•] Shares INVESCO MORTGAGE CAPITAL INC. Common Stock UNDERWRITING AGREEMENT
Exhibit 1.1
[•], 2010
| Credit Suisse Securities (USA) LLC | ||||
| Xxxxxx Xxxxxxx & Co. Incorporated | ||||
| As Representatives of the Several Underwriters, | ||||
| c/o | Credit Suisse Securities (USA) LLC | |||
| Eleven Madison Avenue | ||||
| New York, N.Y. 10010-3629 | ||||
Dear Sirs:
1. Introductory. Invesco Mortgage Capital Inc., a Maryland corporation (“Company”), agrees
with the several Underwriters named in Schedule A hereto (“Underwriters”) to issue and sell
to the several Underwriters [•] shares (“Firm Securities”) of its common stock, par value $0.01 per
share (“Common Stock”) and also proposes to issue and sell to the Underwriters, at the option of
the Underwriters, an aggregate of not more than [•] additional shares of Common Stock (“Optional
Securities”) of its Securities as set forth below. The Firm Securities and the Optional Securities
are herein collectively called the “Offered Securities.” Pursuant to the Agreement of Limited
Partnership (“OP Agreement”) of IAS Operating Partnership, LP, a Delaware limited partnership
(“Operating Partnership”), upon receipt of the net proceeds of (a) the sale of the Firm Securities
on the First Closing Date (as defined below) and (b) any and all Optional Securities on each
Optional Closing Date (as defined below), the Company will contribute such net proceeds to the
Operating Partnership in exchange for a number of units of partnership interest in the Operating
Partnership (“OP Units”) that is equivalent to the number of Firm Securities and Optional
Securities sold to the Underwriters (“Company OP Units”).
2. Representations and Warranties of the Company and the Operating Partnership and
Representations and Warranties of the Manager.
(a) The Company and the Operating Partnership, jointly and severally, represent and
warrant to, and agree with, the several Underwriters that:
(i) Filing and Effectiveness of Registration Statement; Certain
Defined Terms. The Company has filed with the Commission a registration
statement on Form S-11 (No. 333- [•]) covering the registration of the
Offered Securities under the Act, including a related
preliminary prospectus or prospectuses. At any particular time, this
initial registration statement, in the form then on file with the
Commission, including all information contained in the registration
statement (if any) pursuant to Rule 462(b) and then deemed to be a part of
the initial registration statement, and all 430A Information and all 430C
Information, that in any case has not then been superseded or modified,
shall be referred to as the “Initial Registration Statement.” The Company
may also have filed, or may file with the Commission, a Rule 462(b)
registration statement covering the registration of Offered Securities. At
any particular time, this Rule 462(b) registration statement, in the form
then on file with the Commission, including the contents of the Initial
Registration Statement incorporated by reference therein and including all
430A Information and all 430C Information, that in any case has not then
been superseded or modified, shall be referred to as the “Additional
Registration Statement.”
As of the time of execution and delivery of this Agreement, the Initial
Registration Statement has been declared effective under the Act and is not proposed
to be amended. Any Additional Registration Statement has or will become effective
upon filing with the Commission pursuant to Rule 462(b) and is not proposed to be
amended. The Offered Securities all have been or will be duly registered under the
Act pursuant to the Initial Registration Statement and, if applicable, the
Additional Registration Statement.
For purposes of this Agreement:
“430A Information,” with respect to any registration statement, means
information included in a prospectus and retroactively deemed to be a part of such
registration statement pursuant to Rule 430A(b).
“430C Information,” with respect to any registration statement, means
information included in a prospectus then deemed to be a part of such registration
statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means [•] pm (Eastern time) on the date of this Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
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“Commission” means the Securities and Exchange Commission.
“Effective Time” with respect to the Initial Registration Statement or, if
filed prior to the execution and delivery of this Agreement, the Additional
Registration Statement means the date and time as of which such Registration
Statement was declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c). If an Additional Registration Statement has not been
filed prior to the execution and delivery of this Agreement but the Company has
advised Credit Suisse Securities (USA) LLC (“Credit Suisse”) and Xxxxxx Xxxxxxx &
Co. Incorporated (“Xxxxxx Xxxxxxx” and together with Credit Suisse, the
“Representatives”) that it proposes to file one, “Effective Time” with respect to
such Additional Registration Statement means the date and time as of which such
Registration Statement is filed and becomes effective pursuant to Rule 462(b).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Final Prospectus” means the Statutory Prospectus that discloses the public
offering price, other 430A Information and other final terms of the Offered
Securities and otherwise satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective investors, as
evidenced by its being so specified in Schedule B to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Offered Securities in the form filed
or required to be filed with the Commission or, if not required to be filed, in the
form retained in the Company’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing Prospectus.
The Initial Registration Statement and the Additional Registration Statement
are referred to collectively as the “Registration Statements” and individually as a
“Registration Statement.” A “Registration Statement” with reference to a particular
time means the Initial Registration Statement and any Additional Registration
Statement as of such time. A “Registration Statement” without reference to a time
means such Registration Statement as of its Effective Time. For purposes of the
foregoing definitions, 430A Information with respect
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to a Registration Statement shall be considered to be included in such
Registration Statement as of the time specified in Rule 430A.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002
(“Xxxxxxxx-Xxxxx”), the Act, the Exchange Act, the Rules and Regulations, the
auditing principles, rules, standards and practices applicable to auditors of
“issuers” (as defined in Xxxxxxxx-Xxxxx) promulgated or approved by the Public
Company Accounting Oversight Board and the rules of the New York Stock Exchange
(“Exchange Rules”).
“Statutory Prospectus” with reference to a particular time means the prospectus
included in a Registration Statement immediately prior to that time, including any
430A Information or 430C Information with respect to such Registration Statement.
For purposes of the foregoing definition, 430A Information shall be considered to be
included in the Statutory Prospectus as of the actual time that form of prospectus
is filed with the Commission pursuant to Rule 424(b) or Rule 462(c) and not
retroactively.
Unless otherwise specified, a reference to a “rule” is to the indicated rule
under the Act.
(ii) Compliance with Securities Act Requirements. (A) (1) At their
respective Effective Times, (2) on the date of this Agreement and (3) on
each Closing Date, each of the Initial Registration Statement and the
Additional Registration Statement (if any) conformed and will conform in all
respects to the requirements of the Act and did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (B) on its date, at the time of filing of the Final
Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Time of the Additional Registration Statement in which the Final
Prospectus is included, and on each Closing Date, the Final Prospectus will
conform in all respects to the requirements of the Act and the Rules and
Regulations and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances
under which they were made. The preceding sentence does not apply to
statements in or omissions from any such document based upon written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being
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understood and agreed that the only such information is that described
as such in Section 8(b) hereof.
(iii) Ineligible Issuer Status. (A) At the time of initial filing of
the Initial Registration Statement and (B) at the date of this
Agreement, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405, including (x) the Company or any other
subsidiary in the preceding three years not having been convicted of a
felony or misdemeanor or having been made the subject of a judicial or
administrative decree or order as described in Rule 405 and (y) the Company
in the preceding three years not having been the subject of a bankruptcy
petition or insolvency or similar proceeding, not having had a registration
statement be the subject of a proceeding under Section 8 of the Act and not
being the subject of a proceeding under Section 8A of the Act in connection
with the offering of the Offered Securities, all as described in Rule 405.
(iv) General Disclosure Package. As of the Applicable Time, neither
(A) the General Use Issuer Free Writing Prospectus(es) issued at or prior
to the Applicable Time, the preliminary prospectus, dated [•], 2010 (which
is the most recent Statutory Prospectus distributed to investors generally)
and the other information, if any, stated in Schedule B to this
Agreement to be included in the General Disclosure Package, all considered
together (collectively, the “General Disclosure Package”), nor (B) any
individual Limited Use Issuer Free Writing Prospectus, when considered
together with the General Disclosure Package, included any untrue statement
of a material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from any Statutory Prospectus or any
Issuer Free Writing Prospectus in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists
of the information described as such in Section 8(b) hereof.
(v) Issuer Free Writing Prospectuses. Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Offered Securities or until
any earlier date that the Company notified or notifies the Representatives
as described in the next sentence, did not, does not and will not include
any information that conflicted, conflicts or will conflict with the
information then contained in the Registration Statement.
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If at any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement or as a result of
which such Issuer Free Writing Prospectus, if republished immediately
following such event or development, would include an untrue statement of a
material fact or omitted or would omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (i) the Company has promptly
notified or will promptly notify Credit Suisse and Xxxxxx Xxxxxxx and (ii)
the Company has promptly amended or will promptly amend or supplement such
Issuer Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(vi) Good Standing of the Company and the Operating Partnership. The
Company has been duly incorporated and is existing and in good standing
under the laws of the State of Maryland, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the General Disclosure Package; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification. The Operating
Partnership has been duly formed and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware, with
power and authority to own its properties and conducts its business as
described in the General Disclosure Package; and the Operating Partnership
is duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property of
the conduct of its business requires such qualification.
(vii) Subsidiaries. Each subsidiary of the Company has been duly
incorporated and is existing and in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
General Disclosure Package; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification; all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
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(viii) Offered Securities. The Offered Securities and all other
outstanding shares of capital stock of the Company have been duly
authorized; the authorized equity capitalization of the Company is as set
forth in the General Disclosure Package; all outstanding shares of capital
stock of the Company are and, when the Firm Securities have been delivered
and paid for in accordance with this Agreement on the First Closing Date
and, if applicable, the Optional Securities have been delivered and paid
for in accordance with this Agreement on the applicable Closing Date, such
Firm Securities and Optional Securities will be, validly issued and fully
paid, and nonassessable, will conform to the information in the General
Disclosure Package and to the description of such Firm Securities and
Optional Securities contained in the Final Prospectus; the stockholders of
the Company have no preemptive rights with respect to the Offered
Securities; and none of the outstanding shares of capital stock of the
Company have been issued in violation of any preemptive or similar rights
of any security holder. Except as disclosed in the General Disclosure
Package and the Final Prospectus, there are no outstanding (a) securities
or obligations of the Company convertible into or exchangeable for any
capital stock of the Company, (b) warrants, rights or options to subscribe
for or purchase from the Company any such capital stock or any such
convertible or exchangeable securities or obligations or (c) obligations of
the Company to issue or sell any shares of capital stock, partnership
interests or membership interests, as applicable, any such convertible or
exchangeable securities or obligation, or any such warrants, rights or
options.
(ix) OP Units. The Company OP Units and all outstanding OP Units have
been duly authorized; all outstanding OP Units are, and, when the Company
OP Units have been delivered and paid for in accordance with the OP
Agreement, the Company OP Units will be, validly issued, conform to the
information in the General Disclosure Package and to the description of
such Company OP Units contained in the Final Prospectus; all outstanding OP
Units have been, and all Company OP Units will be issued and sold in
compliance with all applicable federal and state securities laws.
(x) Registration Rights Agreements. There are no contracts,
agreements or understandings between the Company and any person granting
such person any rights to have any securities of the Company or any of its
subsidiaries registered under the Securities Act for resale by such person,
except pursuant to the Registration Rights Agreements, dated July 1, 2009,
by and among the Company, Invesco Advisers, Inc., a Delaware
corporation (the “Manager”) and Invesco Investments (Bermuda) Ltd., a
Bermuda company (“Invesco Bermuda”),
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which agreement does not grant any person any such registration rights
until one year after the date of such agreement.
(xi) No Finder’s Fee. Except as disclosed in the General Disclosure
Package, there are no contracts, agreements or understandings between the
Company or any of its affiliates, including, but not limited to, the
Manager and Invesco, Ltd., a Bermuda company (“Invesco”), or any of their
respective direct or indirect subsidiaries, and any person that would give
rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder’s fee or other like payment in connection with
this offering.
(xii) Listing. The Offered Securities have been approved for listing
on The New York Stock Exchange (the “NYSE”), subject to notice of issuance.
(xiii) Absence of Further Requirements. No consent, approval,
authorization, or order of, or filing or registration with, any person
(including any governmental agency or body or any court) is required for
the consummation of the transactions contemplated by this Agreement in
connection with the offering, issuance and sale of the Offered Securities
by the Company or the issuance and sale of the Company OP Units by the
Operating Partnership, except such as have been obtained, or made and such
as may be required under state securities laws.
(xiv) Title to Property. Except as disclosed in the General
Disclosure Package, the Company, the Operating Partnership and their
respective subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case
free from liens, charges, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or to be
made thereof by them and, except as disclosed in the General Disclosure
Package, the Company, the Operating Partnership and their respective
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no terms or provisions that would materially
interfere with the use made or to be made thereof by them.
(xv) Absence of Defaults and Conflicts Resulting from Transaction.
The consummation of the transactions contemplated by this Agreement in
connection with the offering, issuance and sale of the Offered Securities
by the Company and the issuance and sale of the Company OP Units by the
Operating Partnership will not constitute a default or, to the extent
applicable, a Debt Repayment Triggering Event
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(as defined below) under, result in a violation of any of the terms
and provisions of, or result in the imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the Operating
Partnership or any of their respective subsidiaries pursuant to, (A) the
Organizational Documents of the Company, the Operating Partnership or any
of their respective subsidiaries, (B) any statute, rule, regulation or
order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company, the Operating Partnership or any of
their respective subsidiaries or any of their properties, or (C) any
agreement or instrument to which the Company, the Operating Partnership or
any of their respective subsidiaries is a party or by which the Company,
the Operating Partnership or any of their respective subsidiaries is bound
or to which any of the properties of the Company, the Operating Partnership
or any of their respective subsidiaries is subject, except, in the case of
clauses (B) and (C) only, such defaults, violations, liens, charges or
encumbrances that would not, individually or in the aggregate, result in a
material adverse effect on the condition (financial or otherwise), results
of operations, business, properties or prospects of the Company, the
Operating Partnership and their respective subsidiaries taken as a whole
(“Material Adverse Effect”); a “Debt Repayment Triggering Event” means any
event or condition that gives, or with the giving of notice or lapse of
time would give, the holder of any note, debenture, or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company, the Operating Partnership or any of their
respective subsidiaries; the term “Organizational Documents” as used herein
means (a) in the case of a corporation, its charter and by-laws; (b) in the
case of a limited or general partnership, its partnership certificate,
certificate of formation or similar organizational documents and its
partnership agreement; (c) in the case of a limited liability company, its
articles of organization, certificate of formation or similar
organizational documents and its operating agreement, limited liability
company agreement, membership agreement or other similar agreement; and (d)
in the case of any other entity, the organizational and governing documents
of such entity.
(xvi) Absence of Existing Defaults and Conflicts. Neither the
Company, the Operating Partnership nor any of their respective subsidiaries
is in violation of its Organizational Documents or in default (or with the
giving of notice or lapse of time would be in default) under any existing
obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument to which
any of them is a party or by which any of them is bound or to which any of
the properties of any of them is subject, except such defaults that would
not, individually or in the aggregate, have a Material Adverse Effect.
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(xvii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Operating
Partnership.
(xviii) Possession of Licenses and Permits. The Company, the
Operating Partnership and their respective subsidiaries possess, and are in
compliance with the terms of, all adequate certificates, authorizations,
franchises, licenses and permits (“Licenses”) necessary or material to the
conduct of the business now conducted or proposed in the General Disclosure
Package to be conducted by them and have not received any notice of
proceedings relating to the revocation or modification of any Licenses
that, if determined adversely to the Company, the Operating Partnership or
any of their respective subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect.
(xix) Absence of Labor Dispute. No labor dispute exists between any
officers or other key persons of the Company or the Manager named in the
General Disclosure Package (each, a “Company-Focused Professional”) on the
one hand and the employer of each such individual on the other hand nor, to
the knowledge of the Company, is such a labor dispute imminent that could
have a Material Adverse Effect.
(xx) Employment; Noncompetition; Nondisclosure. Neither the Company
nor, to the best of the Company’s knowledge, any employer of any
Company-Focused Professional has been notified that any such
Company-Focused Professional plans to terminate his or her employment with
his or her employer. Neither the Company nor, to the best of the Company’s
knowledge, any Company-Focused Professional is subject to any noncompete,
nondisclosure, confidentiality, employment, consulting or similar agreement
that would be violated by the present or proposed business activities of
the Company or the Manager as described in the General Disclosure Package.
(xxi) Accurate Disclosure. The statements in the General Disclosure
Package and the Final Prospectus under the headings “Summary— Management
Agreement”, “Business— Operating and Regulatory Structure”, “Our Manager
and The Management Agreement— The Management Agreement”, “Certain
Relationships and Related Transactions”, “Description of Capital Stock”,
“Certain Provisions of The Maryland General Corporation Law and Our Charter
and Bylaws”, “The Operating Partnership Agreement”, “U.S. Federal Income
Tax Considerations”, “ERISA Considerations” and “Underwriting"], insofar as
such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate
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and fair summaries of such legal matters, agreements, documents or
proceedings and present the information required to be shown.
(xxii) Absence of Manipulation. None of the Company, the Operating
Partnership, the Manager or their respective subsidiaries or, to the
Company’s knowledge, any affiliates of the Company, has taken, directly or
indirectly, any action that is designed to or that has constituted or that
would 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 the Offered Securities.
(xxiii) Invesco-Related Data. Any financial or other data regarding
Invesco and its direct and indirect subsidiaries, including but not limited
to, the Manager that is included in a Registration Statement, a Statutory
Prospectus or the General Disclosure Package is derived from Invesco’s
accounting or other applicable records and is accurate in all material
respects.
(xxiv) Statistical and Market-Related Data. Any third-party
statistical and market-related data included in a Registration Statement, a
Statutory Prospectus or the General Disclosure Package are based on or
derived from sources that the Company believes to be reliable and accurate.
(xxv) Internal Controls and Compliance with the Xxxxxxxx-Xxxxx Act.
The Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management’s general or
specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (C) receipts and expenditures are being
made only in accordance with management’s general or specific
authorization; (D) access to assets is permitted only in accordance with
management’s general or specific authorization; and (E) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Except as described in the General Disclosure Package, since
the Company’s inception, there has been (1) no material weakness in the
Company’s “internal control over financial reporting” (as defined in Rule
13a-15 under the Exchange Act), whether or not remediated, and (2) no
change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting. The Company and its
subsidiaries have established “disclosure
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controls and procedures” (as defined in Rule 13a-15 under the Exchange
Act) that are designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is accumulated
and communicated to the Company’s management, including its principal
executive officer or officers and principal financial officer or officers,
as appropriate, to allow timely decisions regarding disclosure. The
Company has taken all necessary actions to ensure that, upon the
effectiveness of the Registration Statement, it will be in compliance in
all material respects with all provisions of Xxxxxxxx-Xxxxx and all Rules
and Regulations promulgated thereunder or implementing the provisions
thereof that are then in effect and which the Company is required to comply
with as of the effective date of the Registration Statement.
(xxvi) Litigation. Except as disclosed in the General Disclosure
Package, there are no pending actions, suits or proceedings (including any
inquiries or investigations by any court or governmental agency or body,
domestic or foreign) against or affecting the Company, the Operating
Partnership or any of their respective subsidiaries that, if determined
adversely to the Company, the Operating Partnership or any of their
respective subsidiaries or assets, would, individually or in the aggregate,
have a Material Adverse Effect, or would materially and adversely affect
the ability of the Company or the Operating Partnership to perform their
respective obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings (including any inquiries or investigations by
any court or governmental agency or body, domestic or foreign) are
threatened or, to the Company or the Operating Partnership’s knowledge,
contemplated.
(xxvii) Financial Statements. The financial statements included in
each Registration Statement and the General Disclosure Package present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in
the United States applied on a consistent basis and the schedules included
in each Registration Statement present fairly the information required to
be stated therein.
(xxviii) No Material Adverse Change in Business. Except as disclosed
in the General Disclosure Package, since the end of the period
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covered by the latest audited financial statements included in the
General Disclosure Package (A) there has been no change, nor any
development or event involving a prospective change, in the condition
(financial or otherwise), results of operations, business, properties or
prospects of the Company, the Operating Partnership and their respective
subsidiaries, taken as a whole that is material and adverse, (B) except as
disclosed in or contemplated by the General Disclosure Package, there has
been no dividend or distribution of any kind declared, paid or made by the
Company or the Operating partnership on any class of the Company’s capital
stock or any OP Units, respectively, and (C) except as disclosed in or
contemplated by the General Disclosure Package, there has been no material
adverse change in the capital stock, short-term indebtedness, long-term
indebtedness, net current assets or net assets of the Company, the
Operating Partnership or their respective subsidiaries.
(xxix) Investment Company Act. Neither the Company nor the Invesco
PPIF (as defined the General Disclosure Package) is an “investment company”
as defined in the Investment Company Act of 1940 (the “Investment Company
Act”) or an entity controlled by an investment company. After giving
effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the General Disclosure
Package, neither the Company nor the Invesco PPIF is an investment company
or an entity controlled by an investment company.
(xxx) Indebtedness. Except as disclosed in the General Disclosure
Package, neither the Company nor any of its direct or indirect subsidiaries
has any indebtedness as of the date of this Agreement; and neither the
Company nor any of its direct or indirect subsidiaries will have any
indebtedness immediately prior to the sale of the Offered Securities on the
First Closing Date.
(xxxi) Insurance. As of the First Closing Date, the Company, the
Operating Partnership and each of their respective subsidiaries will be
insured by insurers with appropriately rated claims paying abilities
against such losses and risks and in such amounts as are prudent and
customary for the businesses in which they are engaged; all policies of
insurance and fidelity or surety bonds insuring the Company, the Operating
Partnership or any of their respective subsidiaries or their respective
businesses, assets, employees, officers and directors will be in full force
and effect as of the First Closing Date; none of the Company, the Operating
Partnership or any of their respective subsidiaries has been refused any
insurance coverage sought or applied for; and the Company has obtained
directors’ and officer’s insurance in such amounts as is
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customary for companies engaged in the type of business conducted by
the Company.
(xxxii) Tax Law Compliance. The Company and its subsidiaries have
filed all necessary federal, state, local and foreign income and franchise
tax returns in a timely manner, and all such tax returns are correct and
complete in all material respects, and have paid all taxes required to be
paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them, except for any
taxes, assessments, fines or penalties as may be being contested in good
faith and by appropriate proceedings.
(xxxiii) Real Estate Investment Trust. The Company will make a timely
election to be subject to tax as a real estate investment trust (“REIT”)
pursuant to Section 856 through 860 of the Code for its taxable year ending
December 31, 2009. Commencing with its taxable year ending December 31,
2009, the Company has been organized in conformity with the requirements
for qualification and taxation as a REIT under the Code, and the Company’s
proposed method of operation as set forth in each Registration Statement,
the General Disclosure Package and each Statutory Prospectus will enable it
to meet the requirements for qualification and taxation as a REIT under the
United States Internal Revenue Code of 1986, as amended (“Code”). All
statements regarding the Company’s qualification and taxation as a REIT and
descriptions of the Company’s organization and proposed method of operation
set forth in the General Disclosure Package and each Statutory Prospectus
are true, complete and correct in all material respects.
(xxxiv) Description of Organization and Method of Operation. The
description of the Company’s organization and method of operation and its
qualification and taxation as a REIT set forth in each Registration
Statement, the General Disclosure Package and each Statutory Prospectus is
accurate and presents fairly the matters referred to therein; the Company’s
operating policies, investment guidelines and operating policies described
in each Registration Statement, the General Disclosure Package and each
Statutory Prospectus accurately reflect in all material respects the
current intentions of the Company with respect to the operation of its
business, and no material deviation from such guidelines or policies is
currently contemplated.
(xxxv) Anti-Bribery Laws. None of the Company, the Operating
Partnership or their respective subsidiaries, any director of the Company,
any Company-Focused Professional or any other agent or representative of
the Company, the Operating Partnership or their respective
14
subsidiaries, or, to the Company’s knowledge, any affiliate of the
Company, has taken or will take any action in furtherance of an offer,
payment, promise to pay, or authorization or approval of the payment or
giving of money, property, gifts or anything else of value, directly or
indirectly, to any “government official” (including any officer or employee
of a government or government-owned or controlled entity or of a public
international organization, or any person acting in an official capacity
for or on behalf of any of the foregoing, or any political party or party
official or candidate for political office) to influence official action or
secure an improper advantage; and the Company, the Operating Partnership
and their respective subsidiaries have conducted their businesses in
compliance with applicable anti-corruption laws and have instituted and
maintain and will continue to maintain policies and procedures designed to
promote and achieve compliance with such laws.
(xxxvi) Anti-Money Laundering Laws. The operations of the Company,
the Operating Partnership and their respective subsidiaries are and have
been conducted at all times in material compliance with all applicable
financial recordkeeping and reporting requirements, including those of the
Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money
laundering statutes of jurisdictions where the Company, the Operating
Partnership or any of their respective subsidiaries conduct business, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Anti-Money Laundering Laws”), and
no action, suit or proceeding (including any inquiries or investigations by
any court or governmental agency or body, domestic or foreign) with respect
to the Anti-Money Laundering Laws is pending or threatened or, to the
Company or the Operating Partnership’s knowledge, contemplated.
(xxxvii) OFAC Sanctions. None of the Company, the Operating
partnership or any of their respective subsidiaries (collectively, the
“Entity”) or, to the knowledge of the Entity, any director, officer,
employee, agent, affiliate or representative of the Entity, is an
individual or entity (“Person”) that is, or is owned or controlled by a
Person that is (A) the subject of any sanctions administered or enforced by
the U.S. Department of Treasury’s Office of Foreign Assets Control
(“Sanctions”), nor (B) located, organized or resident in a country or
territory that is the subject of Sanctions; the Entity will not, directly
or indirectly, use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture
partner or other Person: (A) to fund or facilitate any activities or
business
15
of or with any Person or in any country or territory that, at the time
of such funding or facilitation, is the subject of Sanctions; or (B) in any
other manner that will result in a violation of Sanctions by any Person
(including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise); and the Entity has not
knowingly engaged in, is not now knowingly engaged in, and will not engage
in, any dealings or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was the
subject of Sanctions.
(xxxviii) Prior Sales of Common Stock. Except as disclosed in the
General Disclosure Package, the Company has not sold, issued or distributed
any shares of Common Stock during the six-month period preceding the date
hereof.
(b) The Manager represents and warrants to, and agrees with, the Underwriters
that:
(i) Manager-Related Disclosure. Any financial or other data regarding
the Manager and/or its subsidiaries that is included in a Registration
Statement, a Statutory Prospectus or the General Disclosure Package is
derived from the Manager’s accounting or other applicable records and is
accurate in all material respects.
(ii) Good Standing of the Manager. The Manager has been duly
organized and is existing and in good standing under the laws of the State
of Delaware, with the corporate power and authority to own its properties
and conduct its business as described in the General Disclosure Package;
and the Manager is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such qualification.
(iii) Absence of Defaults and Conflicts Resulting from Transaction.
The execution, delivery and performance of this Agreement will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, or result in the imposition of any lien, charge
or encumbrance upon any property or assets of the Manager or any of its
subsidiaries pursuant to, (A) the Organizational Documents of the Manager
or any of its subsidiaries, (B) any statute, rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Manager or any of its subsidiaries or any of their
properties, or (C) any material agreement or instrument to
16
which the Manager or any of its subsidiaries is a party or by which
the Manager or any of its subsidiaries is bound or to which any of the
properties of the Manager or any of its subsidiaries is subject.
(iv) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Manager.
(v) Absence of Further Requirements. No consent, approval,
authorization, or order of, or filing or registration with, any person
(including any governmental agency or body or any court) is required for
the Manager to perform its obligations under this Agreement.
(vi) Possession of Licenses and Permits. The Manager and its
subsidiaries possess, and are in compliance with the terms of, all adequate
Licenses necessary or material to the conduct of the business of the
Manager with respect to the Company now conducted or proposed in the
General Disclosure Package to be conducted by them and have not received
any notice of proceedings relating to the revocation or modification of any
Licenses that, if determined adversely to the Manager or any of its
respective subsidiaries, would, individually or in the aggregate, have a
Material Adverse Effect.
(vii) No Material Adverse Change in Business. Except as disclosed in
the General Disclosure Package, there has been no change, nor any
development or event involving a prospective change, in the condition
(financial or otherwise), results of operations, business, properties or
prospects of the Manager and its subsidiaries, taken as a whole, that is
material and adverse to the Company or that would prevent the Manager from
carrying out its obligations under this Agreement or the Management
Agreement, dated July 1, 2009 (the “Management Agreement”), by and among
the Company, the Operating Partnership and IAS Asset I LLC .
(viii) Employment; Noncompetition; Nondisclosure. The Manager has not
been notified that any officers or other key persons of the Manager named
in the General Disclosure Package, or a significant number of members of
the Manager’s mortgage investment team plans to terminate his or her
employment with the Manager. Neither the Manager nor, to the best of the
Manager’s knowledge, any officers or other key persons of the Manager named
in the General Disclosure Package is subject to any noncompete,
nondisclosure, confidentiality, employment, consulting or similar agreement
that would be violated by the present or
17
proposed business activities of the Company or the Manager as
described in the General Disclosure Package.
(ix) Absence of Manipulation. The Manager has not taken, directly or
indirectly, any action that is designed to or that has constituted or that
would 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 the Offered Securities.
(x) Litigation. There are no pending actions, suits or proceedings
(including any inquiries or investigations by any court or governmental
agency or body, domestic or foreign) against or affecting the Manager or
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Manager or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect, or would
materially and adversely affect the ability of the Manager to perform its
obligations under this Agreement or the Management Agreement; and, to the
Manager’s knowledge, no such actions, suits or proceedings (including any
inquiries or investigations by any court or governmental agency or body,
domestic or foreign) are threatened or contemplated.
(xi) Investment Advisers Act. The Manager is not prohibited by the
Investment Advisers Act of 1940, as amended (“Advisers Act”), or the rules
and regulations thereunder, from performing its obligations under the
Management Agreement as described in the Registration Statement, the
General Disclosure Package and the Final Prospectus.
(xii) Internal Controls. The Manager maintains a system of internal
controls in place sufficient to provide reasonable assurance that (A) the
transactions that may be effectuated by the Manager under the Management
Agreement are executed in accordance with its management’s general or
specific authorization and (B) access to the Company’s assets is permitted
only in accordance with the internal polices, controls and procedures of
the Manager.
(xiii) Compliance. The Manager is in compliance with all applicable
federal, state, local and foreign laws, rules, regulations, orders, decrees
and judgments, including those relating to transactions with affiliates,
except where the failure to so comply could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
18
3. Purchase, Sale and Delivery of Offered Securities.
On the basis of the representations, warranties and agreements and subject to the terms and
conditions set forth herein, the Company agrees to sell to the several Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $[•] per share, the respective number of shares of Firm Securities set forth opposite the
names of the Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to or as instructed by the Representatives for
the accounts of the several Underwriters against payment of the purchase price by the Underwriters
in Federal (same day) funds by wire transfer to an account at a bank designated by the Company
drawn to the order of the Company at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
(“Skadden”), at 10 A.M., New York time, on [•], 2010 or at such other time not later than three
full business days thereafter as the Representatives and the Company determine, such time being
herein referred to as the “First Closing Date.” For purposes of Rule 15c6-1 under the Exchange Act,
the First Closing Date (if later than the otherwise applicable settlement date) shall be the
settlement date for payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The Firm Securities shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
First Closing Date.
In addition, upon written notice from the Representatives given to the Company from time to
time not more than 30 days subsequent to the date of the Final Prospectus, the Underwriters may
purchase all or less than all of the Optional Securities for $[•] per share. The Company agrees to
sell to the Underwriters the number of shares of Optional Securities specified in such notice and
the Underwriters agree, severally and not jointly, to purchase such Optional Securities. Such
Optional Securities shall be purchased for the account of each Underwriter in the same proportion
as the number of shares of Firm Securities set forth opposite such Underwriter’s name bears to the
total number of shares of Firm Securities (subject to adjustment by the Representatives to
eliminate fractions) and may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are,
sold and delivered. The right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by the Representatives to the Company.
Each time for the delivery of and payment for the Optional Securities, being herein referred
to as an “Optional Closing Date,” which may be the First Closing Date (the First Closing Date and
each Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Representatives but shall be not earlier than three days and not later than five
full business days after written notice of election to purchase Optional Securities is given. The
Company will deliver the Optional Securities being purchased on each Optional Closing Date to or as
instructed by the Representatives for the accounts of the several
19
Underwriters against payment of the purchase price therefor in Federal (same day) funds by
wire transfer to an account at a bank acceptable to the Representatives drawn to the order of
Credit Suisse, at the office of Skadden. The Optional Securities being purchased on each Optional
Closing Date shall be registered in such names and in such denominations as you shall request in
writing not later than one full business day prior to the applicable Optional Closing Date.
As compensation for the Underwriters’ commitments, the Company will pay to the Representatives
for the Underwriters’ proportionate accounts the sum of [•]% of the aggregate principal amount of
the $[•] per share purchase price for the Offered Securities times the total number of Offered
Securities purchased by the Underwriters on each Closing Date. Such payment will be made on each
Closing Date with respect to the Offered Securities purchased on such Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company and the Manager.
(a) The Company agrees with the several Underwriters that:
(i) Additional Filings. Unless filed pursuant to Rule 462(c) as part
of the Additional Registration Statement in accordance with the next
sentence, the Company will file the Final Prospectus, in a form approved by
the Representatives, with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by the
Representatives, subparagraph (4)) of Rule 424(b) not later than the
earlier of (A) the second business day following the execution and delivery
of this Agreement, or (B) the fifteenth business day after the Effective
Time of the Initial Registration Statement. The Company will advise the
Representatives promptly of any such filing pursuant to Rule 424(b) and
provide satisfactory evidence to the Representatives of such timely filing.
If an Additional Registration Statement is necessary to register a portion
of the Offered Securities under the Act but the Effective Time thereof has
not occurred as of the execution and delivery of this Agreement, the
Company will file the additional registration statement or, if filed, will
file a post-effective amendment thereto with the Commission pursuant to and
in accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on
the date of this Agreement or, if earlier, on or prior to the time the
Final Prospectus is finalized and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by the
Representatives.
20
(ii) Filing of Amendments; Response to Commission Requests. The
Company will promptly advise the Representatives of any proposal to amend
or supplement at any time the Initial Registration Statement, any
Additional Registration Statement or any Statutory Prospectus and will not
effect such amendment or supplementation without the Representatives’
consent, which shall not be unreasonably withheld; and the Company will
also advise the Representatives promptly of (A) the effectiveness of any
Additional Registration Statement (if its Effective Time is subsequent to
the execution and delivery of this Agreement), (B) any amendment or
supplementation of a Registration Statement or any Statutory Prospectus,
(C) any request by the Commission or its staff for any amendment to any
Registration Statement, for any supplement to any Statutory Prospectus or
for any additional information, (D) the institution by the Commission of
any stop order proceedings in respect of a Registration Statement or the
threatening of any proceeding for that purpose, and (E) the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Offered Securities in any jurisdiction or the
institution or threatening of any proceedings for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop
order or the suspension of any such qualification and, if issued, to obtain
as soon as possible the withdrawal thereof.
(iii) Continued Compliance with Securities Laws. If, at any time when
a prospectus relating to the Offered Securities is (or but for the
exemption in Rule 172 would be) required to be delivered under the Act by
any Underwriter or dealer, any event occurs as a result of which the Final
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Registration Statement or supplement the Final Prospectus to
comply with the Act, the Company will promptly notify the Representatives
of such event and will promptly prepare and file with the Commission and
furnish, at its own expense, to the Underwriters and the dealers and any
other dealers upon request of the Representatives, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representatives’ consent
to, nor the Underwriters’ delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 7
hereof.
(iv) Rule 158. As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a period of
21
at least 12 months beginning after the Effective Time of the Initial
Registration Statement (or, if later, the Effective Time of the Additional
Registration Statement) which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act. For the purpose of the preceding
sentence, “Availability Date” means the day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such Effective
Time on which the Company is required to file its Form 10-Q for such fiscal
quarter except that, if such fourth fiscal quarter is the last quarter of
the Company’s fiscal year, “Availability Date” means the day after the end
of such fourth fiscal quarter on which the Company is required to file its
Form 10-K.
(v) Furnishing of Prospectuses. The Company will furnish to the
Representatives copies of each Registration Statement (of which will be
signed and will include all exhibits), each related Statutory Prospectus,
and, so long as a prospectus relating to the Offered Securities is (or but
for the exemption in Rule 172 would be) required to be delivered under the
Act, the Final Prospectus and all amendments and supplements to such
documents, in each case in such quantities as the Representatives request.
The Final Prospectus shall be so furnished on or prior to 3:00 P.M., New
York time, on the business day following the execution and delivery of this
Agreement, or at such time as otherwise agreed to by the Representatives.
All other documents shall be so furnished as soon as available. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(vi) Blue Sky Qualifications. The Company will arrange for the
qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Representatives designate and will continue such
qualifications in effect so long as required for the distribution;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(vii) Reporting Requirements. During the period of two years
hereafter, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, as soon as practicable after
the end of each fiscal year, a copy of its annual report to stockholders
for such year; and the Company will furnish to the Representatives (A) as
soon as available, a copy of each report and any definitive proxy statement
of the Company filed with the Commission under the Exchange Act or mailed
to stockholders, and (B) from time to time, such
22
other information concerning the Company as the Representatives may
reasonably request. However, so long as the Company is subject to the
reporting requirements of either Section 13 or Section 15(d) of the
Exchange Act and is timely filing reports with the Commission on its
Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”), it is
not required to furnish such reports or statements to the Underwriters.
(viii) Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement,
including but not limited to any filing fees and other expenses (including
fees and disbursements of counsel to the Underwriters) incurred in
connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions as the Representatives designate and the
preparation and printing of memoranda relating thereto, costs and expenses
related to the review by the Financial Industry Regulatory Authority
(“FINRA”) of the Offered Securities (including filing fees and the fees and
expenses of counsel for the Underwriters relating to such review), costs
and expenses relating to investor presentations or any “road show” in
connection with the offering and sale of the Offered Securities including,
without limitation, any travel expenses of the Company’s officers and
employees and any other expenses of the Company including the chartering of
airplanes, fees and expenses incident to listing the Offered Securities on
the NYSE, fees and expenses in connection with the registration of the
Offered Securities under the Exchange Act, and expenses incurred in
distributing preliminary prospectuses and the Final Prospectus (including
any amendments and supplements thereto) to the Underwriters and for
expenses incurred for preparing, printing and distributing any Issuer Free
Writing Prospectuses to investors or prospective investors.
(ix) Use of Proceeds. The Company will use the net proceeds received
in connection with the offering and sale of the Offered Securities and will
cause the Operating Partnership to use the net proceeds received in
connection with the issuance and sale of the Company OP Units in the manner
described in the “Use of Proceeds” section of the General Disclosure
Package and, except as disclosed in the General Disclosure Package, the
Company does not intend to use any of the proceeds from the sale of the
Offered Securities hereunder, and will cause the Operating Partnership to
refrain from using any of the proceeds from the issuance and sale of the
Company OP Units to repay any outstanding debt owed to any affiliate of any
Underwriter.
(x) Absence of Manipulation. The Company will not, and will cause its
subsidiaries and affiliates not to take, directly or indirectly,
23
any action designed to or that would constitute or that might
reasonably be expected to cause or result in, stabilization or manipulation
of the price of any securities of the Company to facilitate the sale or
resale of the Offered Securities.
(xi) Restriction on Sale of Securities. For the period specified
below (the “Lock-Up Period”), the Company will not, directly or indirectly,
take any of the following actions with respect to its Securities or any
securities convertible into or exchangeable or exercisable for any of its
Securities (“Lock-Up Securities”): (A) offer, sell, issue, contract to
sell, pledge or otherwise dispose of Lock-Up Securities, (B) offer, sell,
issue, contract to sell, contract to purchase or grant any option, right or
warrant to purchase Lock-Up Securities, (C) enter into any swap, hedge or
any other agreement that transfers, in whole or in part, the economic
consequences of ownership of Lock-Up Securities, (D) establish or increase
a put equivalent position or liquidate or decrease a call equivalent
position in Lock-Up Securities within the meaning of Section 16 of the
Exchange Act or (E) file with the Commission a registration statement under
the Act relating to Lock-Up Securities, or publicly disclose the intention
to take any such action, without the prior written consent of the
Representatives. The initial Lock-Up Period will commence on the date
hereof and continue for 90 days after the date hereof or such earlier date
that the Representatives consent to in writing; provided, however, that if
(1) during the last 17 days of the initial Lock-Up Period, the Company
releases earnings results or material news or a material event relating to
the Company occurs or (2) prior to the expiration of the initial Lock-Up
Period, the Company announces that it will release earnings results during
the 16-day period beginning on the last day of the initial Lock-Up Period,
then in each case the Lock-Up Period will be extended until the expiration
of the 18-day period beginning on the date of release of the earnings
results or the occurrence of the materials news or material event, as
applicable, unless the Representatives waive, in writing, such extension.
The Company will provide the Representatives with notice of any
announcement described in clause (2) of the preceding sentence that gives
rise to an extension of the Lock-Up Period.
(xii) Qualification and Taxation as a REIT. The Company will use its
best efforts to meet the requirements for qualification and taxation as a
REIT under the Code for its taxable year ending December 31, 2009, and the
Company will use its best efforts to continue to qualify for taxation as a
REIT under the Code unless the Board of Directors of the Company determines
that it is no longer in the best interests of the Company and its
stockholders to be so qualified.
24
(b) The Manager agrees with the several Underwriters that:
(i) Absence of Manipulation. The Manager will not, and will cause its
subsidiaries and affiliates over which the Manger exercises control not to
take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in,
stabilization or manipulation of the price of any securities of the Company
to facilitate the sale or resale of the Offered Securities.
(ii) Restriction on Sale of Securities. The Manager shall abide by
the terms of the letter set forth in Annex VI to this Agreement.
6. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the
prior consent of the Representatives, and each Underwriter represents and agrees that, unless it
obtains the prior consent of the Company and the Representatives, it has not made and will not make
any offer relating to the Offered Securities that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission. Any such free writing prospectus consented to by the
Company and Credit Suisse is hereinafter referred to as a “Permitted Free Writing Prospectus.” The
Company represents that it has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and
will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including timely Commission filing where required, legending and record keeping. The
Company represents that is has satisfied and agrees that it will satisfy the conditions in Rule 433
to avoid a requirement to file with the Commission any electronic road show.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional
Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties of the Company, the Operating Partnership and the Manager herein (as
though made on such Closing Date), to the accuracy of the statements of officers of the Company,
Operating Partnership, the Manager and their respective subsidiaries made pursuant to the
provisions hereof, to the performance by the Company, the Operating Partnership and the Manager of
their obligations hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Representatives shall have received letters,
dated, respectively, the date hereof and each Closing Date, of Xxxxx Xxxxxxxx LLP,
substantially in the form of Annex I hereto, confirming that they are a registered
public accounting firm and independent public accountants within the meaning of the
Securities Laws and in form and substance satisfactory to the Representatives, containing
statements and information of the type ordinarily included in accountants’
25
“comfort letters” to underwriters with respect to financial statements and certain
financial information of the Company contained in the Registration Statement, the General
Disclosure Package and the Final Prospectus.
(b) Effectiveness of Registration Statement. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the Final Prospectus is
finalized and distributed to any Underwriter, or shall have occurred at such later time as
shall have been consented to by the Representatives. The Final Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and Section 5(a)
hereof. Prior to such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company or the Representatives, shall be
contemplated by the Commission.
(c) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and its subsidiaries taken as
a whole which, in the judgment of the Representatives, is material and adverse and makes it
impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the
rating of debt securities, if any, of the Company by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g)), or any public announcement
that any such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such rating); (iii)
any change in either U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls the effect of which is such as to make it, in
the judgment of the Representatives, impractical to market or to enforce contracts for the
sale of the Offered Securities, whether in the primary market or in respect of dealings in
the secondary market; (iv) any suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum or maximum prices for
trading on such exchange; (v) or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by
any U.S. federal or New York authorities; (vii) any major disruption of settlements of
securities, payment, or clearance services in the United States or any other country where
such securities are listed or (viii) any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment of the
Representatives, the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency is such as to make it impractical or inadvisable to market the
Offered Securities or to enforce contracts for the sale of the Offered Securities.
26
(d) Opinion of Counsel for the Company, the Operating Partnership and the Manager.
The Representatives shall have received an opinion, dated such Closing Date, of Xxxxxx &
Bird LLP, counsel for the Company and the Operating Partnership in substantially the form
set forth on Annex II hereto.
(e) Opinion of Special Counsel for Company. The Representatives shall have received
an opinion, dated such Closing Date, of Xxxxxxx LLP, special counsel for the Company, in
substantially the form set forth in Annex III hereto.
(f) Tax Opinion. The Representatives shall have received a tax opinion, dated such
Closing Date of Xxxxxx & Bird LLP, counsel for the Company, in substantially the form set
forth on Annex IV hereto.
(g) Opinion of Counsel for the Manager. The Representatives shall have received an
opinion, dated such Closing Date, of Xxxxxxx X. Xxxxx, the General Counsel of the Manager,
in substantially the form set forth on Annex V hereto.
(h) Opinion of Counsel for Underwriters. The Representatives shall have received from
Skadden, counsel for the Underwriters, such opinion or opinions, dated such Closing Date,
with respect to such matters as the Representatives may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(i) Company Officers’ Certificate. The Representatives shall have received a
certificate, dated such Closing Date, of the Chief Executive Officer of the Company and the
Chief Financial Officer of the Company in which such officers shall state that: the
representations and warranties of the Company and the Operating Partnership in this
Agreement are true and correct; each of the Company and the Operating Partnership has
complied with all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order suspending the
effectiveness of any Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of their knowledge and after reasonable
investigation, are contemplated by the Commission; the Additional Registration Statement
(if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely
filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) of Regulation S-T of the Commission; and, subsequent to the
respective dates of the most recent financial statements in the General Disclosure Package,
there has been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and its subsidiaries taken as
a whole except as set forth in the General Disclosure Package or as described in such
certificate.
27
(j) Manager Officers’ Certificate. The Representatives shall have received a
certificate, dated such Closing Date, of the Chief Executive Officer and Chief Financial
Officer of the Manager in which such officers shall state that: the representations and
warranties of the Manager in this Agreement are true and correct; the Manager has complied
with all agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date.
(k) Lock-up Agreements. On or prior to the date hereof, the Representatives shall
have received a lock-up letter in the form of Annex VI hereto from each of the
Company’s directors and executive officers, the Manager and each of the Manager’s officers.
The Company will furnish the Representatives with such conformed copies of such opinions,
certificates, letters and documents as the Representatives reasonably request. Credit Suisse may
in its sole discretion waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
8. Indemnification and Contribution. (a) Indemnification by the Company and the Operating
Partnership. Each of the Company and the Operating Partnership will, jointly and severally,
indemnify and hold harmless each Underwriter, its partners, members, directors, officers,
employees, agents, affiliates and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”),
against any and all losses, claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state
statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any part of any Registration Statement at any
time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not misleading, and will
reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending against any loss, claim, damage,
liability, action, litigation, investigation or proceeding whatsoever (whether or not such
Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the
enforcement of this provision with respect to any of the above as such expenses are incurred;
provided, however, that neither the Company nor the Operating Partnership will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists of the information
described as such in subsection (c) below.
28
(b) Indemnification by the Underwriters. Each Underwriter will severally and not jointly
indemnify and hold harmless the Company, each of its directors and each of its officers who signs a
Registration Statement, the Operating Partnership and each person, if any, who controls the Company
or the Operating Partnership within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act (each, an “Underwriter Indemnified Party”), against any losses, claims, damages or
liabilities to which such Underwriter Indemnified Party may become subject, under the Act, the
Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact contained in any part of
any Registration Statement at any time, any Statutory Prospectus as of any time, the Final
Prospectus, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission
or the alleged omission of a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by such Underwriter Indemnified Party in connection with investigating
or defending against any such loss, claim, damage, liability, action, litigation, investigation or
proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto),
whether threatened or commenced, based upon any such untrue statement or omission, or any such
alleged untrue statement or omission as such expenses are incurred, it being understood and agreed
that the only such information furnished by any Underwriter consists of the following information
in the Final Prospectus furnished on behalf of each Underwriter: (i) the information relating to
concession figures contained in the third paragraph under the caption “Underwriting”, (ii) the
information relating to stabilizing transactions, penalty bids and syndicate covering transactions
contained in the [thirteenth, fifteenth, sixteenth, seventeenth, eighteenth and nineteenth]
paragraphs under the caption “Underwriting”, and (iii) the disclosure regarding sales to
discretionary accounts in the [twelfth] paragraph under the caption “Underwriting”.
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b)
above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for
29
any legal or other expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company and
the Operating Partnership on the one hand and the Underwriters on the other from the offering of
the Offered Securities 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 the Operating
Partnership on the one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company and the Operating Partnership bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company or the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person
30
who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this
subsection (d) to contribute are several in proportion to their respective underwriting obligations
and not joint. The Company, the Operating Partnership and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to in
this Section 8(d).
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Offered Securities hereunder on either the First or any Optional Closing Date and the
aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date, Credit Suisse may
make arrangements satisfactory to the Company for the purchase of such Offered Securities by other
persons, including any of the Underwriters, but if no such arrangements are made by such Closing
Date, the non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters
so default and the aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date and arrangements satisfactory to Credit
Suisse and the Company for the purchase of such Offered Securities by other persons are not made
within 36 hours after such default, this Agreement will terminate without liability on the part of
any non-defaulting Underwriter or the Company, except as provided in Section 10 hereof (provided
that if such default occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term “Underwriter” includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company, the Operating
Partnership, the Manager or their respective officers and of the several Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the
Company, the Operating Partnership, the Manager or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of and payment for the
Offered Securities. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this Agreement pursuant
to Section 9 hereof, the Company, will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities, and the respective obligations of the Company, the Operating
Partnership and the Underwriters pursuant to Section 8 hereof shall remain in effect. In addition,
if any Offered Securities have been purchased hereunder, the
31
representations and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect.
11. Notices. All communications hereunder will be in writing and, if sent to the Underwriters,
will be mailed, delivered or telegraphed and confirmed to the Representatives, , c/o Credit Suisse
Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if
sent to the Company, the Operating Partnership or the Manager will be mailed, delivered or
telegraphed and confirmed to it at 0000 Xxxxxxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx 00000, Attention:
Xxxxxxx X. Xxxx; provided, however, that any notice to an Underwriter pursuant to Section 8 will be
mailed, delivered or telegraphed and confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 8, and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representatives will act for the several Underwriters
in connection with this financing, and any action under this Agreement taken by the Representatives
jointly or by Credit Suisse will be binding upon all the Underwriters.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same Agreement.
15. Absence of Fiduciary Relationship. The Company, the Operating Partnership and the Manager
acknowledge and agree that:
(a) No Other Relationship. The Representatives have been retained solely to act as
underwriters in connection with the sale of Offered Securities and that no fiduciary,
advisory or agency relationship between the Company, the Operating Partnership and the
Manager and the Representatives has been created in respect of any of the transactions
contemplated by this Agreement or the Final Prospectus, irrespective of whether the
Representatives have advised or is advising the Company, the Operating Partnership or the
Manager on other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by the Company following discussions and arms’ length
negotiations with the Representatives, and the Company, the Operating Partnership or the
Manager capable of evaluating and understanding and understands and accepts the terms,
risks and conditions of the transactions contemplated by this Agreement;
32
(c) Absence of Obligation to Disclose. The Company, the Operating Partnership and the
Manager have been advised that the Representatives and their affiliates are engaged in a
broad range of transactions which may involve interests that differ from those of the
Company, the Operating Partnership or the Manager, and that the Representatives have no
obligation to disclose such interests and transactions to the Company, the Operating
Partnership or the Manager by virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. Each of the Company, the Operating Partnership and the Manager waives, to
the fullest extent permitted by law, any claims they may have against the Representatives
for breach of fiduciary duty or alleged breach of fiduciary duty and agree that the
Representatives shall have no liability (whether direct or indirect) to the Company, the
Operating Partnership or the Manager in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on behalf of or in right of the Company, the
Operating Partnership or the Manager, including stockholders, employees or creditors of the
Company, the Operating Partnership or the Manager.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
Each of the Company, the Operating Partnership and the Manager hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City
of New York in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. Each of the Company, the Operating Partnership and the Manager
irrevocably and unconditionally waives any objection to the laying of venue of any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in
Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such suit or
proceeding in any such court has been brought in an inconvenient forum.
33
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement among the Company, the Operating Partnership and the Manager and the several
Underwriters in accordance with its terms.
| Very truly yours, | ||||||
| INVESCO MORTGAGE CAPITAL INC. | ||||||
| By | ||||||
| Name: | ||||||
| Title: | ||||||
| IAS OPERATING PARTNERSHIP LP | ||||||
| By: | Invesco Mortgage Capital Inc., | |||||
| as its General Partner | ||||||
| By | ||||||
| Name: | ||||||
| Title: | ||||||
| INVESCO ADVISERS, INC. | ||||||
| By | ||||||
| Name: | ||||||
| Title: | ||||||
34
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
| Acting on behalf of itself and as the Representative of the several Underwriters. CREDIT SUISSE SECURITIES (USA) LLC |
||||
| By: | ||||
| Name: | Xxxxxx Xxxxxxxxxx | |||
| Title: | Managing Director | |||
| Acting on behalf of itself and as the Representative of the several Underwriters. XXXXXX XXXXXXX & CO. INCORPORATED |
||||
| By: | ||||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Managing Director | |||
35
SCHEDULE A
| Number of | ||||
| Underwriter | Firm Securities | |||
Credit Suisse Securities (USA) LLC |
[•] | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
[•] | |||
Xxxxxxxxx & Company, Inc. |
[•] | |||
Xxxxx, Xxxxxxxx & Xxxxx, Inc. |
[•] | |||
Xxxxxx, Xxxxxxxx & Company, Incorporated |
[•] | |||
Xxxxxxx Securities, LLC |
[•] | |||
Xxxxxx Xxxxxxx & Co., Inc. |
[•] | |||
The Xxxxxxxx Capital Group, L.P. |
[•] | |||
Total |
[•] | |||
A-1
SCHEDULE B
| 1. | General Use Free Writing Prospectuses (included in the General Disclosure Package) |
[•]
| 2. | Other Information Included in the General Disclosure Package |
[•]
B-1
ANNEX I
Form of Comfort Letter of Xxxxx Xxxxxxxx LLP
ANNEX II
Form of Corporate Opinion of Xxxxxx & Bird LLP
ANNEX III
Form of Maryland Law Opinion of Xxxxxxx LLP
ANNEX IV
Form of Tax Opinion of Xxxxxx & Bird LLP
ANNEX V
Form of Opinion of General Counsel of the Manager
ANNEX VI
Form of Lock-Up Agreement
| [•], 2010 |
| Credit Suisse Securities (USA) LLC | ||
| Xxxxxx Xxxxxxx & Co. Incorporated | ||
| As Representatives of the Several Underwriters, | ||
c/o
|
Credit Suisse Securities (USA) LLC | |
| Eleven Xxxxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000-0000 | ||
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting Agreement, dated as of [•],
2010 (the “Underwriting Agreement”), by and among Invesco Mortgage Capital Inc., a Maryland
corporation, and any successor (by merger or otherwise) thereto, (the “Company”), IAS Operating
Partnership LP, Invesco Advisers, Inc., and Credit Suisse Securities (USA) LLC (“Credit
Suisse”) and Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) as representatives of the several
underwriters named in Schedule A to the Underwriting Agreement, pursuant to which a public offering
of the Company’s common stock, par value $0.01 per share (the “Securities”) will be made, the
undersigned hereby agrees that during the period specified in the following paragraph (the “Lock-Up
Period”), the undersigned will not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any Securities or securities convertible into or exchangeable or
exercisable for any Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such aforementioned transaction is to be
settled by delivery of the Securities or such other securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any
such transaction, swap, hedge or other arrangement, without, in each case, the prior written
consent of Credit Suisse and Xxxxxx Xxxxxxx. In addition, the undersigned agrees that, without the
prior written consent of Credit Suisse, it will not, during the Lock-Up Period, make any demand for
or exercise any right with respect to, the registration of any Securities or any security
convertible into or exercisable or exchangeable for the Securities.
The initial Lock-Up Period will commence on the date of this Lock-Up Agreement and continue
and include the date 90 days after the public offering date set forth on the final prospectus used
to sell the Securities (the “Public Offering Date”) pursuant to the Underwriting Agreement;
provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company
releases earnings results or material news or a material event relating to the Company occurs or
(2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the initial Lock-Up
Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day
period beginning on the date of release of the earnings results
or the occurrence of the material news or material event, as applicable, unless Credit Suisse
and Xxxxxx Xxxxxxx waive, in writing, such extension.
The undersigned agrees that, prior to engaging in any transaction or taking any other action
that is subject to the terms of this Lock-Up Agreement during the period from the date of this
Lock-Up Agreement to and including the 34th day following the expiration of the initial
Lock-Up Period, it will give notice thereof to the Company and will not consummate such transaction
or take any such action unless it has received written confirmation from the Company that the
Lock-Up Period (as may have been extended pursuant to the previous paragraph) has expired.
Any Securities received upon exercise of options granted to the undersigned will also be
subject to this Agreement. A transfer of Securities to a family member of the undersigned or a
trust of which the undersigned is a trustor and the beneficiaries are family members of the
undersigned may be made, provided the transferee agrees to be bound in writing by the terms of this
Agreement prior to such transfer, such transfer shall not involve a disposition for value and no
filing by any party (donor, donee, transferor or transferee) under the Securities Exchange Act of
1934 (the “Exchange Act”) shall be required or shall be voluntarily made in connection with such
transfer (other than a filing on a Form 5 made after the expiration of the Lock-Up Period).
In furtherance of the foregoing, the transfer agent and registrar is hereby authorized to
decline to make any transfer of shares of Securities if such transfer would constitute a violation
or breach of this Agreement.
This Agreement shall be binding on the undersigned and the successors, heirs, personal
representatives and assigns of the undersigned. This Agreement shall lapse and become null and
void if the Public Offering Date shall not have occurred on or before [•], 2010. This agreement
shall be governed by, and construed in accordance with, the laws of the State of New York.
| Very truly yours, |
||||
| [Name of stockholder] | ||||
