
|
DEFAULT BY
UNDERWRITERS.
|
If on the
Closing Date or the Option Closing Date, if any, any Underwriter shall fail to
purchase and pay for the portion of the Shares which such Underwriter has agreed
to purchase and pay for on such date (otherwise than by reason of any default on
the part of the Issuer), you, as the Representatives of the Underwriters, shall
use your reasonable efforts to procure within 36 hours thereafter one or more of
the other Underwriters, or any others, to purchase from the Issuer such amounts
as may be agreed upon and upon the terms set forth herein, the Firm Securities
or Option Securities, as the case may be, which the defaulting Underwriter or
Underwriters failed to purchase. If during such 36 hours you, as such
Representatives, shall not have procured such other Underwriters, or any others,
to purchase the Firm Securities or Option Securities, as the case may be, agreed
to be purchased by the defaulting Underwriter or Underwriters, then (a) if the
aggregate number of Shares with respect to which such default shall occur does
not exceed 10% of the Firm Securities or Option Securities, as the case may be,
covered hereby, the other Underwriters shall be obligated, severally, in
proportion to the respective numbers of Firm Securities or Option Securities, as
the case may be, which they are obligated to purchase hereunder, to purchase the
Firm Securities or Option Securities, as the case may be, which such defaulting
Underwriter or Underwriters failed to purchase, or (b) if the aggregate number
of Firm Securities or Option Securities, as the case may be, with respect to
which such default shall occur exceeds 10% of the Firm Securities or Option
Securities, as the case may be, covered hereby, the Issuer or you as the
Representatives of the Underwriters will have the right to terminate this
Agreement without liability on the part of the non-defaulting Underwriters or of
the Issuer except to the extent provided in Section 8 hereof. In the event of a
default by any Underwriter or Underwriters, as set forth in this Section, the
Closing Date or Option Closing Date, if any, may be postponed for such period,
not exceeding seven days, as you, as Representatives, may determine in order
that the required changes in the Registration Statement or in the Prospectus or
in any other documents or arrangements may be effected. The term “Underwriter”
includes any person substituted for a defaulting Underwriter. Any action taken
under this Section shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
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10.
|
NOTICES.
|
All
communications hereunder shall be in writing and, except as otherwise provided
herein, will be mailed, delivered, or faxed and confirmed as
follows:
|
If
to the Underwriters, to
|
Deutsche
Bank Securities Inc.
c/o
Deutsche Bank Securities Inc.
▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Equity Capital Markets Syndicate Desk
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a copy to:
Fried,
Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
if
to the Issuer, to
|
America
First Tax Exempt Investors, L.P.
c/o
The Burlington Capital Group, LLC
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇, Chief
Financial Officer
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a copy to:
▇▇▇▇▇
▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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|
11.
|
TERMINATION.
|
(a) This
Agreement may be terminated by you at any time prior to the Closing Date or any
Option Closing Date (if different from the Closing Date and then only as to
Option Shares) if any of the following has occurred (i) since the respective
dates as of which information is given in the Registration Statement, the
Disclosure Package and the Prospectus, any material adverse change or any
development involving a prospective material adverse change has had or is
reasonably likely to have a Material Adverse Effect, (ii) any outbreak or
escalation of hostilities or declaration of war or national emergency or other
national or international calamity or crisis (including, without limitation, an
act of terrorism) or change in economic or political conditions if the effect of
such outbreak, escalation, declaration, emergency, calamity, crisis or change on
the financial markets of the United States would, in your judgment, materially
impair the investment quality of the Securities, or (iii) suspension of trading
in securities generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq Global Market or limitation on prices (other than
limitations on hours or numbers of days of trading) for securities on either
such Exchange, (iv) the enactment, publication, decree or other promulgation of
any statute, regulation, rule or order of any court or other governmental
authority which in your opinion materially and adversely affects or may
materially and adversely affect the business or operations of the Issuer, (v)
declaration of a banking moratorium by United States or New York State
authorities, (vi) any downgrading, or placement on any watch list for possible
downgrading, in the rating of the Issuer’s debt securities by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule
436(g) under the Exchange Act), (vii) the suspension of trading of the Issuer’s
shares representing assigned limited partnership interests by the Nasdaq Global
Market, the Commission, or any other governmental authority, or (viii) the
taking of any action by any governmental body or agency in respect of its
monetary or fiscal affairs which in your opinion has a material adverse effect
on the securities markets in the United States; or
(b) as
provided in Sections 6 and 9 of this Agreement.
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12.
|
SUCCESSORS.
|
This
Agreement has been and is made solely for the benefit of the Issuer and
Underwriters and their respective successors, executors, administrators, heirs
and assigns, and the officers, directors and controlling persons referred to
herein, and no other person will have any right or obligation hereunder. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign merely because of such purchase.
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13.
|
INFORMATION PROVIDED
BY UNDERWRITERS.
|
The
Issuer and the Underwriters acknowledge and agree that the only information
furnished or to be furnished by any Underwriter to the Issuer for inclusion in
any Preliminary Prospectus, Prospectus, Issuer Free Writing Prospectus or the
Registration Statement consists of the Underwriters’ Information.
|
14.
|
RESEARCH
INDEPENDENCE.
|
In
addition, the Issuer acknowledges that the Underwriters’ research analysts and
research departments are required to be independent from their respective
investment banking divisions and are subject to certain regulations and internal
policies, and that such Underwriters’ research analysts may hold and make
statements or investment recommendations and/or publish research reports with
respect to the Issuer and/or the Offering that differ from the views of its
investment bankers. The Issuer hereby waives and releases, to the fullest extent
permitted by law, any claims that the Issuer may have against the Underwriters
with respect to any conflict of interest that may arise from the fact that the
views expressed by their independent research analysts and research departments
may be different from or inconsistent with the views or advice communicated to
the Issuer by such Underwriters’ investment banking divisions. The Issuer
acknowledges that each of the Underwriters is a full service securities firm and
as such from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long
or short position in debt or equity securities of the companies which may be the
subject to the transactions contemplated by this Agreement.
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15.
|
NO FIDUCIARY
DUTY.
|
Notwithstanding
any preexisting relationship, advisory or otherwise, between the parties or any
oral representations or assurances previously or subsequently made by the
Underwriters, the Issuer acknowledges and agrees that:
(a) nothing
herein shall create a fiduciary or agency relationship between the Issuer and
the Underwriters;
(b) the
Underwriters are not acting as advisors, expert or otherwise, to the Issuer in
connection with this offering, sale of the Shares or any other services the
Underwriters may be deemed to be providing hereunder, including, without
limitation, with respect to the public offering price of the
Shares;
(c) the
relationship between the Issuer and the Underwriters is entirely and solely
commercial, based on arms-length negotiations;
(d) any
duties and obligations that the Underwriters may have to the Issuer shall be
limited to those duties and obligations specifically stated herein;
and
(e) notwithstanding
anything in this Underwriting Agreement to the contrary, the Issuer acknowledges
that the Underwriters may have financial interests in the success of the
Offering that are not limited to the difference between the price to the public
and the purchase price paid to the Issuer by the Underwriters for the shares and
the Underwriters have no obligation to disclose, or account to the Issuer for,
any of such additional financial interests.
The
Issuer hereby waives and releases, to the fullest extent permitted by law, any
claims that the Issuer may have against the Underwriters with respect to any
breach or alleged breach of fiduciary duty.
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16.
|
MISCELLANEOUS.
|
The
reimbursement, indemnification and contribution agreements contained in this
Agreement and the representations, warranties and covenants in this Agreement
shall remain in full force and effect regardless of (a) any termination of this
Agreement, (b) any investigation made by or on behalf of any Underwriter or
controlling person thereof, or by or on behalf of the Issuer or any member of
Issuer’s Management and (c) delivery of and payment for the Shares under this
Agreement.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York.
This
Agreement constitutes the entire agreement of the parties to this Agreement and
supersedes all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter
hereof.
This
Agreement may only be amended or modified in writing, signed by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to
benefit.
[remainder
of page intentionally blank]
If the
foregoing letter is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Issuer and the several Underwriters in
accordance with its terms.
Very
truly yours,
AMERICA
FIRST TAX EXEMPT INVESTORS, L.P.
By: America
First Capital Associates Limited
Partnership Two, its general
partner
|
|
By:
|
The
Burlington Capital Group, LLC,
|
|
|
its
general partner
|
By:__/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial
Officer
The
foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
DEUTSCHE
BANK SECURITIES INC.
RBC
CAPITAL MARKETS CORPORATION
▇▇▇▇▇▇▇▇▇▇▇
& CO. INC.
As the
Representatives of the several Underwriters
listed on Schedule I
By: Deutsche
Bank Securities Inc.
By:_/s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇
Title:
Managing
Director
By: RBC
Capital Markets Corporation
By:_/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Title: Managing
Director
By: ▇▇▇▇▇▇▇▇▇▇▇
& Co. Inc.
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Managing
Director
SCHEDULE
I
Schedule of
Underwriters
|
Underwriter
|
Number
of Firm Securities
to be Purchased
|
|||
|
Deutsche
Bank Securities Inc
|
2,310,000 | |||
|
RBC
Capital Markets Corporation
|
1,260,000 | |||
|
▇▇▇▇▇▇▇▇▇▇▇
& Co. Inc.
|
630,000 | |||
|
Total
|
4,200,000 | |||
SCHEDULE
II
Materials Other than the
Prospectus that Comprise the Disclosure Package
None.
SCHEDULE
III
Issuer Free Writing
Prospectuses Not Included in the Disclosure Package
None.
EXHIBIT
A
Form of Lock-Up
Agreement
__________,
2009
America
First Tax Exempt Investors, L.P.
Deutsche
Bank Securities Inc.
RBC
Capital Markets Corporation
▇▇▇▇▇▇▇▇▇▇▇
& Co. Inc.
As
Representatives of the
Several Underwriters
c/o
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
The
undersigned understands that Deutsche Bank Securities Inc., RBC Capital Markets
Corporation and ▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc., as representatives (the
“Representatives”) of the several underwriters (the “Underwriters”), propose to
enter into an Underwriting Agreement (the “Underwriting Agreement”) with America
First Tax Exempt Investors, L.P. (the “Company”), providing for the public
offering by the Underwriters, including the Representatives, of shares
representing assigned limited partnership interests (“Shares”) of the Company
(the “Public Offering”).
To induce
the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned agrees that,
without the prior written consent of Deutsche Bank Securities Inc., the
undersigned will not, directly or indirectly, offer, sell, pledge, contract to
sell (including any short sale), grant any option to purchase or otherwise
dispose of any Shares (including, without limitation, Shares of the Company
which may be deemed to be beneficially owned by the undersigned on the date
hereof in accordance with the rules and regulations of the Securities and
Exchange Commission, Shares which may be issued upon exercise of a stock option
or warrant and any other security convertible into or exchangeable for Shares)
or enter into any Hedging Transaction (as defined below) relating to the Shares
(each of the foregoing referred to as a “Disposition”) during the period
specified in the following paragraph (the “Lock-Up Period”). The foregoing
restriction is expressly intended to preclude the undersigned from engaging in
any Hedging Transaction or other transaction which is designed to or reasonably
expected to lead to or result in a Disposition during the Lock-Up Period even if
the securities would be disposed of by someone other than the undersigned.
“Hedging Transaction” means any short sale (whether or not against the box) or
any purchase, sale or grant of any right (including, without limitation, any put
or call option) with respect to any security (other than a broad-based market
basket or index) that includes, relates to or derives any significant part of
its value from the Shares.
The
initial Lock-Up Period will commence on the date hereof and continue until, and
include, the date that is 60 days after the date of the final prospectus
relating to the Public Offering (the “Initial Lock-Up Period”); provided, however, that if (1)
during the last 17 days of the Initial Lock-Up Period, (A) the Company releases
earnings results or (B) material news or a material event relating to the
Company occurs, or (2) prior to the expiration of the Initial Lock- Up Period,
the Company announces that it will release earnings results during the 16-day
period following the last day of the Initial Lock-Up Period, then in each case
the Lock-Up Period will be extended until the expiration of the 18-day period
beginning on the date of the release of the earnings results or the occurrence
of material news or a material event relating to the Company, as the case may
be, unless Deutsche Bank Securities Inc. waives, in writing, such
extension.
Notwithstanding
the foregoing, the undersigned may transfer (a) Shares acquired in open market
transactions by the undersigned after the completion of the Public Offering, and
(b) any or all of the Shares or other Company securities if the transfer is by
(i) gift, will or intestacy, or (ii) distribution to partners, members or
shareholders of the undersigned; provided, however, that in the
case of a transfer pursuant to clause (b) above, it shall be a condition to the
transfer that the transferee execute an agreement stating that the transferee is
receiving and holding the securities subject to the provisions of this Lock-Up
Agreement.
The
undersigned agrees that the Company may, and that the undersigned will, (i) with
respect to any Shares or other Company securities for which the undersigned is
the record holder, cause the transfer agent for the Company to note stop
transfer instructions with respect to such securities on the transfer books and
records of the Company and (ii) with respect to any Shares or other Company
securities for which the undersigned is the beneficial holder but not the record
holder, cause the record holder of such securities to cause the transfer agent
for the Company to note stop transfer instructions with respect to such
securities on the transfer books and records of the Company.
In
addition, the undersigned hereby waives any and all notice requirements and
rights with respect to registration of securities pursuant to any agreement,
understanding or otherwise setting forth the terms of any security of the
Company held by the undersigned, including any registration rights agreement to
which the undersigned and the Company may be party; provided that such
waiver shall apply only to the proposed Public Offering, and any other action
taken by the Company in connection with the proposed Public
Offering.
The
undersigned hereby agrees that, to the extent that the terms of this Lock-Up
Agreement conflict with or are in any way inconsistent with any registration
rights agreement to which the undersigned and the Company may be a party, this
Lock-Up Agreement supersedes such registration rights agreement.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Lock-Up Agreement. All authority herein
conferred or agreed to be conferred shall survive the death or incapacity of the
undersigned and any obligations of the undersigned shall be binding upon the
heirs, personal representatives, successors and assigns of the
undersigned.
Notwithstanding
anything herein to the contrary, if the closing of the Public Offering has not
occurred prior to October 31, 2009, this agreement shall be of no further force
or effect.
Signature: _________________________
Print
Name: ________________________
|
Number
of shares owned subject
to warrants, options or
convertible securities:
______________________
______________________
______________________
|
Certificate
numbers:
______________________
______________________
______________________
|