EXHIBIT 1.1
UNDERWRITING AGREEMENT
, 1997
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
XXXXXXXXX & COMPANY, INC.
as Representatives of the several Underwriters
c/o Friedman, Billings, Xxxxxx & Co., Inc.
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
Imperial Credit Commercial Mortgage Investment Corp. (the "Company")
confirms its agreements with Friedman, Billings, Xxxxxx & Co., Inc., Xxxxxxxxx &
Company, Inc., and each of the other Underwriters listed in Schedule I hereto
(collectively, the "Underwriters"), for whom Friedman, Billings, Xxxxxx & Co.,
Inc. and Xxxxxxxxx & Company, Inc. are acting as representatives (in such
capacity, the "Representatives"), with respect to (i) the sale by the Company,
and the purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $0.0001 per share, of
the Company ("Common Stock"), totaling 25,000,000, set forth in Schedule I
hereto and (ii) the grant by the Company to the Underwriters, acting severally
and not jointly, of the option described in Section 1(b) hereof to purchase all
or any part of 3,750,000 additional shares of Common Stock to cover over-
allotments, if any. The 25,000,000 shares of Common Stock (the "Initial
Shares") to be purchased by the Underwriters and all or any part of the
3,750,000 shares of Common Stock subject to the option described in Section 1(b)
hereof that the Underwriters elect to purchase (the "Option Shares") are
hereinafter called, collectively, the "Shares." The Company acknowledges that
at its request, the Underwriters have reserved (i) 2,475,000 of the Initial
Shares for sale to Imperial Credit Industries, Inc. ("Imperial Credit"), at the
initial public offering price of the Shares net of any underwriting discounts or
commissions, (ii) up to 500,000 of the Initial Shares for sale to directors,
officers and employees of the Company and Imperial Credit Commercial Asset
Management Corporation (the "Manager") listed in Schedule II hereto at the
initial public offering price of the Shares net of any underwriting discounts or
commissions, and (iii) up to 250,000 of the Initial Shares for sale to certain
other persons listed in Schedule III hereto at the initial public offering price
of the Shares.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-11 (No. 333-32683) and a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Company has
prepared and filed such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required. The registration statement has been declared effective
under the Securities Act by the
Commission. The registration statement as amended at the time it became
effective (including all information deemed to be a part of the registration
statement at the time it became effective pursuant to Rule 430A(b) of the
Securities Act Regulations) is hereinafter called the "Registration Statement,"
except that, if the Company files a post-effective amendment to such
registration statement which becomes effective prior to the Closing Time (as
defined below), "Registration Statement" shall refer to such registration
statement as so amended. Any registration statement filed by the Company
pursuant to Rule 462(b) of the Securities Act Regulations is hereinafter called
the "Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the 462(b) Registration Statement. Each
prospectus included in the registration statement, or amendments thereof, before
it became effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Underwriters pursuant to Rule
424(a) of the Securities Act Regulations is hereinafter called the "Preliminary
Prospectus." The term "Prospectus" means the final prospectus, as first filed
with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Securities Act Regulations.
The Company understands that the Underwriters propose to make a public
offering of the Shares at the initial public offering price set forth in the
Prospectus as soon as the Representatives deem advisable after this Agreement
has been executed and delivered.
The Company and the Underwriters agree as follows:
1. Sale and Purchase:
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(a) Initial Shares. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the purchase price per share of $_____, that proportion of the number of Initial
Shares set forth opposite such Underwriter's name in Schedule I, plus any
additional number of Initial Shares which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 8 hereof, subject to such
adjustments among the Underwriters as the Representatives in their sole
discretion shall make to eliminate any sales or purchases of fractional shares.
The Underwriters may from time to time increase or decrease the public offering
price after the initial public offering to such extent as the Underwriters may
determine.
(b) Option Shares. In addition, upon the basis of the warranties and
representations and other terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase from the Company that number of Option Shares up to the maximum number
of Option Shares of Common Stock at the purchase price per share set forth in
paragraph (a) above plus any additional number of Option Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 8 hereof. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Shares upon notice by the
Representatives to the Company setting forth the number of Option Shares as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Shares. Any such time and date of
delivery (a "Date of Delivery")
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shall be determined by the Representatives, but shall not be later than seven
full business days nor earlier than two full business days after the exercise of
said option, nor in any event prior to the Closing Time, as hereinafter defined,
unless otherwise agreed by the Representatives and the Company. If the option is
exercised as to all or any portion of the Option Shares, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Shares then being purchased which the number of
Initial Shares set forth in Schedule I opposite the name of such Underwriter
bears to the total number of Initial Shares, subject in each case to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional shares.
2. Payment and Delivery:
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(a) Initial Shares. Payment of the purchase price for the Initial
Shares shall be made to the Company by wire transfer or certified or official
bank check payable in federal (same-day) funds at the office of Hunton &
Xxxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (unless another place shall
be agreed upon by the Representatives and the Company) against delivery of the
certificates for the Initial Shares to the Representatives for the respective
accounts of the Underwriters. Unless postponed pursuant to the proviso to this
sentence or Section 8 or 10, such payment and delivery shall be made at 10:00
a.m., New York City time, on the third (fourth, if this Agreement is executed
and delivered after 4:30 p.m. (New York City time) on the date hereof) business
day after the date hereof; provided, however, that if the Company has not made
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available to the Representatives copies of the Prospectus by not later than
10:00 a.m. (New York City time) on the second business day following execution
and delivery of this Agreement, the Representatives may, in their sole
discretion, postpone such payment and delivery until no later than two (2) full
business days following delivery of copies of the Prospectus to the
Representatives. The time at which such payment and delivery are actually made
is hereinafter sometimes called the "Closing Time". Unless the Representatives
elect to take delivery of the Initial Shares by credit through full fast
transfer to the accounts at The Depository Trust Company designated by the
Representatives, certificates for the Initial Shares shall be delivered to the
Representatives in definitive form registered in such names and in such
denominations as the Representatives shall specify at least one full business
day prior to the Closing Time., and shall be made available to the
Representatives for the purpose of expediting the checking thereof at or before
3:00 P.M., New York City time, on the business day preceding the Closing Time.
(b) Option Shares. In addition, payment of the purchase price for the
Option Shares shall be made to the Company by wire transfer or certified or
official bank check payable in federal (same-day) funds at the office of Hunton
& Xxxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (unless another place
shall be agreed upon by the Representatives and the Company) against delivery of
the certificates for the Option Shares to the Representatives for the respective
accounts of the Underwriters. Such payment and delivery shall be made at 10:00
a.m., New York City time, on each Date of Delivery. Unless the Representatives
elect to take delivery of the Option Shares by credit through full fast transfer
to the accounts at The Depository Trust Company designated by the
Representatives, certificates for the Option Shares shall be delivered to the
Representatives in definitive form registered in such names and in such
denominations as the Representatives shall specify at least one full business
day prior to the applicable Date of delivery, and shall be made available to the
Representatives for the purpose of
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expediting the checking thereof at or before 3:00 P.M., New York City time, on
the business day preceding such Date of Delivery.
3. Representations and Warranties of the Company:
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The Company represents and warrants to the Underwriters that:
(a) 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 contemplated by the Commission;
any request on the part of the Commission for additional information has
been complied with; and the Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus;
(b) the Registration Statement complies and the Prospectus and any
further amendments or supplements thereto will, when they become effective
or are filed with the Commission, as the case may be, comply in all
material respects with the requirements of the Securities Act and the
Securities Act Regulations; the Registration Statement did not, and any
amendment thereto will not, in each case as of the applicable effective
date, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus and any amendment or
supplement thereto will not, as of the applicable filing date and at
Closing Time and on each Date of Delivery (if any), contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statement in or omission
from the Registration Statement or the Prospectus made in reliance upon and
in conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or the Prospectus;
(c) each Preliminary Prospectus in paper format was and the Prospectus
in paper format delivered to the Underwriters for use in connection with
this offering will be identical to the electronic submission thereof
transmitted to the Commission pursuant to Regulation S-T of the Securities
Act Regulations, except to the extent permitted by such Regulation S-T;
(d) the Company is a corporation duly organized and validly existing
under the laws of the State of Maryland, with full corporate power and
authority to own its properties and conduct its business as described in
the Registration Statement and the Prospectus, and to execute and deliver
this Agreement and the Management Agreement (the "Management Agreement"),
to be entered into at or prior to the Closing Time between the Company and
the Manager, in substantially the form filed as an exhibit to the
Registration Statement; Imperial Credit Mortgage Securitization Corp. (the
"Subsidiary") has been duly organized and is validly existing under the
laws of the State
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of California with full corporate power and authority to own its properties
and conduct its business as described in the Registration Statement and the
Prospectus, and the Company has no subsidiaries other than the Subsidiary;
(e) the authorized and outstanding capital stock of the Company was at
the date indicated as set forth in the Prospectus under the caption
"Capitalization" and conforms in all material respects to the statements
relating thereto contained in the Registration Statement and the
Prospectus, the Initial Shares and the Option Shares, if any, have been
duly authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company against payment
therefor in accordance with the terms of this Agreement, will be duly and
validly issued and fully paid and nonassessable, will be sold free and
clear of any pledge, lien, security interest, encumbrance, claim or
equitable interest and will be the only outstanding shares of Common Stock;
and no preemptive right, co-sale right, registration right, right of first
refusal or other similar right of shareholders exists with respect to any
of the Initial Shares or Option Shares or the issuance and sale thereof;
all issued and outstanding shares of capital stock of the Subsidiary have
been duly authorized and validly issued and are fully paid and
nonassessable, and were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase securities
and all such shares issued an outstanding at any time were and are owned
exclusively by the Company free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest; except as disclosed in
the Registration Statement and the financial statements of the Company and
the related notes thereto included in the Registration Statement, neither
the Company nor the Subsidiary has outstanding any options to purchase, or
any preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into, or any contracts or commitments
to issue or sell, shares of its capital stock or any such options, rights,
convertible securities or obligations;
(f) the Company and the Subsidiary are duly qualified or licensed by
and in good standing in each jurisdiction in which they conduct their
respective businesses or own or lease property and in which the failure,
individually or in the aggregate, to be so licensed or qualified could have
a material adverse effect on the operations, business or condition
(financial and other) of the Company and the Subsidiary, taken as a whole;
and each of the Company and the Subsidiary is in compliance in all material
respects with the laws, rules and regulations enacted or promulgated by
such jurisdictions, except where the failure to comply would not have a
material adverse effect on the operations, business or condition (financial
or otherwise) of the Company and the Subsidiary, taken as a whole;
(g) neither the Company nor the Subsidiary 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 articles of
incorporation, by-laws or other constituent documents or in the performance
or observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it is bound,
except for such breaches or defaults as would not have a material adverse
effect on the operations, business or condition (financial and other) of
the Company and the Subsidiary, taken as a whole; and the execution,
delivery and performance of this Agreement and the
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Management 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 articles of incorporation, by-laws or other
constituent documents of the Company or the Subsidiary, or (ii) any
provision of any license, indenture, mortgage, deed of trust, bank loan or
credit agreement or other agreement or instrument to which the Company or
the Subsidiary is a party or by which the Company or the Subsidiary or any
of their respective properties may be bound or affected, or under any
federal, state or local law, regulation or rule or any decree, judgment or
order applicable to the Company or the Subsidiary, except, in the case of
clauses (i) and (ii), for such breaches or defaults which would not have a
material adverse effect on the operations, business or condition (financial
and other), of the Company and the Subsidiary, taken as a whole;
(h) 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 enforceability of the indemnification
provisions of Section 9 hereof may be limited by federal or state
securities laws or public policy considerations in other federal or state
laws; the Management Agreement has been duly authorized by the Company and
at the Closing Time will have been duly executed and delivered by the
Company and will constitute a 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,
whether considered at law or in equity;
(i) 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 sale of the Shares
as contemplated hereby other than (i) such as have been obtained, or will
be obtained at the Closing Time or the relevant Date of Delivery, as the
case may be, under the Securities Act, (ii) such approvals as have been
obtained in connection with the approval of the inclusion of the Shares on
the Nasdaq National Market, 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;
(j) KPMG Peat Marwick LLP, whose report on the balance sheet of the
Company is included in the Registration Statement and the Prospectus, are
independent public accountants as required by the Securities Act and the
Securities Act Regulations;
(k) the Company and the Subsidiary have 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 its respective business, except to
the extent that any failure to have any such licenses,
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authorizations, consents or approvals, to make any such filings or to
obtain any such authorizations, consents or approvals would not, alone or
in the aggregate, have a material adverse effect on the operations,
business or condition (financial and other) of the Company and the
Subsidiary, taken as a whole; neither the Company nor the Subsidiary is in
violation of, or in default under, any such license, authorization, consent
or approval or any federal, state or local law, regulation or rule or any
decree, order or judgment applicable to the Company or the Subsidiary, the
effect of which could be material and adverse to the operations, business
or condition (financial and other) of the Company and the Subsidiary, taken
as a whole;
(l) all legal or governmental proceedings, contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have
been so described or filed as required;
(m) there are no actions, suits or proceedings pending or, to the
Company's knowledge, threatened against the Company or the Subsidiary or
any of their respective properties, at law or in equity, or before or by
any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency which could result in a judgment, decree
or order having a material adverse effect on the operations, business or
condition (financial and other) of the Company and the Subsidiary, taken as
a whole;
(n) the balance sheet of the Company, including the notes thereto,
included in the Registration Statement and the Prospectus presents fairly
the financial position of the Company as of the date thereof and has been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis;
(o) subsequent to the effective date of the Registration Statement and
the date of the Prospectus, and except as may be otherwise stated in the
Registration Statement or Prospectus, there has not been (i) any material
and unfavorable change, financial or otherwise, in the operations, business
or condition (financial and other) of the Company and the Subsidiary, taken
as a whole, (ii) any transaction, other than in the ordinary course of
business, which is material to the Company and the Subsidiary, taken as a
whole, contemplated or entered into by the Company or the Subsidiary or
(iii) any obligation, contingent or otherwise, directly or indirectly
incurred by the Company or the Subsidiary, other than in the ordinary
course of business, which is material to the Company and the Subsidiary,
taken as a whole;
(p) the Company is not, and upon the sale of the Shares as herein
contemplated will not be, an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act"); the
transactions contemplated by the Registration Statement and the conduct of
the Company of its business as set forth in the Registration Statement will
not cause the Company to become an "investment company" subject to
registration under the Investment Company Act;
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(q) there are no persons with registration or other similar rights to
have any securities of the Company registered under the Securities Act; and
(r) the Company is organized in conformity with the requirements for
qualification as a real estate investment trust (a "REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"), and the
organization and contemplated method of operation of the Company as set
forth in the Registration Statement and the Prospectus are such as to
enable the Company to meet the requirements for taxation as a REIT under
the Code.
4. Certain Covenants of the Company:
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The Company hereby agrees with each Underwriter:
(a) to prepare the Prospectus in a form approved by the Underwriters
and to file such Prospectus with the Commission pursuant to Rule 424(b) of
the Securities Act Regulations not later than 10:00 a.m. (New York City
time), on the second business day following the execution and delivery of
this Agreement and to furnish promptly 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;
(b) to advise the Representatives promptly and (if requested by the
Representatives) to confirm such advice in writing, when the Company learns
that the Registration Statement has become effective and when the Company
learns that any post-effective amendment thereto becomes effective under
the Securities Act Regulations;
(c) to advise the Representatives promptly, confirming such advice in
writing, of (i) 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;
(d) for a period of five years from the date of this Agreement, to
furnish to the Representatives, and to any Underwriter on written request,
(i) copies of all annual, quarterly, current and other reports or notices,
definitive proxy materials and other documents furnished to holders the
Common Stock or filed by the Company with the Commission, (ii) every
material press release that was generally released to shareholders,
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and (iii) such other information of a public nature (and generally
available to holders of the Common Stock) regarding the Company as the
Representatives or such Underwriter may reasonably request in writing;
(e) to advise the Underwriters promptly of the happening of any event
known to the Company within the time during which a Prospectus relating to
the Shares is required to be delivered under the Securities Act Regulations
which, in the judgment of the Company, would require the making of any
change in the Prospectus then being used so that the Prospectus would not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading, and, during such time, at the Company's expense, to prepare and
furnish to the Underwriter promptly such amendments or supplements to the
Prospectus as may be necessary to reflect any such change and to furnish to
the Representatives a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission;
(f) to furnish promptly to the Representatives a signed copy of the
Registration Statement, as initially filed with the Commission and of each
amendment thereto (including all exhibits) and such number of conformed
copies of the foregoing as the Representatives may reasonably request;
(g) to use the net proceeds from the sale of the Shares in the manner
described under the caption "Use of Proceeds" in the Prospectus;
(h) to pay all expenses, out-of-pocket fees incurred and taxes (other
than any transfer taxes and the fees and disbursements of counsel for the
Underwriters except as set forth under Section 5 hereof and clause (iii)
below) in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus, the Prospectus, and
any amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs
of mailing and shipment), (ii) the preparation, issuance and delivery of
the certificates for the Shares to the Underwriters, including any stock or
other transfer taxes or duties payable upon the sale of the Shares to the
Underwriters, (iii) the word processing and/or printing of this Agreement,
the agreement among underwriters, any dealer agreements and any blue sky
surveys, and the reproduction and/or printing and furnishing of copies of
each thereof to the Underwriters and to dealers (including costs of mailing
and shipment), (iv) any filing for review of the underwriting terms of the
offering of the Shares by the NASD, (v) the fees and expenses of any
transfer agent or registrar for the Shares, (vi) the fees and expenses
incurred in connection with the inclusion of the Shares in the Nasdaq
National Market and (vii) the performance of the Company's other
obligations hereunder;
(i) to make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the Securities Act Regulations) covering a period
of 12 months beginning not later than the first day of the
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first fiscal quarter of the Company beginning after the "effective date"
(as defined in such Rule 158) of the Registration Statement;
(j) to use its best efforts to effect and maintain inclusion of the
Shares in the Nasdaq National Market and to file with The Nasdaq Stock
Market Inc. all documents and notices required of companies having
securities included in the Nasdaq National Market;
(k) except as described in the Prospectus, to refrain during a period
of 120 days from the date of the Prospectus, without the prior written
consent of the Representatives, from (i) offering, pledging, selling,
contracting to sell, selling any option or contract to purchase, purchasing
any option or contract to sell, granting any option for the sale of, or
otherwise disposing of or transferring, directly or indirectly, any shares
of Common Stock or any securities convertible into or exchangeable for
Common Stock, or filing any registration statement under the Securities Act
with respect to any of the foregoing , and (ii) entering into any swap or
any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Common
Stock, whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or securities
convertible into or exchangeable for Common Stock, in cash or otherwise;
and
(l) except as otherwise expressly permitted by its charter and bylaws,
to conduct its operations in a manner that will enable it to qualify as a
REIT under the Code and will not subject it to registration as an
"investment company" under the Investment Company Act.
5. Reimbursement of the Underwriters' Expenses:
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If any Shares are not delivered at the Closing Time or any Date of
Delivery, as the case may be, for any reason other than default by one or more
of the Underwriters in its or their respective obligations hereunder, the
Company shall reimburse the Underwriters for all of their reasonable out-of-
pocket expenses relating to the transactions contemplated hereby, including the
fees and disbursements of their counsel.
6. Conditions of the Underwriters' Obligations:
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The obligations of the Underwriters hereunder are subject (i) to the
accuracy of the representations and warranties of the Company herein contained,
as of the date hereof, the Closing Time and each Date of Delivery; subject to
any exceptions that, in the reasonable judgment of the Representatives, are not
material, (ii) to the accuracy of the statements of the Company's officers made
in any certificate pursuant to the provisions hereof, as of the date of such
certificate, subject to any exceptions that, in the reasonable judgment of the
Representatives, are not material, (iii) to the performance by the Company of
all of its covenants and other obligations hereunder, and (iv) to the following
further conditions:
(a) No amendment or supplement to the Registration Statement or
Prospectus shall have been filed to which the Representatives shall have
objected in writing.
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(b) At the Closing Time, the Shares shall have been approved for
inclusion on the Nasdaq National Market System.
(c) At the Closing Time, the NASD shall not have raised any objection
with respect to the fairness and reasonableness of the underwriting terms
and arrangements.
(d) At the Closing Time, no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the Securities Act
or proceedings therefor initiated or threatened by the Commission nor any
order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus shall have 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, shall have occurred; and the Registration Statement and all
amendments thereto, or modifications thereof, if any, and the Prospectus
and all amendments or supplements thereto, or modifications thereof, if
any, shall not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
are made, not misleading.
(e) At the Closing Time, the Company and the Manager shall have
executed and delivered the Management Agreement, and the Company, Imperial
Credit Industries, Inc. ("Imperial") and Southern Pacific Thrift & Loan
Association ("SPTL") shall have executed and delivered an agreement or
agreements (the "Acquisition Agreements") for the acquisition by the
Company from SPTL and Imperial Credit of the Initial Investments, as
defined in the Prospectus, each (including the Management Agreement) in
substantially the form filed as an exhibit to the Registration Statement,
and all conditions to closing contained in the Acquisition Agreements shall
have been satisfied (or, with the approval of the Representatives, which
shall not be unreasonably withheld, waived) .
(f) At the Closing Time, the Representatives shall have received:
(i) the opinion, dated as of the Closing Time, of Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, to the effect
that:
(A) the Company is a corporation duly organized and validly
existing under the laws of the State of Maryland, with full
corporate power and authority to own its properties and conduct
its business as described in the Registration Statement and the
Prospectus, and to execute and deliver this Agreement and the
Management Agreement; the Subsidiary has been duly organized and
is validly existing under the laws of the State of California with
full corporate power and authority to own its properties and
conduct its business as described in the Registration Statement
and the Prospectus; the Company has no subsidiaries other than the
Subsidiary; and all of the capital stock of the Subsidiary issued
and outstanding at any time was and is owned exclusively by the
Company;
11
(B) the Manager is a corporation duly organized and validly
existing under the laws of the State of California, with full
corporate power and authority to conduct its business as
described in the Registration Statement and the Prospectus, and
to execute and deliver the Management Agreement; the Manager has
no subsidiaries; and all of the issued and outstanding capital
stock of the Manager is owned by Imperial Credit;
(C) the Company and the Subsidiary are duly qualified or
licensed by and in good standing in each jurisdiction in which
they conduct their respective businesses or own or lease property
and in which the failure, individually or in the aggregate, to be
so licensed or qualified could have a material adverse effect on
the operations, business or condition (financial and other) of
the Company and the Subsidiary, taken as a whole; and, to the
best of such counsel's knowledge and information, each of the
Company and the Subsidiary is in compliance with the laws,
orders, rules, regulations and directives issued or administered
by such jurisdictions, except where the failure to so comply
would not have a material adverse effect on the operations,
business and condition (financial and other) of the Company and
the Subsidiary, taken as a whole;
(D) the Company has authorized and outstanding capital stock
as set forth in the Prospectus under "Capitalization" (except for
subsequent issuances, if any, pursuant to transactions referred
to in the Prospectus including, without limitation, granting of
stock options);
(E) the Shares have been duly and validly authorized by all
necessary corporate action and, when issued and delivered
pursuant to this Agreement against payment of the consideration
therefor, the Shares will be validly issued, fully paid and
nonassessable, free and clear of any pledge, lien, encumbrance,
security interest, or other claim, and will be the only shares of
Common Stock outstanding;
(F) the issuance and sale of the Shares by the Company is
not subject to preemptive or other similar rights arising by
operation of law, under the charter or by-laws of the Company or
under any agreement known to such counsel to which the Company or
the Subsidiary is a party or, to such counsel's knowledge,
otherwise;
(G) this Agreement has been duly authorized, executed and
delivered by the Company;
(H) the Management Agreement has been duly authorized,
executed and delivered by the Company and the Manager and
constitutes the valid and binding agreement of each of the
Company and the Manager enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
12
affecting creditors' rights generally, and by general principles
of equity, considered at law or in equity (such opinion may
contain appropriate and customary exceptions for the
enforceability of any non-competition agreements contained
therein);
(I) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act
or proceedings therefor initiated or threatened by the
Commission;
(J) the Registration Statement and the Prospectus, as of
their respective effective or issue dates, comply as to form in
all material respects with the requirements of the Securities Act
and the Securities Act Regulations; it being understood, however,
that no opinion need be rendered with respect to the financial
statements, schedules and other financial and statistical data
included in the Registration Statement or the Prospectus or state
securities or blue sky laws;
(K) to the best of such counsel's knowledge, no
authorization, approval or consent of any court or governmental
authority or agency is required that has not been obtained in
connection with the consummation by the Company of the
transactions contemplated by this Agreement; it being understood,
however, that no opinion need be rendered with respect to state
securities or blue sky laws;
(L) to the best of such counsel's knowledge, the execution
and delivery of this Agreement and the Management Agreement by
the Company and the consummation of the transactions contemplated
herein and therein and compliance by the Company with its
obligations hereunder and thereunder will not conflict with or
constitute a breach of, or default under or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or the Subsidiary pursuant
to any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company or the Subsidiary is a
party or by which either of them may be bound or to which any of
the property or assets of the Company or the Subsidiary is
subject, nor will such action result in violation of the
provisions of the charter or bylaws of the Company or any law,
administrative regulation or court decree known to such counsel;
provided that such opinion may include appropriate and customary
exceptions for the enforceability of any non-competition
agreements contained therein;
(M) the statements under the captions "Legal and Tax Risks,"
"Description of Capital Stock," "Certain Provisions of ICCMIC's
Charter and Bylaws," "Federal Income Tax Considerations" and
"ERISA Considerations" in the Prospectus, insofar as such
statements describe
13
legal documents or statutes, rules or regulations, constitute
fair summaries thereof;
(N) to the best of such counsel's knowledge, except as set
forth in the Registration Statement, no holders of Common Stock
or other securities of the Company have registration rights with
respect to securities of the Company;
(O) on the basis of such assumptions as to investment of
such minimum percentages of their respective assets in such
types of investments as such counsel shall specify, and other
assumptions as such counsel shall specify, the Company and the
Subsidiary are not now and after the sale of the Shares to be
sold hereunder and application of the net proceeds from such sale
as described in the Prospectus under the caption "Use of
Proceeds," neither of them will be, an "investment company", or
an entity "controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended;
and
(P) the form of certificate evidencing the Common Stock
filed as an exhibit to the Registration Statement complies with
all applicable statutory law and all requirements of the Nasdaq
National Market.
In rendering their opinion, Xxxxxxxxxxxx Xxxx & Xxxxxxxxx may rely as to
matters of Maryland law upon the opinion of Piper & Marbury L.L.P. or other
counsel reasonably satisfactory to the Underwriters. The Representatives will
accept an opinion of Piper & Marbury L.L.P., dated as of the Closing Time and
in form and substance reasonably acceptable to counsel for the Underwriters,
addressing the matters of Maryland law implicated in the description of the
opinion of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx in subsection (g)(i) of this Section,
in which case the opinion of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx is permitted to state
that such counsel express no opinion as to the laws of any jurisdiction other
than the United States of America and the State of California.
(ii) a letter, dated as of the Closing Time, of Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx, addressed to the Representatives stating that such
Representatives are entitled to rely on the opinion filed with the
Registration Statement as Exhibit 8.1;
(iii) the favorable opinion, dated as of the Closing Time, of
Cadwalader, Xxxxxxxxxx & Xxxx, in form and substance reasonably
satisfactory to counsel for the Underwriters, to the effect that
nothing has come to their attention that would lead them to believe
that statements in the Prospectus under the captions "Initial
Investments" and "Yield Considerations Relating to the Initial MBS
Interests" (excluding, in each case, the financial statements,
schedules and other financial and statistical data included therein,
as to which such counsel need express no belief), at the time the
Registration Statement became effective or at the Closing Time,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary
14
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(iv) the opinion, dated as of the Closing Time, of Hunton &
Xxxxxxxx, counsel for the Underwriters, with respect to the matters
set forth in paragraphs (A), (E), (F), and (H) to (J), inclusive, of
subsection (g)(i) of this Section. In rendering their opinion, Hunton
& Xxxxxxxx may rely as to matters of Maryland law upon the opinion of
Piper & Marbury L.L.P.
In rendering their opinions required by subsections (g)(i) and (g)(iv),
respectively, of this Section, Xxxxxxxxxxxx Xxxx & Xxxxxxxxx and Xxxxxx &
Xxxxxxxx shall each additionally contain statements too the effect that nothing
has come to their attention that would lead them to believe that the
Registration Statement (excluding the financial statements, schedules and other
financial and statistical data included therein, as to which such counsel need
express no belief), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus (excluding the financial statements, schedules and other
financial and statistical data included therein, as to which such counsel need
express no belief), at the such time or at Closing Time, contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx and Xxxxxx & Xxxxxxxx need express no belief as to
the statements in the Prospectus under the captions "Initial Investments" and
"Yield Considerations Relating to the Initial MBS Interests."
(g) At the Closing Time, the Representatives shall have received a
certificate of the President and Chief Executive Officer and the Secretary
of the Company, dated as of the Closing Time, to the effect that the
representations and warranties in Section 3 are true and correct with the
same force and effect as though made at the date of such certificate,
subject to any exceptions that, in the reasonable judgment of the
Representatives, are not material.
(h) At the Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the operations, business or
condition, financial and other, of the Company and the Subsidiary, taken as
a whole; and no transaction which is material and unfavorable to the
Company shall have been entered into by the Company or the Subsidiary, the
effect of which, in the reasonable opinion of the Representatives, is so
material and adverse as to make it impractical or inadvisable to proceed
with the public offering or delivery of the Shares being delivered at the
Closing Time or Date of Delivery.
(i) At the time of execution and delivery of this Agreement, the
Representatives shall have received from KPMG Peat Marwick LLP a letter
dated such date, in form and substance satisfactory to the Representatives,
to the effect that (i) they are independent accountants with respect to the
Company within the meaning of the Securities Act and the Securities Act
Regulations; (ii) it is their opinion that the balance
15
sheet of the Company included in the Registration Statement and the
Prospectus and covered by their opinion therein complies in form in all
material respects with the applicable accounting requirements of the
Securities Act and the Securities Act Regulations; (iii) based upon limited
procedures set forth in detail in such letter, nothing came to their
attention that caused them to believe that, at a specified date not more
than five days prior to the date of this Agreement, there has been any
change in the assets, liabilities or stockholders' equity of the Company,
as compared with the amounts shown in the balance sheet included in the
Registration Statement and the Prospectus; and (iv) in addition to the
audit referred to in their opinion and the limited procedures referred to
in clause (iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages and
financial information included in the Registration Statement and the
Prospectus and specified by the Representatives, and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company identified
in such letter.
(j) At the Closing Time, the Representatives shall have received from
KPMG Peat Marwick LLP a letter dated as of the Closing Time to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (h) of this Section, except that the "specified date" referred
to shall be a date not more than five days prior to the Closing Time.
(k) At the time of execution and delivery of this Agreement, the
Company shall have received from each executive officer of the Company
listed under the caption "The Company" in the Prospectus and each director
of the Company a written agreement (a "Lock-up Agreement") to the effect
that such person will not, for a period of 120 days from the date that the
Registration Statement is declared effective by the Commission, offer to
sell, contract to sell, or otherwise sell, dispose of, loan, or grant any
rights with respect to (collectively, a "Disposition") any shares of Common
Stock, any options or warrants to purchase any shares of Common Stock or
any securities convertible into, exerciseable for or exchangeable for
shares of Common Stock (collectively, "Securities") now owned or hereafter
acquired directly by such person or any affiliate or with respect to which
such person has or hereafter acquires the power of Disposition, otherwise
than (i) as a bona fide gift or gifts, provided the donee or donees thereof
agree in writing to be bound by this restriction, (ii) with respect to up
to 85% of such Securities in connection with pledges to secure obligations
for borrowed money, or (iii) with the prior written consent of Friedman,
Billings, Xxxxxx & Co., Inc.; and copies of such Lock-up Agreements shall
have been provided to the Representatives.
(l) In the event the Underwriters exercise their option to purchase
all or any portion of the Option Shares, the representations and warranties
of the Company contained herein and the statements in any certificates
furnished by the Company hereunder shall be true and correct as of each
Date of Delivery, and the Representatives shall have received:
(i) a certificate, dated such Date of Delivery, of the President
and Chief Executive Officer and the Secretary of the Company, in their
capacities as
16
such, confirming that the certificate delivered at Closing Time
pursuant to subsection (g) of this Section remains true and correct as
of such Date of Delivery; subject to any exceptions that, in the
reasonable judgment of the Representatives, are not material;
(ii) the opinions of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx (and, if the
Company or its counsel shall so elect, the opinion of Piper & Marbury
L.L.P.) and Cadwalader, Xxxxxxxxxx & Xxxx, each in form and substance
reasonably satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Shares and otherwise
substantially to the same effect as the opinions required or permitted
by subsections (f)(i), (f)(ii) and (f)(iii) of this Section;
(iii) the opinion of Hunton & Xxxxxxxx, dated such Date of
Delivery, relating to the Option Securities and otherwise to the same
effect as the opinion required by subsection (f)(iv) of this Section;
and
(iv) a letter from KPMG Peat Marwick LLP, in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to the Representatives pursuant to subsection (i) of this Section,
except that the "specified date" in the letter furnished pursuant to
this subsection (l)(iv) shall be a date not more than five days prior
to such Date of Delivery.
(m) The Company shall have furnished counsel for the Underwriters
with such documents and (as they relate to California and Maryland law)
opinions as they may reasonably request for the purpose of enabling them to
pass upon the issuance and sale of the Shares as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained as of the Closing Time or any Date of Delivery.
(n) The Company shall have furnished to the Representatives such
other documents, certificates and opinions as to the accuracy and
completeness of any statement in the Registration Statement and the
Prospectus or any amendment or supplement thereto as of the Closing Time or
any Date of Delivery as the Underwriters may reasonably request.
(o) The Company shall have performed such of its respective
obligations under this Agreement as are to be performed by the terms hereof
at or before the Closing Time or the relevant Date of Delivery.
7. Termination:
------------
(a) If the sale to the Underwriters of the Shares, as contemplated by
this Agreement, is not carried out by the Underwriters for any reason permitted
under this Agreement or if such sale is not carried out because the Company is
unable to comply with any of the terms of the Agreement, then the Company shall
not be under any obligation or liability under this Agreement (except to the
extent provided in Section 9 hereof) and the Underwriters shall be
17
under no obligation or liability to the Company under this Agreement (except to
the extent provided under Section 9 hereunder) or to one another hereunder;
provided that if the Underwriters terminate this Agreement because a condition
specified in Section 6 shall not have been fulfilled when and as required to be
fulfilled, then the Company also shall be liable to the extent provided in
Section 5
(b) The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of the Representatives, at any
time prior to the Closing Time or any Date of Delivery, if trading in securities
on the New York Stock Exchange shall have been suspended or minimum prices or
other material limitation in trading in securities generally shall have been
established on the New York Stock Exchange or Nasdaq, or if a banking moratorium
shall have been declared either by the United States or New York state or
California state authorities, or if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in the judgment of the
Representatives, make it impractical or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus.
(c) If the Representatives elect to terminate this Agreement as
provided in this Section 7, the Company and the Underwriters shall be notified
promptly by letter, facsimile, telefax or telegram.
8. Increase in Underwriters' Commitments:
--------------------------------------
If any Underwriter shall default at Closing Time or on a Date of
Delivery in its obligation to take up and pay for the Shares to be purchased by
it under this Agreement on such date and if the total number of Shares which
such Underwriter shall have agreed but failed to take up and pay for does not
exceed 10% of the total number of Shares to be purchased on such date, each non-
defaulting Underwriter shall take up and pay for (in addition to the number of
Shares which it is obligated to purchase on such date pursuant to this
Agreement) the portion of the total number of Shares agreed to be purchased by
the defaulting Underwriter on such date in the proportion that its underwriting
obligations hereunder bears to the underwriting obligations of all non-
defaulting Underwriters. Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Shares hereunder on such date unless all of the Shares
to be purchased on such date are purchased on such date by the Underwriters (or
by substituted Underwriters selected by the Representatives with the approval of
the Company or selected by the Company with the approval of the
Representatives).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company or the non-
defaulting Underwriters shall have the right to postpone the Closing Time or the
relevant Date of Delivery for a period not exceeding five business days in order
that any necessary changes in the Registration Statement and Prospectus and
other documents may be effected.
18
The term "Underwriter" as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with the like effect as
if such substituted Underwriter had originally been named in this Agreement.
9. Indemnity by the Company and the Underwriters:
----------------------------------------------
(a) The Company agrees 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 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 or claim arises out of or is based upon
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
Preliminary Prospectus, the Prospectus and the Prospectus as 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 such
Registration Statement or necessary to make the statements made in the
Registration Statement not misleading or arises out of or is based on an
omission or alleged omission to state a material fact required to be stated in
the Prospectus or necessary to make the statements therein, in light of
circumstances under which they were made, not misleading, except insofar as any
such loss, expense, liability 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 the Underwriters through the
Representatives to the Company expressly for use in such Registration Statement
or such 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 in either such Registration Statement or Prospectus or necessary to
make such information not misleading, provided, however, that the indemnity
agreement contained in this subsection (a) with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) with respect to any person asserting
any such loss, expense, liability or claim which is the subject thereof if any
subsequent Preliminary Prospectus or the Prospectus corrected any such alleged
untrue statement or omission and if such Underwriter failed to send or give a
copy of such subsequent Preliminary Prospectus or the Prospectus, as the case
may be, to such person at or prior to the written confirmation of the sale of
Shares to such person, unless such failure resulted from non-compliance by the
Company with Section 4(b).
If any action is brought against an Underwriter or controlling person
in respect of which indemnity may be sought against the Company pursuant to the
preceding paragraph, such Underwriter shall promptly notify the Company in
writing of the institution of such action and the indemnifying party shall
assume the defense of such action, including the employment of counsel and
payment of expenses. 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 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 indemnifying party in connection with the defense
of such action or the indemnifying party 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
19
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 indemnifying party (in which case the indemnifying party 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 reasonable fees and
expenses shall be borne by the indemnifying party and paid as incurred (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel 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, the indemnifying party shall
not be liable for any settlement of any such claim or action effected without
the written consent of the indemnifying party.
(b) Each Underwriter agrees, severally and not jointly, to indemnify,
defend and hold harmless the Company, its directors and officers and any person
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any loss, expense, liability
or claim (including the reasonable cost of investigation) which, jointly or
severally, the Company or any such person may incur under the Securities Act,
the Exchange Act or otherwise, insofar as such loss, expense, liability 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 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 such Registration Statement or Prospectus or necessary to make
such information not misleading.
If any action is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company 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 and payment of expenses. The
Company 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 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 counsel 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 such Underwriter.
20
(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 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 or claims
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other hand
from the offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
bear to the underwriting discounts and commissions received by the Underwriters.
The relative fault of the Company 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 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.
(d) The Company and the Underwriters 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) above. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 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.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Company
contained in 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, its
directors and officers or any person who controls the Company 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 (other than termination hereof
pursuant to Section 6 before the sale and delivery of
21
the Initial Shares) or the sale and delivery of the Shares. The Company and each
Underwriter agree promptly to notify the others of the commencement of any
litigation or proceeding against it and, in the case of the Company, against any
of the Company's officers and directors, in connection with the sale and
delivery of the Shares, or in connection with the Registration Statement or
Prospectus.
10. Default by the Company.
-----------------------
If the Company shall fail at the Closing Time or on any Date of
Delivery to sell and deliver the number of Shares that Company is obligated to
sell hereunder on such date, then the Underwriters may, at the option of the
Representatives by notice from the Representatives to the Company, terminate
this Agreement without any liability on the part of any non-defaulting party
except that the provisions of Sections 4(j), 5 and 9 shall remain in full force
and effect. No action taken pursuant to this Section 10 shall relieve the
Company from liability, if any, in respect of such default.
In the event of a default by the Company as referred to in this
Section 10, the Representatives shall have the right to postpone the Closing
Time or the relevant Date of Delivery for a period not exceeding seven days in
order to effect any required change in the Registration Statement or Prospectus
or in any other documents or arrangements.
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 or sent to Friedman, Billings,
Xxxxxx & Co., Inc., 0000 00xx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Compliance Department; and if to the Company, shall be sufficient in
all respects if delivered to the Company at the offices of the Company at 00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention:
President and Chief Executive Officer and Secretary
12. GOVERNING LAW:
--------------
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.
13. Headings:
---------
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
14. Parties in Interest:
--------------------
The Agreement herein set forth has been and is made solely for the benefit
of the Underwriters and the Company and the controlling persons, directors and
officers referred to in Section 9 hereof, and their respective successors,
assigns, executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser,
22
from any of the Underwriters) shall acquire or have any right under or by virtue
of this Agreement.
15. Counterparts:
-------------
This Agreement may be signed by the parties in counterparts which together
shall constitute one and the same agreement among the parties.
If the foregoing correctly sets forth the understanding among the Company
and the Underwriters, please so indicate in the space provided below for the
purpose, whereupon this letter shall constitute a binding agreement among the
Company and the Underwriters.
Very truly yours,
IMPERIAL CREDIT COMMERCIAL MORTGAGE INVESTMENT
CORP.
By:
-------------------------------------------
Title:
----------------------------------------
Accepted and agreed to as
of the date first above
written:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
XXXXXXXXX & COMPANY, INC.
For themselves and as Representatives of the other
Underwriters named in Schedule I hereto.
By: Friedman, Billings, Xxxxxx & Co. Inc.
By:
-------------------------------------------
Title:
----------------------------------------
23
SCHEDULE I
UNDERWRITER NO. OF SHARES
------------ --------------
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxxxxxx & Company, Inc.
--------------
Total 25,000,000
24
SCHEDULE II
H. Xxxxx Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
25
