Exhibit 10.2
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PURCHASE AGREEMENT
among
THE NEW YORK MORTGAGE COMPANY, LLC
NEW YORK MORTGAGE TRUST, INC.
NYM PREFERRED TRUST II
and
TABERNA PREFERRED FUNDING II, LTD.
Dated as of September 1, 2005
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PURCHASE AGREEMENT
($20,000,000 Trust Preferred Securities)
THIS PURCHASE AGREEMENT, dated as of September 1, 2005 (this "Purchase
Agreement"), is entered into among The New York Mortgage Company, LLC, a New
York limited liability company (the "Company"), New York Mortgage Trust Inc., a
Maryland corporation (the "Parent Guarantor"), NYM Preferred Trust II, a
Delaware statutory trust (the "Trust", and together with the Company and the
Parent Guarantor, the "Sellers"), and Taberna Preferred Funding II, Ltd. or its
assignee. (the "Purchaser").
WITNESSETH:
WHEREAS, the Trust proposes to issue and sell 20,000 Preferred Securities
of the Trust, having a stated liquidation amount of $1,000 per security (the
"Preferred Securities");
WHEREAS, the entire proceeds from the sale of the Preferred Securities will
be combined with the entire proceeds from the sale by the Trust to the Company
of its common securities (the "Common Securities"), and will be used by the
Trust to purchase Twenty Million Six Hundred Nineteen Thousand Dollars
($20,619,000) in principal amount of the unsecured junior subordinated notes of
the Company (the "Junior Subordinated Notes");
WHEREAS, the Preferred Securities and the Common Securities for the Trust
will be issued pursuant to the Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of the Closing Date, among the Company, as depositor,
JPMorgan Chase Bank, National Association, a national banking association, as
property trustee (in such capacity, the "Property Trustee"), Chase Bank USA,
National Association, a national banking association, as Delaware trustee (in
such capacity, the "Delaware Trustee"), the Administrative Trustees named
therein (in such capacities, the "Administrative Trustees") and the holders from
time to time of undivided beneficial interests in the assets of the Trust; and
WHEREAS, the Junior Subordinated Notes will be issued pursuant to a Junior
Subordinated Indenture, dated as of the Closing Date (the "Indenture"), between
the Company and JPMorgan Chase Bank, National Association, a national banking
association, as indenture trustee (in such capacity, the "Indenture Trustee").
NOW, THEREFORE, in consideration of the mutual agreements and subject to
the terms and conditions herein set forth, the parties hereto agree as follows:
1. DEFINITIONS. The Preferred Securities, the Common Securities and
the Junior Subordinated Notes are collectively referred to herein as the
"Securities." This Purchase Agreement, the Indenture, the Trust Agreement and
the Securities are collectively referred to herein as the "Operative Documents."
All other capitalized terms used but not defined in this Purchase Agreement
shall have the respective meanings ascribed thereto in the Indenture.
2. PURCHASE AND SALE OF THE PREFERRED SECURITIES.
(a) The Sellers agree to sell to the Purchaser, and the Purchaser
agrees to purchase from the Sellers the Preferred Securities for an amount (the
"Purchase Price") equal to Twenty Million Dollars ($20,000,000). The Purchaser
shall be responsible for the rating agency costs and expenses. The Sellers shall
use the Purchase Price, together with the proceeds from the sale of the Common
Securities, to purchase the Junior Subordinated Notes.
(b) Delivery or transfer of, and payment for, the Preferred Securities
shall be made at 11:00 A.M. Eastern Standard time (11:00 A.M. New York time), on
September 1, 2005 (such date and time of delivery and payment for the Preferred
Securities being herein called the "Closing Date"). The Preferred Securities
shall be transferred and delivered to the Purchaser against the payment of the
Purchase Price to the Sellers made by wire transfer in immediately available
funds on the Closing Date to a U.S. account designated in writing by the Company
at least two business days prior to the Closing Date.
(c) Delivery of the Preferred Securities shall be made at such
location, and in such names and denominations, as the Purchaser shall designate
at least two business days in advance of the Closing Date. The Company and the
Trust agree to have the Preferred Securities available for inspection and
checking by the Purchaser not later than 2:00 P.M., Eastern Standard time, on
the business day prior to the Closing Date or at such other time and place
agreed to by the Sellers and the Purchaser. The closing for the purchase and
sale of the Preferred Securities shall occur at the offices of DLA Xxxxx Xxxxxxx
Xxxx Xxxx US LLP, 0000 X. Xxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, or
such other place as the parties hereto shall agree.
3. CONDITIONS. The obligations of the parties under this Purchase
Agreement are subject to the following conditions:
(a) The representations and warranties contained herein shall be
accurate as of the date of delivery of the Preferred Securities.
(b) The Purchaser shall have sold securities issued by it in such an
amount that the net proceeds therefrom shall be available on the Closing Date
and shall be sufficient to purchase the Preferred Securities and all other
preferred securities contemplated in agreements similar to this Agreement.
(c) Hunton & Xxxxxxxx LLP, counsel for the Company and the Trust (the
"Company Counsel"), shall have delivered an opinion, dated the Closing Date,
addressed to the Purchaser and JPMorgan Chase Bank, National Association, in
substantially the form set out in Annex A-I hereto and (ii) the Company shall
have furnished to the Purchaser a certificate signed by the Company's Chief
Executive Officer, President, an Executive Vice President, Chief Financial
Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to
the Purchaser, in substantially the form set out in Annex A-II hereto. In
rendering their opinion, the Company Counsel may rely as to factual matters upon
certificates or other documents furnished by officers, directors and trustees of
the Parent Guarantor, the Company and the Trust and by government officials and
by and upon such other documents as such counsel may, in their
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reasonable opinion, deem appropriate as a basis for the Company Counsel's
opinion. The Company Counsel may specify the jurisdictions in which they are
admitted to practice and that they are not admitted to practice in any other
jurisdiction and are not experts in the law of any other jurisdiction. If the
Company Counsel is not admitted to practice in the State of New York, the
opinion of the Company Counsel may assume, for purposes of the opinion, that the
laws of the State of New York are substantively identical, in all respects
material to the opinion, to the internal laws of the state in which such counsel
is admitted to practice. Such Company Counsel Opinion shall not state that they
are to be governed or qualified by, or that they are otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of DLA Xxxxx
Xxxxxxx Xxxx Xxxx US LLP, special tax counsel for the Purchaser, dated the
Closing Date, addressed to the Purchaser, the Company and JPMorgan Chase Bank,
National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of Xxxxxxxx, Xxxxxx
& Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the
Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National
Association, the Delaware Trustee and the Company, in substantially the form set
out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere Xxxxx
Xxxxxx LLP, special counsel for the Property Trustee and the Indenture Trustee,
dated the Closing Date, addressed to the Purchaser and the Company, in
substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of Xxxxxxxx, Xxxxxx
& Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the
Closing Date, addressed to the Purchaser, the Company and JPMorgan Chase Bank,
National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of
the Company, signed by the Chief Executive Officer, President or an Executive
Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of
the Company, and the Trust shall have furnished to the Purchaser a certificate
of the Trust, signed by an Administrative Trustee of the Trust, in each case
dated the Closing Date, and, in the case of the Company, as to (i) below.
(i) since March 31, 2005 (the date of the latest financial
statements), there has been no material adverse change in the condition
(financial or other), earnings, business or assets of the Company and its
subsidiaries, whether or not arising from transactions occurring in the
ordinary course of business.
(i) The Parent Guarantor and the Company shall have executed the
Parent Guarantee Agreement and delivered same to JPMorgan Chase Bank, National
Association, as Guarantee Trustee.
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(j) Prior to the Closing Date, the Company and the Trust shall have
furnished to the Purchaser and its counsel such further information,
certificates and documents as the Purchaser or its counsel may reasonably
request.
Each certificate signed by any trustee of the Trust or any officer of the
Company or the Parent Guarantor and delivered to the Purchaser or the
Purchaser's counsel in connection with the Operative Documents and the
transactions contemplated hereby and thereby shall be deemed to be a
representation and warranty of the Trust, the Parent Guarantor and/or the
Company, as the case may be, and not by such trustee or officer in any
individual capacity.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE TRUST. The
Company and the Trust, as applicable, jointly and severally represent and
warrant to, and agree with the Purchaser, as follows:
(a) Neither the Company nor the Trust, nor any of their "Affiliates"
(as defined in Rule 501(b) of Regulation D ("Regulation D") under the Securities
Act (as defined below)), nor any person acting on its or their behalf, has,
directly or indirectly, made offers or sales of any security, or solicited
offers to buy any security, under circumstances that would require the
registration of any of the Securities under the Securities Act of 1933, as
amended (the "Securities Act").
(b) Neither the Company nor the Trust, nor any of their Affiliates,
nor any person acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of any of the Securities.
(c) Neither the Company nor the Trust, nor any of their Affiliates,
nor any person acting on its or their behalf, has engaged, or will engage, in
any "directed selling efforts" within the meaning of Regulation S under the
Securities Act with respect to the Securities.
(d) Neither the Company nor the Trust is, and, immediately following
consummation of the transactions contemplated hereby and the application of the
net proceeds therefrom, will not be, an "investment company" within the meaning
of section 3(a) of the Investment Company Act.
(e) Neither the Company nor the Trust has paid or agreed to pay to any
person any compensation for soliciting another to purchase any of the
Securities, except for the Preferred Securities Commission and/or the sales
commission in the amount of $600,000 the Company has agreed to pay to Xxxxx
Bros. & Company pursuant to that certain letter agreement dated July 26, 2005
between the Company and Xxxxx Bros. & Company.
(f) The Trust has been duly created and is validly existing in good
standing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C.
Section 3801, et seq. (the "Statutory Trust Act") with all requisite power and
authority to own property and to conduct the business it transacts and proposes
to transact and to enter into and perform its obligations under the Operative
Documents to which it is a party. The Trust is duly qualified to transact
business as a foreign entity and is in good standing in each jurisdiction in
which such qualification is
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necessary, except where the failure to so qualify or be in good standing would
not have a material adverse effect on the condition (financial or otherwise),
earnings, business or assets of the Trust, whether or not occurring in the
ordinary course of business. The Trust is not a party to or otherwise bound by
any agreement other than the Operative Documents. The Trust is and will be,
under current law, classified for federal income tax purposes as a grantor trust
and not as an association or publicly traded partnership taxable as a
corporation.
(g) The Trust Agreement has been duly authorized by the Company and,
on the Closing Date specified in Section 2(b), will have been duly executed and
delivered by the Company and the Administrative Trustees of the Trust, and,
assuming due authorization, execution and delivery by the Property Trustee and
the Delaware Trustee, will be a legal, valid and binding obligation of the
Company and the Administrative Trustees, enforceable against them in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general principles of equity. Each
of the Administrative Trustees of the Trust is an employee of the Company and
has been duly authorized by the Company to execute and deliver the Trust
Agreement.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company, and,
assuming due authorization, execution and delivery by the Indenture Trustee,
will be a legal, valid and binding obligation of the Company enforceable against
it in accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general principles
of equity.
(i) The Preferred Securities and the Common Securities have been duly
authorized by the Trust and, when issued and delivered against payment therefor
on the Closing Date in accordance with this Purchase Agreement, in the case of
the Preferred Securities, and in accordance with the Common Securities
Subscription Agreement, in the case of the Common Securities, will be validly
issued, fully paid and non-assessable and will represent undivided beneficial
interests in the assets of the Trust entitled to the benefits of the Trust
Agreement, enforceable against the Trust in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general principles of equity. The issuance of the
Securities is not subject to any preemptive or other similar rights. On the
Closing Date, all of the issued and outstanding Common Securities will be
directly owned by the Company free and clear of any pledge, security interest,
claim, lien or other encumbrance of any kind (each, a "Lien").
(j) The Junior Subordinated Notes have been duly authorized by the
Company and, on the Closing Date, will have been duly executed and delivered to
the Indenture Trustee for authentication in accordance with the Indenture and,
when authenticated in the manner provided for in the Indenture and delivered to
the Trust against payment therefor in accordance with the Junior Subordinated
Note Purchase Agreement, will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
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(k) This Purchase Agreement has been duly authorized, executed and
delivered by the Company, the Parent Guarantor and the Trust.
(l) Neither the issue and sale of the Common Securities, the Preferred
Securities or the Junior Subordinated Notes, nor the purchase of the Junior
Subordinated Notes by the Trust, nor the execution and delivery of and
compliance with the Operative Documents by the Company or the Trust, nor the
consummation of the transactions contemplated herein or therein, (i) will
conflict with or constitute a violation or breach of the Trust Agreement or the
charter or bylaws of the Company or any subsidiary of the Company or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, governmental authority, agency or instrumentality or court,
domestic or foreign, having jurisdiction over the Trust or the Company or any of
its subsidiaries or their respective properties or assets (collectively, the
"Governmental Entities"), (ii) will conflict with or constitute a violation or
breach of, or a default or Repayment Event (as defined below) under, or result
in the creation or imposition of any Lien upon any property or assets of the
Trust, the Company or any of the Company's subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which (A) the Trust, the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or (B) to which any of the
property or assets of any of them is subject, or any judgment, order or decree
of any court, Governmental Entity or arbitrator, except, in the case of this
clause (ii), for such conflicts, breaches, violations, defaults, Repayment
Events (as defined below) or Liens which (X) would not, singly or in the
aggregate, materially adversely affect the consummation of the transactions
contemplated by the Operative Documents and (Y) would not, singly or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), earnings, business, liabilities and assets (taken as a whole) or
business prospects of the Company and its subsidiaries taken as a whole, whether
or not occurring in the ordinary course of business (a "Material Adverse
Effect") or (iii) require the consent, approval, authorization or order of any
court or Governmental Entity. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Trust or the Company or any of its subsidiaries prior
to its scheduled maturity.
(m) The Company has been duly organized and is validly existing as a
limited liability company in good standing under the laws of New York, with all
requisite limited liability company power and authority to own, lease and
operate its properties and conduct the business it transacts and proposes to
transact, and is duly qualified to transact business and is in good standing as
a foreign corporation in each jurisdiction where the nature of its activities
requires such qualification, except where the failure of the Company to be so
qualified would not, singly or in the aggregate, have a Material Adverse Effect.
(n) The Company has no subsidiaries that are material to its business,
financial condition or earnings other than those subsidiaries listed in Schedule
1 attached hereto (collectively, the "Significant Subsidiaries"). Each
Significant Subsidiary has been duly incorporated, organized or formed, as
applicable, and is validly existing as a corporation or limited liability
company, as applicable in good standing under the laws of the jurisdiction in
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which it is chartered or organized, with all requisite corporate or limited
liability company, as applicable power and authority to own, lease and operate
its properties and conduct the business it transacts and proposes to transact.
Each Significant Subsidiary is duly qualified to transact business and is in
good standing as a foreign corporation in each jurisdiction where the nature of
its activities requires such qualification, except where the failure to be so
qualified would not, singly or in the aggregate, have a Material Adverse Effect.
(o) Each of the Trust, the Company and each of the Company's
subsidiaries hold all necessary approvals, authorizations, orders, licenses,
consents, registrations, qualifications, certificates and permits (collectively,
the "Governmental Licenses") of and from Governmental Entities necessary to
conduct their respective businesses as now being conducted, and neither the
Trust, the Company nor any of the Company's subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such Government
License, except where the failure to be so licensed or approved or the receipt
of an unfavorable decision, ruling or finding, would not, singly or in the
aggregate, have a Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except where the invalidity or the failure
of such Governmental Licenses to be in full force and effect, would not, singly
or in the aggregate, have a Material Adverse Effect; and the Company and its
subsidiaries are in compliance with all applicable laws, rules, regulations,
judgments, orders, decrees and consents, except where the failure to be in
compliance would not, singly or in the aggregate, have a Material Adverse
Effect.
(p) All of the issued and outstanding membership interests, shares of
capital stock of the Company and each of its subsidiaries, as applicable, is
validly issued, fully paid and non-assessable; all of the issued and outstanding
capital stock of each subsidiary of the Company is owned by the Company,
directly or through subsidiaries, free and clear of any Lien, claim or equitable
right; and none of the issued and outstanding capital stock of the Company or
any subsidiary was issued in violation of any preemptive or similar rights
arising by operation of law, under the charter or by-laws of such entity or
under any agreement to which the Company or any of its subsidiaries is a party,
except where such issuance would not, singly or in the aggregate, have a
Material Adverse Effect.
(q) Neither the Parent Guarantor, Company nor any subsidiary is (i) in
violation of its respective charter or by-laws or similar organizational
documents or (ii) in default 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 the Parent
Guarantor, Company or any such subsidiary is a party or by which it or any of
them may be bound or to which any of the property or assets of any of them is
subject, except where such violation or default would not, singly or in the
aggregate, have a Material Adverse Effect.
(r) There is no action, suit or proceeding before or by any
Governmental Entity, arbitrator or court, domestic or foreign, now pending or,
to the knowledge of the Sellers after due inquiry, threatened against or
affecting the Sellers or any of the their subsidiaries, except for such actions,
suits or proceedings that, if adversely determined, would not, singly or in the
aggregate, materially adversely affect the consummation of the transactions
contemplated by
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the Operative Documents or have a Material Adverse Effect; and the aggregate of
all pending legal or governmental proceedings to which the Sellers or any of
their subsidiaries is a party or of which any of their respective properties or
assets is subject, including ordinary routine litigation incidental to the
business, are not expected to cause a Material Adverse Effect.
(s) The accountants of the Sellers who certified the Financial
Statements (as defined below) are independent public accountants of the Sellers
and their subsidiaries within the meaning of the Securities Act, and the rules
and regulations of the Securities and Exchange Commission (the "Commission")
thereunder.
(t) The audited consolidated financial statements (including the notes
thereto) and schedules of the Parent Guarantor and its consolidated subsidiaries
for the fiscal year ended December 31, 2004 (the "Financial Statements") and the
interim unaudited consolidated financial statements of the Parent Guarantor and
its consolidated subsidiaries (including the Company) for the quarter ended
March 31, 2005 (the "Interim Financial Statements") provided to the Purchaser
are the most recent available audited and unaudited consolidated financial
statements of the Parent Guarantor and its consolidated subsidiaries,
respectively, and fairly present in all material respects, in accordance with
U.S. generally accepted accounting principles, the financial position of the
Parent Guarantor and its consolidated subsidiaries, and the results of
operations and changes in financial condition as of the dates and for the
periods therein specified, subject, in the case of Interim Financial Statements,
to year-end adjustments (which are expected to consist solely of normal
recurring adjustments). Such consolidated financial statements and schedules
have been prepared in accordance with U.S. generally accepted accounting
principles ("GAAP") consistently applied throughout the periods involved (except
as otherwise noted therein).
(u) None of the Trust, the Company, the Parent Guarantor nor any of
their subsidiaries, to their knowledge, has any liability, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due, including
any liability for taxes (and there is no past or present fact, situation,
circumstance, condition or other basis for any present or future action, suit,
proceeding, hearing, charge, complaint, claim or demand against the Sellers or
their respective subsidiaries that could give rise to any such liability) that,
singly or in the aggregate could not reasonably be expected to have a Material
Adverse Effect, except for (i) liabilities set forth in the Financial Statements
or the Interim Financial Statements and (ii) normal fluctuations in the amount
of the liabilities referred to in clause (i) above occurring in the ordinary
course of business of the Sellers and their subsidiaries since the date of the
most recent balance sheet included in such Financial Statements.
(v) Since the respective dates of the Financial Statements and the
Interim Financial Statements, there has not been (A) any Material Adverse Effect
or (B) any dividend or distribution of any kind declared, paid or made by the
Company or the Parent Guarantor on any class of their respective capital stock
other than regular quarterly dividends on the Parent Guarantor's common stock.
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(w) The documents of the Parent Guarantor filed with the Commission in
accordance with the Exchange Act, from and including the commencement of the
fiscal year covered by the Guarantor's most recent Annual Report on Form 10-K,
at the time they were filed by the Parent Guarantor with the Commission
(collectively, the "1934 Act Reports"), complied, and will comply, in all
material respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations"), and, at
the date of this Purchase Agreement and on the Closing Date, do not and will 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
the light of the circumstances under which they were made, not misleading; and
other than such instruments, agreements, contracts and other documents as have
been filed as exhibits to the Parent Guarantor's Annual Report on Form 10-K,
Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, there are no
instruments, agreements, contracts or documents of a character described in Item
601 of Regulation S-K promulgated by the Commission to which the Parent
Guarantor or any of its subsidiaries is a party. The Parent Guarantor is in
compliance with all currently applicable requirements of the Exchange Act that
were added by the Xxxxxxxx-Xxxxx Act of 2002.
(x) No labor dispute with the employees of the Trust, the Company or
any of its subsidiaries exists or, to the knowledge of the executive officers of
the Trust or the Company, is imminent, except those which would not, singly or
in the aggregate, have a Material Adverse Effect.
(y) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any Governmental Entity, other
than those that have been made or obtained, is necessary or required for the
performance by the Trust or the Company of their respective obligations under
the Operative Documents, as applicable, or the consummation by the Trust and the
Company of the transactions contemplated by the Operative Documents.
(z) Each of the Trust, the Company, the Parent Guarantor and each
subsidiary thereof has good and marketable title to all of its respective real
and personal properties, in each case free and clear of all Liens and defects,
except for those that would not, singly or in the aggregate, have a Material
Adverse Effect; and all of the leases and subleases under which the Trust, the
Parent Guarantor, the Company or any subsidiary thereof holds properties are in
full force and effect, except where the failure of such leases and subleases to
be in full force and effect would not, singly or in the aggregate, have a
Material Adverse Effect, and none of the Trust, the Company, the Parent
Guarantor or any subsidiary thereof has any notice of any claim of any sort that
has been asserted by anyone adverse to the rights thereof under any such leases
or subleases, or affecting or questioning the rights of such entity to the
continued possession of the leased or subleased premises under any such lease or
sublease, except for such claims that would not, singly or in the aggregate,
have a Material Adverse Effect.
(aa) Commencing with its taxable year ended December 31, 2004, the
Parent Guarantor has been, and upon the completion of the transactions
contemplated hereby, the Parent Guarantor will continue to be, organized and
operated in conformity with the requirements for qualification and taxation as a
real estate investment trust (a "REIT") under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code"), and the Parent
Guarantor's
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proposed method of operation will enable it to continue to meet the requirements
for qualification and taxation as a REIT under the Code, and no actions have
been taken (or not taken which are required to be taken) which would cause such
qualification to be lost. The Parent Guarantor expects to continue to be
organized and to operate in a manner so as to qualify as a REIT in the taxable
year ending December 31, 2005.
(bb) The Company and the Parent Guarantor and each of the Significant
Subsidiaries thereof have timely and duly filed all Tax Returns required to be
filed by them or have obtained a valid extension for such filing, and all such
Tax Returns are true, correct and complete in all material respects. They have
timely and duly paid in full all material Taxes required to be paid by them
(whether or not such amounts are shown as due on any Tax Return). There are no
federal, state, or other Tax audits or deficiency assessments proposed or
pending with respect to the Company, the Parent Guarantor or any of the
Significant Subsidiaries, and no such audits or assessments are threatened. As
used herein, the terms "Tax" or "Taxes" mean (i) all federal, state, local, and
foreign taxes, and other assessments of a similar nature (whether imposed
directly or through withholding), including any interest, additions to tax, or
penalties applicable thereto, imposed by any Governmental Entity, and (ii) all
liabilities in respect of such amounts arising as a result of being a member of
any affiliated, consolidated, combined, unitary or similar group, as a successor
to another person or by contract. As used herein, the term "Tax Returns" means
all federal, state, local, and foreign Tax returns, declarations, statements,
reports, schedules, forms, and information returns and any amendments thereto
filed or required to be filed with any Governmental Entity.
(cc) The Trust will not be subject to United States federal income tax
with respect to income received or accrued on the Junior Subordinated Notes,
interest payable by the Company on the Junior Subordinated Notes will be
deductible by the Company, in whole or in part, for United States federal income
tax purposes, and the Trust is not, or will not be within ninety (90) days of
the date hereof, subject to more than a de minimis amount of other taxes, duties
or other governmental charges. There are no rulemaking or similar proceedings
before the United States Internal Revenue Service or comparable federal, state,
local or foreign government bodies which involve or affect the Company or any
subsidiary, which, if the subject of an action unfavorable to the Company or any
subsidiary, could result in a Material Adverse Effect.
(dd) The books, records and accounts of the Sellers accurately and
fairly reflect, in reasonable detail, the transactions in, and dispositions of,
the assets of, and the results of operations thereof.
(ee) The Parent Guarantor, Company and the Significant Subsidiaries
are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts in all material respects as are customary
in the businesses in which they are engaged or propose to engage after giving
effect to the transactions contemplated hereby including but not limited to,
real or personal property owned or leased against theft, damage, destruction,
act of vandalism and all other risks customarily insured against. All policies
of insurance and fidelity or surety bonds insuring the Parent Guarantor, Company
or any of the Significant Subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect. The Parent
Guarantor, Company and each of the subsidiaries are in
11
compliance with the terms of such policies and instruments in all material
respects. Neither the Parent Guarantor, Company nor any Significant Subsidiary
has reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect. Within the past twelve months, neither
the Parent Guarantor, Company nor any Significant Subsidiary has been denied any
insurance coverage which it has sought or for which it has applied.
(ff) Neither the Parent Guarantor, Company and their subsidiaries, nor
any person acting on behalf thereof including, without limitation, any director,
officer, agent or employee has not, directly or indirectly, while acting on
their or its behalf (i) used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political activity;
(ii) made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any other unlawful payment in each case
except where to do so would not, singly or in the aggregate, have a Material
Adverse Effect.
(gg) The information provided by the Sellers pursuant to this Purchase
Agreement and the transactions contemplated hereby does not, as of the date
hereof, and will not as of the Closing Date, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(hh) Except as would not, individually or in the aggregate, result in
a Material Adverse Effect, (i) the Parent Guarantor, Company and its
subsidiaries have been and are in compliance with applicable Environmental Laws
(as defined below), (ii) none of the Parent Guarantor, Company, any of its
subsidiaries or, to the best of the Parent Guarantor's or the Company's
knowledge, any other owners of any of the real properties currently owned,
leased or operated by the Company (the "Properties") at any time or any other
party, has at any time released (as such term is defined in CERCLA (as defined
below)) or otherwise disposed of Hazardous Materials (as defined below) on, to,
in, under or from the Properties or any other real properties previously owned,
leased or operated by the Parent Guarantor, Company or any of its subsidiaries,
(iii) neither the Parent Guarantor, Company nor any of its subsidiaries intends
to use the Properties or any subsequently acquired properties, other than in
compliance with applicable Environmental Laws, (iv) neither the Parent
Guarantor, Company nor any of its subsidiaries has received any notice of, or
has any knowledge of any occurrence or circumstance which, with notice or
passage of time or both, would give rise to a claim under or pursuant to any
Environmental Law with respect to the Properties, any other real properties
previously owned, leased or operated by the Parent Guarantor, Company or any of
its subsidiaries, or their respective assets or arising out of the conduct of
the Parent Guarantor, Company or its subsidiaries, (v) none of the Properties
are included or, to the best of the Parent Guarantor's or Company's knowledge,
proposed for inclusion on the National Priorities List issued pursuant to CERCLA
by the United States Environmental Protection Agency or, to the best of the
Parent Guarantor's or Company's knowledge, proposed for inclusion on any similar
list or inventory issued pursuant to any other Environmental Law or issued by
any other Governmental Entity,
12
(vi) none of the Parent Guarantor, Company, any of its subsidiaries or agents
or, to the best of their knowledge, any other person or entity for whose conduct
any of them is or may be held responsible, has generated, manufactured, refined,
transported, treated, stored, handled, disposed, transferred, produced or
processed any Hazardous Material at any of the Properties, except in compliance
with all applicable Environmental Laws, and has not transported or arranged for
the transport of any Hazardous Material from the Properties or any other real
properties previously owned, leased or operated by the Parent Guarantor, Company
or any of its subsidiaries to another property, except in compliance with all
applicable Environmental Laws, (vii) no lien has been imposed on the Properties
by any Governmental Entity in connection with the presence on or off such
Property of any Hazardous Material, and (viii) none of the Parent Guarantor,
Company, any of its subsidiaries or, to the best of the their knowledge, any
other person or entity for whose conduct any of them is or may be held
responsible, has entered into or been subject to any consent decree, compliance
order, or administrative order with respect to the Properties or any facilities
or improvements or any operations or activities thereon.
(ii) As used herein, "Hazardous Material" shall include, without
limitation, any flammable materials, explosives, radioactive materials,
hazardous materials, hazardous substances, hazardous wastes, toxic substances or
related materials, asbestos, petroleum, petroleum products and any hazardous
material as defined by any federal, state or local environmental law, statute,
ordinance, rule or regulation, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. Sections 9601-9675 ("CERCLA"), the Hazardous Materials Transportation
Act, as amended, 49 U.S.C. Sections 5101-5127, the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Sections 6901-6992k, the Emergency Planning
and Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001-11050, the
Toxic Substances Control Act, 15 U.S.C. Sections 2601-2692, the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136-136y, the
Clean Air Act, 42 U.S.C. Sections 7401-7642, the Clean Water Act (Federal Water
Pollution Control Act), 33 U.S.C. Sections 1251-1387, the Safe Drinking Water
Act, 42 U.S.C. Sections 300f-300j-26, and the Occupational Safety and Health
Act, 29 U.S.C. Sections 651-678, and any analogous state laws, as any of the
above may be amended from time to time and in the regulations promulgated
pursuant to each of the foregoing (including environmental statutes and laws not
specifically defined herein) (individually, an "Environmental Law" and
collectively, the "Environmental Laws") or by any Governmental Entity.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to, and agrees with, the Company and the Trust as
follows:
(a) The Purchaser is aware that the Securities have not been and will
not be registered under the Securities Act and may not be offered or sold within
the United States, or to "U.S. persons" (as defined in Regulation S under the
Securities Act), except in accordance with Rule 903 of Regulation S under the
Securities Act or pursuant to an exemption from the registration requirements of
the Securities Act.
(b) The Purchaser is an "accredited investor," as such term is defined
in Rule 501(a) of Regulation D under the Securities Act.
13
(c) Neither the Purchaser, nor any of the Purchaser's affiliates, nor
any person acting on the Purchaser's or the Purchaser's Affiliate's behalf has
engaged, or will engage, in any form of "general solicitation or general
advertising" (within the meaning of Regulation D under the Securities Act) in
connection with any offer or sale of the Preferred Securities.
(d) The Purchaser understands and acknowledges that (i) no public
market exists for any of the Securities and that it is unlikely that a public
market will ever exist for the Securities, (ii) the Purchaser is purchasing the
Securities for its own account, for investment and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of the
Securities Act or other applicable securities laws, subject to any requirement
of law that the disposition of its property be at all times within its control
and subject to its ability to resell such Securities pursuant to an effective
registration statement under the Securities Act or pursuant to an exemption
therefrom or in a transaction not subject thereto, and the Purchaser agrees to
the legends and transfer restrictions applicable to the Securities contained in
the Indenture, and (iii) the Purchaser has had the opportunity to ask questions
of, and receive answers and request additional information from, the Company and
is aware that it may be required to bear the economic risk of an investment in
the Securities.
(e) The Purchaser is a limited liability company duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized with all requisite (i) power and authority to execute,
deliver and perform the Operative Documents to which it is a party, to make the
representations and warranties specified herein and therein and to consummate
the transactions contemplated herein and (ii) right and power to purchase the
Securities.
(f) This Purchase Agreement has been duly authorized, executed and
delivered by the Purchaser and no filing with, or authorization, approval,
consent, license, order registration, qualification or decree of, any
governmental body, agency or court having jurisdiction over the Purchaser, other
than those that have been made or obtained, is necessary or required for the
performance by the Purchaser of its obligations under this Purchase Agreement or
to consummate the transactions contemplated herein.
(g) The Purchaser is a "Qualified Purchaser" as such term is defined
in Section 2(a)(51) of the Investment Company Act.
6. COVENANTS AND AGREEMENTS OF THE COMPANY AND THE TRUST. The Sellers
jointly and severally agree with the Purchaser as follows:
(a) The Company and the Trust will arrange for the qualification of
the Preferred Securities for sale under the laws of such jurisdictions as the
Purchaser may designate in writing and will maintain such qualifications in
effect so long as required for the sale of the Preferred Securities. The
Sellers, as the case may be, will promptly advise the Purchaser in writing of
the receipt by the Sellers, as the case may be, of any notification with respect
to the suspension of the qualification of the Preferred Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose.
14
(b) Neither the Company nor the Trust will, nor will either of them
permit any of its Affiliates to, nor will either of them permit any person
acting on its or their behalf (other than the Purchaser) to, resell any
Preferred Securities that have been acquired by any of them.
(c) Neither the Company nor the Trust will, nor will either of them
permit any of their Affiliates or any person acting on their behalf to, engage
in any "directed selling efforts" within the meaning of Regulation S under the
Securities Act with respect to the Securities.
(d) Neither the Company nor the Trust will, nor will either of them
permit any of their Affiliates or any person acting on their behalf to, directly
or indirectly, make offers or sales of any security, or solicit offers to buy
any security, under circumstances that would require the registration of any of
the Securities under the Securities Act.
(e) Neither the Company nor the Trust will, nor will either of them
permit any of its Affiliates or any person acting on their behalf to, engage in
any form of "general solicitation or general advertising" (within the meaning of
Regulation D) in connection with any offer or sale of the any of the Securities.
(f) So long as any of the Securities are outstanding, (i) the
Securities shall not be listed on a national securities exchange registered
under section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system and (ii) neither the Company nor the Trust shall be an open-end
investment company, unit investment trust or face-amount certificate company
that is, or is required to be, registered under section 8 of the Investment
Company Act, and, the Securities shall otherwise satisfy the eligibility
requirements of Rule 144A(d)(3).
(g) Each of the Company and the Trust shall furnish to (i) the
holders, and subsequent holders of the Preferred Securities, (ii) Taberna
Capital Management, LLC (at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, or such other address as designated by Taberna Capital Management, LLC)
and (iii) any beneficial owner of the Securities reasonably identified to the
Company and the Trust (which identification may be made by either such
beneficial owner or by Taberna Capital Management, LLC), a duly completed and
executed certificate in the form attached hereto as Annex F, including the
financial statements referenced in such Annex, which certificate and financial
statements shall be so furnished by the Company and the Trust not later than
forty five (45) days after the end of each of the first three fiscal quarters of
each fiscal year of the Company and not later than ninety (90) days after the
end of each fiscal year of the Company.
(h) Each of the Company and the Trust will, during any period in which
it is not subject to and in compliance with section 13 or 15(d) of the Exchange
Act, or it is not exempt from such reporting requirements pursuant to and in
compliance with Rule 12g3-2(b) under the Exchange Act, shall provide to each
holder of the Securities and to each prospective purchaser (as designated by
such holder) of the Securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4) under the
Securities Act. If the Company and the Trust are required to register under the
Exchange Act, such reports filed in compliance with Rule 12g3-2(b) shall be
sufficient information as required above. This covenant is intended to be for
the benefit of the Purchaser, the holders of the
15
Securities, and the prospective purchasers designated by the Purchaser and such
holders, from time to time, of the Securities.
(i) Neither the Company nor the Trust will, until one hundred eighty
(180) days following the Closing Date, without the Purchaser's prior written
consent, offer, sell, contract to sell, grant any option to purchase or
otherwise dispose of, directly or indirectly, (i) any Preferred Securities or
other securities substantially similar to the Preferred Securities other than as
contemplated by this Purchase Agreement or (ii) any other securities convertible
into, or exercisable or exchangeable for, any Preferred Securities or other
securities substantially similar to the Preferred Securities; provided, for the
avoidance of doubt, that no such consent shall be required (a) if such other
securities have a different maturity date, interest rate and other terms than
those of the Preferred Securities or (b) if, after giving effect to any such
offer, sale or option, the offer, sale or option of such other securities shall
not result in the required registration of the sale of the Preferred Securities
as contemplated herein.
(j) The Parent Guarantor will use all commercially reasonable efforts
to meet the requirements to qualify as a REIT under Sections 856 through 860 of
the Code, effective for the taxable year ending December 31, 2005 (and each
fiscal quarter of such year) and succeeding taxable years.
(k) The Sellers shall not identify the Purchaser or Taberna Capital
Management, LLC or Xxxxx Bros. & Company in a press release or any other public
statement without the consent of Xxxxx Bros. & Company, Purchaser or Taberna
Capital Management, LLC, as applicable; provided, that Sellers shall not be
prohibited from making any public disclosure that it deems, upon advice of
counsel, to be necessary or advisable in order to comply with the requirements
of the federal securities laws.
(l) Purchaser and each successor to Purchaser's interest in the
Preferred Securities is granted the right under the Indenture and Amended and
Restated Trust Agreement to request the substitution of new notes for all or a
portion of the Junior Subordinated Notes held by the Trust. The Trust is
required under the terms of the Indenture and Amended and Restated Trust
Agreement to accept such newly issued notes (the "Replacement Notes") and
surrender a like amount of Junior Subordinated Notes to Depositor. The
Replacement Notes shall bear terms identical to the Junior Subordinated Notes
with the sole exception of interest payment dates (and corresponding redemption
date and maturity date), which will be specified by Purchaser or applicable
successor. In no event will the interest payment dates (and corresponding
redemption date and maturity date) on the Replacement Notes vary by more than
sixty (60) calendar days from the original interest payment dates (and
corresponding redemption date and maturity date) under the Junior Subordinated
Notes.
Each of the Parent Guarantor, the Company and the Trust acknowledges
and agrees that, to the extent of the principal amount of the Replacement Notes
issued to the Trust under the Indenture, Purchaser (and each successor to
Purchaser's interest in the Preferred Securities) will require the Trust to
issue a new series of Preferred Securities having a principal amount related to
the principal amount of the Replacement Notes (the "Replacement Securities") to
designated holders of Preferred Securities, provided that any such Replacement
Securities, and
16
any distributions from the Trust to the holders of Replacement Securities, must
relate solely to the Trust's interest in the Replacement Notes and in no event
will the Preferred Securities other than the Replacement Securities share in the
returns from any Replacement Notes. The Replacement Securities shall have
payment dates (and corresponding redemption date and maturity date) that relate
to the Replacement Notes.
Each of the Parent Guarantor, the Company and the Trust agrees to
cooperate with all reasonable requests of Purchaser in connection with any of
the foregoing, provided that no action requested of the Parent Guarantor, the
Company or the Trust in connection with such cooperation shall materially
increase the obligations or materially decrease the rights of the Parent
Guarantor or the Company pursuant to such documents.
7. PAYMENT OF EXPENSES. The Company, as depositor of the Trust, agrees
to pay all costs and expenses incident to the performance of the obligations of
the Company and the Trust under this Purchase Agreement, whether or not the
transactions contemplated herein are consummated or this Purchase Agreement is
terminated, including all costs and expenses incident to (i) the authorization,
issuance, sale and delivery of the Preferred Securities and any taxes payable in
connection therewith; (ii) the fees and expenses of qualifying the Preferred
Securities under the securities laws of the several jurisdictions as provided in
Section 6(b); (iii) the fees and expenses of the counsel, the accountants and
any other experts or advisors retained by the Company or the Trust; (iv) the
fees and all reasonable expenses of the Property Trustee, the Delaware Trustee,
the Indenture Trustee and any other trustee or paying agent appointed under the
Operative Documents, including the fees and disbursements of counsel for such
trustees, which fees shall not exceed a $2,000 acceptance fee, $3,500 for the
fees and expenses of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel
retained by the Delaware Trustee in connection with the Closing, and $4,000 in
administrative fees annually; and (vi) $20,000 for the fees and expenses of DLA
Xxxxx Xxxxxxx Xxxx Xxxx US LLP, special counsel retained by the Purchaser.
If the sale of the Preferred Securities provided for in this Purchase
Agreement is not consummated because any condition set forth in Section 3 hereof
to be satisfied by either the Company or the Trust is not satisfied, because
this Purchase Agreement is terminated pursuant to Section 9 or because of any
failure, refusal or inability on the part of the Company or the Trust to perform
all obligations and satisfy all conditions on its part to be performed or
satisfied hereunder other than by reason of a default by the Purchaser, the
Company will reimburse the Purchaser upon demand for all reasonable
out-of-pocket expenses (including the fees and expenses of each of the
Purchaser's counsel specified in subparagraphs (v) and (vi) of the immediately
preceding paragraph) that shall have been incurred by the Purchaser in
connection with the proposed purchase and sale of the Preferred Securities. The
Company shall not in any event be liable to the Purchaser for the loss of
anticipated profits from the transactions contemplated by this Purchase
Agreement.
8. INDEMNIFICATION. (a) The Sellers agree, jointly and severally, to
indemnify and hold harmless Xxxxx Bros. & Company, the Purchaser and Taberna
Capital Management, LLC (collectively, the "Indemnified Parties") and the
Indemnified Parties' respective directors, officers, employees and agents and
each person, if any, who controls the
17
Indemnified Parties within the meaning of the Securities Act, or the U.S.
Securities Exchange Act of 1934, as amended (the "Exchange Act") against any
losses, claims, damages or liabilities, joint or several, to which the
Indemnified Parties may become subject, under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are connected with the execution and delivery
by the Sellers, and the consummation thereby of the transactions contemplated
by, this Purchase Agreement or any other Operative Document. Sellers agree,
jointly and severally, to reimburse the Indemnified Parties for any legal or
other expenses reasonably incurred by the Indemnified Parties in connection with
investigating or defending any such loss, claim, damage or liability or action
arising out of or being connected with the execution and delivery by the
Sellers, and the consummation by the Sellers of the transactions contemplated
by, this Purchase Agreement or the other Operative Documents. This indemnity
agreement will be in addition to any liability that any of the Sellers may
otherwise have.
(b) The Company agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever due from the Trust under
paragraph (a) above.
(c) Promptly after receipt by an Indemnified Party under this Section
8 of notice of the commencement of any action, such Indemnified Party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, promptly notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve the indemnifying party from liability under paragraph (a) above unless
and to the extent that such failure results in the forfeiture by the
indemnifying party of material rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any Indemnified
Party other than the indemnification obligation provided in paragraph (a) above.
Purchaser shall be entitled to appoint counsel to represent the Indemnified
Party in any action for which indemnification is sought. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
that counsel to the indemnifying party shall not (except with the consent of the
Indemnified Party) also be counsel to the Indemnified Party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all Indemnified Parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. An indemnifying party will not, without
the prior written consent of the Indemnified Parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not the Indemnified Parties are actual or potential
parties to such claim, action, suit or proceeding) unless such settlement,
compromise or consent includes an unconditional release of each Indemnified
Party from all liability arising out of such claim, action, suit or proceeding.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company and the Trust or their respective officers or trustees and of the
Purchaser set forth in or made pursuant to this Purchase Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of the Purchaser, the Company or the Trust or any of the their respective
18
officers, directors, trustees or controlling persons, and will survive delivery
of and payment for the Preferred Securities. The provisions of Sections 7 and 8
shall survive the termination or cancellation of this Purchase Agreement.
10. AMENDMENTS. This Purchase Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement by each of the parties hereto.
11. NOTICES.
(a) Any communication shall be given by letter or facsimile, in the
case of notices to the Issuer, to it at:
NYM Preferred Trust II
c/o The New York Mortgage Company, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
in the case of notices to the Sponsor, to it at:
The New York Mortgage Company, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx
With a copy to:
Hunton & Xxxxxxxx, LLP
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. XxXxx
and in the case of notices to the Purchaser, to it at:
Taberna Preferred Funding II, Ltd.
c/o Taberna Capital Management, LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxx
with a copy to:
19
DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP
0000 X. Xxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx
(b) Any such communication shall take effect, in the case of a letter,
at the time of delivery and in the case of facsimile, at the time of dispatch.
(c) Any communication not by facsimile shall be confirmed by letter
but failure to send or receive the letter of confirmation shall not invalidate
the original communication.
12. SUCCESSORS AND ASSIGNS. This Purchase Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing expressed or mentioned in this
Purchase Agreement is intended or shall be construed to give any person other
than the parties hereto and the affiliates, directors, officers, employees,
agents and controlling persons referred to in Section 8 hereof and their
successors, assigns, heirs and legal representatives, any right or obligation
hereunder. None of the rights or obligations of the Company or the Trust under
this Purchase Agreement may be assigned, whether by operation of law or
otherwise, without the Purchaser's prior written consent. The rights and
obligations of the Purchaser under this Purchase Agreement may be assigned by
the Purchaser without the Company's or the Trust's consent; provided that the
assignee assumes the obligations of the Purchaser under this Purchase Agreement.
13. APPLICABLE LAW. THIS PURCHASE AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW).
14. SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING BY OR
AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR ARISING OUT OF THIS PURCHASE
AGREEMENT MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK,
IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE BOROUGH OF
MANHATTAN). BY EXECUTION AND DELIVERY OF THIS PURCHASE AGREEMENT, EACH PARTY
ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF APPEALS
THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
PURCHASE AGREEMENT.
15. COUNTERPARTS AND FACSIMILE. This Purchase Agreement may be
executed by any one or more of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same
20
instrument. This Purchase Agreement may be executed by any one or more of the
parties hereto by facsimile.
21
IN WITNESS WHEREOF, this Purchase Agreement has been entered into as of the
date first written above.
THE NEW YORK MORTGAGE COMPANY, LLC
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
NYM PREFERRED TRUST II
By: The New York Mortgage Company, LLC,
as Depositor
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
TABERNA PREFERRED FUNDING II, LTD.
By: /s/ Xxxxx Egglishaw
------------------------------------
Name: Xxxxx Egglishaw
Title: Director
NEW YORK MORTGAGE TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
F-1
