AGREEMENT
This AGREEMENT (this "Agreement") is dated as of the ____ day of May,
2001, by and among RAIT INVESTMENT TRUST, a Maryland real estate investment
trust (the "Company"), RAIT PARTNERSHIP, L.P., a Delaware limited partnership
(the "Partnership"), and FRIEDMAN, BILLINGS, XXXXXX & CO., INC. and U.S. BANCORP
XXXXX XXXXXXX INC., as representatives of the several underwriters (the
"Underwriters") listed on Schedule I to that certain Underwriting Agreement,
dated as of March 23, 2001, between the Company, the Partnership and the
Underwriters (the "Underwriting Agreement").
WHEREAS, pursuant to the Underwriting Agreement, the Company agreed,
among other things, to (a) sell to the Underwriters an aggregate of 2,800,000
shares (the "Initial Shares") of beneficial interest of the Company, $.01 par
value per share (the "Common Shares"), and (b) grant an option to the
Underwriters to purchase an aggregate of 420,000 additional Common Shares (the
"Option Shares" and, collectively with the Initial Shares, the "Shares") solely
to cover over-allotments in connection with the public offering of the Initial
Shares (the "Offering"); and
WHEREAS, pursuant to the Underwriting Agreement, the Company was
required to register the Option Shares with the Securities and Exchange
Commission (the "Commission") pursuant to a registration statement on Form S-2
(No. 333-55518) (the "Initial Registration Statement"), which was declared
effective by the Commission under the Securities Act of 1933, as amended (the
"Securities Act"), on March 22, 2001; and
WHEREAS, in reliance upon the representations, warranties, covenants
and other agreements of the Company contained in the Underwriting Agreement, the
Underwriters over-allotted the Offering by 420,000 Common Shares and have
exercised their option to purchase the Option Shares; and
WHEREAS, the Company failed to register the Option Shares with the
Commission pursuant to the Initial Registration Statement as required by the
Underwriting Agreement; and
WHEREAS, the Company has filed with the Commission a registration
statement on Form S-3 (No. 333-59782) (the "Resale Registration Statement") to
register the resale by the Underwriters of the Option Shares, and the Resale
Registration Statement was declared effective by the Commission under the
Securities Act on ______ ___, 2001; and
WHEREAS, the parties hereto desire to set forth their respective rights
and obligations with respect to the Option Shares.
NOW, THEREFORE, in consideration of the premises and of the
representations, warranties, covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, terms used but not
defined herein shall have the definitions given to them in the Underwriting
Agreement, except that the following terms defined in the Underwriting Agreement
shall have the following meanings when used herein:
"Prospectus" shall mean the base prospectus contained in the
Registration Statement and any prospectus supplement relating to the Option
Shares filed with the Commission.
"Registration Statement" shall mean the registration statement on Form
S-3 (No. 333-59782) filed by the Company with the Commission on April 30, 2001,
to register the resale by the Company of the Option Shares, which was declared
effective by the Commission under the Securities Act on ______ ___, 2001, as the
same may have been amended through the Closing Time (as defined herein).
2. Purchase and Sale of the Option Shares. Upon the basis of the
representations and warranties and other terms and conditions herein set forth,
the Company agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
at the purchase price per share of $12.85625, the number of Option Shares set
forth in Exhibit D opposite such Underwriter's name.
3. Payment for and Delivery of the Option Shares. The Option Shares to
be purchased by each Underwriter hereunder, in definitive form, and in such
authorized denominations and registered in such names as the Representatives may
request upon prior notice to the Company shall be delivered by or on behalf of
the Company to the Representatives, including, at the option of the
Representatives, through the facilities of The Depository Trust Company ("DTC")
for the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified to the Representatives by the Company.
The Company will cause the certificates representing the Option Shares to be
made available for checking and packaging at least twenty-four hours prior to
the Closing Time (as defined below) with respect thereto at the office of the
Ledgewood Law Firm, P.C. located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, or at the office of DTC or its designated custodian, as the
case may be (the "Designated Office"). The time and date of such delivery and
payment shall be 9:30 a.m., New York City time, on May __, 2001 or on such other
time and date as the Company and the Representatives may agree upon in writing.
The time at which such payment and delivery are actually made is hereinafter
sometimes called the "Closing Time."
4. Representations and Warranties of the Company and the Partnership.
The Company and the Partnership represent and warrant to the Underwriters that
the representations and warranties contained in Exhibit A attached hereto are
true and correct as of the date hereof; provided, however, that for purposes of
this representation and warranty, (a) the terms "Prospectus" and "Registration
Statement" when used in Exhibit A attached hereto shall be deemed to have the
meanings given to such terms in Section 1 hereof, (b) all references contained
in Exhibit A attached hereto to "Form S-2" shall be deemed to mean and refer to
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"Form S-3", (c) all references contained in Exhibit A attached hereto to the
"Agreement" shall be deemed to mean and refer to this Agreement, (d) all
references contained in Exhibit A attached hereto to "Shares" shall be deemed to
mean and refer to the Option Shares and (e) all references contained in Exhibit
A attached hereto to the "Preliminary Prospectus" shall be inapplicable.
5. Representations and Warranties of the Underwriters. The Underwriters
represent and warrant to the Company and the Partnership that (a) each of them
is an "accredited investor" within the meaning of Rule 501 promulgated under the
Securities Act and that they will dispose of the Option Shares only pursuant to
the Registration Statement or an exemption from federal and state registration
requirements and (b) each Underwriter will comply with any applicable prospectus
delivery requirements under the Securities Act.
6. Certain Covenants of the Company and the Partnership. Each of the
Company and the Partnership hereby covenant with each Underwriter that it will
comply with the covenants contained in Exhibit B attached hereto as if such
covenants were set forth in their entirety herein; provided, however, that for
purposes of this covenant, (a) the terms "Prospectus" and "Registration
Statement" when used in Exhibit B attached hereto shall be deemed to have the
meanings given to such terms in Section 1 hereof, (b) all references contained
in Exhibit B attached hereto to "Form S-2" shall be deemed to mean and refer to
"Form S-3", (c) all references contained in Exhibit B attached hereto to the
"Agreement" shall be deemed to mean and refer to this Agreement, (d) all
references contained in Exhibit B attached hereto to "Shares" shall be deemed to
mean and refer to the Option Shares and (e) all references contained in Exhibit
B attached hereto to the "Preliminary Prospectus" shall be inapplicable.
7. Payment of Expenses.
(a) The Company agrees to pay all costs and expenses incident to the
performance of the Company's obligations under this Agreement, including, but
not limited to, all fees and expenses of and filing with the Commission and the
NASD; all blue sky fees and expenses, including filing fees and disbursements of
the Underwriters' blue sky counsel (but excluding the fees of such counsel),
fees and disbursements of counsel and accountants for the Company, printing
costs, including costs of printing the Prospectus, and any amendments thereto;
all underwriting documents, blue sky memoranda, and a reasonable quantity of
prospectuses requested by the Underwriters.
(b) The Company shall reimburse the Underwriters for any financing
expense related to the Shares borrowed by the Underwriters to cover
over-allotments in connection with the sale of the Initial Shares, fees of
counsel to the Underwriters and all other out-of-pocket expenses reasonably
incurred by the Underwriters in connection with this Agreement or the
transactions contemplated herein.
8. Conditions of the Underwriter's Obligations. The obligations of the
Underwriters to purchase the Option Shares hereunder shall be subject to the
satisfaction by the Company of each and every condition contained in Exhibit C
attached hereto as if such conditions were set forth in their entirety herein;
provided, however, that all references contained in Exhibit C attached hereto to
the "Preliminary Prospectus" shall be inapplicable.
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9. Indemnity and Contribution by the Company, the Partnership and the
Underwriters.
(a) The Company and the Partnership, jointly and severally, agree to
indemnify, defend and hold harmless each Underwriter and any person who controls
any Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any loss, expense, liability,
damage or claim (including the reasonable cost of investigation) which, jointly
or severally, any such Underwriter or controlling person may incur under the
Securities Act, the Exchange Act or otherwise, insofar as such loss, expense,
liability, damage or claim arises out of or is based upon (i) any breach of any
representation, warranty or covenant of the Company or the Partnership contained
herein, (ii) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or in a
Prospectus (the term Prospectus for the purpose of this Section 9 being deemed
to include any Prospectus that has been amended or supplemented by the Company),
or arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration Statement or
Prospectus or necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading, except insofar as any
such loss, expense, liability, damage or claim arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
of a material fact contained in and in conformity with information furnished in
writing by the Underwriters through the Representatives to the Company or the
Partnership expressly for use in such Registration Statement or such Prospectus
or (iii) the failure by the Company to register the Option Shares pursuant to
the Initial Registration Statement; provided, however, that the indemnity
agreement contained in this subsection (a) with respect to the Prospectus shall
not inure to the benefit of an Underwriter (or to the benefit of any person
controlling such Underwriter) with respect to any person asserting any such
loss, expense, liability, damage or claim which is the subject thereof if the
Prospectus or any supplement thereto prepared with the consent of the
Representatives and furnished to the Underwriters prior to the Closing Time
corrected any such alleged untrue statement or omission and if such Underwriter
failed to send or give a copy of the Prospectus or supplement thereto to such
person at or prior to the written confirmation of the sale of Option Shares to
such person.
If any action is brought against an Underwriter or controlling person
in respect of which indemnity may be sought against the Company or the
Partnership pursuant to the preceding paragraph, such Underwriter shall promptly
notify the Company and the Partnership in writing of the institution of such
action and the Company and the Partnership shall assume the defense of such
action, including the employment of counsel and payment of expenses; provided,
however, that any failure or delay to so notify the Company or the Partnership
will not relieve the Company or the Partnership of any obligation hereunder,
except to the extent that its ability to defend is actually impaired by such
failure or delay. Such Underwriter or controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and expenses of
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such counsel shall be at the expense of such Underwriter or such controlling
person unless the employment of such counsel shall have been authorized in
writing by the Company and the Partnership in connection with the defense of
such action or the Company and the Partnership shall not have employed counsel
to have charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which are
different from or additional to those available to the Company or the
Partnership and which counsel to the Underwriter believes may present a conflict
for counsel representing the Company or the Partnership and the Underwriter (in
which case the Company and the Partnership shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by the Company and the
Partnership and paid as incurred (it being understood, however, that the Company
and the Partnership shall not be liable for the expenses of more than one
separate firm of attorneys for the Underwriters or controlling persons in any
one action or series of related actions in the same jurisdiction representing
the indemnified parties who are parties to such action). Anything in this
paragraph to the contrary notwithstanding, neither the Company nor the
Partnership shall be liable for any settlement of any such claim or action
effected without its written consent.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify, defend and hold harmless the Partnership, the Company, the
Subsidiaries, their trustees and directors, the officers that signed the
Registration Statement and any person who controls the Partnership, the Company
or any Subsidiary within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any loss, expense, liability,
damage or claim (including the reasonable cost of investigation) which, jointly
or severally, the Company, the Partnership or any such person may incur under
the Securities Act, the Exchange Act or otherwise, insofar as such loss,
expense, liability, damage or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in and in
conformity with information furnished in writing by such Underwriter through the
Representatives to the Company or the Partnership expressly for use in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus, or arises
out of or is based upon any omission or alleged omission to state a material
fact in connection with such information required to be stated either in the
Registration Statement or Prospectus or necessary to make such information, in
the light of the circumstances under which made, not misleading. The information
contained in the table under the caption "Selling Shareholders" that sets forth
the beneficial ownership of each selling shareholder (as such term is described
in the Registration Statement) and the seventh, eighth and ninth paragraphs
under the caption "Plan of Distribution" constitutes the only information
furnished by or on behalf of any Underwriter through the Representatives to the
Company for purposes of this Section 9.
If any action is brought against the Company, the Partnership or any
such person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Company, the Partnership or such person
shall promptly notify the Representatives in writing of the institution of such
action and the Representatives, on behalf of the Underwriters, shall assume the
defense of such action, including the employment of counsel
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and payment of expenses. The Company, the Partnership or such person shall have
the right to employ its own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of the Company, the Partnership or such
person unless the employment of such counsel shall have been authorized in
writing by the Representatives in connection with the defense of such action or
the Representatives shall not have employed counsel to have charge of the
defense of such action within a reasonable time or such indemnified party or
parties shall have reasonably concluded (based on the advice of counsel) that
there may be defenses available to it or them which are different from or
additional to those available to the Underwriters (in which case the
Representatives shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by such Underwriter and paid as incurred (it being
understood, however, that the Underwriters shall not be liable for the expenses
of more than one separate firm of attorneys in any one action or series of
related actions in the same jurisdiction representing the indemnified parties
who are parties to such action). Anything in this paragraph to the contrary
notwithstanding, no Underwriter shall be liable for any settlement of any such
claim or action effected without the written consent of the Representatives.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, expenses, liabilities, damages or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, expenses,
liabilities, damages or claims (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Partnership on the
one hand and the Underwriters on the other hand from the offering of the Option
Shares or (ii) if (but only 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 Partnership on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, expenses, liabilities, damages or claims, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Partnership on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total proceeds from
the offering (net of underwriting discounts and commissions (as contemplated by
Section 1 of the Underwriting Agreement) but before deducting expenses) received
by the Company and the Partnership bear to the underwriting discounts and
commissions (as contemplated by Section 1 of the Underwriting Agreement)
received by the Underwriters. The relative fault of the Company and the
Partnership on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company or the Partnership or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages and
liabilities referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such party in connection with investigating
or defending any claim or action.
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(d) The Company and the Partnership, on the one hand, and the
Underwriters, on the other, agree that it would not be just and equitable if
contribution pursuant to this Section 9 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 subsection (c)(i) and, if applicable (ii), above.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the underwriting discounts and
commissions (as contemplated by Section 1 of the Underwriting Agreement)
applicable to the Option Shares purchased by such Underwriter. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 9 are several in proportion to their
respective underwriting commitments and not joint.
10. Survival. The indemnity and contribution agreements contained in
Section 9 and the covenants, warranties and representations of the Company, the
Partnership and the Subsidiaries contained in Sections 4, 6 and 7 of this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, or any person who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, or by or on behalf of the Company, the Partnership, the
Subsidiaries, their trustees or directors and officers or any person who
controls the Company, any Subsidiary or the Partnership within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the sale and delivery of the Option
Shares. The Company, the Partnership and each Underwriter agree promptly to
notify the others of the commencement of any litigation or proceeding against it
and, in the case of the Company, against any of the Company's officers and
directors, in connection with the sale and delivery of the Option Shares, or in
connection with the Registration Statement or Prospectus.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered to Friedman,
Billings, Xxxxxx & Co., Inc., 0000 00xx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Syndicate Department; if to the Company, shall be sufficient in all
respects if delivered to the Company at the offices of the Company at 0000
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000; and, if to the
Partnership, shall be sufficient in all respects if delivered to the Partnership
at the offices of the Partnership at 0000 Xxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000.
12. Governing Law; Consent to Jurisdiction; Headings. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The parties hereto
agree to be subject to, and hereby irrevocably submit to, the nonexclusive
jurisdiction of any United States federal or Virginia state court sitting in
Alexandria, Virginia, in respect of any suit, action or proceeding arising out
of or relating to this Agreement or the transactions contemplated herein, and
irrevocably agree that all claims in
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respect of any such suit, action or proceeding may be heard and determined in
any such court. Each of the parties hereto irrevocably waives, to the fullest
extent permitted by applicable law, any objection to the laying of the venue of
any such suit, action or proceeding brought in any such court and any claim that
any such suit, action or proceeding has been brought in an inconvenient forum.
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Parties in Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company, the Partnership
and the controlling persons, directors and officers referred to in Sections 9
and 10 hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf by its officers thereunto duly
authorized, all as of the day and year first above written.
RAIT INVESTMENT TRUST
------------------------------
By:
Its:
RAIT PARTNERSHIP, L.P.
By: RAIT General, Inc.
Its: General Partner
------------------------------
By:
Its:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
U.S. BANCORP XXXXX XXXXXXX INC.
BY: FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
------------------------------
By: Xxxxx X. Xxxxxxxxx
Its: Managing Director
For themselves and as Representatives of the
other Underwriters named on Exhibit B hereto.
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Exhibit A
Representations and Warranties of the Company and the Partnership
-----------------------------------------------------------------
The Company the Partnership represent and warrant to the Underwriters
that:
(a) the Company and each Subsidiary of the Company set forth on
Schedule II to the Underwriting Agreement (each a "Subsidiary" and,
collectively, the "Subsidiaries") (other than the Partnership) has been duly
formed or incorporated, as the case may be, and is validly existing and in good
standing under the laws of its respective jurisdiction of formation or
incorporation with all requisite corporate power and authority to own, lease and
operate its respective properties and to conduct its respective business as now
conducted and, in the case of the Company, to authorize, execute and deliver
this Agreement, and the other agreements described in the Prospectus and listed
on Schedule III to the Underwriting Agreement, if any (the "Other Transaction
Documents"), and to consummate the transactions described in each such
agreement;
(b) the Company and the Subsidiaries other than the Partnership are
duly qualified or registered to transact business in each jurisdiction in which
they conduct their respective businesses as now conducted and in which the
failure, individually or in the aggregate, to be so qualified or registered
could reasonably be expected to have a material adverse effect on the assets,
operations or condition (financial or otherwise) of the Company and the
Subsidiaries taken as a whole, and the Company and the Subsidiaries are in good
standing in each jurisdiction in which they maintain an office or in which the
nature or conduct of their respective businesses as now conducted requires such
qualification, except where the failure to be in good standing could not
reasonably be expected to have a material adverse effect on the assets,
operations, business or condition (financial or otherwise) of the Company and
the Subsidiaries taken as a whole;
(c) the Partnership has been duly formed and is validly existing as a
limited partnership under the laws of the jurisdiction of its organization, with
all requisite partnership power and authority to own, lease and operate its
properties and to conduct its business as now conducted. The Partnership has
been duly qualified or registered to do business as a foreign partnership in
each jurisdiction in which it conducts its business as now conducted, and in
which the failure, individually or in the aggregate, to be so qualified or
registered could reasonably be expected to have a material adverse effect on the
assets, operations, business or condition (financial or otherwise) of the
Company and the Subsidiaries taken as a whole;
(d) the Company and the Subsidiaries are in compliance in all material
respects with all applicable laws, rules, regulations, orders, decrees and
judgments;
(e) neither the Company nor any of the Subsidiaries is in breach of, or
in default under (nor has any event occurred which with notice, lapse of time,
or both would constitute a breach of, or default under), its respective
declaration of trust, charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, or in the performance or observance
of any obligation, agreement, covenant or condition contained in any license,
indenture, mortgage, deed of trust, loan or credit agreement or other agreement
or instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or their respective properties is bound, except for such
breaches or defaults which could be reasonably expected to not have a material
adverse effect on the assets, operations, business or condition (financial or
otherwise) of the Company and the Subsidiaries taken as a whole, and the
issuance, sale and delivery by the Company of the Shares, the execution,
delivery and performance of this Agreement and the Other Transaction Documents
(as such term is defined in Section 3(a) of the Underwriting Agreement), and
consummation of the transactions contemplated hereby and thereby will not
conflict with, or result in any breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would constitute
a breach of, or default under), (i) any provision of the declaration of trust,
charter, by-laws, certificate of limited partnership or partnership agreement,
as the case may be, of the Company or any of the Subsidiaries, (ii) any
provision of any license, indenture, mortgage, deed of trust, loan or credit
agreement or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or their respective properties
may be bound or affected, or (iii) any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the Company or
any of the Subsidiaries, except in the case of clause (ii) for such breaches or
defaults which could be reasonably expected to not have a material adverse
effect on the assets, operations, business or condition (financial or otherwise)
of the Company and the Subsidiaries taken as a whole; or result in the creation
or imposition of any material lien, charge, claim or encumbrance upon any
property or asset of the Company or the Subsidiaries;
(f) the Company has full legal right, power and authority to enter into
and perform this Agreement and to consummate the transactions contemplated
herein; this Agreement has been duly authorized, executed and delivered by the
Company and is a legal, valid and binding agreement of the Company enforceable
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, and by general principles of equity, and except to the extent
that the indemnification and contribution provisions of Section 9 of the
Agreement may be limited by federal or state securities laws and public policy
considerations in respect thereof;
(g) the Partnership has full legal right, power and authority to enter
into and perform this Agreement and to consummate the transactions contemplated
herein; this Agreement has been duly authorized, executed and delivered by the
Partnership and constitutes a valid and binding agreement of the Partnership
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity, and except to
the extent the indemnification and contribution provisions set forth in Section
9 of the Agreement may be limited by federal or state securities laws and the
public policy considerations in respect thereof underlying such laws;
(h) the Limited Partnership Agreement of the Partnership, including any
amendment thereto (the "Partnership Agreement"), has been duly and validly
authorized, executed and delivered by or on behalf of the partners of the
Partnership and constitutes a valid and binding agreement of the parties
thereto, enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by general principles of equity;
(i) the issuance and sale of the Shares to the Underwriters hereunder
have been duly authorized by the Company; when issued and delivered against
payment therefor as provided in this Agreement, the Shares will be validly
issued, fully paid and non-assessable and the issuance of the Shares will not be
subject to any preemptive or similar rights; except as contemplated herein, no
person or entity holds a right to require or participate in the registration
under the Securities Act of the Shares pursuant to the Registration Statement;
no person or entity has a right of participation or first refusal with respect
to the sale of the Shares by the Company; except as set forth in the Prospectus,
there are no contracts, agreements or understandings between the Company and any
person or entity granting such person or entity the right to require the Company
to file a registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such securities
with the Shares registered pursuant to the Registration Statement; the form of
certificates evidencing the Shares complies with all applicable legal
requirements and, in all material respects, with all applicable requirements of
the declaration of trust and bylaws of the Company and the requirements of the
American Stock Exchange;
(j) the Other Transaction Documents, if any, have been duly authorized
and will be, upon execution and delivery by the Company, legal, valid and
binding agreements of the Company enforceable in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally, and by general principles
of equity;
(k) relying on the Underwriter's representation in Section 5 of the
Agreement, no approval, authorization, consent or order of or filing with any
federal, state or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the execution, delivery and
performance of this Agreement and the Other Transaction Documents, the
consummation of the transactions contemplated hereby and thereby or the sale and
delivery of the Shares as contemplated hereby other than (i) such as have been
obtained, or will have been obtained at the Closing Time under the Securities
Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
(ii) such approvals as have been obtained in connection with the approval of the
listing of the Shares on the American Stock Exchange and (iii) any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters;
(l) each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state or local law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from other
persons required in order to conduct their respective businesses as described in
the Registration Statement and Prospectus, except to the extent that any failure
to have any such licenses, authorizations, consents or approvals, to make any
such filings or to obtain any such authorizations, consents or approvals could
not reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the assets,
operations, business or condition (financial or otherwise) of the Company and
the Subsidiaries taken as a whole; neither the Company nor any of the
Subsidiaries is in violation of, in default under, or has received any notice
regarding a possible violation, default or revocation of any such license,
authorization, consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Company or
any of the Subsidiaries, the effect of which could reasonably be expected to be
material and adverse to the assets, operations, business or condition (financial
or otherwise) of the Company and the Subsidiaries taken as a whole; and no such
license, authorization, consent or approval contains a materially burdensome
restriction that is not adequately disclosed in the Registration Statement and
the Prospectus;
(m) each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are threatened by the Commission, and any request on
the part of the Commission for additional information has been complied with;
(n) the Company and the transactions contemplated by this Agreement
meet the requirements and conditions for using a registration statement on Form
S-2 under the Securities Act, set forth in the General Instructions to Form S-2;
the Preliminary Prospectus and the Registration Statement comply and the
Prospectus and any further amendments or supplements thereto will comply, when
they have become effective or are filed with the Commission, as the case may be,
in all material respects with the requirements of the Securities Act and the
Securities Act Regulations and, in each case, present, or will present, fairly
the information required to be shown; the Registration Statement did not, and
any amendment thereto will not, in each case as of the applicable effective
date, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and the Preliminary Prospectus does not, and the Prospectus or any
amendment or supplement thereto will not, as of the applicable filing date and
at the Closing Time, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in the Registration
Statement or the Prospectus in reliance upon and in conformity with the
information concerning the Underwriters and furnished in writing by or on behalf
of the Underwriters through the Representatives to the Company expressly for use
in the Registration Statement or the Prospectus (that information being limited
to that described in the last sentence of the first paragraph of Section 9(b)
hereof);
(o) the Preliminary Prospectus was and the Prospectus delivered to the
Underwriters for use in connection with this offering will be identical to the
versions of the Preliminary Prospectus and Prospectus created to be transmitted
to the Commission for filing via the Electronic Data Gathering Analysis and
Retrieval System ("XXXXX"), except to the extent permitted by Regulation S-T;
(p) each document incorporated by reference or deemed to be
incorporated by reference in the Registration Statement and in the Prospectus,
when each became effective or was filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the Securities Act Regulations and the
regulations promulgated under the Exchange Act (the "Exchange Act Regulations"),
and none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated by
reference in the Registration Statement and the Prospectus or any further
amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the Securities Act Regulations and the Exchange Act Regulations
and will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(q) all legal or governmental proceedings, contracts or documents which
are material and of a character required to be filed as exhibits to the
Registration Statement or to be summarized or described in the Prospectus have
been so filed, summarized or described as required;
(r) there are no actions, suits, proceedings, inquiries or
investigations pending or, to the Company's knowledge, threatened against the
Company or any of the Subsidiaries or any of their respective officers and
directors or to which the properties, assets or rights of any such entity is
subject, at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority, arbitration panel
or agency which could reasonably be expected to result in a judgment, decree,
award or order having a material adverse effect on the assets, operations,
business or condition (financial or otherwise) of the Company and the
Subsidiaries taken as a whole, or which could adversely affect the consummation
of the transactions contemplated by this Agreement in any material respect;
(s) the financial statements, including the notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the financial position of the Company and the Subsidiaries as of
the dates indicated and the results of operations and changes in financial
position and cash flows of the Company and the Subsidiaries for the periods
specified; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis during
the periods involved (except as indicated in the notes thereto); the financial
statement schedules included in the Registration Statement and the Prospectus
fairly present the information shown therein; no other financial statements or
schedules are required by Form S-2 or otherwise to be included in the
Registration Statement or Prospectus;
(t) the Company has filed in a timely manner all reports required to be
filed pursuant to sections 13, 14, 15(d) of the Exchange Act during the
preceding twelve calendar months and if
during such period the Company has relied on Rule 12b-25(b) under the Exchange
Act ("Rule 12b-25(b)") with respect to a report or a portion of a report, that
report or portion of a report has actually been filed within the time period
prescribed by Rule 12b-25(b);
(u) Xxxxx Xxxxxxxx LLP, whose reports on the audited financial
statements of the Company and the Subsidiaries are included as part of the
Registration Statement and Prospectus or are incorporated by reference therein
are and were during the periods covered by their reports independent public
accountants within the meaning of the Securities Act and the Securities Act
Regulations;
(v) subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, and except as may be otherwise
stated in the Registration Statement or Prospectus, there has not been (i) any
material adverse change in the assets, operations, business or condition
(financial or otherwise), present or prospective, of the Company and the
Subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, (ii) any transaction, which is material to the Company and the
Subsidiaries taken as a whole, planned or entered into by the Company or any of
the Subsidiaries, (iii) any obligation, contingent or otherwise, directly or
indirectly incurred by the Company or any of the Subsidiaries, which is material
to the Company and the Subsidiaries taken as a whole or (iv) except in
accordance with the Company's ordinary practice as disclosed in the Registration
Statement and the Prospectus, any dividend or distribution of any kind declared,
paid or made with respect to the capital stock of the Company or with respect to
the partnership interests of the Partnership;
(w) the authorized shares of beneficial interest of the Company conform
in all material respects to the description thereof contained in the Prospectus;
immediately after the Closing Time, ____________ Common Shares will be issued
and outstanding and no shares of beneficial interest of any other class of
beneficial interest will be issued and outstanding. All of the issued and
outstanding shares of beneficial interest of the Company have been duly
authorized and are validly issued, fully paid and non-assessable, and have been
offered, sold and issued by the Company in compliance with all applicable laws
(including, without limitation, federal and state securities laws); none of the
issued shares of beneficial interest of the Company have been issued in
violation of any preemptive or similar rights granted by the Company; except as
disclosed in the Prospectus or in connection with the Company's dividend
reinvestment plan, there is no outstanding option, warrant or other right
calling for the issuance of, and no commitment, plan or arrangement to issue,
any shares of beneficial interest of the Company or any security convertible
into or exchangeable for shares of beneficial interest of the Company;
(x) all of the issued and outstanding shares of capital stock of RAIT
General, Inc., a Maryland corporation ("RAIT General"), and RAIT Limited, Inc.,
a Maryland corporation ("RAIT Limited"), have been duly authorized and are
validly issued, fully paid and non-assessable, and are owned of record and
beneficially by the Company, and have been offered, sold and issued by RAIT
General and RAIT Limited in compliance with all applicable laws (including, but
not limited to, federal and state securities laws); none of the issued shares of
capital stock of RAIT General and RAIT Limited have been issued in violation of
any preemptive or similar rights; except as disclosed in the Prospectus, there
is no outstanding option, warrant or other right calling for the issuance of,
and no commitment, plan or arrangement to issue, any shares of capital stock of
RAIT General or RAIT Limited or any security convertible into or exchangeable
for capital stock of RAIT General or RAIT Limited;
(y) immediately after the Closing Time, all of the issued and
outstanding units of partnership interest in the Partnership ("Common Units")
will be validly issued, fully paid and non-assessable; none of the Common Units
has been or will be issued or is owned or held in violation of any preemptive
right; the Common Units have been or will be offered, sold and issued by the
Partnership in compliance with all applicable laws (including, without
limitation, federal and state securities laws);
(z) each of the Company, the Subsidiaries, and each of their respective
officers, directors and controlling persons has not taken, and will not take,
directly or indirectly, any action which is designed to or which has constituted
or which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares;
(aa) neither the Company nor any of its affiliates (i) is required to
register as a "broker" or "dealer" in accordance with the provisions of the
Exchange Act or the Exchange Act Regulations, or (ii) directly, or indirectly
through one or more intermediaries, controls or has any other association with
(within the meaning of Article 1 of the By-laws of the National Association of
Securities Dealers, Inc. (the "NASD")) any member firm of the NASD;
(bb) the Company has not relied upon the Representatives or legal
counsel for the Representatives for any legal, tax or accounting advice in
connection with the offering and sale of the Shares;
(cc) any certificate signed by any officer of the Company or any
Subsidiary delivered to the Representatives or to counsel for the Underwriters
pursuant to or in connection with this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby;
(dd) the Company and the Subsidiaries have good and marketable title in
fee simple to all real property and good title to all personal property owned by
them, in each case free and clear of all liens, security interests, pledges,
charges, encumbrances, mortgages and defects, except such as are disclosed in
the Prospectus or the financial statements thereto or such as do not materially
and adversely affect the value of such property and do not interfere with the
use made or proposed to be made of such property by the Company and the
Subsidiaries; and any real property and buildings held under lease by the
Company or any Subsidiary are held under valid, existing and enforceable leases,
with such exceptions, liens, security interests, pledges, charges, encumbrances,
mortgages and defects, as are disclosed in the Prospectus or are not material
and do not interfere with the use made or proposed to be made of such property
and buildings by the Company or such Subsidiary; the Company or a Subsidiary has
obtained an owner's title insurance policy, from a title insurance company
licensed to issue such policy, on any real property owned by the Company or any
Subsidiary, that insures the Company's or the
Subsidiary's fee or leasehold interest in such real property (other than the
leasehold interest of the Company with respect to its principal executive
offices), with coverage in an amount at least equal to the fair market value of
such fee or leasehold interest in the real property, or a lender's title
insurance policy insuring the lien of its mortgage securing the real property
with coverage equal to the maximum aggregate principal amount of any
indebtedness held by the Company or a Subsidiary and secured by the real
property;
(ee) neither the purchase nor the origination, as the case may be, of
the loans owned by the Company, nor the execution and delivery of, or
performance by the borrowers thereunder of any mortgage, deed of trust, deed,
indenture, note, loan or credit agreement or any other agreement or instrument
in connection therewith, at the time of such purchase, origination, execution or
delivery, resulted in a breach of or default under any mortgage, deed of trust,
indenture, note, loan or credit agreement or any other agreement or instrument
relating to any mortgage or other loan that may have priority over any such loan
with respect to the assets of the borrower thereunder and that is in existence
at the time the Company or any of the Subsidiaries purchases or originates any
such loan;
(ff) to the knowledge of the Company and the Partnership, there are no
statutes or regulations applicable to the Company or any of the Subsidiaries or
certificates, permits or other authorizations from governmental regulatory
officials or bodies required to be obtained or maintained by the Company or any
of the Subsidiaries of a character required to be disclosed in the Registration
Statement or the Prospectus which have not been so disclosed and properly
described therein; all agreements between the Company or any of the Subsidiaries
and third parties expressly referenced in the Prospectus are legal, valid and
binding obligations of the Company or one or more of the Subsidiaries,
enforceable in accordance with their respective terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and by general
principles of equity;
(gg) no relationship, direct or indirect, exists between or among the
Company or any of the Subsidiaries on the one hand, and the directors, trustees,
officers, shareholders, customers or suppliers of the Company or any of the
Subsidiaries on the other hand, which is required by the Securities Act to be
described in the Registration Statement and the Prospectus which is not so
described;
(hh) the Company and each Subsidiary owns or possesses adequate license
or other rights to use all patents, trademarks, service marks, trade names,
copyrights, software and design licenses, trade secrets, manufacturing
processes, other intangible property rights and know-how, if any (collectively
"Intangibles"), necessary to entitle the Company and each Subsidiary to conduct
its business as described in the Prospectus, and neither the Company, nor any
Subsidiary, has received notice of infringement of or conflict with (and knows
of no such infringement of or conflict with) asserted rights of others with
respect to any Intangibles which could materially and adversely affect the
assets, operations, business or condition (financial or otherwise) of the
Company or any Subsidiary;
(ii) each of the Company and the Subsidiaries has filed on a timely
basis all necessary federal, state, local and foreign income and franchise tax
returns, if any such returns were required to be filed, through the date hereof
and have paid all taxes shown as due thereon; and no tax deficiency has been
asserted against the Company or any of the Subsidiaries, nor does the Company or
any of the Subsidiaries know of any tax deficiency which is likely to be
asserted against any such entity which, if determined adversely to any such
entity, could materially adversely affect the assets, operations, business or
condition (financial or otherwise) of any such entity, respectively; all tax
liabilities, if any, are adequately provided for on the respective books of such
entities;
(jj) each of the Company and the Subsidiaries maintains insurance
(issued by insurers of recognized financial responsibility) of the types and in
the amounts generally deemed adequate, if any, for their respective businesses
and consistent with insurance coverage maintained by similar companies in
similar businesses, including, but not limited to, insurance covering real and
personal property owned or leased by the Company and the Subsidiaries against
theft, damage, destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and effect;
(kk) except as otherwise disclosed in the Prospectus, neither the
Company, any of the Subsidiaries nor, to the best of their knowledge, any former
owner of any real property owned by the Company or the Subsidiaries has
authorized or conducted or has knowledge of the generation, transportation,
storage, presence, use, treatment, disposal, release, or other handling of any
hazardous substance, hazardous waste, hazardous material, hazardous constituent,
toxic substance, pollutant, contaminant, asbestos, radon, polychlorinated
biphenyls ("PCBs"), petroleum product or waste (including crude oil or any
fraction thereof), natural gas, liquefied gas, synthetic gas or other material
defined, regulated, controlled or potentially subject to any remediation
requirement under any environmental law (collectively, "Hazardous Materials"),
on, in, under or affecting any real property currently leased or owned or by any
means controlled by the Company or any of the Subsidiaries, including any real
property underlying any loan held by the Company or the Subsidiaries
(collectively, the "Real Property"), except in material compliance with
applicable laws; to the knowledge of the Company and the Partnership, the Real
Property, and the Company's, the Subsidiaries' and the former owners of the Real
Property's operations with respect to the Real Property, are and were in
compliance with all federal, state and local laws, ordinances, rules,
regulations and other governmental requirements relating to pollution, control
of chemicals, management of waste, discharges of materials into the environment,
health, safety, natural resources, and the environment (collectively,
"Environmental Laws"), and the Company and the Subsidiaries are in compliance
with, all licenses, permits, registrations and government authorizations
necessary to operate under all applicable Environmental Laws; except as
otherwise disclosed in the Prospectus, neither the Company nor the Subsidiaries
or, to the knowledge of the Company and the Partnership, any former owner of any
of the Real Property has received any written or oral notice from any
governmental entity or any other person and there is no pending or threatened
claim, litigation or any administrative agency proceeding that: alleges a
violation of any Environmental Laws by the Company or any of the Subsidiaries;
or that the Company or any of the Subsidiaries is a liable party or a
potentially responsible party under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. section 9601, et seq., or any state
superfund law; has resulted in or could result in the attachment of an
environmental lien on any of the Real Property; or alleges that the Company or
any of the Subsidiaries is liable for any contamination of the environment,
contamination of the Real Property, damage to natural resources, property
damage, or personal injury based on their activities or the activities of their
predecessors or third parties (whether at the Real Property or elsewhere)
involving Hazardous Materials, whether arising under the Environmental Laws,
common law principles, or other legal standards; in the ordinary course of its
business as necessary and appropriate, the Company conducts a periodic review of
the effect of Environmental Laws on the business, operations and properties of
the Company and the Subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures) required for clean-up, closure of properties
or compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties;
(ll) there are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which could, singly
or in the aggregate, reasonably be deemed to have a material adverse effect on
the assets, operations, business or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole;
(mm) none of the entities which prepared appraisals of the Real
Property, nor the entities which prepared Phase I environmental assessment
reports with respect to the Real Property, was employed for such purpose on a
contingent basis or has any substantial interest in the Company or any of the
Subsidiaries, and none of their directors, officers or employees is connected
with the Company or any of the Subsidiaries as a promoter, selling agent, voting
trustee, officer, director or employee;
(nn) neither the Company nor any of the Subsidiaries nor, to the best
of the Company's knowledge, any officer, director or trustee purporting to act
on behalf of the Company or any of the Subsidiaries has at any time; (i) made
any contributions to any candidate for political office, or failed to disclose
fully any such contributions, in violation of law, (ii) made any payment to any
state, federal or foreign governmental officer or official, or other person
charged with similar public or quasi-public duties, other than payments required
or allowed by applicable law, (iii) made any payment outside the ordinary course
of business to any investment officer or loan broker or person charged with
similar duties of any entity to which the Company or any of the Subsidiaries
sells or from which the Company or any of the Subsidiaries buys loans or
servicing arrangements for the purpose of influencing such agent, officer,
broker or person to buy loans or servicing arrangements from or sell loans to
the Company or any of the Subsidiaries, or (iv) engaged in any transactions,
maintained any bank account or used any corporate funds except for transactions,
bank accounts and funds which have been and are reflected in the normally
maintained books and records of the Company and the Subsidiaries;
(oo) except as otherwise disclosed in the Prospectus, there are no
material outstanding loans or advances or material guarantees of indebtedness by
the Company or any of the Subsidiaries to or for the benefit of any of the
officers or directors of the Company or any of the Subsidiaries or any of the
members of the families of any of them;
(pp) neither the Company nor any of the Subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any of the
Subsidiaries, has made any payment of funds of the Company or of any Subsidiary
or received or retained any funds in violation of any law, rule or regulation or
of a character required to be disclosed in the Prospectus;
(qq) the Company is organized and operates in conformity with the
requirements for qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code"), and the Company's
proposed method of operation will enable it to meet the requirements for
taxation as a real estate investment trust under the Code; the Partnership will
be treated as a partnership for federal income tax purposes and not as a
corporation or association taxable as a corporation;
(rr) the Shares have been approved for listing, upon official notice of
issuance, on the American Stock Exchange;
(ss) in connection with this offering, the Company has not offered and
will not offer its Common Shares or any other securities convertible into or
exchangeable or exercisable for Common Shares in a manner in violation of the
Securities Act or the Securities Act Regulations;
(tt) the Company has complied and will comply with all the provisions
of Florida Statutes, Section 517.075 (Chapter 92-198, Laws of Florida); neither
the Company nor any of the Subsidiaries or their respective affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba;
(uu) neither the Company nor any of the Subsidiaries is, or solely as a
result of transactions contemplated hereby and the application of the proceeds
from the sale of the Shares, will become an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act");
(vv) the Company has not incurred any liability for any finder's fees
or similar payments in connection with the transactions herein contemplated;
(ww) neither the Company, any of its Subsidiaries, nor any real
property owned, directly or indirectly, by the Company (each a "Property") has
sustained, since June 29, 1998, any material loss or interference with its
business from fire, explosion, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or arbitrators'
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus;
(xx) no person has an option or right of first refusal to purchase all
or part of any Property or any interest therein. Each of the Properties complies
with all applicable codes, laws and regulations (including, without limitation,
building and zoning codes, laws and regulations and laws relating to access to
the Properties), except if and to the extent disclosed in the Prospectus and
except for such failures to comply that would not individually or in the
aggregate have a material adverse effect on the assets, operations, business or
condition (financial or otherwise) of the Company and the Subsidiaries taken as
a whole;
(yy) each of the Company and the Subsidiaries owns, possesses or has
obtained all material permits, licenses, franchises, certificates, consents,
orders, approvals and other authorizations of governmental or regulatory
authorities as are necessary to own or lease, as the case may be, and to operate
its respective Property and to carry on its business as presently conducted, and
neither the Company nor the Partnership has received any notice of proceedings
relating to revocation or modification of any such licenses, permits,
certificates, consents, orders, approvals or authorizations; and
(zz) to the best of the Company's and the Partnership's knowledge, no
general labor problem exists or is imminent with the employees of the Company or
any of its Subsidiaries.
Exhibit B
Certain Covenants of the Company and the Partnership
----------------------------------------------------
The Company and the Partnership hereby covenant with each Underwriter:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities or
blue sky laws of such states as the Representatives may designate and to
maintain such qualifications in effect as long as required for the distribution
of the Shares, provided that the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under the laws of
any such state (except service of process with respect to the offering and sale
of the Shares);
(b) if, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to be
declared effective before the offering of the Shares may commence, the Company
will endeavor to cause such post-effective amendment to become effective as soon
as possible and will advise the Representatives promptly and, if requested by
the Representatives, will confirm such advice in writing, when such
post-effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters
and file such Prospectus with the Commission pursuant to Rule 424(b) within the
time period prescribed by law, on the day following the execution and delivery
of this Agreement and to furnish promptly (and with respect to the initial
delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on
the day following the execution and delivery of this Agreement) to the
Underwriters as many copies of the Prospectus (or of the Prospectus as amended
or supplemented if the Company shall have made any amendments or supplements
thereto after the effective date of the Registration Statement) as the
Underwriters may reasonably request for the purposes contemplated by the
Securities Act Regulations, which Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the version created
to be transmitted to the Commission for filing via XXXXX, except to the extent
permitted by Regulation S-T;
(d) to advise the Representatives promptly and (if requested by the
Representatives) to confirm such advice in writing, when the Registration
Statement has become effective and when any post-effective amendment thereto
becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, confirming such advice
in writing, of (i) the receipt of any comments from, or any request by, the
Commission for amendments or supplements to the Registration Statement or
Prospectus or for additional information with respect thereto, or (ii) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, or of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes and, if
the Commission or any other government agency or authority should issue any such
order, to make every reasonable effort to obtain the lifting or removal of such
order as soon as possible; to advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or Prospectus and to
file no such amendment or supplement to which the Representatives shall
reasonably object in writing;
(f) to file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Representatives, be required by
the Securities Act or requested by the Commission;
(g) prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Securities Act Regulations, to furnish a copy
thereof to the Representatives and counsel for the Underwriters and obtain the
consent of the Representatives to the filing;
(h) to furnish to the Underwriters for a period of five years from the
date of this Agreement (i) as soon as available, copies of all annual, quarterly
and current reports or other communications supplied to holders of Common
Shares, (ii) as soon as practicable after the filing thereof, copies of all
reports filed by the Company with the Commission, the NASD or any securities
exchange and (iii) such other publicly available information as the Underwriters
may reasonably request regarding the Company and its Subsidiaries;
(i) to advise the Underwriters promptly during any period of time in
which a Prospectus relating to the Shares is required to be delivered under the
Securities Act Regulations (i) of any material change in the Company's assets,
operations, business or condition (financial or otherwise) or (ii) of the
happening of any event which would require the making of any change in the
Prospectus then being used so that the Prospectus would not include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and, during such time,
to prepare and furnish, at the Company's expense, to the Underwriters promptly
such amendments or supplements to the Prospectus as may be necessary to reflect
any such change;
(j) to furnish promptly to the Representatives a signed copy of the
Registration Statement, as initially filed with the Commission, and of all
amendments or supplements thereto (including all exhibits filed therewith) and
such number of conformed copies of the foregoing as the Underwriters may
reasonably request;
(k) to furnish to the Underwriters, not less than two business days
before filing with the Commission, subsequent to the effective date of the
Prospectus and during any period of time in which a prospectus relating to the
Shares is required to be delivered under the Securities Act Regulations, a copy
of any document proposed to be filed with the Commission pursuant to Section 13,
14, or 15(d) of the Exchange Act;
(l) to make generally available to its security holders as soon as
practicable, but in any event not later than the end of the fiscal quarter first
occurring after the first anniversary of the effective date of the Registration
Statement, an earnings statement complying with the provisions of Section 11(a)
of the Securities Act (in form, at the option of the Company, complying with the
provisions of Rule 158 of the Securities Act Regulations) covering a period of
12 months beginning on the effective date of the Registration Statement;
(m) to use its best efforts to effect and maintain the listing of the
Shares on the American Stock Exchange and to file with the American Stock
Exchange all documents and notices required by the American Stock Exchange of
companies that have securities that are listed on the American Stock Exchange;
(n) the Company will maintain a transfer agent and, if necessary under
the jurisdiction of formation of the Company, a registrar (which may be the same
entity as the transfer agent) for its Common Shares;
(o) the Company will use its best efforts (i) to meet the requirements
to qualify as a real estate investment trust under the Code and (ii) to cause
the Partnership to be treated as a partnership for federal income tax purposes;
(p) the Company will comply with all of the provisions of any
undertakings in the Registration Statement;
(q) the Company and the Subsidiaries will conduct their affairs in such
a manner so as to ensure that neither the Company nor any Subsidiary will be an
"investment company" or an entity "controlled" by an investment company within
the meaning of the 1940 Act;
(r) if at any time during the 30-day period after the Registration
Statement becomes effective, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in the Representatives'
reasonable opinion the market price of the Common Shares has been or is likely
to be materially affected (regardless of whether such rumor, publication or
event necessitates a supplement to or amendment of the Prospectus) and after
written notice from the Representatives advising the Company to the effect set
forth above, to forthwith prepare, consult with the Representatives concerning
the substance of, and disseminate a press release or other public statement,
reasonably satisfactory to the Representatives, responding to or commenting on
such rumor, publication or event; and
(s) to maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
Exhibit C
Conditions of the Underwriters' Obligations
-------------------------------------------
The obligations of the Underwriters hereunder are subject to (i) the
accuracy of the representations and warranties on the part of the Company in all
material respects on the date hereof and at the Closing Time, (ii) the
performance by the Company of its obligations hereunder in all material
respects, and (iii) the following further conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to be
declared effective before the offering of the Shares may commence, such
post-effective amendment shall have become effective not later than 5:30 p.m.,
New York City time, on the date hereof, or at such later date and time as shall
be consented to in writing by the Underwriters.
(b) The Company shall furnish to the Underwriters at the Closing Time
an opinion of Ledgewood Law Firm, P.C., counsel for the Company, addressed to
the Underwriters and dated the Closing Time and in form satisfactory to Hunton &
Xxxxxxxx, counsel for the Underwriters, stating that:
(i) the authorized shares of beneficial interest of the Company
conform as to legal matters to the description thereof contained in the
Prospectus and meet the requirements of Form S-2 under the Securities
Act; the outstanding shares of beneficial interest or capital stock, as
the case may be, of the Company and the Subsidiaries (other than the
Partnership) have been duly and validly authorized and issued and are
fully paid and non-assessable; all of the authorized and validly issued
shares of capital stock of or interests in the Subsidiaries, as the
case may be, are directly or indirectly owned of record and
beneficially by the Company; except as disclosed in the Prospectus or
pursuant to the Company's dividend reinvestment plan, there are no
authorized and validly issued (A) securities or obligations of the
Company or any of the Subsidiaries convertible into or exchangeable for
any shares of beneficial interest of the Company or any capital stock
or interests in any such Subsidiary or (B) warrants, rights or options
to subscribe for or purchase from the Company or any such Subsidiary
any such shares of beneficial interest, capital stock, interests or any
such convertible or exchangeable securities or obligations; except as
set forth in the Prospectus or contemplated by this Agreement, there
are no outstanding obligations of the Company or any such Subsidiary to
issue any shares of beneficial interest, capital stock or interests,
any such convertible or exchangeable securities or obligation, or any
such warrants, rights or options;
(ii) the Company and the Subsidiaries (other than the Partnership)
each has been duly formed or incorporated, as the case may be, and is
validly existing and in good standing under the laws of its respective
jurisdiction of formation or incorporation with the requisite power and
authority to own its respective properties and to conduct its
respective business as described in the Registration Statement and
Prospectus and, in the case of the Company, to execute and deliver this
Agreement, and the Other Transaction Documents and to consummate the
transactions described in each such agreement;
(iii) the Company and the Subsidiaries (other than the Partnership)
are duly qualified in or registered by and are in good standing in each
jurisdiction specifically referred to in the Registration Statement and
Prospectus as jurisdictions in which property securing loans proposed
to be made or acquired by the Company is located and in which the
failure, individually or in the aggregate, to be so qualified could
reasonably be expected to have a material adverse effect on the assets,
operations, business or condition (financial or otherwise) of the
Company and the Subsidiaries taken as a whole. Except as disclosed in
the Prospectus, no Subsidiary is prohibited or restricted by its
charter, bylaws, certificate of limited partnership or partnership
agreement, as the case may be, or, to the knowledge of such counsel,
otherwise, directly or indirectly, from paying dividends to the
Company, or from making any other distribution with respect to such
Subsidiary's capital stock or interests or from paying the Company or
any other Subsidiary, any loans or advances to such Subsidiary from the
Company or such other Subsidiary, or from transferring any such
Subsidiary's property or assets to the Company or to any other
Subsidiary; to such counsel's knowledge, other than as disclosed in the
Prospectus and other than DP Associates, LLC, the Company does not own,
directly or indirectly, any capital stock or other equity securities of
any other corporation or any ownership interest in any partnership,
joint venture or other association;
(iv) the Partnership has been duly formed and is validly existing
as a limited partnership under the laws of the jurisdiction of its
organization, with all requisite partnership power and authority to
own, lease and operate its properties and to conduct its business as
now conducted as described in the Registration Statement and the
Prospectus. The Partnership has been duly qualified or registered to do
business as a foreign partnership in those jurisdictions specifically
referred to in the Registration Statement and Prospectus as
jurisdictions in which property securing loans proposed to be made or
acquired by the Partnership is located and in which the failure,
individually or in the aggregate, to be so qualified or registered
would have a material adverse effect on the assets, operations,
business or condition (financial or otherwise) of the Company and the
Subsidiaries taken as a whole;
(v) to such Counsel's knowledge, the Company and the Subsidiaries
are in compliance in all material respects with all applicable laws,
rules, regulations and orders;
(vi) to such counsel's knowledge, except as disclosed on the
Registration Statement and the Prospectus, neither the Company nor any
of its Subsidiaries is in material breach of, or in material default
under (nor has any event occurred which with notice, lapse of time, or
both would constitute a material breach of, or material default under)
its respective declaration of trust, charter, by-laws, certificate of
limited partnership or partnership agreement, as the case may be, or in
the performance or observation of any obligation, agreement, covenant,
or condition contained in any license, indenture, mortgage, deed of
trust, loan or credit agreement or any other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which any
of them or their respective properties may be bound or affected, except
such breaches or defaults which would not have a material adverse
effect on the assets, operations, business or condition (financial or
otherwise) of the Company and the Subsidiaries taken as a whole;
(vii) the execution, delivery and performance of this Agreement and
the Other Transaction Documents by the Company and the consummation by
the Company of the transactions contemplated under this Agreement or
the Other Transaction Documents, as the case may be, do not and will
not conflict with, or result in any breach of, or constitute a default
under (nor constitute any event which with notice, lapse of time, or
both would constitute a breach of or default under), (i) any provisions
of the declaration of trust, charter, by-laws, certificate of limited
partnership or partnership agreement, as the case may be, of the
Company or any Subsidiary, (ii) to such counsel's knowledge, any
provision of any license, indenture, mortgage, deed of trust, loan or
credit agreement or other agreement or instrument to which the Company
or any Subsidiary is a party or by which any of them or their
respective properties may be bound or affected, or (iii) to such
counsel's knowledge, any law or regulation or any decree, judgment or
order applicable to the Company or any Subsidiary (other than State and
foreign securities or blue sky laws and the rules and regulations of
the NASD, as to which counsel need express no opinion, or the federal
securities laws, as to which counsel need express only that nothing has
come to its attention to lead it to believe that such a violation has
or will occur), except in the case of clauses (ii) and (iii) for such
conflicts, breaches or defaults, laws, regulations, decrees, judgments
or orders, which individually or in the aggregate could not be
reasonably expected to have a material adverse effect on the assets,
operations, business or condition (financial or otherwise) of the
Company and the Subsidiaries taken as a whole; or, result in the
creation or imposition of any lien, encumbrance, or to such counsel's
knowledge, charge or claim upon any property or assets of the Company
or the Subsidiaries;
(viii) the Company has full legal right, power and authority to
enter into and perform this Agreement and to consummate the
transactions contemplated herein; this Agreement has been duly
authorized, executed and delivered by the Company and is a legal, valid
and binding agreement of the Company enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity, and except that
enforceability of the indemnification and contribution provisions set
forth in Section 9 of the Agreement may be limited by the federal or
state securities laws of the United States or public policy underlying
such laws;
(ix) the Partnership has full partnership right, power and
authority to enter into and perform this Agreement and to consummate
the transactions contemplated herein. This Agreement has been duly
authorized, executed and delivered by the Partnership and constitutes a
valid and binding agreement of the Partnership enforceable in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity, and
except that enforceability of the indemnification and contribution
provisions set forth in Section 9 of the Agreement may be limited by
federal or state securities laws of the United States or public policy
underlying such laws;
(x) the Other Transaction Documents, if any, have been duly
authorized, executed, and delivered by the Company and are legal, valid
and binding agreements of the Company enforceable in accordance with
their terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity;
(xi) no approval, authorization, consent or order of or filing with
any federal or state governmental or regulatory commission, board,
body, authority or agency is required in connection with the execution,
delivery and performance of this Agreement and the Other Transaction
Documents or the consummation of the transactions contemplated hereby
and thereby by the Company and the Partnership, or the sale and
delivery of the Shares by the Company as contemplated hereby other than
such as have been obtained or made under the Securities Act or the
Exchange Act and such approvals as have been obtained in connection
with the listing of the Shares on the American Stock Exchange and
except that such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters or any approval of the underwriting terms and arrangements
by the NASD;
(xii) to such counsel's knowledge, each of the Company and the
Subsidiaries has all necessary licenses, authorizations, consents and
approvals and has made all necessary filings required under any
federal, state or local law, regulation or rule, and has obtained all
necessary authorizations, consents and approvals from other persons,
required to conduct their respective businesses, as described in the
Registration Statement and the Prospectus, except to the extent that
any failure to have any such authorizations, consents or approvals
would not, individually or in the aggregate, have a material adverse
effect on the assets, operations, business or condition (financial or
otherwise) of the Company and the Subsidiaries, taken as a whole; to
such counsel's knowledge, neither the Company nor any of the
Subsidiaries is in violation of, in default under, or has received any
notice regarding a possible violation, default or revocation of any
such license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or decree, order or judgment
applicable to the Company or any of the Subsidiaries, the effect of
which could be material and adverse to the assets, operations, business
or condition (financial or otherwise) of the Company and the
Subsidiaries taken as a whole; and no such license, authorization,
consent or approval contains a materially burdensome restriction that
is not adequately disclosed in the Registration Statement and the
Prospectus;
(xiii) the Shares have been duly authorized and, when the Shares
have been issued and duly delivered against payment therefor as
contemplated by this Agreement, the Shares will be validly issued,
fully paid and nonassessable, and, except for any action that may have
been taken by the holder thereof, free and clear of any pledge, lien,
encumbrance, security interest, or other claim;
(xiv) immediately after the Closing Time, all of the Common Units
will be validly issued, fully paid and non-assessable. None of the
Common Units has been or will be issued or is owned or held in
violation of any preemptive right. The outstanding Common Units have
been offered, sold and issued by the Partnership in compliance with all
federal and state securities laws;
(xv) the issuance and sale of the Shares and the Common Units by
the Company or the Partnership, as the case may be, is not subject to
preemptive or other similar rights arising by operation of law, under
the declaration of trust or by-laws of the Company or the certificate
of limited partnership or Partnership Agreement of the Partnership,
under any agreement known to such counsel to which the Company or any
of the Subsidiaries is a party or, to such counsel's knowledge,
otherwise;
(xvi) provided that all parties are in compliance with any
standstill, subordination, intercreditor or similar agreement entered
into with the holder of the Senior Indebtedness (as defined below), to
the best of such counsel's knowledge and solely in reliance upon
representation's made by the Company and the Company's borrowers, and
opinions given by counsel to such borrowers, neither the purchase nor
the origination, as the case may be, of the loans, nor the execution
and delivery of, or performance by the borrowers thereunder of any
mortgage, deed of trust, deed, indenture, note, loan or credit
agreement or any other agreement or instrument in connection therewith,
has resulted in or, with notice and an opportunity to cure, would
result in a breach of or default under any mortgage, deed of trust,
indenture, note, loan or credit agreement or any other agreement or
instrument relating to any mortgage or other loan (collectively, the
"Senior Indebtedness") that may have priority over any such loan with
respect to the assets of the borrower thereunder and that is in
existence at the time the Company or any of the Subsidiaries purchases
or originates any such loan;
(xvii) to such counsel's knowledge, there are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company under the Securities Act;
(xviii) the form of certificate used to evidence the Shares
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the declaration of
trust and bylaws of the Company and the requirements of the American
Stock Exchange;
(xix) the Registration Statement has become effective under the
Securities Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued and, to such counsel's knowledge, no proceedings with
respect thereto have been commenced or threatened;
(xx) as of the effective date of the Registration Statement, the
Registration Statement and the Prospectus (except as to the financial
statements and other financial and statistical data contained therein,
as to which such counsel need express no opinion) complied as to form
in all material respects with the requirements of the Securities Act
and the Securities Act Regulations;
(xxi) the statements under the captions "Risk Factors," "Certain
Provisions of Maryland Law and of our Declaration of Trust and Bylaws,"
"Description of Shares of Beneficial Interest," and "Federal Income Tax
Considerations," in the Registration Statement and the Prospectus,
insofar as such statements constitute a summary of the legal matters
referred to therein, constitute accurate summaries thereof in all
material respects;
(xxii) the Shares have been approved for listing on the American
Stock Exchange;
(xxiii) to such counsel's knowledge, there are no actions, suits or
proceedings, inquiries, or investigations pending or threatened against
the Company or any of the Subsidiaries or any of their respective
officers and directors or to which the properties, assets or rights of
any such entity are subject, at law or in equity, before or by any
federal, state, local or foreign governmental or regulatory commission,
board, body, authority, arbitration panel or agency that are required
to be described in the Prospectus but are not so described;
(xxiv) to such counsel's knowledge, there are no contracts or
documents of a character that are required to be filed as exhibits to
the Registration Statement or to be described or summarized in the
Prospectus which have not been so filed, summarized or described; to
such counsel's knowledge, all agreements between the Company or any of
the Subsidiaries, respectively, and third parties expressly referenced
in the Prospectus are legal, valid and binding obligations of the
Company or the Subsidiaries, as the case may be, enforceable in
accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and by general principles of
equity;
(xxv) the Company is organized in conformity with the requirements
for qualification as a real estate investment trust pursuant to
Sections 856 through 860 of the Code, and the Company's proposed method
of operation will enable it to meet the requirements for qualification
and taxation as a real estate investment trust under the Code; the
Partnership will be treated as a partnership for federal income tax
purposes and not as a corporation or an association taxable as a
corporation;
(xxvi) neither the Company nor any of the Subsidiaries is, or
solely as a result of the transactions contemplated hereby will become
an "investment company" or a company "controlled" by an "investment
company" within the meaning of the 1940 Act; and
(xxvii) to such counsel's knowledge, each of the Company and the
Subsidiaries has filed on a timely basis all necessary federal, state,
local and foreign income and franchise tax returns through the date
hereof, if any such returns are required to be filed, and have paid all
taxes shown as due thereon; and no tax deficiency has been asserted
against any such entity, nor does any such entity know of any tax
deficiency which is likely to be asserted against any such entity
which, if determined adversely to any such entity, could have a
material adverse effect on the assets, operations, business or
condition (financial or otherwise) of any such entity, respectively.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, independent
public accountants of the Company and Underwriters at which the contents of the
Registration Statement and Prospectus were discussed and, although such counsel
is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus (except as and to the extent stated in subparagraphs
(xxi) and (xxii) above), nothing has caused them to believe that the
Registration Statement, the Preliminary Prospectus or the Prospectus, as of
their respective effective or issue dates and as of the date of such counsel's
opinion, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (it being understood that, in each
case, such counsel need express no view with respect to the financial statements
and other financial and statistical data included in the Registration Statement,
Preliminary Prospectus or Prospectus).
(c) The Company shall furnish to the Underwriters at the Closing Time
an opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, special counsel for the
Company, addressed to the Underwriters and dated the Closing Time and in form
satisfactory to Hunton & Xxxxxxxx, counsel for the Underwriters, stating that,
as a matter of Maryland law:
(i) the statements under the captions "Certain Provisions of
Maryland Law and of the Declaration of Trust and Bylaws," and
"Description of Shares of Beneficial Interest," in the Registration
Statement and the Prospectus, insofar as such statements constitute
matters of Maryland corporate law or Maryland real estate investment
trust law, have been reviewed by such counsel and are a fair summary of
such matters;
(ii) the outstanding shares of beneficial interest or capital
stock, as the case may be, of the Company, RAIT General and RAIT
Limited have been duly and validly authorized and issued and are fully
paid and non-assessable; all of the outstanding shares of capital stock
of RAIT General and RAIT Limited are directly or indirectly owned of
record by the Company;
(iii) the Company, RAIT General and RAIT Limited each has been duly
formed or incorporated, as the case may be, and is validly existing and
in good standing under the laws of the state of Maryland with the
requisite corporate power and authority to own its respective
properties and to conduct its respective business as described in the
Registration Statement and the Prospectus and, in the case of the
Company, to execute, deliver and perform this Agreement and to
consummate the transactions described herein;
(iv) except as disclosed in the Prospectus, and assuming compliance
with Sections 2-311 and 2-419 of the Maryland General Corporation Law
(the "MGCL") and approval by the directors and stockholders of RAIT
General or RAIT Limited, as applicable, as required by the charter or
bylaws of RAIT General or RAIT Limited, respectively, or the MGCL,
neither RAIT General nor RAIT Limited, respectively, is prohibited or
restricted by the MGCL or its charter or bylaws from paying dividends
to the Company or from making any other distribution with respect to
such Subsidiary's capital stock or from repaying the Company, or any
other Subsidiary, any loans or advances to such Subsidiary, or from
transferring any such Subsidiary's property or assets to the Company or
to any other Subsidiary in exchange for fair consideration; and
(v) this Agreement has been duly authorized, executed and delivered
by the Company.
(d) The Representatives shall have received from Xxxxx Xxxxxxxx LLP
letters dated, respectively, as of the date of this Agreement and the Closing
Time addressed to the Representatives as representatives of the Underwriters and
in form and substance satisfactory to the Representatives.
(e) The Underwriters shall have received at the Closing Time the
favorable opinion of Hunton & Xxxxxxxx, dated the Closing Time, addressed to the
Representatives and in form and substance satisfactory to the Representatives.
(f) No amendment or supplement to the Registration Statement or
Prospectus shall have been filed to which the Underwriters shall have objected
in writing.
(g) Prior to the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus has been issued
by the Commission, and no suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes, has occurred; and (ii) the Registration
Statement and the Prospectus shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(h) Between the time of execution of this Agreement and the Closing
Time (i) no material and unfavorable change in the assets, results of
operations, business, or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole shall occur or become known (whether or not
arising in the ordinary course of business) or that makes it, in the judgment of
the Representatives, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, or (ii) no transaction which is material
and unfavorable to the Company shall have been entered into by the Company or
any of the Subsidiaries.
(i) At the Closing Time, the Other Transaction Documents shall have
been entered into and delivered by all required parties.
(j) At the Closing Time, the Shares shall have been approved for
listing on the American Stock Exchange.
(k) The Company will, at the Closing Time, deliver to the Underwriters
a certificate of two principal executive officers or, in the case of the
Partnership two principal executive officers of RAIT General, to the effect
that, to each of such officer's knowledge, the representations and warranties of
the Company set forth in this Agreement and the conditions set forth in
paragraphs (g), (h), (i) and (j) have been met and are true and correct as of
such date.
(l) The Company shall have furnished to the Underwriters such other
documents and certificates as to the accuracy and completeness of any statement
in the Registration Statement and the Prospectus, the representations,
warranties and statements of the Company contained herein, and the performance
by the Company of its covenants contained herein, and the fulfillment of any
conditions contained herein, as of the Closing Time as the Underwriters may
reasonably request.
(m) All filings with the Commission required by Rule 424 under the
Securities Act shall have been made within the applicable time period prescribed
for such filing by such Rule.
(n) The Company shall perform such of its obligations under this
Agreement are to be performed by the terms hereof and thereof at or before the
Closing Time.
Exhibit D
---------
Number of Option
Underwriter Shares to be Purchased
----------- ----------------------
Friedman, Billings, Xxxxxx & Co., Inc. 172,500
U.S. Bancorp Xxxxx Xxxxxxx Inc. 172,500
Xxxxxx Xxxxxxxxxx Xxxxx LLC 15,000
Xxxx Xxxxx Xxxx Xxxxxx Incorporated 15,000
McDonald Investments, Inc., a KeyCorp Company 15,000
Sandler X'Xxxxx & Partners L.P. 15,000
Xxxxxx Xxxxxxx Incorporated 15,000
-------
Total 420,000
=======
