EXHIBIT 1.9
CONTROLLED EQUITY OFFERING(SM)
SALES AGREEMENT
September 6, 2002
CANTOR XXXXXXXXXX & CO.
000 Xxxx 00 Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxxxx Mortgage, Inc., a Maryland corporation (the "Company"),
confirms its agreement ("Agreement") with Cantor Xxxxxxxxxx & Co. ("CF&Co"), as
follows:
1. Issuance and Sale of Placement Shares. The Company agrees that, from
time to time during the term of this Agreement, on the terms and subject to the
conditions set forth herein, it will issue and sell through CF&Co, acting as
agent and/or principal, up to 6,501,559 shares (the "Placement Shares") of the
Company's common stock, par value $0.01 per share ("Common Stock"); provided,
however, that with respect to "At The Market" sales (as defined in Section 3
hereof), the aggregate sales price shall not exceed $90.3 million. The issuance
and sale of Placement Shares through CF&Co will be effected pursuant to a
registration statement on Form S-3 filed by the Company and declared effective
by the Securities and Exchange Commission (the "Commission").
2. Placements. Each time that the Company wishes to issue and sell
Placement Shares hereunder (each, a "Placement"), it will notify CF&Co of the
proposed terms of such Placement. If CF&Co wishes to accept such proposed terms
(which it may decline to do for any reason in its sole discretion) or, following
discussions with the Company, wishes to accept amended terms, CF&Co will, prior
to 4:30 p.m. (eastern time) on the Business Day following the Business Day on
which such notice is delivered to CF&Co, issue to the Company a written notice
setting forth the terms that CF&Co is willing to accept, including without
limitation the number of Placement Shares to be issued, the manner(s) in which
sales are to be made, the date or dates on which such sales are anticipated to
be made, any minimum price below which sales may not be made, and the capacity
in which CF&Co may act in selling Placement Shares hereunder (as principal,
agent or both) (a "Placement Notice"), the form of which is annexed hereto as
Schedule 1. The amount of any discount, commission or other compensation (other
than expenses pursuant to Section 7(h) hereunder) to be paid by the Company to
CF&Co for effecting sales hereunder shall be equal to (i) two percent (2%) of
the initial Ten Million Dollars ($10,000,000) of the gross proceeds with respect
to sales actually effected by CF&Co during any calendar month (the "Monthly
Sales Threshold") prior to the termination of this Agreement, plus (ii) three
percent (3%) of the gross proceeds in excess of the Monthly Sales Threshold for
sales actually effected by CF&Co during that same calendar month prior to the
termination of this Agreement. For the avoidance of doubt, the date that any
sale shall be deemed to have been effected for purposes of determining whether
the Monthly Sales Threshold has been achieved in any calendar month and the
corresponding, applicable discount to be applied pursuant to the immediately
preceding sentence (i.e. 2% or 3%) shall be conclusively determined by the trade
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date set forth on the relevant confirmation sales ticket, and such determination
shall be final and binding upon the parties. The terms set forth in a Placement
Notice will not be binding on the Company or CF&Co unless and until the Company
delivers written notice of its acceptance of all of the terms of such Placement
Notice (an "Acceptance"), the form of which is annexed hereto as Schedule 2;
provided, however, that neither the Company nor CF&Co will be bound by the terms
of a Placement Notice unless the Company delivers to CF&Co an Acceptance with
respect thereto prior to 4:30 p.m. (eastern time) on the Business Day following
the Business Day on which such Placement Notice is delivered to the Company. It
is expressly acknowledged and agreed that neither the Company nor CF&Co will
have any obligation whatsoever with respect to a Placement or any Placement
Shares unless and until CF&Co delivers a Placement Notice to the Company and the
Company accepts such Placement Notice by means of an Acceptance, and then only
upon the terms specified therein and herein. In the event of a conflict between
the terms of this Agreement and the terms of a Placement Notice, the terms of
such Placement Notice will control.
3. Sale of Placement Shares by CF&Co. Subject to the terms and
conditions of this Agreement, upon the Acceptance of a Placement Notice, and
unless the sale of the Placement Shares described therein has been suspended or
otherwise terminated in accordance with the terms of this Agreement, CF&Co will
use its commercially reasonable efforts consistent with its normal trading and
sales practices to sell such Placement Shares up to the amount specified, and
otherwise in accordance with the terms of such Placement Notice. CF&Co will
provide written confirmation to the Company no later than the opening of the
Trading Day next following the Trading Day on which it has made sales of
Placement Shares hereunder setting forth the number of Placement Shares sold on
such day, the compensation payable by the Company to CF&Co with respect to such
sales, and the Net Proceeds (as defined in Section 5(a)) payable to the Company,
with an itemization of the deductions made by CF&Co (as set forth in Section
5(a)) from the gross proceeds that it receives from such sales. CF&Co may sell
any Placement Shares in privately negotiated transactions and/or any other
method permitted by law, including but not limited to sales at other than a
fixed price made on or through the facilities of the New York Stock Exchange
(the "NYSE"), the existing trading market for the Common Stock, or sales made to
or through a market maker or through an electronic communications network, or in
any other manner that may be deemed to be an "At The Market" offering as defined
in Rule 415 of the Securities Act of 1933, as amended (the "Act"). The Company
acknowledges and agrees that (i) there can be no assurance that CF&Co will be
successful in selling Placement Shares, and (ii) CF&Co will incur no liability
or obligation to the Company or any other person or entity if it does not sell
Placement Shares for any reason other than a failure by CF&Co to use its
commercially reasonable efforts consistent with its normal trading and sales
practices to sell such Placement Shares as required under this Section 3. For
the purposes hereof, "Trading Day" means any day on which Common Stock is
purchased and sold on the principal market on which the Common Stock is listed
or quoted.
4. Suspension of Sales. The Company or CF&Co may, upon notice to the
other party hereto in writing or by telephone (confirmed immediately by
verifiable facsimile transmission), suspend any sale of Placement Shares;
provided, however, that such suspension shall not affect or impair either
party's obligations with respect to any Placement Shares sold hereunder prior to
the receipt of such notice. The Company agrees that no such notice shall be
effective against CF&Co unless it is made to one of the individuals named on
Schedule 3 annexed hereto, as such
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Schedule may be amended from time to time. CF&Co agrees that no such notice
shall be effective against the Company unless it is made to one of the
individuals named on Schedule 3 annexed hereto, as such Schedule may be amended
from time to time.
5. Settlement.
(a) Settlement of Placement Shares. Unless otherwise specified in the
applicable Placement Notice, settlement for sales of Placement Shares will occur
on the third (3rd) Business Day (or such earlier day as is industry practice for
regular-way trading) following the date on which such sales are made (each a
"Settlement Date"). The amount of proceeds to be delivered to the Company on a
Settlement Date against the receipt of the Placement Shares sold ("Net
Proceeds") will be equal to the aggregate sales price at which such Placement
Shares were sold, after deduction by CF&Co for all (i) CF&Co's commission,
discount, or other compensation for such sales payable by the Company pursuant
to Section 2 hereof, (ii) any other amounts due and payable by the Company to
CF&Co hereunder pursuant to Section 7(h) hereof, and (iii) any transaction fees
imposed by any governmental or self-regulatory organization in respect of such
sales.
(b) Delivery of Placement Shares. On or before each Settlement Date,
the Company will, or will cause its transfer agent to, electronically transfer
the Placement Shares being sold by crediting CF&Co's or its designee's account
at The Depository Trust Company through its Deposit Withdrawal Agent Commission
System, or by such other means of delivery as may be mutually agreed upon by the
parties hereto, and, upon receipt of such Placement Shares, which in all cases
shall be freely tradeable, transferable, registered shares of Common Stock in
good deliverable form, CF&Co will cause the related Net Proceeds to be delivered
in same day funds to an account designated by the Company prior to the
Settlement Date. If the Company defaults in its obligation to deliver Placement
Shares on a Settlement Date, the Company agrees that in addition to and in no
way limiting the rights and obligations set forth in Section 9(a) hereto, it
will (i) hold CF&Co harmless against any loss, claim, damage, or expense
(including reasonable legal fees and expenses) of any nature whatsoever, as
incurred, arising out of or in connection with such default by the Company, and
(ii) immediately pay to CF&Co any commission, discount, or other compensation or
other amounts due and payable pursuant to Section 7(h) hereof to which it would
otherwise have been entitled absent such default.
6. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, CF&Co that:
(a) The Common Stock is registered pursuant to Section 12(b) of the
Exchange Act (as hereinafter defined) and the Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the Commission (the "Commission Documents") for at least two (2) years, and all
of such filings have been made on a timely basis. The Common Stock is currently
listed and quoted on the NYSE under the trading symbol "TMA". The Company meets
the requirements of Form S-3 under the Act and the rules and regulations
thereunder ("Rules and Regulations") including but not limited to the
transactions requirements for a primary offering. A registration statement on
Form S-3 (Registration No. 333-98659) with respect to the Placement Shares, as
amended or supplemented (the "Registration Statement"), including the form of
prospectus contained therein, as amended or supplemented (the "Prospectus"), has
been prepared by the Company in conformity with the requirements of the
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Act and the Rules and Regulations and has been filed with the Commission and has
been declared effective by the Commission. The Company shall promptly prepare
and file any amendment or supplement to the Registration Statement or Prospectus
required by this Agreement or otherwise and the Company will use its best
efforts to cause any such amendment to become effective as soon as reasonably
practicable. No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been
instituted or threatened by the Commission. Copies of all filings made by the
Company under the Act and all Commission Documents that were filed with the
Commission on or prior to the date of this Agreement which relate to the
Registration Statement have been delivered to CF&Co. Any reference herein to the
Registration Statement, the Prospectus, or any amendment or supplement thereto
shall be deemed to refer to and include the documents incorporated (or deemed to
be incorporated) by reference therein, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement
or Prospectus shall be deemed to refer to and include the filing after the
execution hereof of any document with the Commission deemed to be incorporated
by reference therein.
(b) Each part of the Registration Statement, when such part became or
becomes effective, and the Prospectus, on the date of filing thereof with the
Commission and at each Settlement Date, conformed or will conform with the
requirements of the Act and the Rules and Regulations; each part of the
Registration Statement, when such part became or becomes effective, did not or
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus, on the date of filing thereof with
the Commission and at each Settlement Date, did not or will not include an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; except that the foregoing shall not apply to
statements or omissions in any such document made in reliance on information
furnished to the Company by CF&Co specifically stating that it is intended for
use in the Registration Statement, the Prospectus, or any amendment or
supplement thereto.
(c) The documents incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, when they
became or become effective under the Act or were or are filed with the
Commission under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as the case may be, conformed or will conform with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained or will contain an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case may be, will
conform to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
except that the foregoing will not apply to statements or omissions in any such
document made in reliance on information furnished to the Company by CF&Co
specifically stating that it is intended for use in any such document.
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(d) The consolidated financial statements of the Company and the
Subsidiaries (as defined below), together with the related schedules and notes
thereto, set forth or included or incorporated by reference in the Registration
Statement and Prospectus fairly present the financial condition of the Company
and the Subsidiaries as of the dates indicated and the results of operations,
changes in financial position, shareholders' equity and cash flows for the
periods therein specified are in conformity with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein). The selected financial and statistical data included
or incorporated by reference in the Registration Statement and the Prospectus
present fairly the information shown therein and, to the extent based upon or
derived from the financial statements, have been compiled on a basis consistent
with the financial statements presented therein. Any pro forma financial
statements of the Company and the Subsidiaries, and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the basis described
therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein. No other financial statements are
required to be set forth or to be incorporated by reference in the Registration
Statement or the Prospectus under the Act.
(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 necessary to own, hold, lease and/or operate its
assets and properties and to conduct the business in which it is engaged and as
described in the Registration Statement and Prospectus; and the Company is duly
qualified as a foreign entity to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure, individually or in the aggregate, to be so qualified and be in good
standing would not have a material adverse effect on (i) the consolidated
business, operations, properties, financial condition, reputation, prospects or
results of operations of the Company and the Subsidiaries (as defined herein)
and the Trusts (as defined herein) taken as a whole, (ii) the transactions
contemplated hereby, (iii) the shares of Common Stock, including the Placement
Shares, or (iv) the ability of the Company to perform its obligations under this
Agreement (collectively, a "Material Adverse Effect"). The Company has full
corporate power and authority necessary to enter into and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. The Company is in compliance in all material respects with the laws,
orders, rules, regulations and directives applicable to it. Complete and correct
copies of the articles of incorporation and of the bylaws of the Company and all
amendments thereto have been delivered to CF&Co.
(f) (1) The Company has no "subsidiaries" (as such term is defined in
Rule 1-02 of Regulation S-X promulgated under the Act) other than Xxxxxxxxx
Mortgage Funding Corporation ("Funding I"), Xxxxxxxxx Mortgage Acceptance
Corporation ("Acceptance I"), Xxxxxxxxx Mortgage Home Loans, Inc. ("TMHL"),
Xxxxxxxxx Mortgage Funding Corporation II ("Funding II") and Xxxxxxxxx Mortgage
Acceptance Corporation II ("Acceptance II") (each a "Subsidiary" and,
collectively, the "Subsidiaries"). Each of the Subsidiaries has been duly formed
and incorporated and is validly existing as a corporation in good standing under
the laws of the State of Delaware, is duly qualified to do business and is in
good standing as a foreign
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corporation in each jurisdiction, in which its ownership or lease of property or
assets or the conduct of its business requires such qualification, except where
the failure to so qualify would not have a Material Adverse Effect, and has full
corporate power and authority necessary to own, hold, lease and/or operate its
assets and properties, to conduct the business in which it is engaged and as
described in the Prospectus and to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. Each of
the Subsidiaries is in compliance in all material respects with the laws,
orders, rules, regulations and directives applicable to it. Complete and correct
copies of the certificates of incorporation and of the bylaws of the
Subsidiaries and all amendments thereto have been delivered to CF&Co.
(2) Other than the Subsidiaries, the Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt securities
of any corporation or have any equity interest in any firm, partnership, joint
venture, association or other entity. All of the outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable, and are wholly owned by the Company, directly
or through TMHL, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or other equity or adverse claims. The Company directly
owns 100% of each of Funding I, Acceptance I and TMHL. Funding II and Acceptance
II are wholly owned by TMHL. 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.
(3) Xxxxxxxxx Mortgage Advisory Corporation (the "Manager") has been
duly formed and incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction,
in which its ownership or lease of property or assets or the conduct of its
business requires such qualification, except where the failure to so qualify
would not have a Material Adverse Effect on the Manager, and has full corporate
power and authority necessary to own, hold, lease and/or operate its assets and
properties, to conduct the business in which it is engaged and as described in
the Prospectus, and the Manager is in compliance in all material respects with
the laws, orders, rules, regulations and directives issued or administered by
such jurisdictions. Complete and correct copies of the certificate of
incorporation and of the bylaws of the Manager and all amendments thereto have
been delivered to CF&Co. The Manager has no "subsidiaries" (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the Act).
(4) TMA Mortgage Funding Trust I and TMA Mortgage Funding Trust II
(collectively, the "Trusts") have each been duly formed and are validly existing
as business trusts under the Delaware Business Trust Act, in good standing under
the laws of Delaware, with full authority to perform all functions (i) which
business trusts are authorized to perform and (ii) which are described in the
Prospectus. The trustee for each of the Trusts is the Wilmington Trust Company.
(g) This Agreement has been duly authorized, executed and delivered by the
Company and is a legal, valid and binding agreement of the Company enforceable
in accordance with its terms, except to the extent that (i) enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and by general equitable principles and
(ii) the indemnification and contribution provisions of
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Section 9 hereof may be limited by federal or state securities laws and public
policy considerations in respect thereof.
(h) The Company has an authorized capitalization as set forth in its most
recent Quarterly Report on Form 10-Q, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable and have been issued in compliance with all
applicable federal and state securities laws. The capital stock of the Company
conforms in all material respects to the description thereof contained in the
Registration Statement and Prospectus and such description conforms to the
rights set forth in the instruments defining the same.
(i) The Placement Shares have been duly authorized and, when issued,
delivered and paid for pursuant to this Agreement, will be validly issued and
fully paid and non-assessable, free and clear of all liens, charges, claims,
security interests or encumbrances (collectively "Encumbrances") and will be
issued in compliance with all applicable federal and state securities laws; the
Placement Shares conform to the description thereof contained in the
Registration Statement and the Prospectus. The certificates for the Placement
Shares shall be in due and proper form and the holders of the Placement Shares
will not be subject to personal liability by reason of being such holders.
Neither the stockholders of the Company, nor any other person or entity have any
preemptive rights or anti-dilution rights or rights of first refusal or first
offer or any similar rights (whether pursuant to a so-called "poison pill"
provision or otherwise) with respect to the Placement Shares or other rights to
purchase or receive any of the Placement Shares or any other securities or
assets of the Company; and no person has the right, contractual or otherwise, to
cause the Company to issue to it, or register pursuant to the Act, any shares of
capital stock or other securities or assets of the Company upon the issuance or
sale of the Placement Shares, except under the Company's 2002 Long-Term
Incentive Plan, its Amended and Restated 1992 Stock Option and Incentive Plan or
its Dividend Reinvestment and Stock Purchase Plan (collectively, the "Stock
Plans").
(j) All necessary action has been duly and validly taken by the Company to
authorize the execution, delivery and performance of this Agreement. No
approval, authorization, consent or order of or filing with any national, state
or local governmental or regulatory commission, board, body, authority or agency
is required in connection with the issuance and sale of the Placement Shares or
the consummation by the Company of the transaction contemplated hereby other
than (i) registration of the Placement Shares under the Act, (ii) any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Placement Shares are being offered, or (iii) such approvals as
shall be obtained in connection with the approval of the listing of the
Placement Shares on the NYSE.
(k) Neither the Company, any of the Subsidiaries, any of the Trusts nor the
Manager is in breach of, or in default under (nor has any event occurred which
with notice, lapse of time or both would result in any breach of, or constitute
a default under), (i) their respective charters, bylaws or organizational
documents, as the case may be, or (ii) any obligation, agreement, covenant or
condition contained in any contract, license, repurchase agreement, management
agreement, indenture, mortgage, deed of trust, bank loan or credit agreement,
note, lease or other evidence of indebtedness, or any lease, contract or other
agreement or instrument to which the Company, any of the Subsidiaries, any of
the Trusts or the Manager is a party or by which the Company, the Subsidiaries,
the Trusts, the Manager or any of their respective assets or properties may be
bound or affected. To the best knowledge of the Company, no other party under
any contract or other agreement to which the Company or any of the Subsidiaries
is a party is in default in any respect thereunder. The execution, delivery and
performance of this Agreement, the issuance and sale of the Placement Shares and
the consummation of the transactions contemplated hereby will not conflict with,
or result in any breach of or constitute a default under (nor constitute any
event which with notice, lapse of time or both would result in any breach of, or
constitute a default under), (i) any provision of the charter, bylaws or
organizational documents, as the case may be, of the Company, any of the
Subsidiaries, any of the Trusts or the Manager, (ii) any provision of any
contract, license, repurchase agreement, management agreement, indenture,
mortgage, deed of trust, bank loan or credit agreement, note, lease or other
evidence of indebtedness, or any lease, contract or other agreement or
instrument to which the Company, any of the Subsidiaries, any of the Trusts or
the Manager is a party or by which the Company, any of the Subsidiaries, any of
the Trusts or the Manager, or any of their respective assets or properties
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may be bound or affected, or, with respect to the Manager, which would have a
material adverse effect on the ability of the Manager to perform its obligations
under the Management Agreement (as defined below) or (iii) any federal, state,
local or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any of the Subsidiaries.
(l) Executing and delivering this Agreement and the issuance and sale of the
Placement Shares and the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions contemplated herein will
not result in the creation of any Encumbrance upon any assets of the Company or
of any of the Subsidiaries or the triggering of any preemptive or anti-dilution
rights or rights of first refusal or first offer, or any similar rights (whether
pursuant to a so-called "poison pill" provision or otherwise), on the part of
holders of the Company's securities or any other person. Neither the Company nor
any of the Subsidiaries, nor any person acting on its or their behalf, has
issued or sold any shares of Common Stock or securities or instruments
convertible into, exchangeable for and/or otherwise entitling the holder thereof
to acquire shares of Common Stock which would be integrated with the offer and
sale of the Placement Shares hereunder, including, without limitation, for
purposes of any applicable stockholder approval provisions, including, without
limitation, under the rules and regulations of any exchange or automated
quotation system on which any of the securities of the Company are listed or
designated.
(m) PricewaterhouseCoopers LLP, which has audited the financial statements
of the Company and the Subsidiaries included in the Prospectus, are independent
public accountants as required by the Act and the Rules and Regulations.
(n) Each of the Company, the Subsidiaries, the Trusts and the Manager has
all necessary licenses, permits, authorizations, consents and approvals and has
made all necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary permits, authorizations,
consents and approvals from other Persons (as defined below), in order to
conduct its business as described in the Prospectus. Each of the Company, the
Subsidiaries, the Trusts and the Manager has obtained all accreditation or
certification required by any applicable law from any governmental agency or
authority in order to provide the products and services which it currently
provides or which it proposes to provide as set forth in the Prospectus. Neither
the Company, any of the Subsidiaries, any of the Trusts nor the Manager
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is in violation of, or in default under, any such license, permit,
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,
any of the Subsidiaries, any of the Trusts or the Manager.
(o) The descriptions in the Registration Statement and the Prospectus of the
legal or governmental proceedings, contracts, leases and other legal documents
therein described present fairly the information required to be shown, and there
are no legal or governmental proceedings, contracts, leases, or other documents
of a character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement which are
not described or filed as required. All agreements between the Company, any of
the Subsidiaries, any of the Trusts or the Manager, as the case may be, and
third parties expressly referenced in the Prospectus are legal, valid and
binding obligations of the Company, the Subsidiaries, the Trusts or the Manager,
as the case may be, enforceable in accordance with their respective terms,
except to the extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and by general equitable principles.
(p) There are no actions, suits, claims, investigations, inquiries or
proceedings pending or, to the best of the Company's knowledge, threatened to
which the Company, any of the Subsidiaries, any of the Trusts or the Manager or
any of their respective officers or directors is a party or of which the
properties or other assets of any such entity is subject at law or in equity, or
before or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which could result in a judgment,
decree or order.
(q) During the period of at least the last 24 calendar months prior to the
date of this Agreement, the Company has timely filed with the Commission all
documents and other material required to be filed pursuant to Sections 13, 14
and 15(d) under the Exchange Act. During the period of at least the last 36
calendar months preceding the filing of the Registration Statement the Company
has filed all reports required to be filed pursuant to Sections 13, 14 and 15(d)
under the Exchange Act. As of the date of this Agreement, the aggregate market
value of the Company's voting stock held by nonaffiliates of the Company was
equal to or greater than $150 million.
(r) Except as disclosed in the Prospectus, since the date of the latest
audited financial statements included in the Prospectus there has been no
Material Adverse Effect. Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, there
shall not be (i) any transaction which is material to the Company, the
Subsidiaries and the Trusts, except transactions in the ordinary course of
business, (ii) any obligation, direct or contingent, which is material to the
Company, the Subsidiaries and the Trusts taken as a whole, incurred by the
Company, the Subsidiaries or the Trusts, except obligations incurred in the
ordinary course of business, or (iii) except for regular quarterly dividends on
the Common Stock and the 9.68% Cumulative Convertible Series A Preferred Stock
in amounts per share that are consistent with past practice, any dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock. Neither the Company, any of the Subsidiaries nor the Trusts
has any material contingent obligation which is not disclosed in the
Registration Statement or Prospectus.
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(s) There are no persons (as such term is defined in Rule 1-02 of Regulation
S-X promulgated under the Act) ("Persons") with registration or other similar
rights to have any equity or debt securities, including securities which are
convertible into or exchangeable for equity securities, registered pursuant to
the Registration Statement or otherwise registered by the Company under the Act.
(t) Neither the Company nor any of the Subsidiaries has defaulted on any
installment on indebtedness for borrowed money or on any rental on one or more
long term leases, which defaults would have a Material Adverse Effect on the
financial position of the Company or any of the Subsidiaries. Since it first
became a publicly-registered entity, the Company has not filed a report pursuant
to Section 13(a) or 15(d) of the Exchange Act indicating that it (i) has failed
to pay any dividend or sinking fund installment on preferred stock or (ii) has
defaulted on any installment on indebtedness for borrowed money or on any rental
on one or more long term leases, which defaults would have a Material Adverse
Effect on the financial position of the Company or any of the Subsidiaries.
(u) Each of the Company, the Subsidiaries, the Trusts, the Manager and each
of their respective officers, directors and controlling Persons has not,
directly or indirectly, taken any action designed to cause or to result in, or
that has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Stock.
(v) The Placement Shares will be approved prior to their issuance for
listing on the NYSE, subject to official notice of issuance.
(w) Except for Xxxxxxxxx Securities Corporation which shall in no way
participate in the sale of Placement Shares, neither the Company nor any of the
Subsidiaries, the Trusts or affiliates (including the Manager) (i) is required
to register as a "broker" or "dealer" in accordance with the provisions of the
Exchange Act or (ii) directly or indirectly through one or more intermediaries,
controls or has any other association with (within the meaning of Article I of
the Bylaws of the National Association of Securities Dealers ("NASD")) any
member firm of the NASD.
(x) As of the date of this Agreement, the investment portfolio (other than
cash and cash equivalents) of the Company consists of adjustable and
variable-rate mortgage securities and adjustable and variable-rate mortgage
loans. As of the date of this Agreement, the derivative financial instruments
held by the Company consist solely of interest rate cap agreements, interest
rate options contracts and interest rate swap agreements. As of the date of this
Agreement and except as otherwise disclosed in the Prospectus, the Company has
no plan or intention to materially alter its stated investment policies and
operating policies and strategies, as such are described in the Company's Annual
Report on Form 10-K for the year ended December 31, 2001, including making any
change to any stated investment percentages or guidelines or the stated
equity-to-assets ratio currently employed by the Company, the Subsidiaries and
the Trusts. The Company, the Subsidiaries and the Trusts have good and
marketable title to all properties and assets owned, directly or indirectly, by
the Company, the Subsidiaries and the Trusts, in each case free and clear of any
security interests, liens, encumbrances, equities, claims and other defects
(except for any security interest, lien, encumbrance or claim that may otherwise
exist under any applicable financing arrangement), except such as do not
interfere with the use made or proposed to be made of such property or asset by
the Company, the Subsidiaries and the
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Trusts. Except for two real estate properties owned by the Company as a result
of delinquent loans, the Company, the Subsidiaries and the Trusts do not own any
real property. Any real property and buildings held under lease by the Company,
the Subsidiaries and the Trusts are held under valid, existing and enforceable
leases, with such exceptions as are disclosed in the Prospectus or are not
material and do not interfere with the use made or proposed to be made of such
property and buildings by the Company and the Subsidiaries.
(y) Each of the Company, the Subsidiaries and the Trusts has filed all
federal, state and foreign income and franchise tax returns required to be filed
on or prior to the date hereof and has paid taxes shown as due thereon (or that
are otherwise due and payable), other than taxes which are being contested in
good faith and for which adequate reserves have been established in accordance
with generally accepted accounting principles. The Company has no knowledge,
after due inquiry, of any tax deficiency which has been asserted or threatened
against the Company, any of the Subsidiaries or any of the Trusts. To the
knowledge of the Company, there are no tax returns of the Company, the
Subsidiaries or the Trusts that are currently being audited by federal, state or
local taxing authorities or agencies which would have a Material Adverse Effect.
(z) The Company and each of the Subsidiaries and each of the Trusts owns or
possesses adequate license or other rights to use all patents, trademarks,
service marks, trade names, copyrights, software and design licenses, trade
secrets, manufacturing processes, other intellectual property rights and
know-how (collectively, "Intangibles") necessary to entitle the Company, the
Subsidiaries and the Trusts to conduct their business as described in the
Prospectus, and the Company, the Subsidiaries and the Trusts have not received
notice of infringement of or conflict with (and the Company knows of no such
infringement of or conflict with) asserted rights of others with respect to any
Intangibles which could have a Material Adverse Effect.
(aa) TMHL owns or possesses adequate and validly issued licenses, or is
otherwise authorized by law, to originate loans as a mortgage lender in all
states in which TMHL has originated or is currently originating loans. As of the
date of this Agreement, TMHL is licensed, or is otherwise authorized by law, to
originate loans in each of the jurisdictions set forth on Schedule G annexed
thereto. To the knowledge of the Company, all third-party service providers
used, employed, hired or otherwise contracted with by the Company or any of the
Subsidiaries have obtained all necessary licenses or other relevant
authorization to do business in all jurisdictions in which such third-party
service providers do business on behalf of the Company or the Subsidiaries.
(bb) Each of the Company, the Subsidiaries, the Trusts and the Manager
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles as applied in the United States and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
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(cc) Each of the Company, the Subsidiaries and the Trusts is insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the business in which it is
engaged. Neither the Company, any of the Subsidiaries, any of the Trusts nor the
Manager has been refused any insurance coverage which has been sought and
applied for and the Company has no reason to believe that such parties will not
be able to renew their existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue their business at a cost that would not have a Material Adverse
Effect.
(dd) Neither the Company, any of the Subsidiaries, any of the Trusts nor the
Manager is in violation of, and none has received notice of any violation with
respect to, any applicable local, state or federal environmental, safety or
similar law applicable to the business of the Company, the Subsidiaries and the
Trusts. Each of the Company, the Subsidiaries, the Trusts and the Manager has
received all permits, licenses or other approvals required of it under
applicable federal and state occupational safety and health and environmental
laws and regulations to conduct its business, and each of the Company, the
Subsidiaries, the Trusts and the Manager is in compliance with all terms and
conditions of any such permit, license or approval, except where any such
violation of law or regulation, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the aggregate, have a
Material Adverse Effect.
(ee) Neither the Company nor any of the Subsidiaries or the Trusts has
incurred any liability for any finder's fees or similar payments in connection
with the transactions herein contemplated, except as may otherwise exist with
respect to CF&Co pursuant to this Agreement.
(ff) There are no existing or threatened labor disputes with the employees
of the Company, any of the Subsidiaries or the Manager which are likely to have
individually or in the aggregate a Material Adverse Effect.
(gg) Neither the Company nor any of the Subsidiaries or the Trusts nor, to
the knowledge of the Company, any employee or agent of the Company, the
Subsidiaries or the Trusts, has made any payment of funds of the Company or any
of the Subsidiaries or the Trusts or received or retained any funds in violation
of any law, rule or regulation or of a character required to be disclosed in the
Prospectus. No relationship, direct or indirect, exists between or among the
Company, any of the Subsidiaries or Trusts or the Manager, on the one hand, and
the directors, officers and stockholders of the Company, any of the Subsidiaries
or Trusts or the Manager, on the other hand, which is required by the Act to be
described in the Registration Statement and the Prospectus that is not so
described.
(hh) The Company, for all taxable years commencing with the taxable year
ended December 31, 1993, and each of the Subsidiaries, since its respective date
of inception, have been, and upon the sale of the Placement Shares will continue
to be, organized and operated in conformity with the requirements for
qualification and taxation of the Company as a "real estate investment trust"
("REIT") under Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the "Code"). The proposed method of operation of the Company, each of
the Subsidiaries and the Trusts as described in the Prospectus will enable the
Company 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
- 12 -
qualification to be lost. The Company intends to continue to operate in a manner
which would permit it to qualify as a REIT under the Code. The Company has no
intention of changing its operations or engaging in activities which would cause
it to fail to qualify, or make economically undesirable its continued
qualification, as a REIT.
(ii) Neither the Company nor any of the Subsidiaries is, nor, after giving
effect to the offering and sale of the Placement Shares, 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").
(jj) The Manager has full legal right, power and authority to perform its
duties in accordance with and under the Management Agreement, dated July 15,
1999, between the Company and the Manager, as amended on October 17, 2000 (the
"Management Agreement"), and to consummate the transactions contemplated
therein. The Management Agreement has been duly authorized, executed and
delivered by the Manager and constitutes a valid and binding agreement of the
Manager, enforceable in accordance with its terms, except to the extent that
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and by general
equitable principles. To the knowledge of the Company, there is no breach of, or
default under (nor has any event occurred which with notice, lapse of time, or
both would constitute a breach of, or default under), the Management Agreement
by the Manager.
(kk) No relationship, direct or indirect, exists between or among the
Company or any of the Subsidiaries or the Trusts or the Manager, on the one
hand, and the directors, officers, stockholders or trustees of the Company, any
of the Subsidiaries or the Trusts or the Manager, on the other hand, which is
required by the rules of the NASD to be described in the Registration Statement
and the Prospectus which is not so described. Except as otherwise disclosed in
the Prospectus, there are no material outstanding loans or advances or material
guarantees of indebtedness by the Company or any of the Subsidiaries or the
Trusts to or for the benefit of any of the officers or directors of the Company,
any of the Subsidiaries or the Manager or any of the members of the families of
any of them.
(ll) No forward looking statement within the meaning of Section 27A of the
Act and Section 21E of the Exchange Act contained in the Commission Documents or
Registration Statement has been made or reaffirmed without a reasonable basis or
has been disclosed other than in good faith.
(mm) On each Settlement Date and each Filing Date (as defined in Section
7(m) below), the Company shall be deemed to have confirmed (i) the accuracy and
completeness, as of such date, of each representation and warranty made by it in
this Agreement, as if each such representation and warranty were made on and as
of such date, and (ii) that the Company has complied with all of the agreements
to be performed by it hereunder at or prior to such date.
7. Covenants of the Company. The Company covenants and agrees with CF&Co
that:
(a) During any period in which either a Placement Notice is in effect or a
prospectus relating to the Placement Shares is required to be delivered by CF&Co
under the Act, the
- 13 -
Company will notify CF&Co (i) before the filing of any subsequent amendment to
the Registration Statement with the Commission or any subsequent supplement to
the Prospectus, and (ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or Prospectus or for additional
information with respect thereto; the Company will prepare and file with the
Commission, promptly upon CF&Co's request, any amendments or supplements to the
Registration Statement or Prospectus that, in CF&Co's and the Company's
reasonable opinion, may be necessary or advisable in connection with the
distribution of the Placement Shares by CF&Co (provided, however that the
failure of CF&Co to make such request shall not relieve the Company of any
obligation or liability hereunder, or affect CF&Co's right to rely on the
representations and warranties made by the Company in this Agreement); the
Company shall furnish CF&Co with a copy of any amendment or supplement to the
Registration Statement or Prospectus relating to the Placement Shares a
reasonable period of time before the filing thereof and shall not file any such
amendment or supplement to the Registration Statement or Prospectus if CF&Co has
reasonably objected thereto (provided, however that the failure of CF&Co to make
such objection shall not relieve the Company of any obligation or liability
hereunder, or affect CF&Co's right to rely on the representations and warranties
made by the Company in this Agreement), unless the Company reasonably objects
thereto; the Company will furnish to CF&Co at the time of filing thereof a copy
of any document that upon filing is deemed to be incorporated by reference in
the Registration Statement or Prospectus; and the Company will cause each
amendment or supplement to the Prospectus to be filed with the Commission as
required pursuant to the applicable paragraph of Rule 424(b) of the Rules and
Regulations or, in the case of any document to be incorporated therein by
reference, to be filed with the Commission as required pursuant to the Exchange
Act, within the time period prescribed (the determination to file or not file
any amendment or supplement with the Commission under this Section 7(a), based
on the Company's reasonable opinion or reasonable objection, shall be made
exclusively by the Company).
(b) The Company will advise CF&Co, promptly after it receives notice or
obtains knowledge thereof, of the issuance or threatened issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Placement Shares for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose; and it will promptly use its commercially
reasonable efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(c) During the time in which either a Placement Notice is in effect or a
prospectus relating to the Placement Shares is required to be delivered by CF&Co
under the Act, the Company will comply with all requirements imposed upon it by
the Act and by the Rules and Regulations, as from time to time in force, and
will file on or before their respective due dates all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision
of or under the Exchange Act. If during such period any event occurs as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend or supplement the
Registration Statement or Prospectus to comply with the Act, the Company will
promptly notify CF&Co to suspend the offering of Placement Shares during such
period and the
- 14 -
Company will promptly amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such statement or
omission or effect such compliance.
(d) The Company will use its best efforts to cause the Placement Shares to
be listed on the NYSE and to qualify the Placement Shares for sale under the
securities laws of such jurisdictions as CF&Co designates and to continue such
qualifications in effect so long as required for the distribution of the
Placement Shares; provided that the Company shall not be required in connection
therewith to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction.
(e) The Company will furnish to CF&Co and its counsel (at the expense of the
Company) copies of the Registration Statement, the Prospectus (including all
documents incorporated by reference therein) and all amendments and supplements
to the Registration Statement or Prospectus that are filed with the Commission
during the period in which either a Placement Notice is in effect or a
prospectus relating to the Placement Shares is required to be delivered under
the Act (including all documents filed with the Commission during such period
that are deemed to be incorporated by reference therein), in each case as soon
as reasonably practicable and in such quantities as CF&Co may from time to time
reasonably request and, at CF&Co's request, will also furnish copies of the
Prospectus to each exchange or market on which sales of Placement Shares may be
made.
(f) The Company will furnish to CF&Co such information as reasonably
requested by CF&Co regarding the Company, any of its Subsidiaries, Trusts or the
Manager during the term of this Agreement and for a period of one year after the
termination of this Agreement.
(g) The Company will make generally available to its security holders as
soon as practicable, but in any event not later than 15 months after the end of
the Company's current fiscal quarter, an earnings statement covering a 12-month
period that satisfies the provisions of Section 11(a) of the Act and Rule 158 of
the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated in accordance with Section 11 of
this Agreement, will pay all expenses incident to the performance of its
obligations hereunder, including, but not limited to, expenses relating to (i)
the preparation, printing and filing of the Registration Statement and each
amendment and supplement thereto, of each Prospectus and of each amendment and
supplement thereto, (ii) the preparation, issuance and delivery of the Placement
Shares, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the qualification of the Placement Shares under securities
laws in accordance with the provisions of Section 7(d) of this Agreement,
including filing fees and any reasonable fees or disbursements of counsel for
CF&Co in connection therewith, (v) the printing and delivery to CF&Co of copies
of the Prospectus and any amendments or supplements thereto, and of this
Agreement, (vi) the fees and expenses incurred in connection with the listing or
qualification of the Placement Shares for trading on the NYSE, or (vii) filing
fees and expenses, if any, of the Commission and the NASD Corporate Finance
Department. Each party hereto shall be responsible for its own costs and
expenses incurred in connection with entering into this Agreement; provided,
however, in the event and to the extent that subsequent to the execution hereof,
CF&Co is required, directly or through any of its agents (including but not
limited to its legal counsel), to undertake any actions, prepare any documents
or review any materials in connection with this Agreement and the
- 15 -
transactions contemplated hereunder in a manner that is beyond the reasonably
contemplated scope of CF&Co's engagement hereunder in terms of time, effort or
expense, then the Company agrees that CF&Co shall be entitled to reimbursement
hereunder for such reasonable legal and accounting costs and expenses with
respect thereto no later than seven (7) Business Days (as that term is defined
in Section 12 below) after CF&Co's request therefor and upon the review and
approval by the Company of an invoice submitted to it by CF&Co detailing such
costs and expenses. For the avoidance of doubt, the parties hereto expressly
agree that the review of the Registration Statement and Prospectus, the
deliveries made pursuant to Sections 7(a), (o) and (p) hereof, any Placement
Notice or Acceptance, and any filing made on Filing Dates as defined in Section
7(m) below will be considered to be within the reasonably contemplated scope of
CF&Co's engagement hereunder and that CF&Co shall not be entitled to
reimbursement by the Company hereunder with respect to any fees and expenses
relating thereto, including but not limited to those of its agents (including
its legal counsel and accountants); provided that the review of any such filing
or document containing disclosures out of the ordinary course of business of the
Company consistent with past practice shall be deemed to be beyond the
contemplated scope of CF&Co's engagement, in which case CF&Co shall be entitled
to reimbursement for reasonable legal and accounting expenses with respect to
the review of such filings and documents that are incurred by it or on its
behalf in the review of such filings.
(i) The Company will use the Net Proceeds as described in the Prospectus
and, in any case, for general corporate purposes only, in the ordinary course of
its business and consistent with past practice and, without limiting the
generality of the foregoing, shall not use such proceeds to make a loan to any
employee, officer, director or stockholder of the Company (other than loans made
to new employees as a condition of employment or to existing employees as part
of the Company's ongoing employee loan program), to repay any loan or other
obligation of the Company to any such person or to repurchase or pay a dividend
on shares of Common Stock or other securities of the Company (in any such case,
regardless of whether such loan or payment was authorized by the Company's Board
of Directors prior to the date hereof).
(j) Without the written consent of CF&Co, the Company will not, directly or
indirectly, offer to sell, sell, contract to sell, grant any option to sell or
otherwise dispose of any shares of Common Stock (other than the Placement Shares
offered pursuant to the provisions of this Agreement) or securities convertible
into or exchangeable for Common Stock, warrants or any rights to purchase or
acquire, Common Stock during the period beginning on the fifth (5th) Trading Day
immediately prior to the date on which any Acceptance of a Placement Notice is
delivered to CF&Co hereunder and ending on the fifth (5th) Trading Day
immediately following the final Settlement Date with respect to Placement Shares
sold pursuant to such Placement Notice; provided, however, that such restriction
will not be required in connection with the Company's issuance or sale of (i)
Common Stock, options to purchase shares of Common Stock or Common Stock
issuable upon the exercise of options, pursuant to any employee or director
stock option or benefits plan or the Stock Plans, excluding sales of shares of
Common Stock in excess of approved limits in the Stock Plans, and (ii) Common
Stock issuable upon conversion of securities or the exercise of warrants,
options or other rights in effect or outstanding, and disclosed in writing to
CF&Co.
(k) The Company will, at any time during the term of this Agreement, as
supplemented from time to time, advise CF&Co immediately after it shall have
received notice
- 16 -
or obtained knowledge thereof, of any information or fact that would alter or
affect any opinion, certificate, letter or other document provided to CF&Co
pursuant to this Agreement.
(l) The Company will cooperate with any due diligence review conducted by
CF&Co or its agents, including, without limitation, providing information and
making available documents and senior corporate officers, as CF&Co may
reasonably request; provided, however, that the Company shall be required to
make available documents and senior corporate officers only (i) at the Company's
principal offices and (ii) during the Company's ordinary business hours.
(m) The Company agrees that on or prior to the first Business Day after the
end of each calendar week during which sales of Placement Shares were made by
CF&Co in other than At The Market transactions (each such week, a "Reporting
Period") or on such earlier date as may be required by the Rules and
Regulations, the Company will, if necessary, (i) file a prospectus supplement
with the Commission under the applicable paragraph of Rule 424(b) under the Act
(each and every filing under Rule 424(b) a "Filing Date"), which prospectus
supplement will set forth, with regard to such sales, the dates included within
the Reporting Period, the amount of Placement Shares sold through CF&Co, the Net
Proceeds to the Company and the compensation payable by the Company to CF&Co and
(ii) deliver such number of copies of each such prospectus supplement to each
exchange or market on which such sales were effected as may be required by the
rules or regulations of such exchange or market.
(n) [Intentionally Omitted].
(o) Upon the signing of this Agreement and each time thereafter that the
Registration Statement is amended or the Prospectus is supplemented, whether by
way of any document or filing being incorporated by reference therein, including
any proxy and information statements subject to Section 14 of the Exchange Act,
and any Reports on Form 10-K, Form 10-Q and Form 8-K (but excluding (i) matters
reported solely under Item 9 of Form 8-K, (ii) any supplement solely containing
information provided by CF&Co pursuant to Section 7(m) hereof, and (iii) any
amendment to the Registration Statement or supplement to the Prospectus directly
relating to an offer and sale other than the offer and sale of Placement Shares
hereunder), the Company shall cause to be furnished to CF&Co and to counsel to
CF&Co a written opinion of Dechert, counsel to the Company ("Company Counsel"),
no later than the trade date of the first Placement under this Agreement for the
first such opinion (the "Initial Opinion") in the form annexed hereto as Exhibit
7(o)(A) and, for subsequent opinions, no later than two (2) Business Days after
the date of effectiveness of the amendment or the date of filing of the
supplement or other document with the Commission, as the case may be, in the
form annexed hereto as Exhibit 7(o)(B) and dated the date of effectiveness or
filing of such document, as the case may be. The Initial Opinion shall satisfy
the opinion requirements that would otherwise be triggered by the filing of this
Agreement on Form 8-K and the filing of the related final Prospectus under Rule
424(b).
(p) Upon the signing of this Agreement and each time thereafter that the
Registration Statement is amended or the Prospectus relating to the Placement
Shares supplemented to include additional or amended financial information or
there is filed with the Commission any Report on Form 10-K, Report on Form 10-Q
or Report on Form 8-K or any other filing or document incorporated by reference
into the Prospectus relating to the Placement Shares which contains additional
or amended financial information (but excluding any amendment to the
- 17 -
Registration Statement or supplement to the Prospectus directly relating to an
offer and sale other than the offer and sale of Placement Shares hereunder), the
Company shall cause its independent accountants, to furnish CF&Co and to counsel
of CF&Co a letter (the "Comfort Letter"), no later than the trade date of the
first Placement under this Agreement for the first such letter (the "Initial
Comfort Letter") and for each subsequent letter, no later than two (2) Business
Days after the date of effectiveness of the amendment or the date of filing of
the supplement or other document with the Commission, as the case may be, and
dated the date of effectiveness or filing of such document, as the case may be,
in form and substance satisfactory to CF&Co, (i) confirming that they are
independent public accountants within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of such date, the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public offerings
and (iii) updating the Initial Comfort Letter with any information which would
have been included in the Initial Comfort Letter had it been given on such date
and modified as necessary to relate to the Registration Statement and the
Prospectus, as amended and supplemented to the date of such letter.
(q) The Company will not, directly or indirectly, (i) take any action
designed to cause or result in, or that constitutes or might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Placement Shares
or (ii) sell, bid for, or purchase the Placement Shares, or pay anyone any
compensation for soliciting purchases of the Placement Shares other than CF&Co.
The Company acknowledges and agrees that CF&Co has informed the Company that
CF&Co may, to the extent permitted under the Act and the Exchange Act, purchase
and sell shares of Common Stock for its own account at the same time as
Placement Shares are being sold by the Company pursuant to this Agreement,
provided that the Company shall not be deemed to have authorized or consented to
any such purchases or sales by CF&Co.
8. Conditions to CF&Co's Obligations. The obligations of CF&Co hereunder
with respect to a Placement will be subject to the continuing accuracy and
completeness of the representations and warranties made by the Company herein,
to the due performance by the Company of its obligations hereunder, to the
completion by CF&Co of a due diligence review satisfactory to CF&Co in its
reasonable judgment, and to the continuing satisfaction (or waiver by CF&Co in
its sole discretion) of the following additional conditions:
(a) The Registration Statement shall be effective and shall be available for
the sale of (i) all Placement Shares issued pursuant to all prior Placements and
not yet sold by CF&Co and (ii) all Placement Shares contemplated to be issued by
the Placement Notice relating to such Placement.
(b) None of the following events shall have occurred: (i) receipt by the
Company of any request for additional information from the Commission or any
other federal or state governmental authority during the period of effectiveness
of the Registration Statement, the response to which would require any
amendments or supplements to the Registration Statement or the Prospectus; (ii)
the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration
Statement or the
- 18 -
initiation of any proceedings for that purpose; (iii) receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Placement Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and (iv) the occurrence of any event that makes any statement made in
the Registration Statement or the Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in the Registration Statement, related
prospectus or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any 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.
(c) CF&Co shall not have advised the Company that the Registration Statement
or Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact that in CF&Co's opinion is material, or omits to state a fact
that in CF&Co's opinion is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(d) Except as contemplated in the Prospectus, or disclosed in the Company's
reports filed with the Commission prior to the date of this Agreement,
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, on a consolidated basis, in the authorized capital
stock of the Company and the Subsidiaries, or any Material Adverse Effect, or
any development that may reasonably be expected to cause a Material Adverse
Effect, or a downgrading in or withdrawal of the rating assigned to any of the
Company's securities by any rating organization or a public announcement by any
rating organization that it has under surveillance or review its rating of any
of the Company's securities, the effect of which, in the case of any such action
by a rating organization described above, in the sole judgment of CF&Co (without
relieving the Company of any obligation or liability it may otherwise have), is
so material as to make it impracticable or inadvisable to proceed with the
offering of the Placement Shares on the terms and in the manner contemplated in
the Prospectus.
(e) CF&Co shall have received the opinion of Company Counsel required to be
delivered pursuant to Section 7(o) on or before the date on which delivery of
such opinion is required pursuant to Section 7(o).
(f) CF&Co shall have received the Comfort Letter required to be delivered
pursuant to Section 7(p) on or before the date on which delivery of such Comfort
Letter is required pursuant to Section 7(p).
(g) The Placement Shares shall have been duly listed, subject to notice of
issuance, on the NYSE, and trading in the Common Stock shall not have been
suspended on such market.
(h) There shall not have occurred any event that would permit CF&Co to
terminate this Agreement pursuant to Section 11(a).
(i) CF&Co shall have received such other documents from the Company as it
shall reasonably request.
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9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless CF&Co, the directors,
officers, partners, employees and agents of CF&Co and each person, if any, who
(i) controls CF&Co within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, or (ii) is controlled by or is under common control with CF&Co
(a "CF&Co Affiliate") from and against any and all losses, claims, liabilities,
expenses and damages (including, but not limited to, any and all investigative,
legal and other expenses reasonably incurred in connection with, and any and all
amounts paid in settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and when
incurred, to which CF&Co, or any such person, may become subject under the Act,
the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities, expenses
or damages arise out of or are based, directly or indirectly, on (i) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement to the Registration Statement or the Prospectus, or in
any application or other document executed by or on behalf of the Company or
based on written information furnished by or on behalf of the Company filed in
any jurisdiction in order to qualify the Placement Shares under the securities
laws thereof or filed with the Commission, (ii) the omission or alleged omission
to state in such document a material fact required to be stated in it or
necessary to make the statements in it not misleading or (iii) any breach by any
of the indemnifying parties of any of their respective representations,
warranties and agreements contained in this Agreement; provided that this
indemnity agreement shall not apply to the extent that such loss, claim,
liability, expense or damage arises from the sale of the Placement Shares
pursuant to this Agreement and is caused directly by an untrue statement or
omission made in reliance on and in conformity with information relating to
CF&Co and furnished in writing to the Company by CF&Co expressly stating that
such information is intended for inclusion in any document described in clause
(a)(i) above. This indemnity agreement will be in addition to any liability that
the Company might otherwise have.
(b) CF&Co agrees to indemnify and hold harmless the Company and its
directors and each officer of the Company who signed the Registration Statement,
and each person, if any, who (i) controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act or (ii) is controlled by
or is under common control with Company (a "Company Affiliate") against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendments thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information and
relating to CF&Co furnished to the Company by CF&Co expressly stating that such
information is intended for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or any breach by CF&Co of any representation, warranty or
agreement contained in this Agreement or any Placement Notice issued to the
Company and which has been accepted by the Company pursuant to this Agreement.
- 20 -
(c) Any party that proposes to assert the right to be indemnified under this
Section 9 will, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 9, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve the indemnifying party from (i) any liability that it might have to any
indemnified party otherwise than under this Section 9 and (ii) any liability
that it may have to any indemnified party under the foregoing provision of this
Section 9 unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If any
such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be entitled
to participate in and, to the extent that it elects by delivering written notice
to the indemnified party promptly after receiving notice of the commencement of
the action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (1) the employment of
counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based on
advice of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction at any one time for all such indemnified party or parties. All such
fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not be liable
for any settlement of any action or claim effected without its written consent.
No indemnifying party shall, without the prior written consent of each
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 9 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or
that may arise out of such claim, action or proceeding. Notwithstanding any
other provision of this Section 9(c), if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel for which it is entitled to reimbursement pursuant to
this Section 9(c), such indemnifying party agrees that it shall be liable for
any settlement effected without its written consent if (i) such settlement is
entered into more than 45
- 21 -
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into, and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement; provided
that an indemnifying party shall not be liable for any such settlement effected
without its consent if such indemnifying party, at least five days prior to the
date of such settlement, (1) reimburses such indemnified party in accordance
with such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
(d) In order to provide for just and equitable contribution in circumstances
in which the indemnification provided for in the foregoing paragraphs of this
Section 9 is applicable in accordance with its terms but for any reason is held
to be unavailable from the Company or CF&Co, the Company and CF&Co will
contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any contribution received
by the Company from persons other than CF&Co, such as persons who control the
Company within the meaning of the Act, officers of the Company who signed the
Registration Statement and directors of the Company, who also may be liable for
contribution) to which the Company and CF&Co may be subject in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and CF&Co on the other. The relative benefits received by the
Company on the one hand and CF&Co on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total compensation (before
deducting expenses) received by CF&Co from the sale of Placement Shares on
behalf of the Company. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing sentence but also the relative
fault of the Company, on the one hand, and CF&Co, on the other, with respect to
the statements or omission which resulted in such loss, claim, liability,
expense or damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or CF&Co,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and CF&Co agree that it would not be just and equitable if contributions
pursuant to this Section 9(d) were to be determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense, or damage, or action
in respect thereof, referred to above in this Section 9(d) shall be deemed to
include, for the purpose of this Section 9(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim to the extent consistent with Section 9(c)
hereof. Notwithstanding the foregoing provisions of this Section 9(d), CF&Co
shall not be required to contribute any amount in excess of the commissions
received by it under this Agreement and no person found guilty of fraudulent
misrepresentation (within the meaning of
- 22 -
Section 11(f) of the Act) will be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 9(d), any person who controls a party to this Agreement within the
meaning of the Act will have the same rights to contribution as that party, and
any officers, directors, partners, employees or agents of CF&Co will have the
same rights to contribution as CF&Co, and each officer and director of the
Company will have the same rights to contribution as the Company, subject in
each case to the provisions hereof. Any party entitled to contribution, promptly
after receipt of notice of commencement of any action against such party in
respect of which a claim for contribution may be made under this Section 9(d),
will notify any such party or parties from whom contribution may be sought, but
the omission to so notify will not relieve that party or parties from whom
contribution may be sought from any other obligation it or they may have under
this Section 9(d). Except for a settlement entered into pursuant to the last
sentence of Section 9(c) hereof, no party will be liable for contribution with
respect to any action or claim settled without its written consent if such
consent is required pursuant to Section 9(c) hereof.
10. Representations and Agreements to Survive Delivery. All representations
and warranties of the Company herein or in any certificate or documents
delivered pursuant hereto shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of CF&Co or the Company
(or any of their respective officers, directors or controlling persons), (ii)
delivery and acceptance of the Placement Shares and payment therefor or (iii)
any termination of this Agreement.
11. Termination.
(a) CF&Co shall have the right by giving notice as hereinafter specified at
any time to terminate this Agreement if (i) any Material Adverse Effect, or any
development that is reasonably expected to cause a Material Adverse Effect, has
occurred which, in the reasonable judgment of CF&Co, may materially impair the
investment quality of the Placement Shares, (ii) the Company shall have failed,
refused or been unable, at or prior to any Settlement Date, to perform any
agreement on its part to be performed hereunder, (iii) any other condition of
CF&Co's obligations hereunder is not fulfilled, (iv) any suspension or
limitation of trading in the shares of Common Stock or in securities generally
on the NYSE , or any setting of minimum prices for trading of the shares of
Common Stock or in securities generally on such exchange, shall have occurred,
(v) any banking moratorium shall have been declared by federal or New York
authorities or (vi) an outbreak or material escalation of major hostilities in
which the United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or any other event or occurrence
of a similar character shall have occurred since the execution of this Agreement
that, in the sole judgment of CF&Co, makes it impractical or inadvisable to
proceed with the completion of the sale of and payment for the Placement Shares
to be sold by CF&Co on behalf of the Company. Any such termination shall be
without liability of any party hereto to any other party hereto except that the
provisions of Sections 7(f), (g), (h) and (i), 9, 10, 12, 16 and 17 hereof shall
remain in full force and effect notwithstanding such termination. If CF&Co
elects to terminate this Agreement as provided in this Section, CF&Co shall
provide the required notice as specified herein.
(b) The Company shall have the right, by giving notice as hereinafter
specified, to terminate this Agreement in its sole discretion at any time
following the period of twelve (12) months after the date of this Agreement. Any
such termination shall be without liability of any
- 23 -
party hereto to any other party hereto except that the provisions of Sections
7(f), (g), (h) and (i), 9, 10, 12, 16 and 17 hereof shall remain in full force
and effect notwithstanding such termination.
(c) CF&Co shall have the right, by giving notice as hereinafter specified,
to terminate this Agreement in its sole discretion at any time following the
period of twelve (12) months after the date of this Agreement. Any such
termination shall be without liability of any party hereto to any other party
hereto except that the provisions of Sections 7(f), (g), (h) and (i), 9, 10, 12,
16 and 17 hereof shall remain in full force and effect notwithstanding such
termination.
(d) Unless earlier terminated pursuant to any other provision of this
Section 11 or Section 13, this Agreement shall be terminated automatically upon
the issuance and sale of all of the Placement Shares through CF&Co on the terms
and subject to the conditions set forth herein. At such time, the parties hereto
shall sign a termination notice annexed hereto in the form of Exhibit 11(d).
(e) This Agreement shall remain in full force and effect unless terminated
pursuant to Sections 11(a), (b), (c) or (d) above, Section 13 or otherwise by
mutual agreement of the parties hereto; provided that any such termination by
mutual agreement shall in all cases be deemed to provide that Sections 7(f),
(g), (h) and (i), 9, 10, 12, 16 and 17 shall remain in full force and effect.
(f) Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination (other
than a termination pursuant to Section 11(d) above) shall not be effective until
the close of business on the date of receipt of such notice by CF&Co or the
Company, as the case may be. If such termination shall occur prior to the
Settlement Date for any sale of Placement Shares, such Placement Shares shall
settle in accordance with the provisions of this Agreement.
12. Notices. All notices or other communications required or permitted to be
given by any party hereto to any other party hereto pursuant to the terms of
this Agreement shall be in writing and if sent to CF&Co, shall be delivered to
CF&Co at Cantor Xxxxxxxxxx & Co., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, fax no. (000) 000-0000, attention: ITD-Investment Banking, with a copy to
Xxxx Xxxxxx, at the same address, with a copy to Xxxxxxxx Xxxx & Brandeis, LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax no. (000) 000-0000, attention:
Xxxxxxxx X. Xxxxxxxx, Esq.; or if sent to the Company, shall be delivered to
Xxxxxxxxx Mortgage, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xx, Xxx Xxxxxx
00000, fax no. (000) 000-0000 , attention: Xxxxxxx X. Story, with a copy to
Dechert, 0000 XxxXxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx, 00000, fax
no. (000) 000-0000, attention: Xxxxxxx X. Xxxxxxx, Esq. Each party hereto may
change such address for notices by sending to the other party hereto written
notice of a new address for such purpose. Each such notice or other
communication shall be deemed given (i) when delivered personally or by
verifiable facsimile transmission (with an original to follow) on or before 4:30
p.m., eastern time, on a Business Day or, if such day is not a Business Day, on
the next succeeding Business Day, (ii) on the next Business Day after timely
delivery to a nationally-recognized overnight courier and (iii) on the Business
Day actually received if deposited in the U.S. mail (certified or registered
mail, return receipt requested, postage prepaid). For purposes of this
Agreement, "Business Day" shall mean any day on which the NYSE and commercial
banks in the city of New York are open for business.
- 24 -
13. Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the Company and CF&Co and their respective successors and the
affiliates, controlling persons, officers and directors referred to in Section 9
hereof. References to any of the parties contained in this Agreement shall be
deemed to include the successors and permitted assigns of such party. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and permitted assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement. Neither party may
assign its rights or obligations under this Agreement without the prior written
consent of the other party hereto, provided, however, that CF&Co may assign its
rights and obligations hereunder to an affiliate of CF&Co without obtaining the
Company's consent, but must provide prompt notice of such assignment to the
Company, and provided, further, that the Company may terminate this Agreement at
any time following any such assignment by CF&Co.
14. Adjustments for Stock Splits. The parties hereto acknowledge and agree
that all share related numbers contained in this Agreement shall be adjusted to
take into account any stock split, stock dividend or similar event effected with
respect to the shares of Common Stock.
15. Entire Agreement; Amendment; Severability. This Agreement constitutes
the entire agreement and supersedes all other prior and contemporaneous
agreements and undertakings, both written and oral, among the parties hereto
with regard to the subject matter hereof. Neither this Agreement nor any term
hereof may be amended except pursuant to a written instrument executed by the
Company and CF&Co. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
16. Applicable Law; Consent to Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York without regard to the principles of conflicts of laws. Each party
hereby irrevocably submits to the non-exclusive jurisdiction of the state and
federal courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection with any transaction
contemplated hereby, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof (certified or registered mail, return
receipt requested) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
17. Waiver of Jury Trial. The Company and CF&Co each hereby irrevocably
waives any right it may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or any transaction contemplated hereby.
- 25 -
18. Counterparts. This Agreement may be executed in one or more original or
facsimile counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery of an
executed Agreement by one party to the other may be made by facsimile
transmission.
In the event that the foregoing correctly sets forth the agreement between
the Company and CF&Co with respect to the subject matter hereof, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between the Company and CF&Co.
Very truly yours,
XXXXXXXXX MORTGAGE, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief Operating Officer
ACCEPTED as of the
date first-above
written:
CANTOR XXXXXXXXXX & CO.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Managing Director
- 26 -
