5,000,000 Shares
ANTHRACITE CAPITAL, INC.
Common Stock
UNDERWRITING AGREEMENT
June 6, 2007
LEHMAN BROTHERS INC.
As Representative of the several
Underwriters named in Schedule 1 hereto
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Anthracite Capital, Inc., a Maryland corporation
(the “ Company
”), proposes to sell 5,000,000 shares (the
“ Firm Stock ”) of the Company’s common stock, par value $0.001
per share (the “ Common
Stock ”). In addition, the Company
proposes to grant to the underwriters (the “
Underwriters ”)
named in Schedule 1 attached to this agreement (this “
Agreement ”), an
option to purchase up to 750,000 additional shares of the Common
Stock on the terms set forth in Section 2 (the “
Option Stock ”).
The Firm Stock and the Option Stock, if purchased, are hereinafter
collectively called the “Stock.”
The Company and BlackRock Financial Management,
Inc., a corporation organized and existing under the laws of
Delaware and the manager of the Company (in such capacity, the
“ Manager ”), each confirms as follows its agreements concerning
the purchase of the Stock from the Company by the
Underwriters.
1.
Representations, Warranties and Agreements of the
Company and the Manager. (a) The Company represents, warrants and
agrees that:
(i)
A registration statement on Form S-3 (Registration
No. 333-69848) relating to the Stock has (i) been prepared by the
Company in conformity with the requirements of the Securities Act
of 1933, as amended (the “ Securities Act ”), and the
rules and regulations (the “Rules and Regulations”) of
the Securities and Exchange Commission (the “
Commission ”)
thereunder; (ii) been filed with the Commission under the
Securities Act; and (iii) become effective under the Securities
Act. Copies of such registration statement and any amendment
thereto have been delivered or otherwise made available by the
Company to you as the representative (the “
Representative ”)
of the Underwriters. As used in this Agreement:
(A)
“ Applicable
Time ” means 9 a.m. (New York City
time) on June 7, 2007;
(B)
“ Effective
Date ” means any date as of which
any part of such registration statement relating to the Stock
became, or is deemed to have become, effective under the Securities
Act in accordance with the Rules and Regulations;
(C)
“ Issuer Free Writing
Prospectus ” means each “free
writing prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Stock;
(D)
“ Preliminary
Prospectus ” means any preliminary
prospectus relating to the Stock included in such registration
statement or filed by or on behalf of the Company with the
Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any preliminary prospectus supplement thereto relating to
the Stock;
(E)
“ Pricing Disclosure
Package ” means, as of the
Applicable Time, the most recent Preliminary Prospectus, together
with each Issuer Free Writing Prospectus filed or used by the
Company on or before the Applicable Time, other than a road show
that is an Issuer Free Writing Prospectus under Rule 433 of the
Rules and Regulations;
(F)
“ Prospectus ” means the final
prospectus relating to the Stock, including any prospectus
supplement thereto relating to the Stock, as filed by or on behalf
of the Company with the Commission pursuant to Rule 424(b) of the
Rules and Regulations; and
(G)
“ Registration
Statement ” means, collectively,
the various parts of such registration statement, each as amended
as of the Effective Date for such part.
Any reference to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Form S-3 under the
Securities Act as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be. Any reference to the “
most recent Preliminary Prospectus
” shall be deemed to refer to the latest
Preliminary Prospectus included in the Registration Statement or
filed pursuant to Rule 424(b) of the Rules and Regulations prior to
or on the date hereof (including, for purposes hereof, any
documents incorporated by reference therein prior to or on the date
hereof). Any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any document filed under the Securities Exchange Act
of 1934, as amended (the “ Exchange
Act ”), after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment
to the Registration Statement shall be deemed to include any annual
report of the Company on Form 10-K filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Date that is incorporated by reference in the
Registration Statement. Any reference herein to the term
“ Registration Statement
” shall be deemed to include the abbreviated
registration statement to register additional shares of Common
Stock under Rule 462(b) of the Rules and Regulations (the
“ Rule 462(b) Registration
Statement ”). The Commission has
not issued any order preventing
or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending the effectiveness of the
Registration Statement, and no proceeding or examination for such
purpose has been instituted or, to the Company’s knowledge,
threatened by the Commission.
(ii)
The Company was not as of the eligibility
determination date for purposes of Rules 164 and 433 of the Rules
and Regulations with respect to the offering of the Stock, is not
on the date hereof and will not be on the applicable Delivery Date
(as defined below) an “ ineligible
issuer ” (as defined in Rule 405 of
the Rules and Regulations). The Company has been since the time of
initial filing of the Registration Statement and continues to be
eligible to use Form S-3 for the offering of the Stock.
(iii)
The Registration Statement conformed and will
conform in all material respects on the Effective Date and on the
applicable Delivery Date, and any amendment to the Registration
Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Securities Act and
the Rules and Regulations. The Preliminary Prospectus conformed,
and the Prospectus will conform, in all material respects when
filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations and on the applicable Delivery Date to the requirements
of the Securities Act and the Rules and Regulations. The documents
incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents so incorporated
will conform, when filed with the Commission, in all material
respects to the requirements of the Exchange Act or the Securities
Act, as applicable, and the rules and regulations of the Commission
thereunder.
(iv)
The Registration Statement did not, as of the
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; provided
that no representation or warranty is made as to information
contained in or omitted from the Registration Statement in reliance
upon and in conformity with written information furnished to the
Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein, which information
is specified in Section 8(e).
(v)
The Prospectus will not, as of its date and on the
applicable Delivery 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, in the light of the
circumstances under which they were made, not misleading; provided
that no representation or warranty is made as to information
contained in or omitted from the Prospectus in reliance upon and in
conformity with written information furnished to the Company
through the Representative by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 8(e).
(vi)
The documents incorporated by reference in any
Preliminary Prospectus or the Prospectus did not, and any further
documents filed and
incorporated by reference therein will not, when
filed with the Commission, 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.
(vii) The Pricing Disclosure Package did not, as of the Applicable
Time, 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; provided that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package in reliance upon and
in conformity with written information furnished to the Company
through the Representative by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 8(e).
(viii) Each
Issuer Free Writing Prospectus (including, without limitation, any
road show that is a free writing prospectus under Rule 433 of the
Rules and Regulations), when considered together with the Pricing
Disclosure Package as of the Applicable Time, did 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; provided that no representation or
warranty is made as to information contained in or omitted from the
Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section
8(e).
(ix)
Each Issuer Free Writing Prospectus conformed or
will conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations on the date of first
use, and the Company has complied or will comply with any filing
requirements applicable to such Issuer Free Writing Prospectus
pursuant to the Rules and Regulations. The Company has retained in
accordance with the Rules and Regulations all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the
Rules and Regulations.
(x)
Each of the Company and its subsidiaries (as defined
in Section 16) has been duly organized, is validly existing and in
good standing (to the extent the concept exists) as a corporation
or other business entity under the laws of its jurisdiction of
organization and is duly qualified to do business and in good
standing as a foreign corporation or other business entity in each
jurisdiction in which its ownership or lease of property or the
conduct of its businesses requires such qualification, except where
the failure to be so qualified or in good standing (or the failure
of a subsidiary that is not a significant subsidiary to be duly
organized) could not, in the aggregate, reasonably be expected to
have a material adverse effect on the condition (financial or
otherwise), results of operations, properties, business or
prospects of the Company and its subsidiaries taken as a whole (a
“ Material Adverse Effect
”); each of the Company and its
subsidiaries
has all power and authority necessary to own or hold
its properties and to conduct the businesses in which it is
engaged. Exhibit 21 to the Company’s Annual Report on Form
10-K for the most recent fiscal year lists all of the
Company’s subsidiaries.
(xi)
The Company has an authorized capitalization as set
forth in each of the most recent Preliminary Prospectus and the
Prospectus, and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued, are fully
paid and non-assessable, conform to the description thereof
contained in each of the most recent Preliminary Prospectus and the
Prospectus and were issued in compliance with federal and state
securities laws and not in violation of any preemptive right,
resale right, right of first refusal or similar right. All of the
Company’s options, warrants and other rights to purchase or
exchange any securities for shares of the Company’s capital
stock have been duly authorized and validly issued, conform to the
description thereof contained in each of the most recent
Preliminary Prospectus and the Prospectus and were issued in
compliance with federal and state securities laws. All of the
issued shares of capital stock of each subsidiary of the Company
have been duly authorized and validly issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims,
except for such liens, encumbrances, equities or claims
(“ Encumbrances
”) as could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect or such Encumbrances
disclosed in the most recent Preliminary Prospectus and the
Prospectus granted pursuant to repurchase agreements and credit
agreements.
(xii) The shares of the Stock to be issued and sold by the Company to
the Underwriters hereunder have been duly authorized and, upon
payment and delivery in accordance with this Agreement, will be
validly issued, fully paid and non-assessable, will conform to the
description thereof contained in each of the most recent
Preliminary Prospectus and the Prospectus, will be issued in
compliance with federal and state securities laws and will be free
of statutory and contractual preemptive rights, rights of first
refusal and similar rights.
(xiii) The
Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement. This
Agreement has been duly and validly authorized, executed and
delivered by the Company.
(xiv) The
execution and delivery of and performance of its obligations under
this Agreement by the Company, the consummation of the transactions
contemplated hereby and the application of the proceeds from the
sale of the Stock as described under “U se of Proceeds ” in each of the
most recent Preliminary Prospectus and the Prospectus will not (i)
conflict with or result in a breach or violation of any of the
terms or provisions of, impose any lien, charge or encumbrance upon
any property or assets of the Company and its subsidiaries, or
constitute a default under, any indenture, mortgage, deed of trust,
loan
agreement, or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject; (ii) result in any violation of the provisions of the
charter or by-laws (or similar organizational documents) of (A) the
Company or (B) any of its subsidiaries; or (iii) result in any
violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets, except in the case of (i), (ii)(B) and (iii) above would
not have a Material Adverse Effect or interfere with the
transactions contemplated by this Agreement.
(xv)
No consent, approval, authorization or order of, or
filing or registration with, any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets is required for
the execution and delivery of and performance its obligations under
this Agreement by the Company, the consummation of the transactions
contemplated hereby or the application of the proceeds from the
sale of the Stock as described under “Use of Proceeds”
in each of the most recent Preliminary Prospectus and the
Prospectus, except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
orders, filings, registrations or qualifications as may be required
under the Exchange Act, the rules of the NASD and applicable state
securities laws in connection with the purchase and sale of the
Stock by the Underwriters.
(xvi) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned
or to be owned by such person in connection with the offering of
Stock pursuant to this Agreement or to require the Company to
include such securities in the securities registered pursuant to
the Registration Statement.
(xvii) The
Company has not sold or issued any securities that would be
integrated with the offering of the Stock contemplated by this
Agreement pursuant to the Securities Act, the Rules and Regulations
or the interpretations thereof by the Commission.
(xviii) Neither the
Company nor any of its subsidiaries has sustained, since the date
of the latest audited financial statements included or incorporated
by reference in the most recent Preliminary Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, and since
such date, there has not been (i) except as disclosed in the
Pricing Disclosure Package, any material change in the capital
stock or long-term debt of the Company or any of its subsidiaries
or (ii) any adverse change, or any development involving a
prospective adverse change, in or affecting the condition
(financial or otherwise), results of operations, properties,
business or
prospects of the Company and its subsidiaries taken
as a whole, in each case except as could not, in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
(xix) Since the date as of which information is given in the most
recent Preliminary Prospectus, the Company has not (i) incurred any
liability or obligation, direct or contingent, other than
liabilities and obligations that were incurred in the ordinary
course of business, (ii) entered into any material transaction not
in the ordinary course of business or (iii) declared or paid any
dividend on its capital stock.
(xx)
The historical financial statements (including the
related notes and any supporting schedules) included or
incorporated by reference in the most recent Preliminary Prospectus
comply as to form in all material respects with the requirements of
Regulation S-X under the Securities Act and present fairly the
financial condition, results of operations and cash flows of the
entities purported to be shown thereby at the dates and for the
periods indicated and have been prepared in conformity with
accounting principles generally accepted in the United States
applied on a consistent basis throughout the periods
involved.
(xxi) Deloitte & Touche LLP, which has certified certain
financial statements of the Company and its consolidated
subsidiaries, whose report appears in the most recent Preliminary
Prospectus or is incorporated by reference therein and which has
delivered the initial letter referred to in Section 7(g) hereof, is
an independent registered public accounting firm as required by the
Securities Act and the Rules and Regulations.
(xxii) The
statistical and market-related data included under the captions
“ Summary ,” “ Management’s
Discussion and Analysis of Financial Condition and Results of
Operations ” and “
Business ” in the
documents incorporated by reference in the most recent Preliminary
Prospectus and the consolidated financial statements of the Company
and its subsidiaries included or incorporated by reference in the
most recent Preliminary Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate in
all material respects.
(xxiii) The Company is
not and, after giving effect to the offer and sale of the Stock and
the application of the proceeds therefrom as described under
“Use of Proceeds” in the most recent Preliminary
Prospectus and the Prospectus, will not be an “investment
company” within the meaning of such term under the Investment
Company Act of 1940, as amended (the “ Investment Company Act ”), and
the rules and regulations of the Commission thereunder.
(xxiv) Except as
disclosed in the Pricing Disclosure Package and the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject that could, in the aggregate,
reasonably be expected to have a Material Adverse
Effect or could, in the aggregate, reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of the transactions contemplated hereby; and to the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others.
(xxv) No
relationship, direct or indirect, exists between or among the
Company, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company, on the other
hand, that is required to be described by the Securities Act,
Exchange Act or the Rules and Regulations in the most recent
Preliminary Prospectus or the Prospectus which is not so
described.
(xxvi) Neither the
Company nor any of its subsidiaries has any employees.
(xxvii)
The Company and each subsidiary have accurately
prepared in all material respects and timely filed all federal,
state, foreign and other tax returns that are required to be filed
by it and have paid or made provision for the payment of all taxes,
assessments, governmental or other similar charges, including
without limitation, all sales and use taxes and all taxes which the
Company or any subsidiary is obligated to withhold from amounts
owing to employees, creditors and third parties, with respect to
the periods covered by such tax returns (whether or not such
amounts are shown as due on any tax return), except, in all cases,
for any such amounts that the Company is contesting in good faith
and except in any case in which the failure to so prepare, file or
pay would not in the aggregate have a Material Adverse Effect. No
deficiency assessment with respect to a proposed adjustment of the
Company’s or any subsidiary’s federal, state, local or
foreign taxes is pending or, to the Company’s knowledge,
threatened, which could reasonably be expected in the aggregate to
have a Material Adverse Effect. There is no tax lien, whether
imposed by any federal, state, foreign or other taxing authority,
outstanding against the assets, properties or business of the
Company or any subsidiary, except for any such liens that would
not, individually or in the aggregate, have a Material Adverse
Effect.
(xxviii)
To the Company’s knowledge, there are no
transfer taxes or other similar fees or charges under federal law
or the laws of any state, or any political subdivision thereof,
required to be paid in connection with the execution and delivery
of this Agreement or the issuance by the Company or sale by the
Company of the Stock to the Underwriters.
(xxix) (i)
Neither the Company nor any of its “significant
subsidiaries” (as defined in Rule 405 of the Rules and
Regulations) is in violation of its charter or by-laws (or similar
organizational documents). Neither the Company nor any of its
subsidiaries (A) is in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant
or condition contained in any indenture, mortgage, deed of trust,
loan agreement, or other agreement or instrument to
which it is a party or by which it is bound or to
which any of its properties or assets is subject or (B) is in
violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over it or
its property or assets, except in the case of clauses (ii)(A) and
(B), to the extent any such conflict, breach, violation or default
could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(xxx) There is
and has been no failure on the part of the Company, and to the
Company’s knowledge, any of the Company’s directors or
officers, in their capacities as such, to comply with the
provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith.
(xxxi) The Company and
each of its subsidiaries have such permits, licenses, franchises,
certificates and other approvals or authorizations of governmental
or regulatory authorities (“ Permits ”) as are necessary
under applicable law to own their properties and conduct their
businesses in the manner described in the most recent Preliminary
Prospectus, except for any of the foregoing that could not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect; each of the Company and its subsidiaries has fulfilled and
performed all of its obligations with respect to the Permits,
except where the failure to fulfill or perform would not have a
Material Adverse Effect, and no event has occurred that allows, or
after notice or lapse of time would allow, revocation or
termination thereof or results in any other impairment of the
rights of the holder or any such Permits, except for any of the
foregoing that could not reasonably be expected to have a Material
Adverse Effect.
(xxxii)
The Company and each of its subsidiaries own or
possess adequate license or other rights to use all patents,
trademarks, service marks, trade names, copyrights, software and
design licenses, trade secrets, and other intangible property
rights (collectively, “ Intangibles ”) necessary to
entitle the Company and each of its subsidiaries to conduct their
respective businesses as described in the most recent Preliminary
Prospectus and the Prospectus except where the failure to own or
possess such licenses or rights would not in the aggregate have a
Material Adverse Effect, and neither the Company nor any subsidiary
has received written notice of any infringement of or conflict with
(and the Company does not know of any such infringement of or
conflict with) asserted rights of others with respect to any
Intangibles that would have a Material Adverse Effect.
(xxxiii)
The Company and each of its subsidiaries are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“
Environmental Laws ”), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other
approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly
or in the aggregate, have a Material Adverse Effect.
(xxxiv)
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 would, singly or in
the aggregate, have a Material Adverse Effect.
(xxxv) No significant
subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary’s capital stock,
from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such
subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated
by the most recent Preliminary Prospectus.
(xxxvi) Neither the Company nor any of its
subsidiaries, nor, to the knowledge of the Company, any director,
officer, agent, employee or other person associated with or acting
on behalf of the Company or any of its subsidiaries, has, while
acting on behalf of the Company or any of its subsidiaries, (i)
used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; or (iii) violated or is in violation of any provision of the
U.S. Foreign Corrupt Practices Act of 1977.
(xxxvii) The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “
Money Laundering Laws ”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened, except, in each case, as would not reasonably
be expected to have a Material Adverse Effect.
(xxxviii) Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“ OFAC ”); and the Company will
not directly or indirectly use the
proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(xxxix)
The Company has not distributed and, prior to the
later to occur of any Delivery Date and completion of the
distribution of the Stock, will not distribute any offering
material in connection with the offering and sale of the Stock
other than any Preliminary Prospectus, the Prospectus and any
Issuer Free Writing Prospectus to which the Representative has
consented in accordance with Section 5(a)(vi).
(xl) The Company has not taken and will not take, directly or
indirectly, any action designed to or that has constituted or that
could reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the shares of the
Stock.
(xli) The Stock has been approved for listing, subject to official
notice of issuance, on the New York Stock Exchange.
(xlii) The
Company has been, and upon the sale of the Stock will continue to
be, organized and operated in conformity with the requirements for
qualification and taxation as a “real estate investment
trust” (“ REIT
”) under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the “
Code ”), for all
taxable years commencing with its taxable year ended December 31,
2004. The proposed method of operation of the Company as described
in the most recent Preliminary Prospectus and the Prospectus will
enable the Company to continue to meet the requirements for
qualification and taxation as a REIT under the Code.
(b)
The Manager represents, warrants and agrees
that:
(i)
The Manager has been duly organized and is validly
existing as a corporation and is in good standing under the laws of
Delaware. The Manager is duly qualified to do business and is in
good standing in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good
standing which would not in the aggregate have a material adverse
effect on the business, condition (financial or otherwise), results
of operations, properties or prospects of the Manager and its
subsidiaries, taken as a whole (a “ Manager Material Adverse Effect ”). The Manager has all requisite power and authority,
and all necessary governmental licenses, to own, lease and operate
its properties and conduct its business as it is now being
conducted, except where the failure to possess such governmental
licenses will not in the aggregate have a Manager Material Adverse
Effect.
(ii)
This Agreement and the Amended and Restated
Investment Advisory Agreement dated as of March 15, 2007 between
the Company and the Manager (the “ Management Agreement ”), have
been duly and validly authorized, executed and delivered by the
Manager. The Management Agreement constitutes a valid and binding
agreement of the Manager, enforceable in accordance with its terms,
except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other laws
affecting enforcement of creditors’ rights or by general
equitable principles.
(iii)
Except as described in the most recent Preliminary
Prospectus and the Prospectus, there are no legal or governmental
proceedings to which the Manager or any of its subsidiaries is a
party, or of which any property of the Manager or any of its
subsidiaries is the subject which, singularly or in the aggregate,
if determined adversely to the Manager or any of its subsidiaries,
are reasonably likely to have a Material Adverse Effect, and to the
best of the Manager’s knowledge, no such proceedings are
overtly threatened or contemplated by governmental authorities or
overtly threatened or contemplated by others.
(iv)
No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court
or governmental authority or agency having jurisdiction over the
Manager is necessary or required for the performance by the Manager
of its obligations hereunder which has not been obtained or made or
the failure of which to have been obtained or made in the aggregate
would not have a Material Adverse Effect.
Any certificate signed by any officer of the Company
or the Manager and delivered to the Representative or counsel for
the Underwriters in connection with the offering of the Stock shall
be deemed a representation and warranty by the Company or the
Manager, as to matters covered thereby, to each
Underwriter.
2.
Purchase of the Stock by the
Underwriters . On the basis of the
representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell
5,000,000 shares of the Firm Stock to the several Underwriters, and
each of the Underwriters, severally and not jointly, agrees to
purchase the number of shares of the Firm Stock set forth opposite
that Underwriter’s name in Schedule 1 hereto.
In addition, the Company grants to the Underwriters
an option to purchase, in the same percentage allocations as set
forth opposite each Underwriter’s name in Schedule 1 hereto,
up to 750,000 additional shares of Option Stock. Such option is
exercisable in the event that the Underwriters sell more shares of
Common Stock than the number of Firm Stock in the offering and as
set forth in Section 4 hereof.
The price of both the Firm Stock and any Option
Stock purchased by the Underwriters shall be $11.1625 per
share.
The Company shall not be obligated to deliver any of
the Firm Stock or Option Stock to be delivered on the applicable
Delivery Date, except upon payment for all such Stock to be
purchased on such Delivery Date as provided herein.
3.
Offering of Stock by the Underwriters
. Upon authorization by the Underwriters of the
release of the Firm Stock, the Underwriters propose to offer the
Firm Stock for sale upon the terms and conditions to be set forth
in the Pricing Disclosure Package and the Prospectus.
4.
Delivery of and Payment for the Stock
. Delivery of and payment for the Firm Stock shall
be made at 10:00 A.M., New York City time, on the third full
business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between the
Representative and the Company. This date and time are sometimes
referred to as the “ Initial
Delivery Date .” Delivery of the
Firm Stock shall be made to the Representative for the account of
each Underwriter against payment by the several Underwriters
through the Representative of the purchase price of the Firm Stock
being sold by the Company to or upon the order of the Company by
wire transfer in immediately available funds to the account
specified by the Company. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of the Underwriters
hereunder. The Company shall deliver the Firm Stock through the
facilities of DTC unless the Representative shall otherwise
instruct.
The option granted in Section 2 will expire 30 days
after the date of this Agreement and may be exercised in whole or
from time to time in part by written notice being given
to
