SUBSCRIPTION AGREEMENT
BY AND AMONG
COMMERCIAL MORTGAGE INVESTMENT TRUST, INC.,
THE WMF GROUP, LTD.,
HARVARD PRIVATE CAPITAL HOLDINGS, INC.
AND
CAPRICORN INVESTORS II, L.P.
DATED AS OF SEPTEMBER 4, 1998
TABLE OF CONTENTS
PAGE
1. CAPITALIZED TERMS...............................................2
2. AGREEMENT TO PURCHASE AND SELL SHARES; SUBSCRIPTIONS............2
2.1. Harvard Subscription.................................2
2.2. Capricorn Subscription...............................2
2.3. WMF Commitment.......................................2
2.4. Transfer of Warrants; Commitment Fee.................2
3. CLOSING; WMF LOAN..............................................3
3.1. Closing of Stock Purchases...........................3
3.2. WMF Loan.............................................3
4. FUTURE STOCK PURCHASES PURSUANT TO THE STOCK PURCHASE AGREEMENT;
APPLICABILITY OF SHAREHOLDERS'
AGREEMENT..................................................3
4.1. No Modification of Commitments........................3
4.2. Future Requested Contributions........................4
4.3. Cumulative Requested Contributions....................4
4.4. Applicability of the Shareholders' Agreement..........4
5. CANCELLATION OF WARRANTS.........................................4
5.1. Cancellation of Warrants..............................4
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................5
6.1. Organization, Good Standing and Qualification.........5
6.2. Capitalization........................................5
6.3. Options, Warrants, Reserved Shares....................5
6.4. Subsidiaries..........................................6
6.5. Due Authorization.....................................6
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6.6. Valid Issuance of Stock...............................6
6.7. Governmental Consents.................................6
6.8. Litigation............................................6
6.9. Compliance with Law and Organizational Documents......7
7. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTORS..7
7.1. Authorization; Principal Office.......................7
7.2. Purchase for Own Account..............................8
7.3. Investment Experience.................................8
7.4. Accredited Investor Status............................8
7.5. Restricted Securities.................................8
7.6. Legends...............................................8
7.7. Litigation............................................9
7.8. Compliance with Law and Organizational Documents......9
8. CONDITIONS TO INVESTOR'S OBLIGATIONS AT CLOSING.................9
8.1. WMF Credit Agreement..................................9
8.2. Securities Law Exemptions............................9
8.3. Proceedings and Documents.............................9
8.4. Opinion of Company Counsel............................9
9. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING..............10
9.1. WMF Credit Agreement..................................10
9.2. Securities Law Exemptions.............................10
9.3. Proceedings and Documents.............................10
10. MISCELLANEOUS...................................................10
10.1. Survival.............................................10
10.2. Successors and Assigns...............................10
10.3. Governing Law........................................10
10.4. Counterparts.........................................11
10.5. Headings.............................................11
10.6. Notices..............................................11
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10.7. No Finder's Fees....................................12
10.8. Attorneys' Fees.....................................12
10.9. Amendments and Waivers..............................12
10.10. Severability.......................................12
10.11. Entire Agreement...................................12
10.12. Further Assurances.................................13
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SUBSCRIPTION AGREEMENT
----------------------
THIS SUBSCRIPTION AGREEMENT (this "AGREEMENT") is made and entered into
as of September 4, 1998, by and among COMMERCIAL MORTGAGE INVESTMENT TRUST,
INC., a Virginia corporation (the "COMPANY"), THE WMF GROUP, LTD., a Delaware
corporation ("WMF"), HARVARD PRIVATE CAPITAL HOLDINGS, INC., a Massachusetts
corporation ("HARVARD"), and CAPRICORN INVESTORS II, L.P., a Delaware limited
partnership ("CAPRICORN"). WMF, Harvard and Capricorn are referred to herein
individually as an "INVESTOR" and collectively as the "INVESTORS".
RECITALS
A. The Company and the Investors are parties to that certain Stock
Purchase Agreement dated as of June 12, 1998 (the "STOCK PURCHASE AGREEMENT"),
whereby the Investors agreed to purchase, and the Company agreed to sell, shares
of the Company's stock pursuant to the terms and conditions set forth therein.
B. As partial fulfillment of the Harvard Commitment of $30,000,000
(as adjusted pursuant to the Stock Purchase Agreement), Harvard now desires to
purchase from the Company, and the Company desires to sell to Harvard, 16,000
shares of the Company's Class C Participating Non-Voting Preferred Stock, no par
value ("CLASS C STOCK"), with the terms and conditions as set forth in the
Company's Second Amended and Restated Articles of Incorporation (the "ARTICLES")
for a total purchase price of $16,000,000, on the terms and conditions set forth
in this Agreement.
C. Capricorn now desires to purchase from the Company, and the
Company desires to sell to Capricorn, 4,000 shares of Class C Stock for a total
purchase price of $4,000,000, which amount shall be in addition to the Capricorn
Commitment of $6,000,000 (as adjusted pursuant to the Stock Purchase Agreement),
on the terms and conditions set forth in this Agreement.
D. WMF desires to confirm its obligation to contribute the WMF
Commitment of $8,900,000 (as adjusted pursuant to the Stock Purchase Agreement)
pursuant to future requests for capital contributions and its agreement that the
WMF Commitment shall neither be reduced nor increased as a result of the
transactions contemplated by this Agreement.
E. The Company will lend to WMF all of the proceeds from the sale of
shares of Class C Stock pursuant to this Agreement.
F. As a further inducement to Harvard and Capricorn to enter into this
Agreement, the Company shall transfer to Harvard and Capricorn certain warrants
to purchase WMF stock (the "WARRANTS") received by the Company pursuant to a
Credit Agreement of even date herewith between the Company and WMF (the "WMF
CREDIT AGREEMENT").
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. CAPITALIZED TERMS.
-----------------
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Stock Purchase Agreement.
2. AGREEMENT TO PURCHASE AND SELL SHARES; SUBSCRIPTIONS.
-----------------------------------------------------
2.1. HARVARD SUBSCRIPTION.
Subject to the terms and conditions of this Agreement, the
Company agrees to sell to Harvard, and Harvard agrees to purchase from the
Company, 16,000 shares of Class C Stock at a price of $1,000 per share (the
"CLASS C PRICE"), for a total purchase price of $16,000,000 (the "HARVARD
SUBSCRIPTION").
2.2. CAPRICORN SUBSCRIPTION.
Subject to the terms and conditions of this Agreement, the
Company agrees to sell to Capricorn, and Capricorn agrees to purchase from the
Company, 4,000 shares of Class C Stock at the Class C Price, for a total
purchase price of $4,000,000 (the "CAPRICORN SUBSCRIPTION"). The sum of the
Harvard Subscription and the Capricorn Subscription is referred to herein as the
"TOTAL SUBSCRIPTION."
2.3. WMF COMMITMENT.
WMF shall not purchase any shares of the Company's capital
stock pursuant to this Agreement, but WMF hereby affirms its obligation to
contribute to the Company the full amount of the WMF Commitment of $8,900,000
(as adjusted pursuant to the Stock Purchase Agreement) pursuant to future
requests for capital contributions under the Stock Purchase Agreement. Harvard,
Capricorn and the Company agree that WMF's failure to purchase shares of capital
stock pursuant to this Agreement shall not result in WMF's being considered in
default under the Stock Purchase Agreement or being subject to the damage
provisions set forth in Section 2.4 thereof.
2.4. TRANSFER OF WARRANTS; COMMITMENT FEE.
(a) To induce Harvard and Capricorn to enter into this
Agreement, the Company hereby agrees that immediately
after the execution of the WMF Credit Agreement and the
Company's receipt of the Warrants from WMF, the Company
shall transfer the Warrants to Harvard and Capricorn pro
RATA, according to their respective Subscriptions set
forth in this Article 2. Upon their receipt of the
Warrants, Harvard and Capricorn agree to assume the
rights, powers, privileges and obligations associated
with the Warrants.
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(b) As a further inducement to enter this Agreement, the
Company shall pay to Harvard and Capricorn 50% of any
amount received as a Commitment Fee pursuant to the WMF
Credit Agreement. Any such payment from the Company
shall be divided between Harvard and Capricorn pro rata
according to their relative subscription amounts, as set
forth in Sections 2.1 and 2.2 of this Agreement.
3. CLOSING; WMF LOAN.
------------------
3.1. CLOSING OF STOCK PURCHASES.
Upon the execution of this Agreement, Harvard shall purchase
from the Company, and the Company shall sell to Harvard, 16,000 shares of Class
C Stock, and Capricorn shall purchase from the Company, and the Company shall
sell to Capricorn, 4,000 shares of Class C Stock. The conference held on the
date of this Agreement is referred to as the "CLOSING."
At the Closing, Harvard will deliver the purchase price for
the Harvard Subscription, and Capricorn will deliver the purchase price for the
Capricorn Subscription, by wire transfer of immediately available funds to the
account or accounts designated by the Company on SCHEDULE 3.1. Upon receipt of
the funds from Harvard and Capricorn, the Company will deliver to Harvard and
Capricorn (i) certificates representing the number of shares of Class C Stock to
be purchased by each of them pursuant to this Agreement and (ii) the Warrants to
be transferred to Harvard and Capricorn pursuant to Section 2.4 of this
Agreement.
3.2. WMF LOAN.
Following the Closing, the Company shall lend the entire
amount of the Total Subscription to WMF (the "WMF LOAN"), on the terms and
conditions set forth in the WMF Credit Agreement.
4. FUTURE STOCK PURCHASES PURSUANT TO THE STOCK PURCHASE AGREEMENT;
APPLICABILITY OF SHAREHOLDERS' AGREEMENT.
-----------------------------------------
4.1. NO MODIFICATION OF COMMITMENTS.
(a) The amounts of the WMF Commitment, the Harvard
Commitment and Capricorn Commitment shall not be
modified as a result of this Agreement.
(b) For purposes of the Stock Purchase Agreement, the amount
of the Harvard Subscription shall be deemed to be a draw
against the Harvard Commitment, as though Harvard had
purchased 16,000 shares of Class A Stock at the Class A
Price pursuant to a Drawdown Request from the Company.
When and to the extent that the Company redeems shares
of Class C Stock from Harvard pursuant to Article VII.E
of the Articles, the Company may redraw against the
Harvard Commitment an amount equal to (A) the number of
shares so repurchased from Harvard, multiplied by (B)
the Redemption Price (as defined in the Articles).
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(c) The amount of the Capricorn Subscription shall not be
deemed a draw against the Capricorn Commitment.
4.2. FUTURE REQUESTED CONTRIBUTIONS.
On and after the date of this Agreement, the Company may
continue to make requests for additional capital contributions from the
Investors pursuant to Article 2 of the Stock Purchase Agreement. The Investors'
respective Requested Contributions shall continue to be determined by dividing
the total amount requested by the Company among the Investors PRO RATA according
to their respective capital commitments, as set forth in Article 1 of the Stock
Purchase Agreement.
4.3. CUMULATIVE REQUESTED CONTRIBUTIONS.
The cumulative Requested Contributions from each Investor
contained in the Drawdown Notices delivered during the Commitment Period, plus
each Investor's respective Initial Investment, shall not exceed the amount of
such Investor's commitment set forth in Article 1 of the Stock Purchase
Agreement, as adjusted pursuant to Sections 1.4 and 1.5 of the Stock Purchase
Agreement and Section 4.1 of this Agreement.
4.4. APPLICABILITY OF THE SHAREHOLDERS' AGREEMENT.
The Company and the Investors hereby agree that the shares of
Class C Stock to be purchased pursuant to this Agreement shall be subject to the
rights, restrictions and obligations set forth in the Shareholders' Agreement
dated June 12, 1998, among the Company and the Investors (the "SHAREHOLDERS'
AGREEMENT"), as though Harvard and Capricorn had purchased shares of Class A
Stock pursuant to the Stock Purchase Agreement; provided, however, that the
amount of the Harvard Subscription and the Capricorn Subscription shall be
excluded from all calculations necessary to determine the timing of the Interim
Referendum pursuant to Section 13 of the Shareholders Agreement.
5. CANCELLATION OF WARRANTS.
------------------------
5.1. CANCELLATION OF WARRANTS.
If, within the period ending 45 days after the date of this
Agreement, the Company redeems shares of Class C Stock from Harvard and
Capricorn pursuant to Article VII.E of the Articles, a number of Warrants shall
be automatically canceled in an amount equal to (A) the total number of
outstanding Warrants, less 300,000, multiplied by (B) the percentage calculated
by multiplying (i) the number of shares of Class C Stock so redeemed by (ii) the
Class C Price, and dividing by (iii) the amount of the Total Subscription. The
Warrants shall be canceled PRO RATA according to Harvard and Capricorn's
respective subscriptions set forth in Article 2 of this Agreement. Harvard and
Capricorn agree to promptly tender to WMF the certificates representing the
Warrants for cancellation, and WMF agrees to promptly reissue to Harvard and
Capricorn certificates of like tenor representing the number of Warrants
outstanding after such cancellation.
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6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
---------------------------------------------
The Company hereby represents and warrants to the Investors as follows:
6.1. ORGANIZATION, GOOD STANDING AND QUALIFICATION.
The Company is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Virginia and has all
requisite corporate power and authority to own or lease its properties and
assets and to carry on its business as now conducted. The Company is duly
qualified and in good standing to do business as a foreign corporation in each
jurisdiction where failure to be so qualified would have a material adverse
effect on its financial condition, business or operations.
6.2. CAPITALIZATION.
Immediately prior to the Closing, the capitalization of the
Company will consist of the following:
(a) PREFERRED STOCK. A total of 100,000 authorized shares of
Preferred Stock, no par value (the "PREFERRED STOCK"),
consisting of 50,000 shares designated as "Class A
Participating Preferred Stock," 2,806 of which are
issued and outstanding, 1,000 shares designated as
"Class B Participating Non-Voting Preferred Stock," none
of which are issued and outstanding, and 25,000 shares
designated as "Class C Participating Non-Voting
Preferred Stock," none of which are issued and
outstanding. The respective rights, preferences and
privileges of the Class A Stock, Class B Stock and Class
C Stock are as stated in the Articles and as provided by
law.
(b) COMMON STOCK. A total of 25,000 authorized shares of
Common Stock, no par value, 694 of which will be issued
and outstanding. The rights, preferences and privileges
of the Common Stock are as stated in the Articles of
Incorporation and as provided by law.
6.3. OPTIONS, WARRANTS, RESERVED SHARES.
Other than pursuant to the Stock Purchase Agreement and
Shareholders' Agreement, as of the date of this Agreement there are no
outstanding options, warrants, rights (including conversion or preemptive
rights) or agreements for the purchase or acquisition from the Company of any
shares of its capital stock or any securities convertible into or ultimately
exchangeable or exercisable for any shares of the Company's capital stock; no
shares of the Company's outstanding capital stock are subject to any rights of
first refusal or other rights to purchase such stock (whether in favor of the
Company or any other person), pursuant to any agreement or commitment of the
Company.
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6.4. SUBSIDIARIES.
As of the date of this Agreement, the Company does not own or
control, directly or indirectly, any interest in any other corporation,
partnership, trust, joint venture, association or other entity.
6.5. DUE AUTHORIZATION.
All corporate action on the part of the Company, its officers,
directors and shareholders necessary for the authorization, execution, delivery
of, and the performance of all obligations of the Company under this Agreement,
and the authorization, issuance, reservation for issuance and delivery of all of
the shares of Class C Stock to be sold under this Agreement has been taken or
will be taken prior to the date of this Agreement, and this Agreement
constitutes, and such other agreements, when executed, will constitute, valid
and legally binding obligations of the Company, enforceable in accordance with
their respective terms.
6.6. VALID ISSUANCE OF STOCK.
(a) The shares of Class C Stock, when issued, sold and
delivered in accordance with the terms of this Agreement
for the consideration provided for herein, will be duly
and validly issued, fully paid and nonassessable.
(b) Based in part on the representations made by the
Investors in Section 7 hereof, the shares of Class C
Stock (assuming no change in applicable law and no
unlawful distribution of the shares of Class C Stock by
Harvard or Capricorn) will be exempt from registration
under the Securities Act of 1933, as amended (the "1933
ACT") and the registration and qualification
requirements of the securities laws of the Commonwealths
of Massachusetts and Virginia and the State of
Connecticut.
6.7. GOVERNMENTAL CONSENTS.
No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement, EXCEPT FOR such qualifications or filings under the 1933 Act and
the regulations thereunder and all other applicable securities laws of States of
the United States and the corporation laws of the Commonwealth of Virginia as
may be required in connection with the transactions contemplated by this
Agreement. All such qualifications and filings will, in the case of
qualifications, be effective on the date of this Agreement and will, in the case
of filings, be made within the time prescribed by law.
6.8. LITIGATION.
(a) As of the date of this Agreement, no action, proceeding
or investigation is pending to which the Company is a
party or to which the property of the Company is subject
and no such proceedings have been threatened against
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the Company, nor to the Company's knowledge, is there a
basis for any such proceeding.
(b) No action, proceeding or investigation is pending or to
the Company's knowledge, threatened that questions the
validity of this Agreement, the WMF Credit Agreement,
the Warrants, the Stock Purchase Agreement or the Class
C Stock, nor to the Company's knowledge, is there a
basis for any such action, proceeding or investigation.
6.9. COMPLIANCE WITH LAW AND ORGANIZATIONAL DOCUMENTS.
(a) The Company (i) is not in violation or default of any
provisions of its Articles or Bylaws, both as amended;
(ii) to the Company's knowledge, except for any
violations that individually and in the aggregate would
have no material adverse effect on the Company's
business, is in compliance with all applicable statutes,
laws, regulations and executive orders of the United
States of America and all states, foreign countries or
other governmental bodies and agencies having
jurisdiction over the Company's business or properties;
(iii) has not received any notice of any such violation
of such statutes, laws, regulations or orders which has
not been remedied prior to the date hereof, and (iv) to
the Company's knowledge, is not in breach or default
under any material agreement or contract to which the
Company is a party or by which it or any of its
properties are bound.
(b) The execution, delivery and performance by the Company
of this Agreement and the other agreements contemplated
hereby and the consummation of the transactions
contemplated hereby or thereby will not conflict with or
constitute, with or without the passage of time or the
giving of notice or both, a violation or default under
the Company's Articles or Bylaws, or a breach of or
default under any agreement or contract to which the
Company is a party or by which it or any of its
properties is bound, or result in the creation of any
material lien, charge or encumbrance upon any asset of
the Company, or to the Company's knowledge, a violation
of any statutes, laws, regulations or orders.
7. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTORS.
---------------------------------------------------------------
Each of Harvard and Capricorn represents and warrants to the Company as
follows:
7.1. AUTHORIZATION; PRINCIPAL OFFICE.
This Agreement and the other documents contemplated hereby to
be executed by such Investor, when executed, will constitute such Investor's
valid and legally binding obligation, enforceable in accordance with its terms.
Such Investor represents that it has full power and authority to enter into this
Agreement. The principal business offices of Harvard and
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Capricorn are located in the Commonwealth of Massachusetts and the State of
Connecticut, respectively.
7.2. PURCHASE FOR OWN ACCOUNT.
The shares of the Class C Stock to be purchased by such
Investor hereunder will be acquired for investment for such Investor's own
account, not as a nominee or agent, and not with a view to the public resale or
distribution thereof within the meaning of the 1933 Act, and such Investor has
no present intention of selling, granting any participation in, or otherwise
distributing the same. Such Investor also represents that it has not been formed
for the specific purpose of acquiring the shares of the Class C Stock.
7.3. INVESTMENT EXPERIENCE.
Such Investor understands that the purchase of the shares of
the Class C Stock involves substantial risk. Such Investor has experience as an
investor in securities of companies in the commercial mortgage industry and in
the development stage and acknowledges that such Investor is able to fend for
itself, can bear the economic risk of such Investor's investment in the shares
of the Class C Stock and has such knowledge and experience in financial or
business matters that such Investor is capable of evaluating the merits and
risks of this investment in the shares of the Class C Stock and protecting its
own interests in connection with this investment.
7.4. ACCREDITED INVESTOR STATUS.
Such Investor is an "accredited investor" within the meaning
of Regulation D promulgated under the 1933 Act and such Investor has received a
copy of the Company's Articles of Incorporation and Bylaws, the Stock Purchase
Agreement, the WMF Credit Agreement and this Agreement and such other documents
and agreements as it has requested and has read and understands the respective
contents thereof. Such Investor has had the opportunity to ask questions of the
Company and has received answers to such questions from the Company. Such
Investor has carefully reviewed and evaluated these documents and understands
the risks and other considerations relating to the investment.
7.5. RESTRICTED SECURITIES.
Such Investor understands that the shares of the Class C Stock
are characterized as "restricted securities" under the 1933 Act inasmuch as they
are being acquired from the Company in a transaction not involving a public
offering and that under the 1933 Act and applicable rules and regulations
thereunder such securities may be resold without registration under the 1933 Act
only in certain limited circumstances. Such Investor understands that no public
market now exists for any of the shares of the Class C Stock and that it is
uncertain whether a public market will ever exist for the shares of the Class C
Stock.
7.6. LEGENDS.
It is understood that the certificates evidencing the shares
of the Class C Stock will bear certain legends as set forth in the Shareholders'
Agreement.
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7.7. LITIGATION.
There is no action, proceeding or investigation pending
against such Investor, or to such Investor's knowledge, threatened that
questions the validity of this Agreement, the WMF Credit Agreement, the
Warrants, the Stock Purchase Agreement or the Class C Stock.
7.8. COMPLIANCE WITH LAW AND ORGANIZATIONAL DOCUMENTS.
The execution, delivery and performance by such Investor of
this Agreement and the other agreements contemplated hereby and the consummation
of the transactions contemplated hereby or thereby will not conflict with or
constitute, with or without the passage of time or the giving of notice or both,
a violation or default under such Investor's organizational documents, or a
breach of or default under any agreement or contract to which such Investor is a
party or by which it or any of its properties is bound, or result in the
creation of any material lien, charge or encumbrance upon any asset of such
Investor, or to such Investor's knowledge, a violation of any statutes, laws,
regulations or orders.
8. CONDITIONS TO INVESTOR'S OBLIGATIONS AT CLOSING.
------------------------------------------------
The obligations of Harvard and Capricorn to purchase Class C Stock at
the Closing are subject to the fulfillment or waiver of each of the following
conditions:
8.1. WMF CREDIT AGREEMENT.
The Company and WMF shall have entered into the WMF Credit
Agreement, in the form attached hereto as EXHIBIT A, and the Warrants shall have
been issued to the Company.
8.2. SECURITIES LAW EXEMPTIONS.
The offer and sale of the shares of the Class C Stock to
Harvard and Capricorn pursuant to this Agreement shall be exempt from the
registration requirements of the 1933 Act and the registration and/or
qualification requirements of all applicable state securities laws.
8.3. PROCEEDINGS AND DOCUMENTS.
All corporate and other proceedings in connection with the
transactions contemplated herein, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to each Investor and to each
Investor's counsel, and each Investor shall have received all such counterpart
originals and certified or other copies of such documents (including customary
closing certificates) as they may reasonably request.
8.4. OPINION OF COMPANY COUNSEL.
The Investors shall have received an opinion from Hunton &
Xxxxxxxx, counsel for the Company, dated as of the applicable Closing Date, in a
form substantially similar to the opinion delivered pursuant to Section 6.8 of
the Stock Purchase Agreement.
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9. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING.
---------------------------------------------------
The obligations of the Company to sell to an Investor Class C Stock at
the Closing are subject to the fulfillment or waiver of the following
conditions:
9.1. WMF CREDIT AGREEMENT.
WMF and the Company shall have entered into the WMF Credit
Agreement, in the form attached hereto as EXHIBIT A, and the Warrants shall have
been issued to the Company.
9.2. SECURITIES LAW EXEMPTIONS.
The offer and sale of the shares of Class C Stock to the
Harvard and Capricorn pursuant to this Agreement shall be exempt from the
registration requirements of the 1933 Act and the registration and/or
qualification requirements of all other applicable state securities laws.
9.3. PROCEEDINGS AND DOCUMENTS.
All corporate and other proceedings in connection with the
transactions contemplated herein and all documents incident thereto shall be
reasonably satisfactory in form and substance to the Company and to the
Company's legal counsel, and the Company shall have received all such
counterpart originals and certified or other copies of such documents as it may
reasonably request.
10. MISCELLANEOUS.
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10.1. SURVIVAL.
The representations, warranties and covenants of the Company
and the Investors contained in or made pursuant to this Agreement shall survive
the execution and delivery of this Agreement and shall in no way be affected by
any investigation of the subject matter thereof made by or on behalf of the
Investors, its counsel or the Company, as the case may be.
10.2. SUCCESSORS AND ASSIGNS.
The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties, provided that the Investors may not assign their rights or obligations
hereunder without the written consent of the Company and each other Investor.
10.3. GOVERNING LAW.
This Agreement shall be governed by and construed under the
internal laws of the Commonwealth of Virginia as applied to agreements among
Virginia residents entered into and to be performed entirely within Virginia,
without reference to principles of conflict of laws or choice of laws.
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10.4. COUNTERPARTS.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10.5. HEADINGS.
The headings and captions used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement. All references in this Agreement to sections, paragraphs, exhibits
and schedules shall, unless otherwise provided, refer to sections and paragraphs
hereof and exhibits and schedules attached hereto, all of which exhibits and
schedules are incorporated herein by this reference.
10.6. NOTICES.
Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or one business day
after deposit with a national overnight delivery service or three business days
after deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at the address
indicated for each Investor on EXHIBIT B or, in the case of the Company:
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxxxx
with copies to:
Xx. Xxxxxx Xxxxxxxxxx
The WMF Group, Ltd.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
and
Mr. Xxxxxxx Xxxxxx
Krooth & Xxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
or at such other address as any Investor or the Company may designate by giving
10 days advance written notice to the other parties. A copy of every notice
given pursuant to this Agreement to any of the Investors or to the Company shall
also be provided to Greenwich Capital Markets, Inc., at the following addresses:
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
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Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
with copies to:
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Esquire and Xxxxxx
Xxxxxx, Esquire
10.7. NO FINDER'S FEES.
Each party represents that it neither is nor will be obligated
for any finder's or broker's fee or commission in connection with this
transaction. Each Investor agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finder's or broker's fee (and any asserted liability) for which such Investor or
any of its directors, officers, partners, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless each Investor
from any liability for any commission or compensation in the nature of a
finder's or broker's fee (and any asserted liability) for which the Company or
any of its directors, officers, employees or representatives is responsible.
10.8. ATTORNEYS' FEES.
If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which such party may be entitled.
10.9. AMENDMENTS AND WAIVERS.
Any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the Investors.
10.10. SEVERABILITY.
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision(s) shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision(s) were so excluded and shall be enforceable in accordance with its
terms.
10.11. ENTIRE AGREEMENT.
This Agreement, together with all exhibits and schedules
hereto, constitutes the entire agreement and understanding of the parties with
respect to the subject matter hereof and supersedes any and all prior
negotiations, correspondence, agreements, understandings, duties or obligations
between the parties with respect to the subject matter hereof.
-12-
10.12. FURTHER ASSURANCES.
From and after the date of this Agreement, upon the request of
any Investor or the Company, the Company and the Investors shall execute and
deliver such instruments, documents or other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY: COMMERCIAL MORTGAGE INVESTMENT TRUST,
a Virginia corporation
By:
---------------------------------
Name:
Title:
THE INVESTORS: THE WMF GROUP, LTD.,
a Delaware corporation
By:
---------------------------------
Name:
Title:
HARVARD PRIVATE CAPITAL HOLDINGS,
INC., a Massachusetts corporation
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
CAPRICORN INVESTORS II, L.P.,
a Delaware limited partnership
BY CAPRICORN HOLDINGS, L.L.C.,
Its General Partner
By:
---------------------------------
Name:
Title:
STOCK PURCHASE AGREEMENT
LIST OF SCHEDULES AND EXHIBITS
------------------------------
SCHEDULES
Schedule 3.1 - Wire Transfer Instructions For Initial Closing
EXHIBITS
Exhibit A - Form of WMF Credit Agreement
Exhibit B - Addresses of the Investors
SCHEDULE 3.1
WIRING INSTRUCTIONS
-------------------
Bank: National City Bank, Kentucky
ABA: 000000000
Address: 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
Account Name: Commercial Mortgage Investment Trust, Inc.
Operating Account
Account Number: 354081469
EXHIBIT B
ADDRESSES OF THE INVESTORS
--------------------------
THE WMF GROUP, LTD.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
with copies to:
Mr. Xxxxxxx Xxxxxx
Xxxxxx & Xxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
HARVARD PRIVATE CAPITAL HOLDINGS, INC.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
with copies to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxx, Esquire
CAPRICORN INVESTORS II, L.P.
00 Xxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
