EXECUTION COPY
DEALER MANAGER AGREEMENT
February 19, 2003
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Resource America, Inc., a Delaware corporation (the "Company"),
proposes to: (1) offer to exchange (the "Exchange Offer") any and all of the
Company's outstanding 12% Senior Notes due 2004 (the "Old Notes") for its 12%
Senior Notes due 2008 (the "New Notes") to be issued pursuant to an indenture
(the "New Indenture") between the Company, the Guarantors named therein (the
"Guarantors") and The Bank of New York, as trustee (the "Trustee") and cash in
an amount not to exceed $10.0 million, and (2) engage in a related solicitation
of consents (the "Consent Solicitation") from registered holders of the Old
Notes to certain proposed amendments (the "Proposed Amendments") to the
Indenture, dated as of July 22, 1997 (the "Old Indenture"), between the Company
and the Trustee, under which the Old Notes were issued (such Exchange Offer and
Consent Solicitation being collectively referred to as the "Transactions"). The
New Notes will be fully and unconditionally guaranteed (the "Guarantees") as to
payment of principal, interest, premium and liquidated damages, if any, on an
unsecured basis, jointly and severally, by each of the Guarantors. The
Transactions will be made upon the terms and subject to the conditions set forth
in the exchange offer and consent solicitation materials, including: (a) the
Registration Statement of the Company on Form S-4 (No. ________) prepared and
filed by the Company with the Securities and Exchange Commission (the "SEC") in
accordance with the Securities Act of 1933, as amended, and the rules and
regulations of the SEC thereunder (collectively, the "Securities Act") for the
New Notes; (b) the Prospectus (as defined herein) and the appendices thereto and
any documents incorporated therein by reference; (c) the Letter of Transmittal
and Consent to be used by Holders (as defined herein) to tender Old Notes for
exchange and deliver consents to the Proposed Amendments (the "Letter of
Transmittal"); (d) the letter to brokers, dealers, commercial banks, trust
companies and other nominees (collectively, the "Custodians"); (e) the form of
letter from any of the Custodians; (f) the New Indenture; (g) the supplemental
indenture to the Old Indenture to be executed by the Trustee and the Company
(the "Supplemental Indenture") and (h) any press releases relating to the
Transactions in which Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear ▇▇▇▇▇▇▇") and Friedman,
Billings, ▇▇▇▇▇▇ & Co., Inc.("FBR" and, together with Bear ▇▇▇▇▇▇▇, the "Dealer
Managers") are named, in each case of clauses (a) through (h), including any
amendment or supplement thereto (collectively the "Transaction Documents"). The
Proposed Amendments will be contained in the Supplemental Indenture. The holders
of Old Notes are referred to herein as the "Holders." The date on which the
Prospectus and Letter of Transmittal are first mailed or otherwise distributed
to Holders is hereinafter referred to as the "Commencement Date." Any
capitalized term used but not defined in this Agreement shall have the meaning
ascribed thereto in the Prospectus.
As used in this Agreement, the term "Registration Statement" means such
registration statement, including exhibits, financial statements and schedules,
as amended when it becomes effective. As used in this Agreement, the term
"Prospectus" means the prospectus for the Exchange Offer and Consent
Solicitation in the form it was first filed with the SEC pursuant to Rule 424(b)
under the Securities Act; provided, however, that until such filing (if any) it
shall mean the final prospectus included in the Registration Statement; and
provided further, however, that if no prospectus is filed on behalf of the
Company pursuant to Rule 424(b) or if any other prospectus is used to solicit
tenders of the Old Notes and deliveries of Consents prior to the Acceptance Date
(as hereinafter defined), the term "Prospectus" shall mean any prospectus used
to solicit tenders of Old Notes and deliveries of Consents prior to the
Acceptance Date. Any reference herein to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Form S-4 under the Securities Act, as of the date
of the Registration Statement or Prospectus, as the case may be, and any
reference to any amendment or supplement to the Registration Statement or the
Prospectus shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC thereunder (collectively, the "Exchange Act") and so
incorporated by reference (such incorporated documents, financial statements and
schedules being herein called the "Incorporated Documents").
The Company hereby confirms its agreement with you as follows:
1. Transaction Documents. The Company agrees to furnish you at the
Company's expense with as many copies as you may reasonably request of the
Transaction Documents. The Company agrees to cause a copy of the Prospectus and
Letter of Transmittal to be mailed to each Holder of record as of the
Commencement Date and each beneficial owner of Old Notes known to the Company as
of the Commencement Date. Thereafter, to the extent practicable until the
expiration of the Transactions, the Company shall use its best efforts to cause
copies of the Prospectus and Letter of Transmittal to be distributed to each
person who becomes known to the Company as a Holder of Old Notes or a beneficial
owner of Old Notes.
2. Agreement to Act as Dealer Managers. The Company hereby retains Bear
▇▇▇▇▇▇▇ and FBR, and Bear ▇▇▇▇▇▇▇ and FBR agree to act, as dealer managers and
solicitation agents to the Company in connection with the Transactions, until
the earlier of (i) the termination by a party of this Agreement in accordance
herewith and (ii) the date of the consummation of the Transactions (the "Closing
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Date"). As Dealer Managers, you agree, in accordance with your customary
practice, to perform those services in connection with the Transactions as are
customarily performed by dealer managers in connection with exchange offers and
consent solicitations of like nature, including, but not limited to, soliciting
tenders of Old Notes for exchange and consents pursuant to the Transactions and
communicating generally regarding the Transactions with brokers, dealers,
commercial banks and trust companies (individually, a "Dealer" and collectively,
"Dealers") and other persons, including Holders of the Old Notes.
(a) The Company hereby authorizes you to act as Dealer Managers in
connection with the Transactions and, on the basis of the representations,
warranties and agreements herein contained and upon the terms and subject to the
conditions hereof, you agree to act as Dealer Managers in connection with the
Transactions.
(b) The Company shall furnish or cause the registrar for the Old Notes
(the "Registrar") to furnish you, as soon as practicable, with cards or lists or
copies thereof showing the names of persons who were the Holders as of the
Commencement Date and, to the extent available to the Company, the beneficial
owners of Old Notes as of the date or dates specified by you, together with
their addresses and the principal amount of the Old Notes held by them.
Additionally, the Company shall update or shall cause the Registrar to update
such information from time to time during the term of this Agreement as
reasonably requested by you. In soliciting exchanges of Old Notes and consents,
you shall act as an independent contractor and nothing contained herein shall
make you an agent of the Company or any of its affiliates provided, however,
that the Company hereby authorizes the Dealer Managers and/or one or more
registered brokers or dealers chosen by the Dealer Managers to act as the
Company's agent in soliciting exchanges of Old Notes and consents to residents
of any jurisdiction in which such agent designation may be necessary to comply
with applicable law. Nothing contained in this Agreement shall constitute you a
partner or joint venturer with the Company or any of its affiliates.
(c) The Company authorizes you to use the Transaction Documents in
connection with the Transactions, and you agree that you shall not provide any
materials to Holders in connection with the Transactions other than the
Transaction Documents and such other materials, if any, as the Company may
prepare, authorize or approve. The Company agrees that the Dealer Managers shall
not have any obligation to cause copies of the Transaction Documents to be
transmitted generally to the Holders of the Old Notes.
(d) Subject to the Company's obligation to comply with all applicable
laws and regulations, the Company agrees that any reference to the Dealer
Managers in any Transaction Documents or other document or communication is
subject to the Dealer Managers' prior written approval, which approval shall not
be unreasonably withheld. If either Dealer Manager resigns or its engagement
hereunder is terminated prior to the dissemination of the Transaction Documents
or any other release or communication, no reference shall be made therein to
such Dealer Manager without that Dealer Manager's prior written approval, except
as required by applicable law.
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(e) The Company authorizes the Dealer Managers to communicate with the
depositary (the "Depositary") and the information agent (the "Information
Agent") designated or retained by the Company in connection with the
Transactions and named in the Prospectus.
(f) The Dealer Managers (a) shall have no liability (in tort, contract
or otherwise) to the Company, the Guarantors or any other person for any act or
omission on the part of any Dealer (other than the Dealer Managers and their
affiliates) and (b) shall have no liability (in tort, contract or otherwise) to
the Company, the Guarantors or any other person for any losses, claims, damages
or liabilities arising from their own acts or omissions in performing their
obligations as a Dealer Manager hereunder or otherwise in connection with the
Exchange Offer and Consent Solicitation except, in the case of the losses,
claims, damages or liabilities referred to in clause (b) above, to the extent
that such losses, claims, damages or liabilities incurred by the Company result
from the Dealer Managers' bad faith, gross negligence, willful misconduct or
knowing violation of law or breach of contract in performing the services that
are the subject of this Agreement. In soliciting or obtaining tenders for
exchange, no Dealer shall be deemed to be acting as the Dealer Managers' agent
or the agent of the Company, and the Dealer Managers shall not be deemed the
agent of the Company, the Guarantors, any Dealer or any other person.
(g) If the Company and the Dealer Managers mutually agree that the
Dealer Managers will provide any other services to the Company, including
investment banking and financial advisory services, the Company and the Dealer
Managers shall either amend the terms of this Agreement or enter into a separate
agreement covering the terms and arrangements of such additional engagement. The
Company acknowledges and agrees that it will enter into a separate Underwriting
Agreement, by and between the Company, the Guarantors, Bear ▇▇▇▇▇▇▇ and FBR (the
"Underwriting Agreement"), in connection with the concurrent public offering of
New Notes (the "New Notes Offering"), which Underwriting Agreement shall govern
the terms and arrangements of the New Notes Offering.
3. Compensation for Dealer Managers and Payment of Expenses. In full
payment for services rendered and to be rendered hereunder by you, the Company
agrees:
(a) On the Closing Date and subject to such Closing, the Company will
pay Bear ▇▇▇▇▇▇▇ and FBR each one-half of a fee equal to the sum of (i) $10.00
per $1,000 principal amount of Old Notes that are tendered for exchange pursuant
to the Exchange Offer in the event the Company issues and sells New Notes in the
New Notes Offering in an aggregate principal amount of less than $10.0 million,
(ii) $15.00 per $1,000 principal amount of Old Notes that are tendered for
exchange pursuant to the Exchange Offer in the event the Company issues and
sells New Notes in the New Notes Offering in an aggregate principal amount equal
to or greater than $10.0 million but less than $20.0 million; (iii) $20.00 per
$1,000 principal amount of Old Notes that are tendered for exchange pursuant to
the Exchange Offer in the event the Company issues and sells New Notes in the
New Notes Offering in an aggregate principal amount equal to or greater than
$20.0 million but less than $25.0 million or (iv) $30.00 per $1,000 principal
amount of Old Notes that are tendered for exchange pursuant to the Exchange
Offer in the event the Company issues and sells New Notes in the New Notes
Offering in an aggregate principal amount equal to or greater than $25.0
million.
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(b) On the Closing Date and subject to such Closing, the Company shall
reimburse you, after receipt of appropriate invoices, for fifty percent (50%) of
the total fees, costs and expenses incurred by you relating to or arising out of
the Transactions, including the reasonable fees, costs and expenses of your
legal counsel in connection with their representation of you in connection
herewith and with the Transactions; provided, however, that the Company shall
reimburse you for all fees, costs and expenses incurred by you relating to or
arising out of the Transactions in the event the Company issues and sells New
Notes in the New Notes Offering in an aggregate principal amount of at least
$10.0 million. Notwithstanding the foregoing, the Company shall not be required
to reimburse you for fees, costs and expenses incurred by you relating to or
arising out of the Exchange Offer and Consent Solicitation and the New Notes
Offering in an aggregate amount in excess of $500,000. The Company also agrees
to pay all other fees, costs and expenses relating to or arising out of the
Transactions, the performance of its obligations under this Agreement and the
Transaction Documents, including (i) all fees and expenses relating to the
preparation, printing and distribution of the Transaction Documents, (ii) the
preparation and copying of this Agreement, (iii) the fees and expenses of the
Trustee, the Depositary, the Information Agent and any other persons rendering
services in connection with the Transactions, (iv) the preparation, execution
and qualification under the TIA (as defined herein) of the Supplemental
Indenture and the New Indenture and (v) the fees payable to securities brokers
or dealers (including you in your capacity as broker dealer, which shall be in
addition to the fees and expenses otherwise payable to you pursuant to this
Section 3), commercial banks, trust companies and other nominees as
reimbursement for their customary mailing and handling expenses incurred in
forwarding the Transaction Documents.
4. Certain Covenants of the Company and the Guarantors. The Company and the
Guarantors, jointly and severally, covenant with each of you as follows:
(a) The Company shall use its reasonable best efforts to cause the
Registration Statement to become effective promptly. The Company shall advise
you promptly of, without limiting Section 4(b), (i) any request of the SEC or
any other governmental or regulatory agency or authority to amend or supplement
any Transaction Documents or for additional information with respect thereto and
of receipt (whether written or oral) by it (or by any of its officers or
attorneys) of any other material communication from the SEC or any other
governmental or regulatory agency or authority relating to the Transactions or
any Transaction Documents, including, without limitation, any stop order
suspending or preventing the use of any Transaction Documents (and if any such
request or communication is in writing, the Company shall promptly furnish you
with a copy thereof), (ii) the issuance of any restraining order or denial of
any application for approval or the initiation or threat of any proceedings,
litigation or investigation with respect to the Transactions, the exchange of
the Old Notes for New Notes pursuant to the Exchange Offer and receipt of
consents pursuant to the Consent Solicitation, the execution and delivery of the
Supplemental Indenture by the Company, the delivery and performance of this
Agreement by the Company, by or before any governmental or regulatory agency, or
any court (and, if in writing, the Company shall promptly furnish you with a
copy thereof), (iii) the occurrence of any event which might reasonably be
expected to cause the Company to amend, withdraw or terminate the Transactions
or which would permit the Company to exercise any right not to exchange Old
Notes thereunder, (iv) the occurrence of any event, or the discovery of any
fact, the occurrence or existence of which would cause any representation or
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warranty contained in this Agreement to be untrue or inaccurate, (v) any
requirement that the Company amend or supplement any filing required by the
Exchange Act or any other applicable law and (vi) any other information relating
to the Transactions which you may from time to time reasonably request.
(b) If, during the Transactions and for such period of time thereafter
as any Transaction Documents are required by law to be delivered in connection
therewith, any event shall occur or condition shall exist as a result of which
it is necessary, in the reasonable opinion of the Dealer Managers, after
consultation with their outside counsel, to amend or supplement the Transaction
Documents in order that the Transaction Documents will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in the light of the circumstances
existing at the time such material is delivered, or is to be delivered, to a
Holder, or if such amendment or supplement is necessary to comply with
applicable law, the Company will (in a form and in substance that shall be
reasonably satisfactory to the Dealer Managers) promptly prepare such amendment
or supplement as may be necessary so that the Transaction Documents, as so
amended or supplemented, do not include such untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
such material is delivered, or is to be delivered, to a Holder and furnish to
the Dealer Managers such number of copies as each of the Dealer Managers may
reasonably request. The Company agrees to notify the Dealer Managers to suspend
use of the Transaction Documents as promptly as practicable after the occurrence
of an event specified in the first sentence of this Section 4(b) (without giving
effect to the reasonable view of the Dealer Managers), and the Dealer Managers
hereby agree upon receipt of such notice from the Company to suspend use of the
Transaction Documents until the Company has amended or supplemented the
Transaction Documents to correct such misstatement or omission or to effect such
compliance.
(c) The Company will take on a timely basis all actions necessary or
legally required in relation to the Exchange Offer and Consent Solicitation and
all other actions contemplated by this Agreement and in the Transaction
Documents and the Company will take all necessary corporate action to authorize
any amendments to or modification of the Transaction Documents.
(d) The Company shall comply with the applicable provisions of the
Securities Act, the Exchange Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the SEC promulgated thereunder (the
"TIA"), in connection with the Transactions.
(e) The Company shall endeavor, in cooperation with the Dealer
Managers, to qualify the New Notes for offering and issuance in connection with
the Exchange Offer under the applicable securities or Blue Sky Laws of such
jurisdictions as the Dealer Mangers may reasonably request and to maintain such
qualifications in effect for such time as may be required for the consummation
of the Exchange Offer. In each jurisdiction in which the New Notes have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement.
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(f) The Company shall execute the Supplemental Indenture as soon as
practicable after receipt of consents from the Holders of a majority of the
principal amount of the outstanding Old Notes.
(g) The Company will notify you of the time when the Company proposes
to commence the Transactions or, after commencement, to extend the Transactions,
and immediately upon the commencement of the Transactions. The Company shall
advise or cause the Depositary to advise you, upon your request from time to
time during the period of, and promptly after the expiration of, the
Transactions, as to (i) all the names and addresses of the Holders who have
tendered Old Notes for exchange or delivered consents, (ii) the aggregate
principal amount of Old Notes tendered for exchange and consents delivered by
each Holder and the aggregate principal amount of Old Notes tendered for
exchange and consents delivered during the immediately preceding day, indicating
the aggregate principal amount of Old Notes tendered for exchange and consents
delivered verified to be in proper form for exchange and/or consent, (iii) the
aggregate principal amount of tendered Old Notes and/or consents rejected and
(iv) not later than one hour (or as soon as practicable thereafter) following
the expiration of the Exchange Offer and Consent Solicitation, of the aggregate
principal amount of Old Notes tendered and deposited and consents delivered,
indicating the aggregate principal amount of Old Notes and consents verified to
be in proper form for tender and exchange and the aggregate principal amount of
Old Notes and consents rejected. The Company shall furnish you or cause the
Registrar to furnish you such additional information as you may reasonably
request from time to time. On the business day following any oral communication
regarding the above information, the Company shall furnish or cause the
Registrar to furnish to you a written report confirming the above information
that has been communicated orally.
(h) The Company agrees that, within a reasonable time prior to filing,
using or permitting the use of any Transaction Documents, it shall submit copies
of such documents to you and will not use any, and will not at any time file
any, Transaction Documents, or any amendment or supplement thereto, or make any
amendment or supplement to any of the Transaction Documents of which you shall
not have been advised previously and furnished a copy a reasonable time prior to
its filing or use or to which you or your counsel shall have reasonably
objected.
(i) The Company will furnish to you, without charge, such number of
copies of the Transaction Documents as you may reasonably request.
(j) The Company will not commence the distribution of the Transaction
Documents unless the conditions set forth in Section 6 hereof with respect to
the commencement of the Transactions shall have been satisfied and complied with
prior to or concurrently with the commencement of such delivery.
(k) The Company will promptly deliver New Notes in exchange for Old
Notes exchanged pursuant to the Exchange Offer and consents delivered pursuant
to the Consent Solicitation and any cash payment required in connection
therewith in accordance with the terms and subject to the conditions set forth
in the Transaction Documents.
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(l) The Company will not voluntarily claim, and will resist actively
any attempts to claim, the benefit of any usury laws against the holders of any
New Notes.
(m) The Company shall comply with all of its agreements set forth in
the representation letters of the Company to DTC relating to the approval of the
New Notes by DTC for "book-entry" transfer.
5. Representations and Warranties of the Company and the Guarantors. The
Company and the Guarantors, jointly and severally, represent and warrant to and
agree with each of you that, except as otherwise provided, as of the date
hereof, as of the Commencement Date and on the Closing Date:
(a) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has all
the necessary corporate power and authority to own, lease and operate its
property and to conduct its business as described in the Prospectus, to enter
into and perform its obligations hereunder and to consummate the Transactions
contemplated hereby and in the Transaction Documents and the Company has taken
all necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the Exchange Offer and Consent Solicitation,
the issuance of New Notes pursuant to the Exchange Offer, and the solicitation
of consents pursuant to the Consent Solicitation. The Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to be so qualified would not (x) have a material adverse effect on the
condition (financial or otherwise), or on the results of operations, business or
business prospects of the Company and its subsidiaries considered as one
enterprise or (y) interfere with, adversely affect or in any manner question the
validity of the issuance of the New Notes, the execution and delivery by the
Company of the New Indenture or any of the other Transactions contemplated by
this Agreement and the Transaction Documents (each a "Material Adverse Effect").
(b) (i) The Transaction Documents do, and at all times during the
Transactions will, comply in all material respects with all applicable
provisions of the Securities Act, the Exchange Act and the TIA; and (ii) the
Transaction Documents, as amended or supplemented, do not, and at all times
during the Transactions will not, contain any untrue statement of a material
fact or omit a material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the circumstances under which
they are made, not misleading, provided that this representation and warranty
does not apply to statements or omissions made solely in reliance upon and
conformity with information concerning the Dealer Managers furnished in writing
by the Dealer Managers to the Company expressly for use in the Transaction
Documents.
(c) The Incorporated Documents, when they became effective or were
filed with the SEC, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the SEC thereunder, and none of the Incorporated
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Documents 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, in light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by reference in
the Registration Statement or Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the SEC, as the
case may be, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the SEC thereunder 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 light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by the
Dealer Managers expressly for use therein.
(d) The representations and warranties contained in the Underwriting
Agreement in connection with the New Notes Offering will be true and correct in
all material respects as of the date of the Underwriting Agreement and as of the
Closing Date and are hereby incorporated by reference herein as if fully set
forth herein as of such dates.
(e) This Agreement has been duly authorized, executed and delivered by
the Company and the Guarantors and, assuming the due authorization, execution
and delivery of this Agreement by you, constitutes a valid and binding
obligation of the Company and the Guarantors, enforceable against the Company
and the Guarantors in accordance with its terms, except as enforceability hereof
may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(f) The Company has all of the requisite corporate power and authority
to execute, deliver and perform its obligations under the Supplemental
Indenture. The Company has taken all necessary corporate action to authorize the
execution and delivery of the Supplemental Indenture. The Supplemental Indenture
when executed and delivered by the Company and the Trustee will constitute a
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms. The Supplemental Indenture and the Proposed
Amendments will conform in all material respects to the description thereof
contained in the Prospectus. At the Expiration Date, the Supplemental Indenture
will have been duly qualified under the TIA, if required thereby.
(g) The Company and the Guarantors have all of the requisite corporate
power and authority to execute, deliver and perform their respective obligations
under the New Indenture. The Company and the Guarantors have taken all necessary
corporate action to authorize the execution and delivery of the New Indenture.
The New Indenture when executed and delivered by the Company, the Guarantors and
the Trustee will constitute a valid and binding obligation of the Company and
each of the Guarantors, enforceable against each of them in accordance with its
terms, except as enforceability thereof may be limited by bankruptcy,
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insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at law). The New
Indenture will conform in all material respects to the description thereof
contained in the Prospectus.
(h) The New Notes have been duly and validly authorized by the Company,
and have been duly and validly authorized for issuance pursuant to the Exchange
Offer and, when issued and authenticated in accordance with the terms of the New
Indenture and delivered against payment therefor in accordance with the terms of
the Exchange Offer, will be the legal, valid and binding obligations of the
Company, enforceable against it in accordance with their terms and entitled to
the benefits of the New Indenture, except as enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether such enforceability is considered in a proceeding in equity or at
law). The New Notes will conform in all material respects to the description
thereof contained in the Prospectus.
(i) The Guarantees of the New Notes have been duly and validly
authorized by each of the Guarantors and, when executed and delivered in
accordance with the terms of the New Indenture and when the New Notes have been
issued and authenticated in accordance with the terms of the New Indenture and
delivered against payment therefor in accordance with the terms hereof and
thereof, will be the legal, valid and binding obligations of each of the
Guarantors, enforceable against each of them in accordance with their terms and
entitled to the benefits of the New Indenture, except as enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether such enforceability is considered in a proceeding in equity or at
law). The Guarantees will conform in all material respects to the description
thereof contained in the Prospectus.
(j) The Company is not now, nor will it be after the consummation of
the Transactions, an "investment company" or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(k) Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to be so qualified would not have,
singly or in the aggregate, a Material Adverse Effect.
10
(l) The Company is not, nor will it be, after giving effect to the
execution, delivery and performance of this Agreement and the consummation of
the Transactions, (i) insolvent, (ii) possessed of or (after giving effect to
such issuance) left with unreasonably small capital with which to engage in its
anticipated businesses, (iii) incurring debts beyond its ability to pay such
debts as they mature or (iv) having a judgment or judgments for monetary
damages, docketed against it or its subsidiaries, which judgment or judgments,
after final judgment, are unsatisfied.
(m) Since the respective dates as of which information is given in the
Transaction Documents, except as otherwise specifically stated therein, there
has been no material adverse change in the condition, financial or otherwise, or
in the results of operations, business or business prospects of the Company and
its subsidiaries considered as one enterprise, (a "Material Adverse Change").
(n) Neither the Company nor any of its subsidiaries is (i) in violation
of its charter or by-laws or (ii) in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject, the effect of which
violation or default in performance or observance described in clause (ii)
above, singly or in the aggregate, would have a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the Transaction
Documents, the execution and delivery of the Supplemental Indenture and the
consummation of the transactions contemplated herein and therein will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject, or violate any applicable
law, administrative regulation or administrative or court decree, in each case,
the effect of which conflict, breach, default, lien, charge, encumbrance or
violation, singly or in the aggregate, would have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the charter or
by-laws of the Company or any of its subsidiaries.
(o) Except as specifically described in or incorporated by reference in
the Transaction Documents, there is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now pending or,
to the best knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries, which would, singly or in the aggregate,
have a Material Adverse Effect; all pending legal or governmental proceedings to
which the Company or any of its subsidiaries is a party or of which any of their
respective properties or assets is the subject which are not specifically
described in or incorporated by reference in the Transaction Documents,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material to the condition, financial or
otherwise, or to the results of operations, business or business prospects of
the Company and its subsidiaries considered as one enterprise; and there have
11
been no material developments with respect to any action, suit or proceeding,
whether or not such action, suit or proceeding is described in or incorporated
by reference in the Transaction Documents, which, singly or in the aggregate,
would have a Material Adverse Effect.
(p) No authorization, approval or consent of, notification to, or
filing with, any court or governmental authority or agency, and no consent of
any third party, is necessary or required in connection with the exchange of the
Old Notes pursuant to the Exchange Offer, the solicitation of consents pursuant
to the Consent Solicitation or the execution and delivery of the Supplemental
Indenture, except those already obtained or made or those described in the
Transaction Documents or this Agreement.
(q) The accountants who certified the financial statements of the
Company included or incorporated by reference in the Transaction Documents are
independent public accountants as required by the Exchange Act.
(r) The financial information included in or incorporated by reference
in the Transaction Documents present fairly in all material respects the
financial position of the Company and its subsidiaries as of the dates indicated
and the results of their operations for the periods specified; except as
otherwise specifically stated in or incorporated by reference in the Transaction
Documents, said financial information have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis.
(s) Except as disclosed in the Prospectus, no holder of securities of
the Company has any rights to the registration of securities of the Company
because of the filing of the Registration Statement or otherwise in connection
with the Exchange Offer, and any such rights so disclosed have either been fully
complied with by the Company or effectively waived by the holders thereof.
(t) The conditions for use of Form S-4, as set forth in the General
Instructions thereto, have been satisfied.
(u) There are no contracts or other documents, which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
or the Prospectus by the Securities Act and which have not been so described or
filed.
(v) The statistical and market-related data included in the Prospectus
are based on or derived from sources which the Company and the Guarantors
believe are reliable and accurate.
(w) Under the laws of the State of Delaware in effect as of the date of
the Prospectus, payments made under the New Notes will be exempt from any
Delaware withholding taxes and all other taxes imposed by the State of Delaware
and no capital gains, income or withholding taxes and no stamp or other issuance
or transfer taxes or duties are payable by or on behalf of the Dealer Managers
to any governmental body in the United States or the State of Delaware in
connection with the issuance and delivery by the Company of the New Notes in the
Exchange Offer, other than income tax imposed by the United States or the State
of Delaware on the income of the Dealer Managers if their net income is
otherwise subject to tax by such jurisdictions, and other than documentary stamp
taxes payable upon the issuance of the New Notes.
12
The representations and warranties set forth in this Section 5 shall remain
operative and in full force and effect regardless of (i) any investigation made
by or on behalf of any indemnified party referred to in Section 7, (ii) any
termination of this Agreement or otherwise.
Any certificate signed by any officer of the Company or any of its
subsidiaries and delivered to you or your counsel pursuant to this Agreement or
the Transactions contemplated hereby shall be deemed a representation and
warranty by the Company to you as to the matters covered thereby.
6. Conditions of Dealer Managers' Obligations. Your obligations to act and
to continue to act (as the case may be) as Dealer Manager shall be subject to
the accuracy, in all material respects, of the representations and warranties of
the Company contained herein as of the Commencement Date and as of the Closing
Date as if made on and as of such date, to the accuracy, in all material
respects, of statements of the Company's officers made pursuant to the
provisions hereof, to the performance by the Company, in all material respects,
of its covenants and agreements hereunder and to the following additional
conditions:
(a) The Company shall deliver or cause to be delivered to the Dealer
Managers by no later than the Commencement Date, the Prospectus and any other
Transaction Document requested by the Dealer Managers, in form and substance
reasonably acceptable to the Dealer Managers;
(b) The Registration Statement shall have become effective not later
the Commencement Date, the Prospectus shall have been filed with the SEC in a
timely fashion in accordance with Section 4(a) hereof and a form of the
Prospectus containing information relating to the Exchange Offer and Consent
Solicitation and the method of distribution and similar matters shall have been
filed with the SEC pursuant to Rule 424(b) within the applicable time period, if
required; and, at or prior to Commencement Date and the Closing Date, no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof shall have been issued and no proceedings
therefor shall have been initiated or threatened by the SEC.
(c) There shall not have been any injunction or other order of any
court or governmental regulatory authority against the Company or against you
relating to your acting in your capacity as Dealer Managers with respect to the
Transactions or in any other capacity in respect of the Transactions.
(d) The proceedings taken at or prior to the Closing Date in connection
with the Transactions shall be in form and substance reasonably satisfactory to
you and your counsel, and such counsel shall have been furnished with all such
documents, certificates and opinions as they may reasonably request in order to
evidence the accuracy and completeness in all material respects of any of the
representations or warranties of the Company, the performance in all material
respects of any covenants of the Company theretofore to be performed, or the
compliance with any of the conditions herein contained
13
(e) On the Commencement Date and on the Closing Date, the Transaction
Documents, as they may then be amended and supplemented, shall not contain any
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 light of the
circumstances under which they were made, not misleading.
(f) (i) On the Commencement Date, you shall have received, dated as of
the Commencement Date, the opinion of Ledgewood Law Firm, P.C., counsel for the
Company, substantially in the form of Exhibit A hereto in form and substance
reasonably satisfactory to you and (ii) on the Closing Date, you shall have
received, dated as of the Closing Date, the opinion of Ledgewood Law Firm, P.C.,
counsel for the Company, substantially in the form of Exhibit B hereto in form
and substance reasonably satisfactory to you.
(g) On the Closing Date, the Dealer Managers shall have received a
certificate of the Chairman or the President of the Company and of the chief
financial or chief accounting officer of the Company, dated as of the Closing
Date, to the effect that (i) there has been no Material Adverse Change, (ii) the
representations and warranties herein are true and correct in all material
respects with the same force and effect as though expressly made at and as of
the Closing Date, after giving effect to the consummation of the Transactions
and (iii) the Company has complied in all material respects with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Date.
7. Indemnification.
(a) The Company and the Guarantors shall indemnify and hold harmless
each Dealer Manager and each person, if any, who controls any Dealer Manager
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any and all losses, liabilities, claims, damages and
expenses as incurred (including but not limited to reasonable attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Transaction Document or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein, in the case of the Prospectus in the light of the
circumstances in which they were made, or necessary to make the statements
therein not misleading; provided, however, that the Company and the Guarantors
will not be liable in any such case to the extent but only to the extent that
any such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company and the Guarantors by or on behalf of any
Dealer Manager expressly for use therein. This indemnity agreement will be in
addition to any liability which the Company and the Guarantors may otherwise
have, including but not limited to other liability under this Agreement.
14
(b) Promptly after receipt by an indemnified party of notice of any
claims or the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party, notify
each party against whom indemnification is to be sought in writing of the claim
or the commencement thereof (but the failure so to notify an indemnifying party
shall not relieve the indemnifying party from any liability which it may have
under this Section 7 to the extent that it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability that
such indemnifying party may have otherwise than on account of the indemnity
agreement hereunder). In case any such claim or action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate, at its own
expense in the defense of such action, and to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided however, that
counsel to the indemnifying party shall not (except with the written consent of
the indemnified party) also be counsel to the indemnified party. Notwithstanding
the foregoing, the indemnified party or parties shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless (i)
the employment of such counsel shall have been authorized in writing by one of
the indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to have charge of the
defense of such action within a reasonable time after notice of commencement of
the action, (iii) the indemnifying party does not diligently defend the action
after assumption of the defense, or (iv) such indemnified party or parties shall
have reasonably concluded based upon advice from its counsel that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances; such counsel shall, to the extent
consistent with its professional responsibilities, cooperate with the Company
and the Guarantors and any counsel designated by the Company and the Guarantors.
No indemnifying party shall, without the prior written consent of the
indemnified parties, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened claim,
investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an indemnified party under this
Section 7 or Section 8 hereof (whether or not the indemnified party is an actual
or potential party thereto), unless (x) such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such claim, investigation, action or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or
any failure to act, by or on behalf of the indemnified party, and (y) the
indemnifying party confirms in writing its indemnification obligations hereunder
with respect to such settlement, compromise or judgment.
15
8. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 8 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company, the Guarantors and the
Dealer Managers shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company and the
Guarantors, any contribution received by the Company and the Guarantors from
persons, other than the Dealer Managers, who may also be liable for
contribution, including persons who control the Company and the Guarantors
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, officers of the Company and the Guarantors who signed the
Registration Statement and directors of the Company and the Guarantors) as
incurred to which the Company, the Guarantors and the Dealer Managers may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company, the Guarantors and the Dealer Managers from the
Exchange Offer and Consent Solicitation or, if such allocation is not permitted
by applicable law, in such proportions as are appropriate to reflect not only
the relative benefits referred to above but also the relative fault of the
Company, the Guarantors and the Dealer Managers in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of each of the Company and the Guarantors and of the Dealer
Managers shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and the Guarantors or the Dealer Managers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Guarantors and the Dealer Managers agree
that it would not be just and equitable if contribution pursuant to this Section
8 were determined by pro rata allocation (even if the Dealer Managers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
8 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any judicial, regulatory or
other legal or governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provisions of this Section 8,
(i) no Dealer Manager shall be required to contribute any amount in excess of
the amount of fees received by such Dealer Manager 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. For purposes of this Section 8,
each person, if any, who controls a Dealer Manager within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Dealer Manager, and each person, if any, who
controls the Company and the Guarantors within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each officer of the Company
and the Guarantors who shall have signed the Registration Statement and each
director of the Company and the Guarantors shall have the same rights to
16
contribution as the Company and the Guarantors, as applicable, subject in each
case to clauses (i) and (ii) of the immediately preceding sentence. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 8, to the extent that such party is not materially prejudiced as a
result of such failure to notify, or otherwise. The obligations of the Dealer
Managers to contribute pursuant to this Section 8 are several and not joint.
9. Termination.
(a) This Agreement may be terminated by the Dealer Managers at any time
upon notice to the Company and the Guarantors if: (i) any of the conditions
specified in Section 6 hereof shall not have been fulfilled at the time they are
required to be fulfilled by such Section 6; (ii) the Company shall mail or
propose to mail any amendment or supplement to the Transaction Documents to
which you shall reasonably object or which shall be reasonably disapproved by
your counsel; (iii) at any time prior to the Closing, the Exchange Offer and
Consent Solicitation are terminated or withdrawn by the Company for any reason;
(iv) there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Transaction Documents, any
Material Adverse Change; (v) any domestic or international event or act or
occurrence has materially disrupted, or in the opinion of the Dealer Managers
will in the immediate future materially disrupt, the market for the Company's
securities or securities in general; (vi) trading on The New York Stock Exchange
("the NYSE") or The NASDAQ National Market (the "NASDAQ") shall have been
suspended or been made subject to material limitations, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, on the NYSE or the NASDAQ or by order of
the SEC or any other governmental authority having jurisdiction; (vii) a banking
moratorium has been declared by any state or federal authority or if any
material disruption in commercial banking or securities settlement or clearance
services shall have occurred; (viii) from and after the date of this Agreement,
(A) any downgrading shall have occurred in the Company's corporate credit rating
or the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), and (B) or any such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities; (ix)
there shall have occurred any outbreak or escalation of hostilities or acts of
terrorism involving the United States or there is a declaration of a national
emergency or war by the United States or if there shall have been any other
calamity or crisis or any change in political, financial or economic conditions
that, in the judgment of the Dealer Managers, is material and adverse or (x) the
original Expiration Date is extended for more than sixty days from such original
Expiration Date.
(b) This Agreement may be terminated by the Company upon written notice
to the Dealer Managers.
17
(c) Termination of this Agreement pursuant to this Section 9 shall be
without liability of any party to any other party except as provided in Sections
7 and 8 hereof; provided, however, that, if the Closing of the Transactions
contemplated herein or a substantially similar transaction occurs within three
months of the termination of this Agreement, the Company shall pay to the Dealer
Managers fees in accordance with those described in Section 3(a) hereof.
10. Information Supplied by the Dealer Managers. The statements set forth
under the heading "The Exchange Offer and Consent Solicitation - Dealer
Managers" in the Prospectus constitute the only information furnished by the
Dealer Managers to the Company for the purposes of Sections 5 and 7 hereof. The
Dealer Managers confirm that such statements are correct.
11. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be mailed or delivered (a) to the
Company at:
Resource America, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
with a copy to:
Ledgewood Law Firm, P.C.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
or (b) to the Dealer Managers at:
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Managing Director
Global Liability Management Group
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Senior Managing Director
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
18
Any notice given hereunder may be made by telecopier or telephone, but if so
made shall be subsequently confirmed in writing.
12. Securities Positions. The Company acknowledges that it has no objection
to the fact that, in the course of trading activities, the Dealer Managers may
from time to time have positions in, and buy and sell securities of the Company
and its affiliates.
13. Tombstone. The Company acknowledge that, after the Closing, the Dealer
Managers may place an announcement in such newspapers and periodicals as it may
choose, at its own cost, stating that they acted as dealer manager to the
Company in connection with the Transactions.
14. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company and its officers set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers and
directors or the Dealer Managers or any of their directors, officers, employees
or agents or any controlling person referred to in Section 7 hereof, and (ii)
consummation of the Transactions. The respective agreements, covenants,
indemnities and other statements set forth in Sections 5, 7 and 8 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
15. Applicable Law. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
17. Successors. This Agreement is made solely for the benefit of the Dealer
Managers and the Company and the Guarantors and, to the extent expressed, the
indemnified parties and their executors, administrators, successors and assigns,
and no other persons shall acquire or have any right under or by virtue of this
Agreement.
18. Amendment. This Agreement shall not be modified except by an instrument
in writing signed by the parties hereto.
19. Entire Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supercedes all prior agreements or understandings relating to such
subject matter.
20. Severability. In the event that any provision hereof shall be
determined to be invalid or unenforceable in any respect, such determination
shall not affect such provision in any other respect or any other provision
hereof, which shall remain in full force and effect.
19
[Signature page follows]
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Dealer Managers and the Company in accordance with its terms.
Very truly yours,
RESOURCE AMERICA, INC.
By:_______________________________________
Name:
Title:
[GUARANTORS]
Confirmed and accepted as of
the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:______________________________
Name:
Title:
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
By:______________________________
Name:
Title:
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 6(d)(i)
(a) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of Delaware, has all the necessary
corporate power and authority to own, lease and operate its property and to
conduct its business as described in the Prospectus, to enter into and perform
its obligations under the Exchange Offer and Consent Solicitation and to
consummate the transactions contemplated thereby and the Company has taken all
necessary corporate action to authorize the Exchange Offer and the Consent
Solicitation and the issuance of New Notes pursuant to the Exchange Offer and
the solicitation of consents pursuant to the Consent Solicitation. The Company
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to be so qualified would not have a Material Adverse
Effect.
(b) The Registration Statement, as of the date it was declared
effective, complied as to form in all material respects with all applicable
provisions of the Securities Act, the Exchange Act and the TIA, provided,
however, that counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of factual statements
or statements of intent contained therein.
(c) Each Incorporated Document, as of its respective filing date, as
the case may be, complied as to form in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, provided,
however, that counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of factual statements
or statements of intent contained therein.
(d) The Agreement has been duly and validly authorized, executed and
delivered by the Company and the Guarantors and, assuming the due authorization,
execution and delivery of the Agreement by you, constitutes a valid and binding
obligation of the Company and the Guarantors, enforceable against the Company
and the Guarantors in accordance with its terms, except (i) as enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a proceeding
in equity or at law) and (ii) as enforceability thereof may be limited by law or
court decisions of provisions providing for the indemnification of or
contribution to a Dealer Manager in respect of an exchange of securities as may
be contrary to public policy.
(e) The New Indenture has been duly and validly authorized by the
Company and each of the Guarantors and when executed and delivered in accordance
with the terms of the Exchange Offer will be the valid and binding obligation of
the Company and each of the Guarantors, enforceable against each of them in
A-1
accordance with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting creditors' rights and remedies generally and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at law). The New
Indenture conforms in all material respects to the description thereof contained
in the Prospectus.
(f) The New Notes have been duly and validly authorized by the Company,
and have been duly and validly authorized for issuance pursuant to the Exchange
Offer and, when executed, issued and authenticated in accordance with the terms
of the New Indenture and delivered to you against the receipt of the Old Notes
therefor in accordance with the terms of the Exchange Offer, will be the valid
and binding obligations of the Company, enforceable against it in accordance
with their terms and entitled to the benefits of the New Indenture, except as
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law). The New Notes conform in all material
respects to the description thereof contained in the Prospectus.
(g) The Guarantees of the New Notes have been duly and validly
authorized by each of the Guarantors and, when executed and delivered in
accordance with the terms of the New Indenture and when the New Notes have been
executed, issued and authenticated in accordance with the terms of the Exchange
Offer and the New Indenture and delivered against the receipt of the Old Notes
therefor in accordance with the terms of the Exchange Offer, will be the valid
and binding obligations of each of the Guarantors, enforceable against each of
them in accordance with their terms and entitled to the benefits of the New
Indenture, except as enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at law). The
Guarantees conform in all material respects to the description thereof contained
in the Prospectus.
(h) The Supplemental Indenture has been duly and validly authorized by
the Company and when executed and delivered in accordance with the terms of the
Exchange Offer will be the valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a proceeding
in equity or at law). The Supplemental Indenture and the Proposed Amendments
conform in all material respects to the description thereof contained in the
Prospectus.
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(i) The Company is not now, nor after the Exchange Offer will it be, an
"investment company" or a company "controlled by" an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(j) To the best of counsel's knowledge, neither the Company nor any of
its subsidiaries is (i) in violation of its charter or by-laws or (ii) in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, the effect of which violation or default in performance or observance,
singly or in the aggregate, in the case of clause (ii) above, would have a
Material Adverse Effect; and the execution, delivery and performance of the
Agreement and the Exchange Offer and Consent Solicitation and the consummation
of the transactions contemplated therein have been duly authorized by all
necessary corporate action on the part of the Company and the Guarantors and
will not conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject, or violate any applicable
law, administrative regulation or administrative or court decree, in each case,
the effect of which conflict, breach, default, lien, charge, encumbrance or
violation, singly or in the aggregate, would have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the charter or
by-laws of the Company or any of the Guarantors.
(k) No authorization, approval or consent of, notification to, or
filing with, any court or governmental authority or agency, and no consent of
any third party, is necessary or required in connection with the issuance of the
New Notes pursuant to the Exchange Offer or the solicitation of consents
pursuant to the Consent Solicitation or the execution and delivery of the
Supplemental Indenture or the New Indenture, except (i) those already obtained
or made; (ii) those required under any state securities or blue sky laws or
(iii) those described in the Transaction Documents.
(l) The Registration Statement has become effective under the
Securities Act. To the best of counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities
Act and no proceedings therefor have been initiated by the SEC. Any required
filing of the Prospectus pursuant to Rule 424 under the Securities Act has been
made in accordance with Rule 424 under the Securities Act.
(m) The New Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended.
(n) The statements in the Prospectus under the heading "Certain U.S.
Federal Income Tax Consequences" insofar as such statements constitute statement
of or summaries of matters of United States Federal tax consequences to holders
of New Notes, provide a fair and accurate summary of such consequences under
current law.
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In addition, such opinion shall state that such counsel has
participated in the preparation of the Registration Statement, including the
Incorporated Documents, and in conferences with officers and other
representatives of the Company, and representatives and counsel of the Dealer
Managers at which the contents of the Registration Statement and related matters
were discussed and, although such counsel need not undertake to determine
independently nor pass upon or assume any responsibility, explicitly or
implicitly, for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, on the basis of and subject to the
foregoing, no facts have come to the attention of such counsel to lead such
counsel to believe that the Registration Statement, including the Incorporated
Documents (except for the financial statements, notes or schedules thereto and
other financial data included therein), at the time it became effective,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein not misleading, or that
the Prospectus, including the Incorporated Documents, as of its date, contained
an untrue statement of a material fact or omitted 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.
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Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 6(d)(ii)
(a) The New Indenture has been duly and validly authorized, executed
and delivered by the Company and each of the Guarantors and is the valid and
binding obligation of the Company and each of the Guarantors, enforceable
against each of them in accordance with its terms, except as enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(b) The New Notes have been duly and validly authorized by the Company,
and have been duly and validly authorized for issuance pursuant to the Exchange
Offer and are the valid and binding obligations of the Company, enforceable
against it in accordance with their terms and entitled to the benefits of the
New Indenture, except as enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(c) The Guarantees of the New Notes have been duly and validly
authorized by each of the Guarantors and are the valid and binding obligations
of each of the Guarantors, enforceable against each of them in accordance with
their terms and entitled to the benefits of the New Indenture, except as
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(d) The Supplemental Indenture has been duly and validly authorized,
executed and delivered by the Company and is the valid and binding obligation of
the Company, enforceable against it in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
B-1
(e) In addition, such opinion shall state that such counsel has
participated in the preparation of the Registration Statement, including the
Incorporated Documents, and in conferences with officers and other
representatives of the Company, and representatives and counsel of the Dealer
Managers at which the contents of the Registration Statement and related matters
were discussed and, although such counsel need not undertake to determine
independently nor pass upon or assume any responsibility, explicitly or
implicitly, for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, on the basis of and subject to the
foregoing, no facts have come to the attention of such counsel to lead such
counsel to believe that the Registration Statement, including the Incorporated
Documents (except for the financial statements, notes or schedules thereto and
other financial data included therein), at the time it became effective,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein not misleading, or that
the Prospectus, including the Incorporated Documents, as of its date and as of
the date hereof, contained or contains an untrue statement of a material fact or
omitted or omits 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.
B-2