EXHIBIT 1.1
FBR ASSET INVESTMENT CORPORATION
3,000,000 Shares of Common Stock
UNDERWRITING AGREEMENT
July ___, 2001
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
000 X. Xxxxxxxx, 0xx Xxxxx
Xx. Xxxxx, XX 00000
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
as Representatives of the several Underwriters
listed in Schedule I hereto
Dear Sirs:
FBR Asset Investment Corporation, a Virginia corporation that has
elected to be taxed as a real estate investment trust (the "Company"), confirms
its agreement with each of the Underwriters listed in Schedule I hereto
(collectively, the "Underwriters"), for whom Xxxxxx, Xxxxxxxx & Company,
Incorporated and Friedman, Billings, Xxxxxx & Co., Inc. are each acting as a
representative (in such capacity, the "Representatives"), with respect to (i)
the sale by the Company and the purchase by the Underwriters, of 3,000,000
shares of common stock of the Company, $0.01 par value per share (the "Common
Shares"), and the purchase by the Underwriters, acting severally and not
jointly, of the respective number of Common Shares set forth opposite the names
of the Underwriters in Schedule I hereto and (ii) the grant by the Company to
the Underwriters, of the option described in Section 1(b) hereof to purchase all
or any part of 450,000 additional Common Shares to cover over-allotments, if
any. The 3,000,000 Common Shares to be purchased by the Underwriter (the
"Initial Shares") and all or any part of the 450,000 Common Shares subject to
the option described in Section 1(b) hereof (the "Option Shares") are
hereinafter called, collectively, the "Shares."
The Company understands that the Underwriters propose to make a public
offering of the Shares as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-11 (No. 333-63344), and a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Company has
prepared and filed such amendments thereto, if any, as may have been required to
the date hereof, and will file such additional amendments thereto and such
amended prospectuses as may hereafter be required. The registration statement
has been declared effective under the Securities Act by the Commission. The
registration statement as amended at the time it became effective (including all
information deemed (by incorporation by reference) to be a part of the
registration statement at the time it became effective pursuant to Rule 430A(b)
of the Securities Act Regulations) is hereinafter called the "Registration
Statement," except that, if the Company files a post-effective amendment to such
registration statement that becomes effective prior to the Closing Time (as
defined below), "Registration Statement" shall refer to such registration
statement as so amended. Any registration statement filed pursuant to Rule
462(b) of the Securities Act Regulations is hereinafter called the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the 462(b) Registration Statement. Each prospectus included in the
registration statement, or amendments thereof or supplements thereto, before it
became effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Underwriters pursuant to Rule
424(a) of the Securities Act Regulations is hereafter called the "Preliminary
Prospectus." The term "Prospectus" means the final prospectus, as first filed
with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Securities Act Regulations, and any amendments thereof or supplements thereto.
The Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
The Company and the Underwriters agree as follows:
1. SALE AND PURCHASE.
(a) Initial Shares. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter agrees, severally and not jointly, to purchase from the Company at
the purchase price per share of $____________, the number of Initial Shares set
forth in Schedule I opposite such Underwriter's name, plus any additional number
of Initial Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 8 hereof, subject, in each case, to such
adjustments as the Underwriters among the Representatives in their sole
discretion shall make to eliminate any sales or purchases of fractional shares.
The Underwriters may from time to time increase or decrease the public offering
price after the initial public offering to such extent as the Underwriters may
determine.
(b) Option Shares. In addition, upon the basis of the warranties and
representations and other terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase from the Company all or any part of the Option Shares at the purchase
price set forth in paragraph (a) above plus any additional number of Option
Shares that such Underwriter may become obligated to purchase pursuant to the
provisions of Section 8 hereof. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Shares upon notice by the
Representatives to the Company setting forth the number of Option Shares as to
which the Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Shares. Any such time and date of delivery
(a "Date of Delivery") shall be determined by the Representatives, but shall not
be later than seven full business days (nor earlier, without the consent of the
Company, than two full business days) after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Shares, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Shares then being purchased, which the number of
Initial Shares set forth in Schedule I opposite the name of such Underwriter
bears to the total number of Initial Shares, subject in each case to such
adjustments among Underwriters as the Representatives in their sole discretion
shall make to eliminate any sales or purchases of fractional shares.
2. PAYMENT AND DELIVERY.
(a) INITIAL SHARES. Payment of the purchase price for the Initial
Shares shall be made to the Company by wire transfer of immediately available
funds or certified or official bank check payable in federal (same-day) funds at
the offices of Xxxxx Xxxx LLP, located at 000 X. Xxxxxxxx, Xxxxx 0000, Xx.
Xxxxx, Xxxxxxxx 00000-0000 (unless another place shall be agreed upon by the
Representatives and the Company) against delivery of the certificates for the
Initial Shares to the Representatives for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 9:30 a.m., New York
City time, on the third (or fourth, if pricing occurs after 4:30 p.m., New York
City time) business day after the day hereof (unless another time, not later
than ten business days after such date, shall be agreed to by the
Representatives and the Company). The time at which such payment and delivery
are actually made is hereinafter sometimes called the "Closing Time." Unless the
Representatives elect to take delivery of the Initial Shares by credit through
full FAST transfer to the accounts at The Depository Trust Company designated by
the Representatives, certificates for the Initial Shares shall be delivered to
the Representatives in definitive form registered in such names and in such
denominations as the Representatives shall specify. For the purpose of
expediting the checking of the certificates for the Initial Shares by the
Representatives, the Company agrees to make such certificates available to the
Representatives for such purpose at least one full business day preceding the
Closing Time.
(b) OPTION SHARES. In addition, payment of the purchase price for the
Option Shares shall be made to the Company by wire transfer of immediately
available funds or certified or official bank check payable in federal
(same-day) funds at the offices of Xxxxx Xxxx LLP, 000 Xxxxx Xxxxxxxx, Xxxxx
0000, Xx. Xxxxx, XX 00000-0000 (unless another place shall be agreed upon by the
Representatives and the Company), against delivery of the certificates for the
Option Shares to the Representatives for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 9:30 a.m., New York
City time, on each Date of Delivery. Unless the Representatives elect to take
delivery of the Option Shares by credit through full FAST transfer
to the accounts at The Depository Trust Company designated by the
Representatives, certificates for the Option Shares shall be delivered to the
Representatives in definitive form registered in such names and in such
denominations as the Representatives shall specify. For the purpose of
expediting the checking of the certificates for the Option Shares by the
Representatives, the Company agrees to make such certificates available to the
Representatives for such purpose at least one full business day preceding the
relevant Date of Delivery.
2A. QUALIFIED INDEPENDENT UNDERWRITER.
The Company hereby confirms its engagement of Xxxxxx,
Xxxxxxxx & Company, Incorporated ("Stifel") as, and Stifel hereby confirms
its agreement with the Offerors to render services as a "qualified
independent underwriter" within the meaning of Rule 2720 of the NASD's
Conduct Rules with respect to the offering of the Shares. Stifel, solely in
its capacity as a qualified independent underwriter and not otherwise, is
referred to herein as the "QIU." As compensation for its services as QIU
hereunder, the Company agrees to pay to QUI a fee in the amount of $25,000 on
the Closing Date. The Company and Friedman, Billings, Xxxxxx Group, Inc.
("Parent") will indemnify and hold harmless the QIU as set forth in Section
9A of this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Underwriters that:
(a) the Company has an authorized capitalization as set
forth in the Prospectus under the caption
"Capitalization;" the outstanding shares of capital
stock of the Company and its Subsidiaries have been
duly and validly authorized and issued and are fully
paid and non-assessable, and all of the outstanding
shares of capital stock of the Subsidiaries are
directly or indirectly owned of record and
beneficially by the Company;
(b) each of the Company, each Subsidiary of the Company
set forth on Schedule I hereto (each a "Subsidiary"
and, collectively, the "Subsidiaries") and Parent has
been duly incorporated and is validly existing as a
corporation and in good standing under the laws of
its respective jurisdiction of incorporation with all
requisite corporate power and authority to own, lease
and operate its respective properties and to conduct
its respective business as now conducted and as
proposed to be conducted as described in the
Registration Statement and Prospectus and, in the
case of the Company and Parent, to authorize, execute
and deliver this Agreement and to consummate the
transactions contemplated hereby;
(c) the Company and the Subsidiaries are duly qualified
or registered to transact business in each
jurisdiction in which they conduct their respective
businesses as now conducted and as proposed to be
conducted as described in the Registration Statement
and the Prospectus, except where the failure,
individually or in the aggregate, to be so qualified
or registered could not reasonably be expected to
have a material adverse effect on the assets,
business, results of operations, earnings, prospects,
properties or condition (financial or otherwise) of
the Company and the Subsidiaries taken as a whole;
and the Company and the Subsidiaries are duly
qualified and in good standing in each jurisdiction
in which they own or lease real property or maintain
an office or in which the nature or conduct of their
respective businesses as now conducted or proposed to
be conducted as described in the Registration
Statement and the Prospectus requires such
qualification, except where the failure to be so
qualified and in good standing would not have a
material adverse effect on the assets, business,
results of operations, earnings, prospects,
properties or condition (financial or otherwise) of
the Company and the Subsidiaries taken as a whole;
(d) the Company and the Subsidiaries are in compliance in
all material respects with all applicable laws,
rules, regulations, orders, decrees and judgments,
including without limitation those relating to
transactions with affiliates;
(e) neither the Company nor any of the Subsidiaries is in
breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both
would constitute a breach of, or default under), its
respective charter or by-laws, or in the performance
or observance of any obligation, agreement, covenant
or condition contained in any license, indenture,
mortgage, deed of trust, loan or credit agreement or
other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which any of
them or their respective properties is bound, except
for such breaches or defaults which would not have a
material adverse effect on the assets, business,
results of operations, earnings, prospects,
properties or condition (financial or otherwise) of
the Company and the Subsidiaries taken as a whole,
and the issuance, sale and delivery by the Company of
the Shares, the execution, delivery and performance
of this Agreement by the Company, and consummation of
the transactions contemplated hereby will not
conflict with, or result in any breach of, or
constitute a default under (nor constitute any event
which with notice, lapse of time, or both would
constitute a breach of, or default under), (i) any
provision of the articles of incorporation or charter
or by-laws of the Company or any of the Subsidiaries,
(ii) any provision of any license, indenture,
mortgage, deed of trust, loan or credit agreement or
other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which any of
them or their respective properties may be bound or
affected, or (iii) any federal, state, local or
foreign law, regulation or rule or any decree,
judgment or order the Company or any of the
Subsidiaries, except in the case of clauses (ii) and
(iii) for such breaches or defaults which would not
have a material adverse effect with respect to the
Company or the Subsidiary on the assets, business,
results of operations, earnings, prospects,
properties or condition (financial or
otherwise) of the Company and the Subsidiaries taken
as a whole or result in the creation or imposition of
any material lien, charge, claim or encumbrance upon
any property or asset of the Company or the
Subsidiaries;
(f) the Company has full legal right, power and authority
to enter into and perform this Agreement and to
consummate the transactions contemplated hereby; this
Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal,
valid and binding agreement of the Company
enforceable in accordance with its terms, except as
may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general
principles of equity, and except to the extent that
the indemnification and contribution provisions of
Section 9 hereof may be limited by federal or state
securities laws and public policy considerations in
respect thereof;
(g) the issuance and sale of the Shares to the
Underwriters hereunder have been duly authorized by
the Company; when issued and delivered against
payment therefor as provided in this Agreement, the
Shares will be validly issued, fully paid and
non-assessable and the issuance of the Shares will
not be subject to any preemptive or similar rights;
except as contemplated herein, no person or entity
holds a right to require or participate in the
registration under the Securities Act of the Shares
pursuant to the Registration Statement; no person or
entity has a right of participation or first refusal
with respect to the sale of the Shares by the
Company; except as set forth in the Prospectus, there
are no contracts, agreements or understandings
between the Company and any person or entity granting
such person or entity the right to require the
Company to file a registration statement under the
Securities Act with respect to any securities of the
Company or to require the Company to include such
securities with the Shares registered pursuant to the
Registration Statement; the form of certificates
evidencing the Shares complies with all applicable
legal requirements and, in all material respects,
with all applicable requirements of the charter and
bylaws of the Company and the requirements of the
American Stock Exchange;
(h) no approval, authorization, consent or order of or
filing with any federal, state or local governmental
or regulatory commission, board, body, authority or
agency is required in connection with the execution,
delivery and performance by the Company of this
Agreement, the consummation of the transactions
contemplated hereby, and the sale and delivery of the
Shares, other than (x) such as have been obtained, or
will have been obtained at the Closing Time or the
relevant Date of Delivery, as the case may be, under
the Securities Act or the Securities Exchange Act of
1934 as amended (the "Exchange Act"), (y) such
approvals as have been
obtained in connection with the approval of the
listing of the Shares on the American Stock Exchange
and (z) any necessary qualification under the
securities or blue sky laws of the various
jurisdictions in which the Shares are being offered
by the Underwriters;
(i) each of the Company and the Subsidiaries has all
necessary licenses, authorizations, consents and
approvals and has made all necessary filings required
under any federal, state or local law, regulation or
rule, and has obtained all necessary authorizations,
consents and approvals from other persons required in
order to conduct their respective businesses as
described in the Registration Statement and
Prospectus, except to the extent that any failure to
have any such licenses, authorizations, consents or
approvals, to make any such filings or to obtain any
such authorizations, consents or approvals would not,
individually or in the aggregate, have a material
adverse effect on the assets, business, results of
operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and
the Subsidiaries taken as a whole; neither the
Company nor any of the Subsidiaries is required by
any applicable law to obtain accreditation or
certification from any governmental agency or
authority or self-regulatory organization in order to
provide the products or services that it currently
provides or which it proposes to provide, as set
forth in the Prospectus; neither the Company nor any
of the Subsidiaries is in violation of, in default
under, or has received any notice regarding a
possible violation, default or revocation of any such
license, authorization, consent or approval or any
federal, state, local or foreign law, regulation or
rule or any decree, order or judgment applicable to
the Company or any of the Subsidiaries, the effect of
which would reasonably be expected to be material and
adverse to the assets, business, results of
operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and
the Subsidiaries taken as a whole; and no such
license, authorization, consent or approval contains
a materially burdensome restriction that is not
adequately disclosed in the Registration Statement
and the Prospectus;
(j) each of the Registration Statement and any Rule
462(b) Registration Statement has become effective
under the Securities Act and no stop order suspending
the effectiveness of the Registration Statement or
any Rule 462(b) 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 the Company, are threatened
by the Commission, and the Company has complied with
any request on the part of the Commission for
additional information;
(k) the Company and the transactions contemplated by this
Agreement meet the requirements and conditions for
using a registration statement on Form S-11 under the
Securities Act, set forth in the General Instructions
to Form
S-11; the Registration Statement complies, and the
Prospectus and any further amendments or supplements
thereto will comply, when they have become effective
or are filed with the Commission, as the case may be,
in all material respects with the requirements of the
Securities Act and the Securities Act Regulations
and, in each case, present, or will present, fairly
the information required to be shown; the
Registration Statement did not, and any amendment
thereto will not, in each case as of the applicable
effective date, contain an untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading; and the
Prospectus or any amendment or supplement thereto
will not, as of the applicable filing date and at the
Closing Time and on each Date of Delivery (if any),
contain any untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary in order to make the statements
therein, in the light of the circumstances under
which they were made, not misleading; provided,
however, that the Company makes no warranty or
representation with respect to Underwriters'
Information (as defined in Section 9(a) of this
Agreement);
(l) the Preliminary Prospectus and the Prospectus in
paper format delivered to the Underwriter for use in
connection with this offering will be identical in
all material respects to the versions of the
Preliminary Prospectus and Prospectus created to be
transmitted to the Commission for filing via the
Electronic Data Gathering Analysis and Retrieval
System ("XXXXX"), except to the extent permitted by
Regulation S-T of the Securities Act Regulations;
(m) all legal or governmental proceedings, contracts or
documents that are material and of a character
required to be filed as exhibits to the Registration
Statement or to be summarized or described in the
Prospectus have been so filed, summarized or
described as required;
(n) there are no actions, suits, proceedings, inquiries
or investigations pending or, to the Company's
knowledge, threatened against the Company or any of
the Subsidiaries or any of their respective officers
and directors or to which the properties, assets or
rights of any such entity is subject, at law or in
equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board,
body, authority, arbitral panel or agency which could
result in a judgment, decree, award or order having a
material adverse effect on the assets, business,
results of operations, earnings, prospects,
properties or condition (financial or otherwise) of
the Company and the Subsidiaries taken as a whole, or
which could adversely affect the consummation of the
transactions contemplated by this Agreement in any
material respect;
(o) the financial statements, including the notes
thereto, included in the Registration Statement and
the Prospectus present fairly the financial position
of the Company as of the dates indicated and the
statements of income and changes in shareholders'
equity and cash flows of the Company for the periods
specified; such financial statements have been
prepared in conformity with generally accepted
accounting principles as applied in the United States
and on a consistent basis during the periods involved
(except as indicated in the notes thereto) and in
accordance with Regulation S-X promulgated by the
Commission; the financial statement schedules, if
any, included in the Registration Statement and the
Prospectus fairly present the information required to
be shown therein; no other financial statements or
schedules are required by Form S-11 or otherwise to
be included in the Registration Statement or
Prospectus;
(p) the Company has filed in a timely manner all reports
required to be filed pursuant to sections 13, 14,
15(d) of the Exchange Act during the preceding twelve
calendar months and if during such period the Company
has relied on Rule 12b-25(b) under the Exchange Act
("Rule 12b-25(b)") with respect to a report or a
portion of a report, that report or portion of a
report has actually been filed within the time period
prescribed by Rule 12b-25(b);
(q) Xxxxxx Xxxxxxxx LLP, whose reports on the audited
financial statements of the Company are included as
part of the Registration Statement and Prospectus are
and at all times during the periods covered by their
reports were independent public accountants as
required by the Securities Act and the Securities Act
Regulations;
(r) subsequent to the respective dates as of which
information is given in the Registration Statement
and the Prospectus, and except as may be otherwise
stated in the Registration Statement or Prospectus,
there has not been (i) any material adverse change in
the assets, liabilities, business, results of
operations, earnings, prospects, properties or
condition (financial or otherwise), present or
prospective, of the Company and the Subsidiaries
taken as a whole, whether or not arising in the
ordinary course of business, (ii) any transaction,
which is material to the Company and the Subsidiaries
taken as a whole, contemplated, planned or entered
into by the Company or any of the Subsidiaries, (iii)
any obligation, contingent or otherwise, directly or
indirectly incurred by the Company or any of the
Subsidiaries, which is material to the Company and
the Subsidiaries taken as a whole or (iv) any
dividend or distribution of any kind declared, paid
or made by the Company with respect to any class of
its capital stock;
(s) the Shares conform in all material respects to the
description thereof contained in the Registration
Statement and the Prospectus;
(t) except as disclosed in the Prospectus, there are no
outstanding (i) securities or obligations of the
Company or any of its Subsidiaries convertible into
or exchangeable for any capital stock of the Company
or any such Subsidiary, (ii) warrants, rights or
options to subscribe for or purchase from the Company
or any such Subsidiary any such capital stock or any
such convertible or exchangeable securities or
obligations, or (iii) obligations of the Company or
any such Subsidiary to issue any shares of capital
stock, any such convertible or exchangeable
securities or obligation, or any such warrants,
rights or options;
(u) each of the Company, the Subsidiaries, Parent, and
each of their respective officers, directors and
controlling persons has not taken, and will not take,
directly or indirectly, any action which is designed
to or which has constituted or which might reasonably
be expected to cause or result in stabilization or
manipulation of the price of any security of the
Company to facilitate the sale or resale of the
Shares;
(v) the Company (i) is not required to register as a
"broker" or "dealer" in accordance with the
provisions of the Exchange Act or the rules and
regulations thereunder, and (ii) other than Arlington
Capital, Inc., a _________ corporation ("Arlington
Capital"), directly, or indirectly through one or
more intermediaries, does not control any member firm
of the National Association of Securities Dealers,
Inc. (the "NASD");
(w) the Company has not relied upon the Representatives
or legal counsel for the Representatives for any
legal, tax or accounting advice in connection with
the offering and sale of the Shares;
(x) any certificate signed by any officer of the Company
or any Subsidiary delivered to the Representatives or
to counsel for the Representatives pursuant to or in
connection with this Agreement shall be deemed a
representation and warranty by the Company to each
Underwriter as to the matters covered thereby;
(y) the form of certificate used to evidence the Common
Stock complies in all material respects with all
applicable statutory requirements, with any
applicable requirements of the articles of
incorporation and by-laws of the Company and the
requirements of the American Stock Exchange;
(z) there are no statutes or regulations applicable to
the Company or any of the Subsidiaries or
certificates, permits or other authorizations from
governmental regulatory officials or bodies required
to be obtained or maintained by the Company or any of
the Subsidiaries of a character
required to be disclosed in the Registration
Statement or the Prospectus which have not been so
disclosed and properly described;
(aa) all agreements between the Company or any of the
Subsidiaries and third parties expressly referenced
in the Prospectus are legal, valid and binding
obligations of the Company or one or more of the
Subsidiaries, enforceable in accordance with their
respective terms, except to the extent enforceability
may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally and by general principles
of equity;
(bb) no relationship, direct or indirect, exists between
or among the Company or any of the Subsidiaries, on
the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company,
the Subsidiary or Parent, on the other hand, which is
required by the Securities Act to be described in the
Registration Statement and the Prospectus that is not
so described;
(cc) the Company and the Subsidiaries have good and
marketable title in fee simple to all real property,
if any, and good title to all personal property owned
by them, in each case free and clear of all liens,
security interests, pledges, charges, encumbrances,
mortgages and defects, except such as are disclosed
in the Prospectus or such as do not materially and
adversely affect the value of such property and do
not interfere with the use made or proposed to be
made of such property by the Company and the
Subsidiaries; and any real property and buildings
held under lease by the Company or any Subsidiary are
held under valid, existing and enforceable leases,
with such exceptions as are disclosed in the
Prospectus or are not material and do not interfere
with the use made or proposed to be made of such
property and buildings by the Company or such
Subsidiary;
(dd) the Company and each Subsidiary owns or possesses
adequate license or other rights to use all patents,
trademarks, service marks, trade names, copyrights,
software and design licenses, trade secrets,
manufacturing processes, other intangible property
rights and know-how (collectively "Intangibles")
necessary to entitle the Company and each Subsidiary
to conduct its business as described in the
Prospectus, and neither the Company, nor any
Subsidiary, has received notice of infringement of or
conflict with (and the Company does not know of any
such infringement of or conflict with) asserted
rights of others with respect to any Intangibles
which could materially and adversely affect the
assets, business, results of operations, prospects,
properties, or condition (financial or otherwise) of
the Company or any Subsidiary;
(ee) the Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions
are executed in accordance with management's general
or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of
financial statements in conformity with generally
accepted accounting principles as applied in the
United States and to maintain asset accountability;
(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 the existing assets at
reasonable intervals and appropriate action is taken
with respect to any differences;
(ff) each of the Company and the Subsidiaries have filed
on a timely basis all necessary federal, state, local
and foreign income and franchise tax returns required
to be filed through the date hereof and have paid all
taxes shown as due thereon; and no tax deficiency has
been asserted against any such entity, nor does any
such entity know of any tax deficiency which is
likely to be asserted against any such entity which
if, determined adversely to any such entity, would
materially adversely affect the business, prospects,
properties, assets, results of operations or
condition (financial or otherwise) of any such
entity, respectively; all tax liabilities are
adequately provided for on the respective books of
such entities;
(gg) neither the Company nor any of the Subsidiaries nor
any officer or director purporting to act on behalf
of the Company or any of the Subsidiaries has at any
time; (i) made any contributions to any candidate for
political office, or failed to disclose fully any
such contributions, in violation of law, (ii) made
any payment to any state, federal or foreign
governmental officer or official, or other person
charged with similar public or quasi-public duties,
other than payments required or allowed by applicable
law, (iii) made any payment outside the ordinary
course of business to any investment officer or loan
broker or person charged with similar duties of any
entity to which the Company or any of the
Subsidiaries sells or from which the Company or any
of the Subsidiaries buys loans or servicing
arrangements for the purpose of influencing such
agent, officer, broker or person to buy loans or
servicing arrangements from or sell loans to the
Company or any of the Subsidiaries, or (iv) engaged
in any transactions, maintained any bank account or
used any corporate funds except for transactions,
bank accounts and funds which have been and are
reflected in the normally maintained books and
records of the Company and the Subsidiaries;
(hh) except as otherwise disclosed in the Prospectus,
there are no material outstanding loans or advances
or material guarantees of indebtedness by the Company
or any of the Subsidiaries to or for the benefit of
any of the
officers or directors of the Company or any of the
Subsidiaries or any of the members of the families of
any of them;
(ii) neither the Company nor any of the Subsidiaries nor,
to the Company's knowledge, any agent of the Company
or any of the Subsidiaries, has made any payment of
funds of the Company or of any Subsidiary or received
or retained any funds in violation of any law, rule
or regulation or of a character required to be
disclosed in the Prospectus;
(jj) all securities issued by the Company and any of its
Subsidiaries have been issued and sold in compliance
with all applicable federal and state securities
laws;
(kk) the Company is organized in conformity with the
requirements for qualification as a real estate
investment trust ("REIT") under Sections 856 and 857
of the Internal Revenue Code of 1986, as amended (the
"Code"), (ii) the Company qualified as a REIT for all
taxable years prior to 2001, and (iii) the Company's
method of operation will enable it to meet the
requirements for taxation as a REIT under the Code
for 2001 and all subsequent taxable years, and the
Company intends to qualify as a REIT for all such
years;
(ll) Arlington Capital is registered as a broker-dealer
with the Commission and is a member of the NASD and
the Securities Investor Protection Corporation
("SIPC") and applicable state and other regulatory
authorities and is in compliance in all material
respects with all applicable laws, rules,
regulations, orders, and similar requirements in
connection therewith.
(mm) the Shares have been approved for listing, upon
official notice of issuance, on the American Stock
Exchange;
(nn) in connection with this offering, the Company has not
offered and will not offer its Common Shares or any
other securities convertible into or exchangeable or
exercisable for Common Shares in a manner in
violation of the Securities Act or the Securities Act
Regulations; the Company has not distributed and will
not distribute any Prospectus or other offering
material in connection with the offer and sale of the
Shares;
(oo) neither the Company nor any of the Subsidiaries or
their respective affiliates does business with the
government of Cuba or with any person or affiliate
located in Cuba;
(pp) there are no existing or, to the knowledge of the
Company or any Selling Stockholder, threatened labor
disputes with the employees of the
Company or any of its Subsidiaries which are likely
to have individually or in the aggregate a material
adverse effect on assets, business, results of
operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole.
(qq) neither the Company nor any of the Subsidiaries is,
or solely as a result of transactions contemplated
hereby and the application of the proceeds from the
sale of the Shares, will become, an "investment
company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company
Act of 1940, as amended (the "1940 Act");
(rr) the Company has not incurred any liability for any
finder's fees or similar payments in connection with
the transactions herein contemplated;
(ss) each of the Company and its Subsidiaries maintain
insurance (issued by insurers of recognized financial
responsibility) of the types and in the amounts
generally deemed adequate for their respective
businesses and consistent with insurance coverage
maintained by similar companies in similar
businesses, including, but not limited to, insurance
covering real and personal property owned or leased
by the Company and its Subsidiaries against theft,
damage, destruction, acts of vandalism and all other
risks customarily insured against, all of which
insurance is in full force and effect; and
(tt) neither the Company nor any of its Subsidiaries has
violated, or received notice of any violation with
respect to, any applicable environmental, safety or
similar law applicable to the business of the Company
or any of its Subsidiaries, nor any federal or state
law relating to discrimination in the hiring,
promotion or pay of employees, nor any applicable
federal or state wages and hours law, nor any
provisions of the Employee Retirement Income Security
Act or the rules and regulations promulgated
thereunder, nor any state law precluding the denial
of credit due to the neighborhood in which a property
is situated, the violation of any of which could have
a material adverse effect on the business, results of
operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and
its Subsidiaries, taken as a whole.
4. CERTAIN COVENANTS OF THE COMPANY. The Company hereby covenants
and agrees with the Underwriters:
(a) to furnish such information as may be requested and
otherwise to cooperate in qualifying the Shares for
offering and sale under the securities or blue sky
laws of such states as the Representatives may
designate and to maintain such qualifications in
effect as long as requested by the Representatives
for the distribution of the Shares, provided that the
Company shall not be required to maintain such
qualification for more than 90 days from the date
hereof (except that, upon the written request of the
Representatives and at the expense of the
Underwriters, the Company shall maintain such
qualification for an additional period, not to exceed
180 days), or to qualify as a foreign corporation or
to consent to the service of process under the laws
of any such state (except service of process with
respect to the offering and sale of the Shares);
(b) if, at the time this Agreement is executed and
delivered, it is necessary for a post-effective
amendment to the Registration Statement to be
declared effective before the offering of the Shares
may commence, the Company will endeavor to cause such
post-effective amendment to become effective as soon
as possible and will advise the Underwriter promptly
and, if requested by the Underwriter, will confirm
such advice in writing, when such post-effective
amendment has become effective;
(c) to prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus (or a
terms sheet as permitted by Rule 434) with the
Commission pursuant to Rule 424(b) not later than
10:00 a.m. (New York City time), on the day following
the execution and delivery of this Agreement, and to
furnish promptly (and with respect to the initial
delivery of the prospectus, not later than 10:00 a.m.
(New York City time) on the day following the
execution and delivery of this Agreement) to the
Underwriters as many copies of the Prospectus (or of
the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements
thereto after the effective date of the Registration
Statement) in such quantities and at such locations
as the Underwriters may reasonably request for the
purposes contemplated by the Securities Act
Regulations, which Prospectus and any amendments or
supplements thereto furnished to the Underwriters
will be materially identical to the version created
to be transmitted to the Commission for filing via
XXXXX, except to the extent permitted by Regulation
S-T of the Securities Act Regulations;
(d) to advise the Representatives promptly and (if
requested by the Representatives) to confirm such
advice in writing, when the Registration Statement
has become effective and when any post-effective
amendment to the Registration Statement becomes
effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, confirming
such advice in writing, of (i) the receipt of any
comments from, or any request by, the Commission for
amendments or supplements to the Registration
Statement or Prospectus or for additional information
with respect thereto, or (ii) the issuance by the
Commission of any stop order suspending the
effectiveness of the Registration Statement or of any
order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, or of the
suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any
of such purposes and, if the Commission or any other
government agency or authority should issue any such
order, to make every reasonable effort to obtain the
lifting or removal of such order as soon as possible;
to advise the Representatives promptly of any
proposal to amend or supplement the Registration
Statement or Prospectus and to file no such amendment
or supplement to which the Underwriter shall
reasonably object in writing;
(f) before amending or supplementing the Registration
Statement or the Prospectus, or, during any period of
time in which a Prospectus relating to the Shares is
required to be delivered under the Securities Act
Regulations, to furnish to the Underwriter a copy of
each such proposed amendment or supplement before
filing any such amendment or supplement with the
Commission;
(g) to furnish to the Underwriters, for a period of five
years from the date of this Agreement (i) as soon as
available, copies of all annual, quarterly and
current reports or other communications supplied to
holders of Common Shares, (ii) as soon as practicable
after the filing thereof, copies of all reports filed
by the Company with the Commission, the NASD,
American Stock Exchange or any securities exchange
and (iii) such other information as the Underwriters
may reasonably request regarding the Company and its
Subsidiaries;
(h) to advise the Underwriters promptly of the happening
of any event known to the Company within the time
during which a prospectus relating to the Shares is
required to be delivered under the Securities Act
Regulations which, in the judgment of the Company,
would require the making of any change in the
Prospectus then being used so that the Prospectus
would not include 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 the light of the circumstances under
which they were made, not misleading, and, during
such time, promptly to prepare and furnish, at the
Company's expense, to the Underwriters promptly such
copies of the proposed amendments or supplements to
the Prospectus as may be necessary to reflect any
such change before filing any such amendment or
supplement with the Commission, and thereafter
promptly to furnish at the Company's own expense to
the Underwriters, copies in such quantities and at
such locations as the Underwriters may from time to
time reasonably request;
(i) to furnish promptly to the Representatives a signed
copy of the Registration Statement, as initially
filed with the Commission, and of all amendments or
supplements thereto (including all exhibits filed
therewith or incorporated therein) and such number of
conformed copies of the foregoing as the
Representatives may reasonably request;
(j) to furnish to each Representative, not less than two
business days before filing with the Commission
subsequent to the effective date of the Prospectus
and during the period referred to in paragraph (h)
above, a copy of any document proposed to be filed
with the Commission pursuant to Section 13, 14, or
15(d) of the Exchange Act and during such period to
file all such documents in a manner and within the
time periods required by the Exchange Act and the
Exchange Act Regulations;
(k) to apply the net proceeds of the sale of the Shares
in accordance with the statements under the caption
"Use of Proceeds" in the Prospectus;
(l) to make generally available to its security holders
and to deliver to the Underwriter as soon as
practicable, but in any event not later than the end
of the fiscal quarter first occurring after the first
anniversary of the effective date of the Registration
Statement, an earnings statement complying with the
provisions of Section 11(a) of the Securities Act (in
form, at the option of the Company, complying with
the provisions of Rule 158 of the Securities Act
Regulations) covering a period of 12 months beginning
on the effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the
listing of the Shares on the American Stock Exchange
and to file with the American Stock Exchange all
documents and notices required by the American Stock
Exchange of companies that have securities that are
listed on the American Stock Exchange;
(n) to refrain during a period of 90 days from the date
of the Prospectus, without the prior written consent
of the Representatives, from (i) offering, pledging,
selling, contracting to sell, selling any option or
contract to purchase, purchasing any option or
contract to sell, granting any option for the sale
of, or otherwise disposing of or transferring,
directly or indirectly, any Common Shares or any
securities convertible into or exercisable or
exchangeable for Common Shares, or filing any
registration statement under the Securities Act with
respect to any of the foregoing or (ii) entering into
any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of
the Common Shares, whether any such swap or
transaction described in clause (i) or (ii) above is
to be settled by delivery of Common Shares or such
other securities, in cash or otherwise.
The foregoing sentence shall not apply to (A) the
Shares to be sold hereunder, (B) any Common Shares
issued by the Company upon the exercise of an options
outstanding on the date hereof and referred to in the
Prospectus;
(o) to not, and to use its best efforts to cause its
officers, directors and affiliates (including without
limitation, Parent) not to, (i) take, directly or
indirectly prior to termination of the underwriting
syndicate contemplated by this Agreement, any action
designed to stabilize or manipulate the price of any
security of the Company, or which may cause or result
in, or which might in the future reasonably be
expected to cause or result in, the stabilization or
manipulation of the price of any security of the
Company, to facilitate the sale or resale of any
security of the Company, (ii) sell, bid for, purchase
or pay anyone any compensation for soliciting
purchases of the Shares other than pursuant to this
Agreement or (iii) pay or agree to pay to any person
any compensation for soliciting any order to purchase
any other securities of the Company;
(p) the Company will maintain, at the Company's expense,
a registrar and transfer agent for the Common Shares;
(q) the Company will use its best efforts to continue to
qualify as a REIT under the Code and to cause
Arlington Capital to continue to be registered as a
broker-dealer with the Commission, the NASD, the SIPC
and other applicable state and other regulatory
authorities;
(r) the Company will comply with all of the provisions of
any undertakings in the Registration Statement;
(s) the Company and the Subsidiaries will conduct their
affairs in such a manner so as to ensure that neither
the Company nor any Subsidiary will be an "investment
company" or an entity subject to regulation as an
investment company within the meaning of the 1940
Act;
(t) if at any time during the 30-day period after the
Registration Statement becomes effective, any rumor,
publication or event relating to or affecting the
Company shall occur as a result of which in the
Representatives' reasonable opinion the market price
of the Common Shares has been or is likely to be
materially affected (regardless of whether such
rumor, publication or event necessitates a supplement
to or amendment of the Prospectus) and after written
notice from the Representatives advising the Company
to the effect set forth above, to forthwith prepare,
consult with the Representatives concerning the
substance of, and disseminate a press release or
other public statement, reasonably satisfactory to
the
Representatives, responding to or commenting on such
rumor, publication or event;
(u) to maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with
management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit
preparation of financial statements in conformity
with generally accepted accounting principles as
applied in the United States and to maintain asset
accountability; (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 the
existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences;
(v) not to invest in futures contracts, options on
futures contracts or options on commodities unless
the Company is exempt from the registration
requirements of the Commodity Exchange Act of 1978,
as amended (the "CEA"), or otherwise complies with
the CEA. In addition, the Company will not engage in
any activities which might be subject to the CEA,
unless such activities are exempt from that Act or
otherwise comply with that Act or with an applicable
no-action letter to the Company from the Commodities
Futures Trading Commission; and
(w) to file timely and accurate reports with the
Commission in accordance with Rule 463 of the
Securities Act Regulations or any successor
provision.
5. PAYMENT OF EXPENSES.
(a) The Company agrees to pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the preparation,
issuance and delivery of the certificates for the Shares to the Underwriters,
including any stock or other transfer taxes or duties payable upon the sale of
the Shares to the Underwriters, (iii) the printing of this Agreement and any
dealer agreements and furnishing of copies of each to the Underwriters and to
dealers (including costs of mailing and shipment), (iv) the qualification of the
Shares for offering and sale under state laws that the Company and the
Representatives have mutually agreed are appropriate and the determination of
their eligibility for investment under state law as aforesaid (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters relating thereto and the printing and furnishing of copies of any
blue sky surveys or legal investment surveys to the Underwriters and to dealers,
(v) filing for review of the public offering of the Shares by the NASD
(including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters relating thereto), (vi) the fees and expenses of any transfer agent
or registrar for the Shares and miscellaneous expenses referred to in the
Registration Statement, (vii) the fees and expenses incurred in connection with
the listing of the Shares on the American Stock Exchange, (viii) making road
show presentations with respect to the offering of the Shares, (ix) preparing
and distributing bound volumes of transaction documents for the Representatives
and their legal counsel and (x) the performance of the Company's other
obligations hereunder (including, without limitation, costs incurred in closing
the purchase of the Option Shares, if any). Upon the request of the
Representatives, the Company will provide funds in advance for filing fees.
(b) The Company agrees to reimburse the Representatives for their
reasonable out-of-pocket expenses in connection with the performance of their
activities under this Agreement, including, but not limited to, costs such as
printing, facsimile, courier service, direct computer expenses, accommodations
and travel, and the fees and expenses of the Representatives' outside legal
counsel and any other advisors, accountants, appraisers, etc., but only if the
Initial Shares are purchased by the Underwriters as provided in Section 2(a) of
this Agreement.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder are subject to (i) the accuracy of the representations
and warranties on the part of the Company in all material respects on the date
hereof and at the Closing Time and on each Date of Delivery, as applicable (ii)
the performance by the Company of its obligations hereunder, and (iii) the
satisfaction of the following further conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to be
declared effective before the offering of the Shares may commence, such
post-effective amendment shall have become effective not later than 5:30 p.m.,
New York City time, on the date hereof, or at such later date and time as shall
be consented to in writing by the Underwriters.
(b) The Company shall furnish to the Underwriters at the Closing Time
and on each Date of Delivery an opinion of Hunton & Xxxxxxxx, counsel for the
Company, addressed to the Underwriter and dated the Closing Time and each Date
of Delivery, in the form of Annex A.
In rendering their opinion, Hunton & Xxxxxxxx may rely as to
matters of compliance with NASD Conduct Rules upon the opinion of Sidley Xxxxxx
Xxxxx & Xxxx ("SAB&W"). In addition, Hunton & Xxxxxxxx shall state that they
have participated in conferences with officers and other Underwriters of the
Company, independent public accountants of the Company and Underwriters at which
the contents of the Registration Statement and Prospectus were discussed and,
although such counsel is not passing upon and does not assume responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or Prospectus, nothing has caused them to believe that
the Registration Statement, the Prospectus, as of their respective effective or
issue dates and as of the date of such counsel's opinion, contained or contains
any untrue statement of a material factor omitted or omits 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
(it being understood that, in each case, such counsel need express no view with
respect to the financial statements and other financial and statistical data
included in the Registration Statement or Prospectus).
(c) The Company shall furnish to the Underwriters at the Closing Time
and on each Date of Delivery an opinion of SAB&W, special counsel for the
Company, addressed to the Underwriters and dated the Closing Time and each Date
of Delivery and in form and substance satisfactory to the Underwriters, covering
matters of compliance with the Conduct Rules of the NASD, in the form of Annex
B.
(d) The Representatives shall have received from Xxxxxx Xxxxxxxx LLP,
"comfort letters" dated, respectively, as of the date of this Agreement, the
Closing Time and each Date of Delivery, as the case may be, addressed to the
Representatives, in form and substance satisfactory to the Representatives,
confirming that they are independent public accountants with respect to Company
(which shall be inclusive of its subsidiaries for purposes of this Section
6(g)), within the meaning of the 1933 Act and the 1933 Act Regulations, and
stating that:
(i) In their opinion, the consolidated financial
statements of the Company audited by them and included in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, the
Securities Act Regulations, the Exchange Act and the Exchange Act
Regulations.
(ii) On the basis of the procedures specified by the
American Institute of Certified Public Accountants as described in SAS
No. 71, "Interim Financial Information," inquiries of officials of the
Company responsible for financial and accounting matters, and such
other inquiries and procedures as may be specified in such letter,
which procedures do not constitute an audit in accordance with
generally accepted auditing standards as applied in the United States,
nothing came to their attention that caused them to believe that, if
applicable, the unaudited interim consolidated financial statements of
the Company included in the Registration Statement do not comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act, 1933 Act Regulations, 1934 Act and 1934
Act Regulations, including without limitation, Regulation S-K, or are
not in conformity with generally accepted accounting principles as
applied in the United States applied on a basis substantially
consistent, except as noted in the Registration Statement, with the
basis for the audited consolidated financial statements of the Company
included in the Registration Statement.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with generally accepted auditing
standards as applied in the United States, consisting of a reading of
the unaudited interim financial statements and other information
referred to below, a reading of the latest available unaudited
condensed consolidated financial statements of the Company, inspection
of the minute books of the
Company since the date of the latest audited financial statements of
the Company included or incorporated by reference in the Registration
Statement, inquiries of officials of the Company responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) as of a specified date not more than
five days prior to the date of such letter, there have been
any changes in the consolidated capital stock of the Company,
any increase in the total liabilities of the Company, any
decreases in total assets or shareholders' equity of the
Company, or any changes, decreases or increases in other items
specified by the Representatives, in each case as compared
with amounts shown in the latest unaudited interim
consolidated statement of financial condition of the Company
included in the Registration Statement except in each case for
changes, increases or decreases which the Registration
Statement specifically discloses, have occurred or may occur
or which are described in such letter; and
(B) for the period from the date of the
latest unaudited interim consolidated financial statements of
the Company included in the Registration Statement to the
specified date referred to in clause (iii)(A), there were any
decreases in the consolidated interest income, net interest
income, or net income of the Company or in the per share
amount of net income of the Company, or any changes, decreases
or increases in any other items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except
in each case for increases or decreases which the Registration
Statement discloses have occurred or may occur, or which are
described in such letter.
(iv) In addition to the audit referred to in their
report included in the Registration Statement and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (ii) and (iii) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards as applied in the United
States, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the
general accounting records and consolidated financial statements of the
Company which appear in the Registration Statement, and have compared
such amounts, percentages and financial information with the accounting
records and the material derived from such records and consolidated
financial statements of the Company have found them to be in agreement.
In the event that the letters to be delivered referred to
above set forth any such changes, decreases or increases as specified in clauses
(iii)(A) or (iii)(B) above, or any exceptions from such agreement specified in
clause (iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after
discussions with officers of the Company responsible for financial and
accounting matters, that such changes, decreases, increases or exceptions as are
set forth in such letters do not (x) reflect a material adverse change in the
items specified in clause (iii)(A) above as compared with the amounts shown in
the latest unaudited consolidated statement of financial condition of the
Company included in the Registration Statement, (y) reflect a material adverse
change in the items specified in clause (iii)(B) above as compared with the
corresponding periods of the prior year or other period specified by the
Representatives, or (z) reflect a material change in items specified in clause
(iv) above from the amounts shown in the Preliminary Prospectus distributed by
the Underwriters in connection with the offering contemplated hereby or from the
amounts shown in the Prospectus.
(e) The Representatives shall have received at the Closing Time and on
each Date of Delivery the favorable opinion of Xxxxx Xxxx LLP, dated the Closing
Time or such Date of Delivery, addressed to the Representatives and in form and
substance satisfactory to the Representatives.
(f) No amendment or supplement to the Registration Statement or
Prospectus shall have been filed to which the Underwriters shall have objected
in writing.
(g) Prior to the Closing Time and each Date of Delivery (i) no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto, and no order directed at any document
incorporated by reference therein and no order preventing or suspending the use
of any Preliminary Prospectus or Prospectus has been issued by the Commission,
and no suspension of the qualification of the Shares for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes, has occurred; and (ii) the Registration Statement and the
Prospectus shall not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(h) Between the time of execution of this Agreement and the Closing
Time or the relevant Date of Delivery (i) no material and unfavorable change in
the assets, business, results of operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiaries taken as
a whole shall occur or become known (whether or not arising in the ordinary
course of business), or (ii) no transaction which is material and unfavorable to
the Company shall have been entered into by the Company or any of the
Subsidiaries.
(i) At the Closing Time, the NASD shall not have raised any objection
with respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(j) At the Closing Time, the Shares shall have been approved for
listing on the American Stock Exchange.
(k) The Underwriter shall have received letters (each, a "Lock-up
Agreement") from each person listed on Schedule II hereto, in form and substance
satisfactory to the Underwriter, confirming that for a period of 90 days after
the Closing Time, such persons will not directly or indirectly (i) offer, pledge
to secure any obligation due on or within [90] days after the Closing Time,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option for the sale of, or otherwise
dispose of or transfer, directly or indirectly, any Common Shares (other than by
participating as selling shareholders in a registered offering of Common Shares
offered by the Company with the consent of the Representatives) or any
securities convertible into or exercisable or exchangeable for Common Shares or
(ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Shares, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of Common
Shares or such other securities, in cash or otherwise, without the prior written
consent of Stifel, which consent may be withheld in its sole discretion.
(l) The Company will, at the Closing Time and on each Date of Delivery,
deliver to the Underwriter a certificate of its Chief Executive Officer and its
Chief Financial Officer, to the effect that, to each of such officer's
knowledge, the representations and warranties of the Company set forth in this
Agreement are true and correct and the conditions set forth in this Section 6
have been met, and are true and correct as of such date.
(m) The Company shall have furnished to the Underwriter such other
documents and certificates as to the accuracy and completeness of any statement
in the Registration Statement and the Prospectus, the representations,
warranties and statements of the Company contained herein, and the performance
by the Company of its covenants contained herein, and the fulfillment of any
conditions contained herein, as of the Closing Time or any Date of Delivery as
the Underwriters may reasonably request.
(o) All filings with the Commission required by Rule 424 under the
Securities Act to have been filed by the Closing Date shall have been made
within the applicable time period prescribed for such filing by such Rule.
(p) The Company shall perform such of its obligations under this
Agreement as are to be performed by the terms hereof and thereof at or before
the Closing Time or the relevant Date of Delivery.
7. TERMINATION. The obligations of the Underwriters hereunder shall be
subject to termination in the absolute discretion of the Representatives, at any
time prior to the Closing Time or any Date of Delivery, (i) if any of the
conditions specified in Section 6 shall not have been fulfilled when and as
required by this Agreement to be fulfilled, or (ii) if there has been since the
respective dates as of which information is given in the Registration Statement,
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the assets, business, results of operations,
earnings, prospects, properties or condition (financial or otherwise) of the
Company, whether or not arising in the ordinary course of business, or (iii) if
there has occurred outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic, political or other
conditions the effect of which on the financial markets of the United States is
such as to make it, in the judgment of the Representatives, impracticable to
market or deliver the Shares or enforce contracts for the sale of the Shares, or
(iv) if trading in any securities of the Company has been suspended by the
Commission or by the American Stock Exchange or if trading generally on the
American Stock Exchange or in the Nasdaq National Market has been suspended
(including automatic halt in trading pursuant to market-decline triggers other
than those in which solely program trading is temporarily halted), or
limitations on prices for trading (other than limitations on hours or numbers of
days of trading) have been fixed, or maximum ranges for prices for securities
have been required, by such exchange or the NASD or the Nasdaq National Market
or by order of the Commission or any other governmental authority, or (v) if
there has been any downgrading in the rating of any of the Company's debt
securities or preferred stock by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities Act),
or (vi) any federal or state statute, regulation, rule or order of any court or
other governmental authority has been enacted, published, decreed or otherwise
promulgated which in the reasonable opinion of the Representatives has a
material adverse affect or will have a material adverse affect on the assets,
business, results of operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company, (vii) any action has been taken by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in the reasonable opinion of the Underwriter has a material
adverse effect on the securities markets in the United States.
If the Representatives elect to terminate this Agreement as provided in
this Section 7, the Company and the Underwriters shall be notified promptly by
telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply in all material respects with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5 and 9 hereof) and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. UNDERWRITER DEFAULT. If any Underwriter shall default at the Closing
Time or on a Date of Delivery in its obligation to take up and pay for the
Shares to be purchased by it under this Agreement, on such date the
Representatives shall have the right, within 36 hours after such default, to
make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Shares which
such Underwriter shall have agreed but failed to take up and pay for (the
"Defaulted Shares"). Absent the completion of such arrangements within such 36
hour period, (i) if the total number of Defaulted Shares does not exceed 10% of
the total number of Shares to be purchased on such date, each non-defaulting
Underwriter shall take up and pay for (in addition to the number of Shares which
it is otherwise obligated to purchase on such date pursuant to this Agreement)
the portion of the total number of Shares agreed to be purchased by the
defaulting Underwriter on such date in the proportion that
its underwriting obligations hereunder bears to the underwriting obligations of
all non-defaulting Underwriters; and (ii) if the total number of Defaulted
Shares exceeds 10% of such total, the Representative may terminate this
Agreement by notice to the Company, without liability to any non-defaulting
Underwriter.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Shares hereunder on such date unless all of the Shares to be
purchased on such date are purchased on such date by the Underwriters (or by
substituted Underwriters selected by the Representatives with the approval of
the Company or selected by the Company with the approval of the
Representatives).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company or the
non-defaulting Underwriters shall have the right to postpone the Closing Time or
the relevant Date of Delivery for a period not exceeding five business days in
order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with the like effect as
if such substituted Underwriter had originally been named in this Agreement.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and Parent jointly and severally agree to
indemnify and hold harmless each Underwriter, each of its directors, officers
and agents, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorneys' fees and expenses), joint or
several, arising out of or based upon: (i) any untrue statement, alleged untrue
statement or breach or alleged breach of any warranty or covenant of the Company
contained in this Agreement; (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company); (iii) any omission or alleged omission to state a material fact in the
registration statement as originally filed or the Registration Statement, the
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, required to be stated therein or necessary to make the statements
therein not misleading, and from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and attorneys' fees), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; or (iv)
the enforcement of this indemnification provision or the contribution provisions
herein; and shall reimburse each such indemnified party for any legal or other
expenses as incurred, but in no event less frequently than 30 days after each
invoice is
submitted, incurred by them in connection with investigating or defending
against or appearing as a third-party witness in connection with any such loss,
claim, damage, liability or action, notwithstanding the possibility that
payments for such expenses might later be held to be improper, in which case
such payments shall be promptly refunded; PROVIDED, HOWEVER, that the Company
and Parent shall not be liable in any such case to the extent, but only to the
extent, that any such losses, claims, damages, liabilities and expenses arise
out of or are based upon any untrue statement or omission or allegation thereof
that has been made therein or omitted therefrom in reliance upon and in
conformity with the information provided by the Underwriters (other by an
affiliate of Parent) in writing expressly for use in the Registration Statement
("Underwriters' Information"); PROVIDED, that the indemnification contained in
this paragraph with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or of any person controlling any Underwriter) to the
extent any such losses, claims, damages, liabilities or expenses directly
results from the fact that such Underwriter sold Shares to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus (as amended or supplemented if any amendments or
supplements thereto shall have been furnished to you in sufficient time to
distribute same with or prior to the written confirmation of the sale involved),
if required by law, and if such loss, claim, damage, liability or expense would
not have arisen but for the failure to give or send such person such document.
The foregoing indemnity agreement is in addition to any liability the Company or
Parent may otherwise have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act and
Section 20 of the 1934 Act, to the same extent as required by the foregoing
indemnity from the Company to each Underwriter, but only with respect to the
Underwriters' Information that was provided by that Underwriter to the
Representatives. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to any such indemnified
party.
(c) If any action or claim shall be brought or asserted
against any indemnified party or any person controlling an indemnified party in
respect of which indemnity may be sought from the indemnifying party, such
indemnified party or controlling person shall promptly notify the indemnifying
party in writing, and the indemnifying party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all expenses; PROVIDED, HOWEVER, that the failure so to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under such paragraph, and
further, shall only relieve it from liability under such paragraph to the extent
prejudiced thereby. Any indemnified party or any such controlling person shall
have the right to employ separate counsel in any such action and to participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably
satisfactory to the indemnified party or (iii) the named parties to any such
action (including any impleaded parties) include both such indemnified party or
such controlling person and the indemnifying party and such indemnified party or
such controlling person shall have been advised by such counsel that there may
be one or more legal defenses available to it that are different from or in
addition to those available to the indemnifying party (in which case, if such
indemnified party or controlling person notifies the indemnifying party in
writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action on behalf of such indemnified party or such
controlling person) it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys at any time and for all such
indemnified parties and controlling persons, which firm shall be designated in
writing by the indemnified party(ies) (and, if such indemnified parties are the
Underwriters, by Stifel). Each indemnified party and each controlling person, as
a condition of such indemnity, shall use reasonable efforts to cooperate with
the indemnifying party in the defense of any such action or claim. The
indemnifying party shall not be liable for any settlement of any such action
effected without its written consent, but if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party and any such controlling person from and
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
An indemnifying party shall not, without the prior written
consent of each indemnified party, settle, compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the Section 15 of the 1933 Act or Section 20 of the 1934 Act is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes a release of each such indemnified party
reasonably satisfactory to each such indemnified party and each such controlling
person from all liability arising out of such claim, action, suit or proceeding
or unless the indemnifying party shall confirm in a written agreement with each
indemnified party, that notwithstanding any federal, state or common law, such
settlement, compromise or consent shall not alter the right of any indemnified
party or controlling person to indemnification or contribution as provided in
this Agreement.
(d) If the indemnification provided for herein is unavailable
or insufficient to hold harmless an indemnified party under paragraphs (a), (b)
or (c) hereof in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares (before deducting expenses) received by the
Company bear to the total underwriting discounts, commissions and compensation
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and/or Parent on
the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this paragraph (d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities and expenses
referred to in the first sentence of this paragraph (d) shall be deemed to
include, subject to the limitations set forth above, 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
paragraph (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Designated Preferred
Securities underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this paragraph (d), each person who controls
an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, each officer and trustee of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company subject in
each case to the preceding sentence. The obligations of the Company and Parent
under this paragraph (d) shall be in addition to any liability which the Company
and Parent may otherwise have, and the obligations of the Underwriters under
this paragraph (d) shall be in addition to any liability that the Underwriters
may otherwise have.
(e) The indemnity and contribution agreements contained herein
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
an Underwriter) or by or on behalf of the Company, or such directors, trustees
or officers (or any person controlling the Company),
(ii) acceptance of any Shares and payment therefor under the Agreement and (iii)
any termination of the Agreement. A successor of any Underwriter or of the
Company, such directors, trustees or officers (or of any person controlling an
Underwriter or the Company) shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained herein.
9A. INDEMNIFICATION OF QUALIFIED INDEPENDENT UNDERWRITER.
(a) The Company and Parent agree jointly and severally to indemnify and
hold harmless, Stifel, in its capacity as QIU, and each person, if any, who
controls the QIU within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
attorneys' fees and expenses), joint or several, arising out of or based upon
the QIU's action or alleged failure to act in the capacity as a QIU and to
reimburse the QIU for any reasonable costs of investigation and attorneys' fees
and expenses incurred by the QIU in connection with investigating or defending
any such loss, claim, damage, liability or action as such costs or expenses are
incurred.
(b) If the indemnification provided for in this Section 9A is
unavailable to Stifel, in its capacity as QIU, in respect of any losses, claims,
damages, liabilities or expenses, then each of Company and Parent, in lieu of
indemnifying the QIU, shall contribute tot he amount paid or payable by such
indemnified party as a result of such loses, claims, damages, liabilities and
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Parent on the one hand and the QIU on the
other from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and Parent on the one hand and
the QIU on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and Parent on the one hand and the QIU on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Shares (before deducting expenses) received by the Company and Parent bear to
the total underwriting discounts, commissions and compensation received by the
QIU. The relative fault of the Company and/or Parent on the one hand and of the
Underwriters on the other 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, Parent or by the QIU and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, Parent and the QIU agree that it
would not be just and equitable if contribution pursuant to this paragraph (c)
were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (c) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
10. SURVIVAL. The indemnity and contribution agreements contained in
Sections 9 and 9A and the covenants, warranties and representations of the
Company, the Subsidiaries and Parent contained in Sections 3, 4 and 5 of this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the Underwriters, or any person who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, or by or on behalf of the Company, the Subsidiaries, Parent
or the directors and officers or any of them or any person who controls the
Company, any Subsidiary or Parent within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the sale and delivery of the Shares. The
Company and each Underwriter agree promptly to notify the others of the
commencement of any litigation or proceeding against it and, in the case of the
Company and Parent, against any of the officers and directors of either of them,
in connection with the sale and delivery of the Shares, or in connection with
the Registration Statement or Prospectus.
11. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered to Xxxxxx,
Xxxxxxxx & Company, Incorporated, 000 X. Xxxxxxxx, 0xx Xxxxx, Xx. Xxxxx,
Xxxxxxxx 00000 Attention: Syndicate Department and to Friedman, Billings, Xxxxxx
& Co., Inc., 0000 00xx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention:
Syndicate Department; if to the Company, shall be sufficient in all respects if
delivered to the Company at the offices of the Company at Potomac Tower, 0000
Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
12. GOVERNING LAW; CONSENT TO JURISDICTION; HEADINGS. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The
section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
13. PARTIES IN INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company and the controlling
persons, directors and officers referred to in Sections 9 and 10 hereof, and
their respective successors, assigns, executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be signed
by the parties in counterparts which together shall constitute one and the same
agreement among the parties. A facsimile signature shall constitute an original
signature for all purposes.
If the foregoing correctly sets forth the understanding among the
Company and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this Agreement shall constitute a binding agreement among
the Company and the Underwriters.
Very truly yours,
FBR ASSET INVESTMENT CORPORATION
By:_______________________________________
Name:
Title:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.,
as Parent
By:_______________________________________
Name:
Title:
Accepted and agreed to as of the date first above written:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By: _____________________________
Name:
Title:
For itself and as Representative of the several
Underwriters named in Schedule I hereto.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By: _____________________________
Name:
Title:
For itself and as Representative of the several
Underwriters named in Schedule I hereto.
