Exhibit 1.1
Luminent Mortgage Capital,
Inc.
6,000,000 Shares
Common Stock
($0.001 par value per Share)
Underwriting
Agreement
October 12, 2006
1
Underwriting
Agreement
October 12, 2006
UBS Securities LLC
as Representative of the
Underwriters
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Luminent Mortgage Capital, Inc, a
Maryland corporation (the “ Company ”), proposes
to issue and sell to the underwriters named in
Schedule A attached hereto (the “
Underwriters ”), for whom you are acting as
representative, an aggregate of 6,000,000 shares (the “
Firm Shares ”) of common stock, $0.001 par value per
share (the “ Common Stock ”), of the Company. In
addition, solely for the purpose of covering over-allotments, the
Company proposes to grant to the Underwriters the option to
purchase from the Company up to an additional 900,000 shares of
Common Stock (the “ Additional Shares ”). The
Firm Shares and the Additional Shares are hereinafter collectively
sometimes referred to as the “ Shares .” The
Shares are described in the Prospectus which is referred to
below.
The Company has prepared and filed,
in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively,
the “ Act ”), with the Securities and Exchange
Commission (the “ Commission ”) a registration
statement on Form S-3 (File No. 333-121816) under the Act (the
“ registration statement ”), including a
prospectus, which registration statement incorporates by reference
documents which the Company has filed, or will file, in accordance
with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively,
the “ Exchange Act ”). Amendments to such
registration statement, if necessary or appropriate, have been
similarly prepared and filed with the Commission in accordance with
the Act. Such registration statement, as so amended, has become
effective under the Act.
Except where the context otherwise
requires, “ Registration Statement ,” as used
herein, means the registration statement, as amended at the time of
such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to the
respective Underwriters (the “ Effective Time
”), including (i) all documents filed as a part thereof
or incorporated or deemed to be incorporated by reference therein,
(ii) any information contained or incorporated by reference in
a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, to the extent such information is deemed, pursuant
to Rule 430B or Rule 430C under the Act, to be part of
the registration statement at the Effective Time, and
(iii) any registration statement filed to register the offer
and sale of Shares pursuant to Rule 462(b) under the Act.
The Company has furnished to you,
for use by the Underwriters and by dealers in connection with the
offering of the Shares, copies of one or more preliminary
prospectus supplements, and the documents incorporated by reference
therein, relating to the Shares. Except where the context otherwise
requires, “ Pre-Pricing Prospectus ,” as used
herein, means each such preliminary prospectus supplement, in the
form so furnished, including any basic prospectus (whether or not
in preliminary form) furnished to you by the Company and attached
to or used with such preliminary prospectus supplement. Except
where the context otherwise requires, “ Basic
Prospectus ,” as used herein, means any such basic
prospectus and any basic prospectus furnished to you by the Company
and attached to or used with the Prospectus Supplement (as defined
below).
Except where the context otherwise
requires, “ Prospectus Supplement ,” as used
herein, means the final prospectus supplement, relating to the
Shares, filed by the Company with the Commission pursuant to Rule
424(b) under the Act on or before the second business day after the
date hereof (or such earlier time as may be required under the
Act), in the form furnished by the Company to you for use by the
Underwriters and by dealers in connection with the offering of the
Shares.
Except where the context otherwise
requires, “ Prospectus ,” as used herein, means
the Prospectus Supplement together with the Basic Prospectus
attached to or used with the Prospectus Supplement.
“ Permitted Free Writing
Prospectuses ,” as used herein, means the documents
listed on Schedule B attached hereto and each
“road show” (as defined in Rule 433 under the
Act), if any, related to the offering of the Shares contemplated
hereby that is a “written communication” (as defined in
Rule 405 under the Act). The Underwriters have not offered or
sold and will not offer or sell, without the Company’s
consent, any Shares by means of any “free writing
prospectus” (as defined in Rule 405 under the Act) that
is required to be filed by the Underwriters with the Commission
pursuant to Rule 433 under the Act, other than a Permitted
Free Writing Prospectus.
“ Disclosure Package
,” as used herein, means any Pre-Pricing Prospectus or Basic
Prospectus, in either case together with any combination of one or
more of the Permitted Free Writing Prospectuses, if any.
Any reference herein to the
Registration Statement, any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the documents, if any, incorporated by reference, or deemed
to be incorporated by reference, therein (the “
Incorporated Documents ”), including, unless the
context otherwise requires, the documents, if any, filed as
exhibits to such Incorporated Documents. Any reference herein to
the terms “ amend ,” “ amendment
” or “ supplement ” with respect to the
Registration Statement, any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act on or
after the initial effective date of the Registration Statement, or
the date of such Basic Prospectus, such Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or such Permitted Free
Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
As used in this Agreement, “
business day ” shall mean a day on which the New York
Stock Exchange (the “ NYSE ”) is open for
trading. The terms “herein,” “hereof,”
“hereto,” “hereinafter” and similar terms,
as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement. The term
“or,” as used herein, is not exclusive.
The Company and the Underwriters
agree as follows:
1. Sale and Purchase .
Upon the basis of the representations and warranties and subject to
the terms and conditions herein set forth, the Company agrees to
issue and sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from
the Company the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule A attached hereto,
subject to adjustment in accordance with Section 8 hereof, in
each case at a purchase price of $9.80 per Share. The Company is
advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as
soon after the effectiveness of this Agreement as in your judgment
is advisable and (ii) initially to offer the Firm Shares upon the
terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial
public offering to such extent as you may determine.
In addition, the Company hereby
grants to the several Underwriters the option (the “
Over-Allotment Option ”) to purchase, and upon the
basis of the representations and warranties and subject to the
terms and conditions herein set forth, the Underwriters shall have
the right to purchase, severally and not jointly, from the Company,
ratably in accordance with the number of Firm Shares to be
purchased by each of them, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in
connection with the offering of the Firm Shares, at the same
purchase price per share to be paid by the Underwriters to the
Company for the Firm Shares. The Over-Allotment Option may be
exercised by UBS Securities LLC (“ UBS ”) on
behalf of the several Underwriters at any time and from time to
time on or before the thirtieth day following the date of the
Prospectus Supplement, by written notice to the Company. Such
notice shall set forth the aggregate number of Additional Shares as
to which the Over-Allotment Option is being exercised and the date
and time when the Additional Shares are to be delivered (any such
date and time being herein referred to as an “ additional
time of purchase ”); provided , however ,
that no additional time of purchase shall be earlier than the
“time of purchase” (as defined below) nor earlier than
the second business day after the date on which the Over-Allotment
Option shall have been exercised nor later than the tenth business
day after the date on which the Over-Allotment Option shall have
been exercised. The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same proportion to
the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A attached hereto bears to the
total number of Firm Shares (subject, in each case, to such
adjustment as UBS may determine to eliminate fractional shares),
subject to adjustment in accordance with Section 8 hereof.
2. Payment and Delivery
. Payment of the purchase price for the Firm Shares shall be made
to the Company by Federal Funds wire transfer against delivery of
the certificates for the Firm Shares to you through the facilities
of The Depository Trust Company (“ DTC ”) for
the respective accounts of the Underwriters. Such payment and
delivery shall be made at 10:00 A.M., New York City time, on
October 18, 2006 (unless another time shall be agreed to by
you and the Company or unless postponed in accordance with the
provisions of Section 8 hereof). The time at which such
payment and delivery are to be made is hereinafter sometimes called
the “ time of purchase .” Electronic transfer of
the Firm Shares shall be made to you at the time of purchase in
such names and in such denominations as you shall specify.
Payment of the purchase price for
the Additional Shares shall be made at the additional time of
purchase in the same manner and at the same office as the payment
for the Firm Shares. Electronic transfer of the Additional Shares
shall be made to you at the additional time of purchase in such
names and in such denominations as you shall specify.
Deliveries of the documents
described in Section 6 hereof with respect to the purchase of
the Shares shall be made at the offices of Clifford Chance US LLP
at 31 West 52 nd Street, New York, New York 10019, at
9:00 A.M., New York City time, on the date of the closing of the
purchase of the Firm Shares or the Additional Shares, as the case
may be.
3. Representations and
Warranties of the Company . The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the
Registration Statement has heretofore become effective under the
Act or, with respect to any registration statement to be filed to
register the offer and sale of Shares pursuant to Rule 462(b) under
the Act, will be filed with the Commission and become effective
under the Act no later than 10:00 P.M., New York City time, on
the date of determination of the public offering price for the
Shares; no stop order of the Commission preventing or suspending
the use of any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus, or the effectiveness of the Registration Statement, has
been issued, and no proceedings for such purpose have been
instituted or, to the Company’s knowledge, are contemplated
by the Commission;
(b) the
Registration Statement complied when it became effective, complies
as of the date hereof and, as amended or supplemented, at the time
of purchase, each additional time of purchase, if any, and at all
times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, will comply, in all material respects, with the
requirements of the Act; the conditions to the use of Form S-3 in
connection with the offering and sale of the Shares as contemplated
hereby have been satisfied; the Registration Statement meets, and
the offering and sale of the Shares as contemplated hereby complies
with, the requirements of Rule 415 under the Act (including,
without limitation, Rule 415(a)(5) under the Act); the
Registration Statement did not, as of the Effective 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 not misleading; each Pre-Pricing Prospectus
complied, at the time it was filed with the Commission, and
complies as of the date hereof, in all material respects with the
requirements of the Act; at no time during the period that begins
on the earlier of the date of such Pre-Pricing Prospectus and the
date such Pre-Pricing Prospectus was filed with the Commission and
ends at the time of purchase did or will any Pre-Pricing
Prospectus, as then amended or supplemented, include 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, and
at no time during such period did or will any Pre-Pricing
Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free
Writing Prospectuses, if any, include 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; each of the Prospectus
Supplement and the Prospectus will comply, as of the date that it
is filed with the Commission, the date of the Prospectus
Supplement, each additional time of purchase, if any, and at all
times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares, in all material respects, with the requirements
of the Act (in the case of the Prospectus, including, without
limitation, Section 10(a) of the Act); at no time during the period
that begins on the earlier of the date the Prospectus is filed with
the Commission and ends at the later of the time of purchase, the
latest additional time of purchase, if any, and the end of the
period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with
Rule 172 under the Act or any similar rule) in connection with
any sale of Shares did or will the Prospectus, as then amended or
supplemented, include 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; at no time during the period that
begins on the date of any then issued Permitted Free Writing
Prospectus and ends at the time of purchase did or will any
Permitted Free Writing Prospectus, in combination with the
Prospectus, include 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 the
Company makes no representation or warranty in this Section 3(b)
with respect to any statement contained in the Registration
Statement, any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus in reliance upon and in
conformity with information concerning an Underwriter and furnished
in writing by or on behalf of such Underwriter through you to the
Company expressly for use in the Registration Statement, such
Pre-Pricing Prospectus, the Prospectus or such Permitted Free
Writing Prospectus; each Incorporated Document, at the time such
document was filed with the Commission or at the time such document
became effective, as applicable, complied, in all material
respects, with the requirements of the Exchange Act and did not
include 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;
(c) prior to
the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Shares by means of any
“prospectus” (within the meaning of the Act) or used
any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other
than the Pre-Pricing Prospectuses and the Permitted Free Writing
Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus
except in compliance with Rules 164 and 433 under the Act;
assuming that such Permitted Free Writing Prospectus is so sent or
given after the Registration Statement was filed with the
Commission (and after such Permitted Free Writing Prospectus was,
if required pursuant to Rule 433(d) under the Act, filed with the
Commission), the sending or giving, by any Underwriter, of any
Permitted Free Writing Prospectus will satisfy the provisions of
Rule 164 and Rule 433 (without reliance on subsections
(b), (c) and (d) of Rule 164); the conditions set
forth in one or more of subclauses (i) through (iv),
inclusive, of Rule 433(b)(1) under the Act are satisfied, and
the registration statement relating to the offering of the Shares
contemplated hereby, as initially filed with the Commission,
includes a prospectus that, other than by reason of Rule 433
or Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; neither the Company nor the
Underwriters are disqualified, by reason of subsection (f) or
(g) of Rule 164 under the Act, from using, in connection
with the offer and sale of the Shares, “free writing
prospectuses” (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; the Company is
not an “ineligible issuer” (as defined in Rule 405
under the Act) as of the eligibility determination date for
purposes of Rules 164 and 433 under the Act with respect to
the offering of the Shares contemplated by the Registration
Statement; the parties hereto agree and understand that the content
of any and all “road shows” (as defined in
Rule 433 under the Act) related to the offering of the Shares
contemplated hereby is solely the property of the Company;
(d) as of
the date of this Agreement, the Company has an authorized and
outstanding capitalization as set forth in the Pre-Pricing
Prospectus and Prospectus Supplement under the heading
“Capitalization” (and any similar sections or
information, if any, contained in any Permitted Free Writing
Prospectus), and, as of the time of purchase and any additional
time of purchase, as the case may be, the Company shall have an
authorized and outstanding capitalization as set forth in the
Pre-Pricing Prospectus and the Prospectus Supplement under the
heading “Capitalization” (and any similar sections or
information, if any, contained in any Permitted Free Writing
Prospectus) (subject, in each case, to the issuance of shares of
Common Stock upon exercise of stock options and restricted stock
grants disclosed as outstanding in the Registration Statement
(excluding the exhibits thereto), each Pre-Pricing Prospectus and
the Prospectus and the grant of options under existing stock option
and restricted stock plans described in the Registration Statement
(excluding the exhibits thereto), each Pre-Pricing Prospectus and
the Prospectus); all of the issued and outstanding shares of
capital stock, including the Common Stock, of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable
securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right; the
Shares at the time of purchase will be duly listed, and admitted
and authorized for trading, subject to official notice of issuance,
on the NYSE;
(e) the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Maryland, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any, and
to execute and deliver this Agreement and to issue, sell and
deliver the Shares as contemplated herein;
(f) the
Company is duly qualified to do business as a foreign entity and is
in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified and
in good standing would not, individually or in the aggregate, have
a material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company and
the Subsidiaries (as defined below) taken as a whole (a “
Material Adverse Effect ”);
(g) the
Company has no subsidiaries (as defined under the Act) other than
as set forth on Schedule C attached hereto (each, a
“Subsidiary” and collectively, the “
Subsidiaries ”); the Company owns all of the issued
and outstanding capital stock of or ownership interests in each of
the Subsidiaries; other than the capital stock of or other
ownership interests in the Subsidiaries, and except as disclosed in
the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus or the Permitted Free Writing Prospectuses, if any, the
Company does not own, directly or indirectly, any shares of stock
or any other ownership interests or long-term debt securities of
any corporation, firm, partnership, joint venture, association or
other entity; complete and correct copies of the charters and the
bylaws of the Company and each Subsidiary and all amendments
thereto have been delivered to you, and no changes therein will be
made on or after the date hereof through and including the time of
purchase or, if later, any additional time of purchase; each
Subsidiary has been duly incorporated or organized and is validly
existing as an entity in good standing under the laws of the
jurisdiction of its organization, with full power and authority to
own, lease and operate its properties and to conduct its business
as described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus or the Permitted Free Writing
Prospectuses, if any; each Subsidiary is duly qualified to do
business as a foreign entity and is in good standing in each
jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse
Effect; all of the outstanding shares of capital stock of or other
ownership interests in each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable,
have been issued in compliance with all applicable securities laws,
were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right and are owned by the
Company or its Subsidiaries subject to no security interest, other
encumbrance or adverse claims; and no options, warrants or other
rights to purchase, agreements or other obligations to issue or
other rights to convert any obligation into shares of capital stock
or ownership interests in the Subsidiaries are outstanding;
(h) the
Shares have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly
and validly issued, fully paid and non-assessable and free of
statutory and contractual preemptive rights, resale rights, rights
of first refusal and similar rights; the Shares, when issued and
delivered against payment therefor as provided herein, will be free
of any restriction upon the voting or transfer thereof pursuant to
the Company’s charter or bylaws or any agreement or other
instrument to which the Company is a party, except for certain
transfer restrictions in the Company’s certificate of
incorporation that are designed to maintain the Company’s
qualification as a real estate investment trust (“
REIT ”) under the Internal Revenue Code of 1986, as
amended (the “ Code ”);
(i) the
capital stock of the Company, including the Shares, conforms in all
material respects to each description thereof contained or
incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any; and the certificates for the Shares
are in due and proper form;
(j) this
Agreement has been duly authorized, executed and delivered by the
Company;
(k) except
as otherwise described in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus or the Permitted Free
Writing Prospectuses, if any, neither the Company nor any of the
Subsidiaries is in breach or violation of or in default under (nor
has any event occurred which, with notice, lapse of time or both,
would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on
such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness
under) (A) its charter, bylaws or other organizational
documents, or (B) any indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or any
license, lease, contract or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound
or affected, or (C) any federal, state, local or foreign law,
regulation or rule, or (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the rules and regulations
of the NYSE), or (E) any decree, judgment or order applicable
to it or any of its properties, except, in the case of clauses (B),
(D) and (E), where such breach or violation would not have a
Material Adverse Effect;
(l) the
execution, delivery and performance of this Agreement, the issuance
and sale of the Shares and the consummation of the transactions
contemplated hereby will not conflict with, result in any breach or
violation of or constitute a default under (nor constitute any
event which, with notice, lapse of time or both, would result in
any breach or violation of, constitute a default under or give the
holder of any indebtedness (or a person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness
under) (or result in the creation or imposition of a lien, charge
or encumbrance on any property or assets of the Company or any
Subsidiary pursuant to) (A) charter, bylaws or other
organizational documents of the Company or any of the Subsidiaries,
or (B) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound or
affected, or (C) any federal, state, local or foreign law,
regulation or rule, or (D) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the rules and regulations
of the NYSE), or (E) any decree, judgment or order applicable
to the Company or any of the Subsidiaries or any of their
respective properties, except, in the case of clause (B) where
such breach or violation would not have a Material Adverse
Effect;
(m) no
approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, or of or with any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the NYSE), or approval of
the stockholders of the Company, is required in connection with the
issuance and sale of the Shares or the consummation by the Company
of the transactions contemplated hereby, other than
(i) registration of the Shares under the Act, which has been
effected (or, with respect to any registration statement to be
filed hereunder pursuant to Rule 462(b) under the Act, will be
effected in accordance herewith), (ii) any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriters or (iii) under the Conduct Rules of the National
Association of Securities Dealers, Inc. (the “ NASD
”);
(n) except
as described in the Registration Statement (excluding the exhibits
thereto), each Pre-Pricing Prospectus and the Prospectus,
(i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it any shares of Common Stock
or shares of any other capital stock or other ownership interests
of the Company, or to cause one of its Subsidiaries to issue or
sell to it any shares of Common Stock or shares of any other
capital stock or other ownership interests of such Subsidiary,
(ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any
shares of Common Stock or shares of any other capital stock
of or other ownership interests in the Company and (iii) no
person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the
Shares; no person has the right, contractual or otherwise, to cause
the Company to register under the Act any shares of Common
Stock or shares of any other capital stock of or other ownership
interests in the Company, or to include any such shares or
interests in the Registration Statement or the offering
contemplated thereby;
(o) each of
the Company and the Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary
filings required under any applicable law, regulation or rule, and
has obtained all necessary licenses, authorizations, consents and
approvals from other persons, in order to conduct their respective
businesses; neither the Company nor any of the Subsidiaries is in
violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such
license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of the Subsidiaries,
except where failure to obtain or to file, or such violation,
default, revocation or modification would not, individually or in
the aggregate, have a Material Adverse Effect;
(p) except
as disclosed in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus or the Permitted Free Writing
Prospectuses, if any, there are no actions, suits, claims,
investigations or proceedings pending or, to the Company’s
knowledge, threatened or contemplated to which the Company or any
of the Subsidiaries or any of their respective directors or
officers is or would be a party or of which any of their respective
properties is or would be subject at law or in equity, before or by
any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, or before or by any
self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the NYSE), except any
such action, suit, claim, investigation or proceeding which, if
resolved adversely to the Company or any Subsidiary, would not,
individually or in the aggregate, have a Material Adverse
Effect;
(q) Deloitte
& Touche LLP, whose report on the consolidated financial
statements of the Company and the Subsidiaries is included or
incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus, are independent
registered public accountants as required by the Act and by the
rules of the Public Company Accounting Oversight Board;
(r) the
financial statements included or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
together with the related notes and schedules, present fairly the
consolidated financial position of the Company and the Subsidiaries
as of the dates indicated and the consolidated results of
operations, cash flows and changes in stockholders’ equity of
the Company for the periods specified and have been prepared in
compliance with the requirements of the Act and Exchange Act and in
conformity with U.S. generally accepted accounting principles
applied on a consistent basis during the periods involved; any pro
forma financial statements or data included or incorporated by
reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, comply with the requirements of the Act and
the Exchange Act, and the assumptions used in the preparation of
such pro forma financial statements and data are reasonable, the
pro forma adjustments used therein are appropriate to give effect
to the transactions or circumstances described therein and the pro
forma adjustments have been properly applied to the historical
amounts in the compilation of those statements and data; the other
financial and statistical data contained or incorporated by
reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are accurately and fairly presented and
prepared on a basis consistent with the financial statements and
books and records of the Company; there are no financial statements
(historical or pro forma) that are required to be included or
incorporated by reference in the Registration Statement, any
Pre-Pricing Prospectus or the Prospectus that are not included or
incorporated by reference as required; the Company and the
Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations),
not described in the Registration Statement (excluding the exhibits
thereto), each Pre-Pricing Prospectus and the Prospectus; and all
disclosures contained or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any,
regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply
with Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent applicable;
(s) subsequent to the respective dates as of which information
is given in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, in each case excluding any amendments or
supplements to the foregoing made after the execution of this
Agreement, there has not been (i) any material adverse change,
or any development involving a prospective material adverse change,
in the business, properties, management, financial condition or
results of operations of the Company and the Subsidiaries taken as
a whole, (ii) any transaction which is material to the Company
and the Subsidiaries taken as a whole, (iii) any obligation or
liability, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or any Subsidiary, which is
material to the Company and the Subsidiaries taken as a whole,
(iv) any change in the capital stock or outstanding
indebtedness of the Company or any Subsidiaries or other than
options or rights outstanding on the date of this Agreement and
described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus or the Permitted Free Writing
Prospectuses, if any, or (v) any dividend or distribution of
any kind declared, paid or made on the capital stock of the Company
or any Subsidiary;
(t) the
Company has obtained for the benefit of the Underwriters the
agreement (a “ Lock-Up Agreement ”), in the form
set forth as Exhibit A hereto, of each of its directors
and “officers” (within the meaning of
Rule 16a-1(f) under the Exchange Act);
(u) neither
the Company nor any Subsidiary is, and at no time during which a
prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares will either of
them be, and, after giving effect to the offering and sale of the
Shares, 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 (the “
Investment Company Act ”);
(v) the
Company and each of the Subsidiaries have good and marketable title
to all real property, loans and securities held by the Company
described in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, as being owned by any of them, free and clear
of all liens, claims, security interests or other encumbrances; all
the property described in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free
Writing Prospectuses, if any, as being held under lease by the
Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases;
(w) each of
the Company and the Subsidiaries owns or possesses all inventions,
patent applications, patents, trademarks (both registered and
unregistered), tradenames, service names, copyrights, trade secrets
and other proprietary information described in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, as being owned or
licensed by it or which is necessary for the conduct of, or
material to, its businesses (collectively, the “
Intellectual Property ”), and the Company is unaware
of any claim to the contrary or any challenge by any other person
to the rights of the Company or any of the Subsidiaries with
respect to the Intellectual Property. To the knowledge of the
Company, neither the Company nor any of the Subsidiaries has
infringed or is infringing the intellectual property of a third
party, and neither the Company nor any Subsidiary has received
notice of a claim by a third party to the contrary;”
(x) neither
the Company nor any of the Subsidiaries is engaged in any unfair
labor practice; except for matters which would not, individually or
in the aggregate, have a Material Adverse Effect, (i) there is
(A) no unfair labor practice complaint pending or, to the
Company’s knowledge, threatened against the Company or any of
the Subsidiaries before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under
collective bargaining agreements is pending or, to the
Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s
knowledge, threatened against the Company or any of the
Subsidiaries and (C) no union representation dispute currently
existing concerning the employees of the Company or any of the
Subsidiaries, (ii) to the Company’s knowledge, no union
organizing activities are currently taking place concerning the
employees of the Company or any of the Subsidiaries and
(iii) there has been no violation of any federal, state, local
or foreign law relating to discrimination in the hiring, promotion
or pay of employees, any applicable wage or hour laws or any
provision of the Employee Retirement Income Security Act of 1974
(“ ERISA ”) or the rules and regulations
promulgated thereunder concerning the employees of the Company or
any of the Subsidiaries;
(y) the
Company and the Subsidiaries and their respective properties,
assets and operations are in compliance with, and the Company and
each of the Subsidiaries hold all permits, authorizations and
approvals required under, Environmental Laws (as defined below),
except to the extent that failure to so comply or to hold such
permits, authorizations or approvals would not, individually or in
the aggregate, have a Material Adverse Effect; there are no past,
present or, to the Company’s knowledge, reasonably
anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the
Company or any Subsidiary under, or to interfere with or prevent
compliance by the Company or any Subsidiary with, Environmental
Laws; except as would not, individually or in the aggregate, have a
Material Adverse Effect, neither the Company nor any of the
Subsidiaries (i) is the subject of any investigation,
(ii) has received any notice or claim, (iii) is a party
to or affected by any pending or, to the Company’s knowledge,
threatened action, suit or proceeding, (iv) is bound by any
judgment, decree or order or (v) has entered into any
agreement, in each case relating to any alleged violation of any
Environmental Law or any actual or alleged release or threatened
release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, “ Environmental Law
” means any federal, state, local or foreign law, statute,
ordinance, rule, regulation, order, decree, judgment, injunction,
permit, license, authorization or other binding requirement, or
common law, relating to health, safety or the protection, cleanup
or restoration of the environment or natural resources, including
those relating to the distribution, processing, generation,
treatment, storage, disposal, transportation, other handling or
release or threatened release of Hazardous Materials, and “
Hazardous Materials ” means any material (including,
without limitation, pollutants, contaminants, hazardous or toxic
substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law);
(z) all tax
returns required to be filed by the Company or any of the
Subsidiaries have been timely filed and all such tax returns are
true, correct and complete in all material respects, and all taxes
and other assessments of a similar nature (whether imposed directly
or through withholding), including any interest, additions to tax
or penalties applicable thereto, due or claimed to be due from such
entities have been timely paid, other than those being contested in
good faith and for which adequate reserves have been provided,
except where the failure to file or pay would not have a Material
Adverse Effect;
(aa) commencing with the Company’s taxable year ended
December 31, 2003, the Company has been organized and operated
in conformity with the requirements for qualification and taxation
as a REIT under Sections 856 through 860 of the Code, and its
current and proposed method of operation as described in the
Registration Statement, the Pre-Pricing Prospectus and the
Prospectus will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code for its taxable
year ending December 31, 2006 and thereafter. All statements
in the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus regarding the Company’s qualification and taxation
as a REIT under the Code and the U.S. federal income tax
consequences of the acquisition, ownership and disposition of the
Shares are true, correct and complete in all material respects;
(bb) the
Company and each of the Subsidiaries maintain insurance covering
their respective properties, operations, personnel and businesses
as the Company reasonably deems adequate; such insurance insures
against such losses and risks to an extent which is adequate in
accordance with customary industry practice to protect the Company
and the Subsidiaries and their respective businesses; all such
insurance is fully in force on the date hereof and will be fully in
force at the time of purchase and each additional time of purchase,
if any; neither the Company nor any Subsidiary has reason to
believe that it will not be able to renew any such insurance as and
when such insurance expires;
(cc) except
as disclosed in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus or the Permitted Free Writing
Prospectuses, if any, neither the Company nor any Subsidiary has
sent or received any communication regarding termination of, or
intent not to renew, any of the contracts or agreements referred to
or described in any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus, or referred to or described in,
or filed as an exhibit to, the Registration Statement or any
Incorporated Document, and no such termination or non-renewal has
been threatened by the Company or any Subsidiary or, to the
Company’s knowledge, any other party to any such contract or
agreement;
(dd) the
Company and each of the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences;
(ee) the
Company has established and maintains and evaluates
“disclosure controls and procedures” (as such term is
defined in Rules 13a-15 and 15d-15 under the Exchange Act) and
“internal control over financial reporting” (as such
term is defined in Rules 13a-15 and 15d-15 under the Exchange
Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to the Company’s
Chief Executive Officer and its Chief Financial Officer by others
within those entities, and such disclosure controls and procedures
are effective to perform the functions for which they were
established; the Company’s independent auditors and the Audit
Committee of the Board of Directors of the Company have been
advised of: (i) all significant deficiencies, if any, in the
design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize
and report financial data; and (ii) all fraud, if any, whether
or not material, that involves management or other employees who
have a role in the Company’s internal controls; all material
weaknesses, if any, in internal controls have been identified to
the Company’s independent auditors; since the date of the
most recent evaluation of such disclosure controls and procedures
and internal controls, there have been no significant changes in
internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses; the
principal executive officer and principal financial officer of the
Company have made all certifications required by the Sarbanes-Oxley
Act of 2002 (the “ Sarbanes-Oxley Act ”) and any
related rules and regulations promulgated by the Commission, and
the statements contained in each such certification are complete
and correct; the Company, the Subsidiaries and the Company’s
directors and officers are each in compliance in all material
respects with all applicable effective provisions of the
Sarbanes-Oxley Act and the rules and regulations of the Commission
and the NYSE promulgated thereunder;
(ff) each
“forward-looking statement” (within the meaning of
Section 27A of the Act or Section 21E of the Exchange
Act) contained or incorporated by reference in the Registration
Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, has been made or
reaffirmed with a reasonable basis and in good faith;
(gg) all
statistical or market-related data included or incorporated by
reference in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are based on or derived from sources that the
Company reasonably believes to be reliable and accurate, and the
Company has obtained the written consent to the use of such data
from such sources to the extent required;
(hh) neither
the Company nor any of the Subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of
the Company or any of the Subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the “
Foreign Corrupt Practices Act ”); and the Company, the
Subsidiaries and, to the knowledge of the Company, its affiliates
have instituted and maintain policies and procedures designed to
ensure continued compliance therewith;
(ii) the
operations of the Company and the 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 applicable 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 gove
