Exhibit 10.1
AMERICAN HOME MORTGAGE INVESTMENT CORP.
9.75% CONVERTIBLE TRUST PREFERRED SECURITIES
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of June 28, 2007,
by and among American Home Mortgage Investment Corp., a Maryland corporation
(the "Company"), AHM Capital Trust I, a Delaware statutory trust (the "Trust",
and together with the Company, the "Sellers"), the purchasers identified on
Schedule I hereto, as purchasers (collectively, the "Purchasers") and the
Company, as guarantor (in such capacity, the "Guarantor").
RECITALS
WHEREAS, the Company has authorized the issuance and sale by the Trust
of up to $125,000,000 aggregate principal amount of 9.75% Convertible Trust
Preferred Securities (the "Trust Preferred Securities"), and the Sellers
propose, subject to the terms and conditions stated herein, that the Trust issue
and sell on the Closing Date (as defined below) $125,000,000 in aggregate
principal amount of the Trust Preferred Securities to the Purchasers;
WHEREAS, the Trust's obligations under the Trust Preferred Securities,
with respect to payment of distributions on the Trust Preferred Securities, if
and to the extent that the Trust has funds available to pay the distributions,
will be guaranteed by the Guarantor (the "Guarantee"), pursuant to a Guarantee
Agreement, dated June 28, 2007 (the "Guarantee Agreement") between the Guarantor
and Wilmington Trust Company, as trustee (the "Guarantee Trustee");
WHEREAS, the offer and sale of the Trust Preferred Securities, the
Guarantee and the Underlying Securities (as defined below) will not be
registered under the Securities Act of 1933, as amended (together with the rules
and regulations promulgated thereunder, the "Securities Act"), in reliance on an
exemption therefrom;
WHEREAS, the entire proceeds from the sale of the Trust Preferred
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of its common securities (the "Common Securities"), and will be
used by the Trust to purchase ($128,866,000) in principal amount of the junior
subordinated convertible debentures of the Company (the "Junior Subordinated
Debentures");
WHEREAS, the Trust Preferred Securities and the Common Securities for
the Trust will be issued pursuant to the Amended and Restated Declaration of
Trust (the "Trust Agreement"), dated as of the Closing Date, among the Company,
as depositor, Wilmington Trust Company, as property trustee (in such capacity,
the "Property Trustee"), Wilmington Trust Company, as Delaware trustee (in such
capacity, the "Delaware Trustee"), the Administrative Trustees named therein (in
such capacities, the "Administrative Trustees") and the holders from time to
time of undivided beneficial interests in the assets of the Trust, and the Trust
Preferred Securities will be convertible into shares (the "Underlying
Securities") of common stock of the Company, par value $0.01 per share (the
"Common Stock"), on the terms, and subject to the conditions, set forth in the
Indenture;
WHEREAS, the Junior Subordinated Debentures will be issued pursuant to
an indenture (the "Indenture") to be dated as of the Closing Date between the
Company and Wilmington Trust Company, as Trustee (the "Indenture Trustee"); and
WHEREAS, the Purchasers will be entitled to the benefits of a
Registration Rights Agreement substantially in the form attached as Exhibit A
hereto covering the Underlying Securities to be dated as of the Closing Date by
and among the Company, the Guarantor and the Purchasers (the "Registration
Rights Agreement" and, together with this Agreement, the Indenture, the
Guarantee, the Trust Agreement and the Securities, the "Transaction Documents").
The Trust Preferred Securities, the Common Securities and the Junior
Subordinated Debentures are collectively referred to herein as the "Securities."
All other capitalized terms used but not defined in this Agreement shall have
the respective meanings ascribed thereto in the Indenture.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises and covenants set forth herein and certain other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Agreement to Sell and Purchase.
(a) Trust Preferred Securities. On the basis of the
representations and warranties contained in this Agreement, and subject
to the terms and conditions of this Agreement, the Sellers agree that
the Trust shall issue and sell $125,000,000 aggregate principal amount
of the Trust Preferred Securities to the Purchasers, and the Purchasers,
upon the basis of the representations and warranties herein contained,
but subject to the conditions hereinafter stated, severally agree to
purchase from the Sellers the aggregate principal amount of Trust
Preferred Securities set forth opposite their name on Schedule I hereto
at a purchase price of 100% of the principal amount thereof (the
"Purchase Price"). The Trust shall use the Purchase Price, together with
the proceeds from the sale of the Common Securities to purchase the
Junior Subordinated Debentures from the Company.
2. Closing.
(a) Trust Preferred Securities. Payment for the Trust Preferred
Securities shall be made by the Purchasers to the Sellers by wire
transfer in immediately available funds to an account specified in
writing by the Sellers to the Purchasers in United States dollars in
cash or other funds immediately available in New York City against
delivery to the Purchasers of the Trust Preferred Securities purchased
by such Purchaser at 10:00 a.m., New York City time, on June 28, 2007,
or at such other time on the same or such other date as shall be
mutually agreed upon by the Sellers and the Purchasers. The time and
date of such payment and delivery are hereinafter referred to as the
"Closing Date."
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3. Representations and Warranties. The Company and the Trust, jointly
and severally, represent and warrant to the Purchasers as of the date hereof and
as of the Closing Date the following:
(a) Neither the Company nor the Trust, nor any of their
"Affiliates" (as defined in Rule 501(b) of Regulation D ("Regulation D")
under the Securities Act), nor any person acting on its or their behalf,
has directly, or through any agent, sold, offered for sale, solicited
offers to buy, or otherwise approached or negotiated with, any Person in
respect of, any security (as defined in the Securities Act) that is or
will be integrated with the sale of the Securities in a manner that
would require (i) the registration under the Securities Act of the
issuance of any of the Securities contemplated hereby or (ii) the
approval of the stockholders of the Company in accordance with the rules
and regulations of the New York Stock Exchange, Inc. (the "NYSE").
(b) Neither the Company, nor the Trust, nor any of their
Affiliates or any person acting on its or their behalf, has offered or
sold any of the Securities by means of any general solicitation or
general advertising within the meaning of Rule 502(c) under the
Securities Act, including (i) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar
medium or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising in the United States.
(c) The Securities (i) are not and have not been listed on a
national securities exchange registered under Section 6 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
quoted on a U.S. automated inter-dealer quotation system and (ii) are
not of an open-end investment company, unit investment trust or
face-amount certificate company that are, or are required to be,
registered under Section 8 of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and the Securities otherwise
satisfy the eligibility requirements of Rule 144A(d)(3) promulgated
pursuant to the Securities Act ("Rule 144A(d)(3)").
(d) Neither the Company nor the Trust, nor any of their
Affiliates, is, and, immediately following consummation of the
transactions contemplated hereby and the application of the net proceeds
therefrom, will not be, an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act.
(e) Neither the Company nor the Trust has paid or agreed to pay
to any person any compensation in connection with the transaction
contemplated hereby, except for the structuring fee to be paid to
Marathon Asset Management, LLC pursuant to a Fee Agreement dated June
27, 2007 between the Company and Marathon Asset Management, LLC in
connection with the purchase by certain investment funds managed by
Marathon of Trust Preferred Securities.
(f) The Trust has been duly formed and is validly existing in
good standing as a statutory trust under the Delaware Statutory Trust
Act, 12 Del. C. xx.xx. 3801, et seq. (the "Statutory Trust Act"), with
all requisite power and authority to own property and to
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conduct the business it transacts and proposes to transact and to enter
into and perform its obligations under the Transaction Documents to
which it is a party. The Trust has conducted and will conduct no
business other than the transactions contemplated by this Agreement. The
Trust is duly qualified to transact business as a foreign entity and is
in good standing in each jurisdiction in which such qualification is
necessary, except where the failure to so qualify or be in good standing
would not, individually or in the aggregate, have a material adverse
effect or prospective material adverse effect on the condition
(financial or otherwise), earnings, business, assets and liabilities of
the Trust, whether or not occurring in the ordinary course of business.
The Trust is not a party to or otherwise bound by any agreement other
than the Transaction Documents and agreements and instruments incidental
to the transactions contemplated by this Agreement. The Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by the Transaction Documents. The Company and
the Trust intend to treat the Trust for federal income tax purposes as a
grantor trust and not as an association or publicly traded partnership
taxable as a corporation.
(g) The Trust Agreement has been duly authorized by the Company
and, on the Closing Date, will have been duly executed and delivered by
the Company and the Administrative Trustees of the Trust, and, assuming
due authorization, execution and delivery by the Property Trustee and
the Delaware Trustee, will be a legal, valid and binding obligation of
the Company and the Administrative Trustees, enforceable against them in
accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general
principles of equity. Each of the Administrative Trustees of the Trust
is an employee of the Company and has been duly authorized by the
Company to execute and deliver the Trust Agreement and other documents
and agreements related to the transactions contemplated hereby.
(h) The Guarantee of the Guarantor and the Guarantee Agreement
have been duly authorized by all necessary corporate action by the
Company and, when duly executed and delivered in accordance with the
terms of the Indenture, the Guarantee and the Guarantee Agreement will
be the legally valid and binding obligations of the Company, enforceable
against it in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally, and to general principles of equity, including
principles of materiality, commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(i) Upon issuance and delivery of the Securities in accordance
with this Agreement and the Transaction Documents, the Securities will
be convertible at the option of the holder thereof into the Underlying
Securities in accordance the terms of the Transaction Documents; the
Underlying Securities issuable upon conversion of the Securities have
been duly authorized and the initial number of shares into which the
Securities are convertible have been reserved for issuance and, when
issued upon conversion of the Securities in accordance with the terms of
the Transaction Documents, will be validly issued, fully paid and non
assessable, and the issuance of the Underlying Securities will not be
subject to any preemptive or similar rights.
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(j) The Registration Rights Agreement has been duly authorized by
the Company and the Guarantor and when executed and delivered by the
Company and the Guarantor (assuming the due authorization, execution and
delivery thereof by the Purchasers) shall constitute a legal, valid and
binding agreement of the Company and the Guarantor, enforceable against
each of them in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally, and to general principles of equity, including
principles of materiality, commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except that rights to
indemnification and contribution thereunder may be limited by federal or
state securities laws or public policy relating thereto.
(k) The Indenture has been duly authorized by the Company and, on
the Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery by the
Indenture Trustee, will be a legal, valid and binding obligation of the
Company enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally, and to general principles of equity, including
principles of materiality, commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(l) The Common Securities have been duly authorized for issuance
by the Trust pursuant to the Trust Agreement and, when duly issued and
executed in accordance with the Trust Agreement and delivered by the
Trust to the Company against payment therefor in accordance with the
Common Securities Subscription Agreement therefor, will be validly
issued, fully paid and non-assessable undivided common beneficial
ownership interests in the assets of the Trust; the issuance of the
Common Securities is not subject to preemptive or other similar rights;
and on the Closing Date, all of the issued and outstanding Common
Securities of the Trust will be owned directly by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim, equitable right or encumbrance of any kind ("Lien").
(m) The Trust Preferred Securities have been duly authorized for
issuance by the Trust pursuant to the Trust Agreement and, when duly
issued, executed and authenticated in accordance with the Trust
Agreement and delivered by the Trust against payment therefor as
provided herein, will be validly issued, fully paid and non-assessable
undivided preferred beneficial ownership interests in the assets of the
Trust; the issuance of the Trust Preferred Securities will not be
subject to preemptive or other similar rights; and the Trust Preferred
Securities will be in the form contemplated by, and entitled to the
benefits of, the Trust Agreement.
(n) The Junior Subordinated Debentures have been duly authorized
by the Company and, on the Closing Date, will have been duly executed
and delivered to the Indenture Trustee for authentication in accordance
with the Indenture and, when authenticated in the manner provided for in
the Indenture and delivered to the Trust
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against payment therefor in accordance with the Junior Subordinated
Debenture Purchase Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally, and to general principles of equity, including
principles of materiality, commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(o) This Agreement has been duly authorized, executed and
delivered by the Company and the Trust.
(p) Neither the issue and sale of the Securities, nor the
purchase of the Junior Subordinated Debentures by the Trust, nor the
execution and delivery of and compliance with the Transaction Documents
by the Company or the Trust, nor the consummation of the transactions
contemplated herein or therein, (i) will conflict with, result in any
breach of, or constitute default under (or constitute any event which
with notice, lapse of time or both, would constitute a breach of, or
default under) (A) any provision of the Trust Agreement or the articles
of incorporation, charter or organizational documents, as applicable,
and of the bylaws, and all amendments and supplements thereto
(collectively, the "Charter Documents") of the Company or any subsidiary
of the Company or (B) any federal, state, local or foreign law, rule or
regulation or any decree, judgment or order of any federal, state, local
or foreign governmental or regulatory commission, board, body,
authority, arbitral panel or agency (collectively, the "Governmental
Entities") applicable to the Trust or the Company or any of its
subsidiaries or their respective properties or assets, (ii) will
conflict with or constitute a violation or breach of, or a default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any Lien upon any property or assets of the Trust, the
Company or any of the Company's subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which (A) the Trust, the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
(B) to which any of the property or assets of any of them is subject, or
any judgment, order or decree of any court, Governmental Entity or
arbitrator, except, in the case of clauses (i)(B) and (ii) above, for
such conflicts, breaches, violations, defaults, Repayment Events (as
defined below) or Liens which (X) would not, individually or in the
aggregate, adversely affect the consummation of the transactions
contemplated by the Transaction Documents and (Y) would not,
individually or in the aggregate, have a material adverse effect or
prospective material adverse effect on the condition (financial or
otherwise), earnings, business, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions
occurring in the ordinary course of business (a "Material Adverse
Effect") or (iii) require an approval, authorization, consent or order
of or filing with any Governmental Entity. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Trust or the
Company or any of its subsidiaries prior to its scheduled maturity.
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(q) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation or limited
liability company in good standing under the laws of its respective
jurisdiction of incorporation or organization, with full corporate power
or limited liability company power and authority, as the case may be, to
own its respective properties and conduct its respective business it
transacts and proposes to transact.
(r) The Company and each of its subsidiaries are duly qualified
in or licensed by each jurisdiction in which they conduct their
respective businesses, and the Company and each of its subsidiaries are
duly qualified, and are in good standing, in each jurisdiction in which
they own or lease real property or maintain an office and in which such
qualification is necessary, except where the failure to be so qualified
or licensed and in good standing, individually or in the aggregate would
not have a Material Adverse Effect. No subsidiary is prohibited or
restricted, directly or indirectly, from paying dividends to the
Company, or from making any other distribution with respect to such
subsidiary's capital stock or from repaying to the Company or any other
subsidiary any amounts which may from time to time become due under any
loans or advances to such subsidiary from the Company or such other
subsidiary, or from transferring any such subsidiary's property or
assets to the Company or to any other subsidiary and the Company does
not own, directly or indirectly, any capital stock or other equity
securities of any other corporation or any ownership interest in any
partnership, joint venture or other association except as have been
disclosed to the Purchasers.
(s) Each of the Trust, the Company and each of the Company's
subsidiaries has all necessary licenses, authorizations, consents and
approvals and has made all necessary filings required under any federal,
state or local law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, required in
order to conduct their respective businesses as now being conducted,
except to the extent that any failure to have any such licenses,
authorizations, consents and approvals, to make such filings or to
obtain such authorizations, consents or approvals would not,
individually or in the aggregate, have a Material Adverse Effect; the
Company and its subsidiaries are in compliance with all applicable laws,
rules, regulations, judgments, orders, decrees and consents, except
where the failure to be in compliance would not, individually or in the
aggregate, have a Material Adverse Effect; neither the Trust, the
Company nor any of the Company's subsidiaries has received any notice
regarding a possible violation, default or revocation of any such
license, authorization, consent or approval or of any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment of any Governmental Entity applicable to the Company, the Trust
or any of the Company's subsidiaries the effect of which, individually
or in the aggregate, would reasonably be expected to result in a
Material Adverse Effect.
(t) All of the outstanding shares of capital stock of the Company
and its subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable and were not issued in violation of
any preemptive right, resale right, right of first refusal or similar
right; all of the issued and outstanding capital stock of the
subsidiaries of the Company are directly or indirectly owned of record
and beneficially by the Company, free and clear of any Lien, claim or
equitable right.
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(u) Neither the Company nor any of its subsidiaries is in breach
of or in default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach of, or default under)
(i) its respective Charter Documents or (ii) in the performance or
observance of any covenant contained in any license, indenture,
mortgage, loan or credit agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by any of
them or their respective properties is bound, except for such breaches
or defaults which, individually or in the aggregate, would not have a
Material Adverse Effect.
(v) There are no actions, suits, proceedings, inquiries or
investigations pending or, to the knowledge of the Company or the Trust,
threatened against the Trust or the Company or any of the Company's
subsidiaries or any of their respective officers and directors or to
which the properties or assets or rights of any such entity are subject,
at law or in equity, before or by any Governmental Entity which could
result in a judgment, decree, award or order having a Material Adverse
Effect or preventing the consummation of the transactions contemplated
by the Transaction Documents; and the aggregate of all pending legal or
governmental proceedings to which the Trust or the Company or any of its
subsidiaries is a party or of which any of their respective properties
or assets is subject, including ordinary routine litigation incidental
to the business, are not expected to result in a Material Adverse
Effect.
(w) Deloitte & Touche LLP, the accountants of the Company who
certified the Audited Financial Statements (as defined below) are and
were, during the periods covered by their reports independent public
accountants of the Company and its subsidiaries within the meaning of
the Securities Act, and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder.
(x) The audited consolidated financial statements (including the
notes thereto) of the Covered Entities (as defined below) for the fiscal
year ended December 31, 2006 (the "Audited Financial Statements") and
the interim unaudited consolidated financial statements of the Company
and its consolidated subsidiaries for the quarter ended March 31, 2007
(the "Interim Financial Statements") provided to the Purchasers are the
most recent available audited and unaudited consolidated financial
statements of the Covered Entities, respectively, and fairly present in
all material respects in accordance with United States generally
accepted accounting principles ("GAAP"), the consolidated financial
position of the entities to which such financial statements relate (the
"Covered Entities") as of the dates indicated and the consolidated
results of operations and changes in financial position and cash flows
of the Covered Entitles for the periods specified, subject, in the case
of Interim Financial Statements, to year-end adjustments (which are
expected to consist solely of normal recurring adjustments). Such
financial statements have been prepared in accordance with GAAP applied
on a consistent basis during the periods involved and in accordance with
Regulation S-X promulgated by the Commission; the financial statement
schedules included in such Audited Financial Statements or Interim
Financial Statements, as applicable, fairly present the information
shown therein.
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(y) None of the Trust, the Company nor any of its subsidiaries
has any material liability, whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to
become due, including any liability for taxes (and there is no past or
present fact, situation, circumstance, condition or other basis for any
present or future action, suit, proceeding, hearing, charge, complaint,
claim or demand against the Company or its subsidiaries that could give
rise to any such liability), except for (i) liabilities set forth in the
Audited Financial Statements or the Interim Financial Statements (ii)
normal fluctuations in the amount of the liabilities referred to in
clause (i) above occurring in the ordinary course of business of the
Trust, the Company and all of its subsidiaries since the date of the
most recent balance sheet included in such Financial Statements and
(iii) taxes not yet due and taxes being contested through appropriate
proceedings for which reserves are maintained in accordance with GAAP.
(z) Since the respective dates of the Audited Financial
Statements and the Interim Financial Statements and except as disclosed
in the Company's Annual Report on Form 10-K, Quarterly Reports on Form
10-Q or Current Reports on Form 8-K, there has not been (A) any Material
Adverse Effect, (B) any transactions entered into by the Company or any
of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise or (C) any dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock other than regular quarterly dividends on the
Company's common and preferred stock.
(aa) The documents of the Company filed with the Commission in
accordance with the Exchange Act, from and including the commencement of
the fiscal year covered by the Company's most recent Annual Report on
Form 10-K, at the time they were or hereafter are filed by the Company
with the Commission (collectively, the "Exchange Act Reports"), complied
and will comply in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder
(the "Exchange Act Regulations"), and, at the date of this Agreement and
on the Closing Date, when taken together, do not and will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and other than such instruments, agreements, contracts
and other documents as are filed as exhibits to the Company's Annual
Report on Form 10-K, Quarterly Reports on Form 10-Q or Current Reports
on Form 8-K, there are no instruments, agreements, contracts or
documents of a character described in Item 601 of Regulation S-K
promulgated by the Commission to which the Company or any of its
subsidiaries is a party. The Company is in compliance in all material
respects with all currently applicable requirements of the Exchange Act
that were added by the Xxxxxxxx-Xxxxx Act of 2002.
(bb) No labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the knowledge of the executive officers
of the Company, is imminent, except those which would not, individually
or in the aggregate, have a Material Adverse Effect.
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(cc) No approval, authorization, consent or order of or filing
with any Governmental Entity is required in connection with the
execution, delivery and performance by the Trust or the Company of their
respective obligations under the Transaction Documents, as applicable,
or the consummation by the Trust and the Company of the transactions
contemplated by the Transaction Documents, including the issuance and
sale of the Securities, other than those that have been made or
obtained.
(dd) The Company has good and marketable title in fee simple to
its real property at (i) 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
and (ii) 000 Xxxxx Xxxxxxxx Xxxx, Xx. Xxxxxxxx, Xxxxxxxx 00000, free and
clear of all Liens, except for such Liens or defects in title which
would not, individually or in the aggregate, have a Material Adverse
Effect; any real property and buildings held under lease by the Company
or any subsidiary are held under valid, existing and enforceable leases,
except for any exceptions which would not, individually or in the
aggregate, have a Material Adverse Effect; and the Company or an
affiliate of the Company has good and marketable title to all of its
personal property, free and clear of all Liens, except for such Liens or
defects in title which would not, individually or in the aggregate, have
a Material Adverse Effect;
(ee) The Company has met and meets requirements for qualification
and taxation as a real estate investment trust (a "REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"), and the Company
expects, so long as its Board of Directors deems it to be in the best
interests of the Company, to continue to be organized and to operate in
a manner so as to qualify as a REIT in the taxable year ending December
31, 2007 and succeeding taxable years.
(ff) Neither the Company nor any of its affiliates (i) is
required to register as a "broker" or "dealer" in accordance with the
provisions of the Exchange Act, or the rules and regulations thereunder,
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, Inc. (the "NASD")) any member firm of the NASD;
(gg) Each of the Company and its subsidiaries has filed on a
timely basis all necessary Tax Returns (as defined below) required to be
filed through the date hereof, and all such Tax Returns are true,
correct and complete in all material respects. The Company and each of
the its subsidiaries have timely and duly paid in full all material
Taxes required to be paid by them (whether or not such amounts are shown
as due on any Tax Return). There are no material federal, state, or
other Tax audits or deficiency assessments proposed or pending with
respect to the Company or any of the Significant Subsidiaries, and no
such audits or assessments are threatened. As used herein, the terms
"Tax" or "Taxes" mean (i) all federal, state, local, and foreign taxes,
and other assessments of a similar nature (whether imposed directly or
through withholding), including any interest, additions to tax, or
penalties applicable thereto, imposed by any Governmental Entity, and
(ii) all liabilities in respect of such amounts arising as a result of
being a member of any affiliated, consolidated, combined, unitary or
similar group, as a successor to another person or by contract. As used
herein, the term "Tax Returns" means all federal, state, local, and
foreign tax returns, declarations, statements, reports,
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schedules, forms, and information returns and any amendments thereto
filed or required to be filed with any Governmental Entity.
(hh) The books, records and accounts of the Company and its
subsidiaries accurately and fairly reflect, in reasonable detail, the
transactions in, and dispositions of, the assets of, and the results of
operations of, the Company and its subsidiaries. (i) The Company and
each of its subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorizations, (B) transactions are recorded as necessary to
permit preparation of financial statements in accordance with GAAP and
to maintain asset accountability, (C) access to assets is permitted only
in accordance with management's general or specific authorization and
(D) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences, and (ii) the Company maintains a system of
"disclosure controls and procedures" (as such term is defined in Rule
13a-15(e) under the Exchange Act).
(ii) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts in all material respects as are customary in the businesses
in which they are engaged or propose to engage after giving effect to
the transactions contemplated hereby including but not limited to, real
or personal property owned or leased against theft, damage, destruction,
act of vandalism and all other risks customarily insured against. All
policies of insurance and fidelity or surety bonds insuring the Company
or any of its subsidiaries or the Company's or its subsidiaries'
respective businesses, assets, employees, officers and directors are in
full force and effect. The Company and each of the subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects. Neither the Company nor any of its subsidiaries has
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole. Within the past
twelve months, neither the Company nor any subsidiary has been denied
any insurance coverage which it has sought or for which it has applied.
(jj) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the senior executive officer's of the Company, any officer
or director purporting to act on behalf of the Company or any of its
subsidiaries has at any time: (i) made any contributions to any
candidate for political office, or failed to disclose fully any such
contributions, in violation of law, (ii) made any payment to any state,
federal or foreign governmental officer or official, or other person
charged with similar public or quasi-public duties, other than payments
required or allowed by applicable law, (iii) made any payment outside
the ordinary course of business to any investment officer or loan broker
or person charged with similar duties of any entity to which the Company
or any of its subsidiaries sells or from which the Company or any of its
subsidiaries buys loans or servicing arrangements for the purpose of
influencing such agent, officer, broker or person to buy loans or
servicing arrangements from or sell loans to the Company or any
11
of its subsidiaries, (iv) engaged in any transactions, maintained any
bank account or used any corporate funds except for transactions, bank
accounts and funds which have been and are reflected in the normally
maintained books and records of the Company and its subsidiaries or (v)
made any other payment of funds of the Company or its subsidiaries or
received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a
character required to be disclosed to the Purchasers.
(kk) The information provided by the Company and the Trust
pursuant to this Agreement and the transactions contemplated hereby does
not, as of the date hereof, and will not as of the Closing Date, contain
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(ll) Subject to compliance by the Purchasers with the
representations and warranties contained in Section 4 hereof and the
Purchasers' compliance with the transfer procedures and restrictions set
forth in the Transaction Documents, it is not necessary in connection
with the offer, issuance, sale and delivery of the Trust Preferred
Securities in the manner contemplated by this Agreement and the other
Transaction Documents to register the offer or sale of any of the
Securities, Guarantee or Underlying Securities under the Securities Act
or to qualify the Indenture, the Trust Agreement or the Guarantee
Agreement under the Trust Indenture Act of 1939, as amended (the "1939
Act").
(mm) Neither the Company, nor any of its subsidiaries nor any of
their officers or directors or any of their affiliates has, since June
1, 2007, taken, or will take, directly or indirectly, any action
designed or intended to stabilize or manipulate the price of any
security of the Company, or that caused or resulted in, or that might in
the future reasonably be expected to cause or result in, stabilization
or manipulation of the price of any security of the Company.
(nn) The Common Stock is registered pursuant to Section 12(b) of
the Exchange Act and is listed on the NYSE under the symbol "AHM", and
the Company has not taken any action designed to or reasonably likely to
result in the termination of the registration of the Common Stock under
the Exchange Act or delisting of the Common Stock from the NYSE.
(oo) The Trust Preferred Securities are eligible for resale
pursuant to Rule 144A and will not be, on the Closing Date, of the same
class as securities listed on a national securities exchange registered
under Section 6 of the 1934 Act, or quoted in a U.S. automated
interdealer quotation system.
(pp) (i) The Company is in compliance with all presently
applicable provisions of the Employee Retirement Income Security Act of
1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"), except where the failure to be in
such compliance would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect; (ii) no "reportable
event" (as defined in ERISA) has occurred with respect to any "pension
plan" (as defined in ERISA) for which
12
the Company is required to provide notice under Section 4043 of ERISA
and would have any liability, except where such liability would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; (iii) except for matters that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (a) with respect to any "pension plan" (other
than a "multiemployer plan" (as defined in ERISA)), the Company has not
incurred and does not expect to incur liability under Title IV of ERISA
with respect to termination of, or withdrawal from, such "pension plan,"
or under Section 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder ("Code"), and (b) with respect to any "pension plan" that is
a "multiemployer plan," the Company has not received notice that the
Company has incurred liability under Title IV of ERISA with respect to
termination of, or withdrawal from, such "pension plan," or under
Section 412 or 4971 of the Code; (iv) except where the failure to be in
such compliance would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, each "pension plan"
(other than a "multiemployer plan") for which the Company and each of
the Guarantors would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to
act, which would reasonably be expected cause the loss of such
qualification; and (v) except where the failure to be in such compliance
would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, no non-exempt "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code) or
"accumulated funding deficiency" (as defined in Section 302 of ERISA)
has occurred with respect to any "pension plan" (other than a
"multiemployer plan") for which the Company and each of the Guarantors
would have any liability.
(qq) Other than the Registration Rights Agreement, the Company
has not granted or agreed to grant to any Person any rights (including
"piggy back" registration rights) to have any securities of the Company
registered with the Commission or any other governmental authority that
have not been satisfied.
(rr) American Home Bank, as of March 30, 2007 and after giving
effect to the issuance of the Trust Preferred Securities, (A) was and
will continue to be (i) "well capitalized" (as such term is defined for
purposes of 12 C.F.R. 567.1 et seq.) with respect to its "Tier 1"
capital and total capital requirements and (ii) "adequately capitalized"
(as such term is defined for purposes of 12 C.F.R. 567.1 et seq.) with
respect to its leverage ratio and (B) satisfied and will continue to
satisfy all applicable rules and regulations of the Office of Thrift
Supervision (the "OTS") and meet all applicable minimum capital
requirements established by the OTS.
Each Purchaser acknowledges and agrees that the Company has not made and does
not make any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section 3.
4. Representations and Warranties of the Purchasers. The Purchasers
severally represent and warrant to, agree with, and with respect to (g) through
(k) covenant to, the Company and the Trust as follows:
13
(a) Such Purchaser is aware that the Securities have not been and
will not be registered under the Securities Act and may not be offered
or sold within the United States or to "U.S. persons" (as defined in
Regulation S under the Securities Act) except in accordance with Rule
903 of Regulation S under the Securities Act or pursuant to an exemption
from the registration requirements of the Securities Act.
(b) Such Purchaser is an "accredited investor," as such term is
defined in Rule 501(a) of Regulation D under the Securities Act.
(c) Neither such Purchaser, nor any of such Purchaser's
affiliates, nor any person acting on such Purchaser's or such
Purchaser's Affiliate's behalf has engaged, or will engage, in any form
of "general solicitation or general advertising" (within the meaning of
Regulation D under the Securities Act) in connection with any offer or
sale of the Trust Preferred Securities.
(d) Such Purchaser understands and acknowledges that (i) no
public market exists for any of the Securities and that it is unlikely
that a public market will ever exist for the Securities, (ii) such
Purchaser is purchasing the Securities for its own account, for
investment and not with a view to, or for offer or sale in connection
with, any distribution thereof in violation of the Securities Act or
other applicable securities laws, subject to any requirement of law that
the disposition of its property be at all times within its control and
subject to its ability to resell such Securities pursuant to an
effective registration statement under the Securities Act or pursuant to
an exemption therefrom or in a transaction not subject thereto, and such
Purchaser agrees to the legends and transfer restrictions applicable to
the Securities contained in the Indenture, and (iii) such Purchaser has
had the opportunity to ask questions of, and receive answers and request
additional information from, the Company and is aware that it may be
required to bear the economic risk of an investment in the Securities
indefinitely.
(e) Each Purchaser has all requisite (i) power and authority to
execute, deliver and perform the Transaction Documents to which it is a
party, to make the representations and warranties specified herein and
therein and to consummate the transactions contemplated herein and (ii)
right and power to purchase the Securities.
(f) This Agreement has been duly authorized, executed and
delivered by such Purchaser and no approval, authorization, consent or
order or filing with any Governmental Agency having jurisdiction over
such Purchaser, other than those that have been made or obtained, is
required in connection with the performance by such Purchaser of its
obligations under this Agreement or the consummation the transactions
contemplated herein.
(g) The Purchaser represents and warrants that it will provide a
properly completed and executed IRS Form X-0, X-0XXX, X-0XXX, or W-8IMY
or any successor thereto (with all appropriate attachments), that
eliminates U.S. federal withholding tax and backup withholding tax on
payments under the Trust Agreement prior to the first payment date on
the Preferred Securities, promptly upon the request of
14
the Property Trustee, and prior to any such form previously provided by
it becoming obsolete or incorrect.
(h) The Purchaser represents and warrants that it will, unless
otherwise required by law, (i) treat the Trust as a grantor trust for
U.S. federal income tax purposes, (ii) treat the Securities as undivided
beneficial ownership interests in the Trust Property for U.S. federal
income tax purposes, and (iii) treat the Notes as indebtedness of the
Company for U.S. federal income tax purposes.
(i) The Purchaser intends that the Trust is, and under current
law will continue to be, classified for U.S. federal income tax purposes
as a grantor trust and not as a business entity or as an association or
publicly traded partnership taxable as a corporation and the Purchaser
agrees not to take any action inconsistent with such intention, unless
otherwise required by law.
(j) If the Purchaser is not a United States Person for U.S.
federal income tax purposes (a "U.S. Person"), then the Purchaser will
irrevocably appoint a U.S. Person with discretionary powers to act as
its agent with respect to consents and other votes under the Preferred
Securities held by the Purchaser, at such time that any such consent or
other vote arises under the Trust Agreement. Note: Purchasers that are
not U.S. Persons are required to irrevocably appoint a U.S. Person with
discretionary authority as their agent with respect to any matter that
requires consent or a vote at such time that any such consent or other
vote arises under the Trust Agreement. Any successor agent of a foreign
purchaser must also be a U.S. Person.
(k) None of the Purchasers is treated as a pension plan for U.S.
federal income tax purposes.
(l) The Purchasers acknowledge and agree that they are subject to
the ownership limits as applicable to the common stock and the equity
stock of the Company, generally, pursuant to the Charter of the Company
and the Indenture, including any remedies available to the Company for
any violation of such ownership limits.
The Sellers acknowledge and agree that the Purchasers have not
made, and do not make, any representations or warranties with respect to
the transactions contemplated hereby other than those specifically set
forth in this Section 4.
5. Covenants and Agreements of the Company and the Trust. The Company
and the Trust jointly and severally covenant and agree with the Purchasers as
follows:
(a) During the period from the date of this Agreement to the
Closing Date, the Company and the Trust shall use their best efforts and
take all action necessary or appropriate to cause their representations
and warranties contained in Section 3 hereof to be true as of the
Closing Date, after giving effect to the transactions contemplated by
this Agreement, as if made on and as of the Closing Date.
(b) Until the expiration of two years after the original issuance
of the Trust Preferred Securities, the Company will not (directly or
through a subsidiary), and will use its reasonable efforts to cause its
"affiliates" (as such term is defined in Rule 144(a)(1) under the
Securities Act) not to, purchase or agree to purchase or otherwise
acquire any
15
Trust Preferred Securities which are "restricted securities" (as such
term is defined under Rule 144(a)(3) under the Securities Act), whether
as beneficial owner or otherwise (except as agent on behalf of and for
the account of customers in the ordinary course of business as a
securities broker in unsolicited broker's transactions) unless,
immediately upon any such purchase, the Company or any such affiliate
shall submit such Trust Preferred Securities for cancellation.
(c) Neither the Company nor the Trust will, nor will either of
them permit any of its Affiliates to, nor will either of them permit any
person acting on its or their behalf (other than the Purchasers) to,
resell any Trust Preferred Securities that have been acquired by any of
them.
(d) Neither the Company nor the Trust will, nor will either of
them permit any of their Affiliates or any person acting on their behalf
to, directly or indirectly, make offers or sales of any security, or
solicit offers to buy any security, under circumstances that would
require the registration of any of the Securities under the Securities
Act or require stockholder approval under the rules and regulations of
the NYSE and the Company will take all action that is appropriate or
necessary to assure that its offerings of other securities will not be
integrated for purposes of the Securities Act or the rules and
regulations of the NYSE with the issuance of Securities contemplated
hereby.
(e) Following the effectiveness of a registration statement
relating to the Underlying Securities, the Company and the Trust will
arrange to file a supplemental listing application and use its best
efforts to have the Underlying Securities approved for listing by the
NYSE in accordance with its rules and regulations.
(f) The Company and the Trust will arrange for the qualification
of the Trust Preferred Securities for sale under the laws of such
jurisdictions as the Purchasers may designate and will maintain such
qualifications in effect so long as required for the sale of the Trust
Preferred Securities. The Company or the Trust, as the case may be, will
promptly advise the Purchasers of the receipt by the Company or the
Trust, as the case may be, of any notification with respect to the
suspension of the qualification of the Trust Preferred Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(g) Neither the Company nor the Trust will, nor will either of
them permit any of its Affiliates or any person acting on their behalf
to, engage in any form of "general solicitation or general advertising"
(within the meaning of Regulation D) in connection with any offer or
sale of the any of the Securities.
(h) So long as any of the Securities are outstanding, (i) the
Securities shall not be listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system and (ii) neither the Company nor
the Trust shall be an open-end investment company, unit investment trust
or face-amount certificate company that is, or is required to be,
registered under Section 8 of the Investment Company Act, and, the
Securities shall otherwise satisfy the eligibility requirements of Rule
144A(d)(3).
16
(i) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company
and the Trust will pay or cause to be paid all fees, costs and expenses
incident to the performance of its obligations hereunder, including
without limiting the generality of the foregoing, all fees, costs and
expenses (i) incident to the preparation, authorization, issuance, sale,
execution, authentication and delivery of the Securities, including any
expenses of the Trustee and any taxes payable in connection therewith,
(ii) payable to rating agencies in connection with any rating of the
Securities, (iii) incurred in connection with the qualification of the
Securities for sale under state securities laws, (iv) in connection with
the approval of the Underlying Securities for listing on the NYSE, (v)
in connection with the admission for trading of the Securities in the
Private Offerings, Resales and Trading through Automatic Linkages
("PORTAL") system of the National Association of Securities Dealers
("NASD"). In addition to the foregoing (and without duplication), the
Company agrees to pay the Purchasers their actual out-of-pocket expenses
incurred in connection with the negotiation, due diligence and
documentation of the Transaction Documents and the transactions
contemplated thereby, including the fees and expenses of counsel to the
Purchasers, and of the counsel, the accountants and any other experts or
advisors retained by the Company or the Trust. Except as expressly set
forth in this Section 5(i) and in Sections 8, 11 and 13, the Company
shall have no obligation to pay any costs and expenses of the Purchasers
(except as set forth in the Registration Rights Agreement).
(j) For so long as the Securities remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, each of the Company and the Trust will make available to
the Purchasers and any holder of Securities in connection with any sale
thereof and any prospective purchaser of Securities and securities
analysts, in each case upon request, the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Securities Act
(or any successor thereto), unless the Company is then subject to and in
compliance with Section 13 or 15(d) under the Exchange Act.
(k) The Company will not take any action prohibited by Regulation
M under the Exchange Act, in connection with the issuance of the
Securities contemplated hereby.
(l) The Company will use its best efforts to cause the Securities
to be accepted for clearance and settlement through the facilities of
The Depository Trust Company and eligible for trading on PORTAL.
(m) The Company's Board of Directors will reserve and keep
available, free of pre-emptive rights, not less than 10,500,000 shares
of Common Stock for the purpose of enabling the Company to satisfy all
obligations to issue the Underlying Securities upon conversion of the
Trust Preferred Securities. The number of shares of Common Stock
authorized and kept available by the Company's Board of Directors shall
be adjusted in accordance with the conversion rate adjustments specified
in the Indenture such that there will always be a sufficient number of
shares of Common Stock for the purpose of enabling the Company to
satisfy all obligations to issue the Underlying Securities upon
conversion of the Trust Preferred Securities.
17
(n) The Company will file a Current Report on Form 8-K, in the
form required by the Exchange Act, relating to the transactions
contemplated by the Transaction Documents which also discloses certain
information about the quarterly period ending on June 30, 2007 to the
Purchasers' reasonable satisfaction; except for certain information to
be included in the Current Report on Form 8-K referred to in this
sentence, the Company covenants and agrees that neither it nor any other
person or entity acting on its behalf has provided or will provide the
Purchasers or its agents or counsel with any information that the
Company believes constitutes material non-public information, unless
prior thereto the Purchasers shall have executed a written agreement
regarding the confidentiality and use of such information. The Company
understands and confirms that the Purchasers shall be relying on the
foregoing representations in effecting transactions in securities of the
Company.
(o) Each of the Company and the Trust will, during any period in
which it is not subject to and in compliance with Section 13 or 15(d) of
the Exchange Act, or it is not exempt from such reporting requirements
pursuant to and in compliance with Rule 12g3-2(b) under the Exchange
Act, shall provide to each holder of the Securities and to each
prospective purchaser (as designated by such holder) of the Securities,
upon the request of such holder or prospective purchaser, any
information required to be provided by Rule 144A(d)(4) under the
Securities Act. If the Company and the Trust are required to register
under the Exchange Act, such reports filed in compliance with Rule
12g3-2(b) shall be sufficient information as required above. This
covenant is intended to be for the benefit of the Purchasers, the
holders of the Securities, and the prospective purchasers designated by
the Purchasers and such holders, from time to time, of the Securities.
(p) The Company will use its best efforts to meet the
requirements to qualify as a REIT under Sections 856 through 860 of the
Code, effective for the taxable year ending December 31, 2007 (and each
fiscal quarter of such year) and succeeding taxable years, unless and
until the Company's Board of Directors determines that it is not in the
best interests of the Company's shareholders to so qualify.
(q) Neither the Company nor the Trust will identify any of the
Indemnified Parties (as defined below) in a press release or any other
public statement without the consent of such Indemnified Party.
(r) The Company agrees, (i) if the Company applies to have the
Common Stock traded on any other national or regional securities
exchange or, if the Common Stock is not listed on a national or regional
securities exchange, on the National Association of Securities Dealers
Automated Quotation System or, if the Common Stock is not quoted on the
National Association of Securities Dealers Automated Quotation System,
on the principal other market on which the Common Stock is then traded
(a "Trading Market"), it will include in such application the Underlying
Securities, and will take such other action as is necessary or desirable
to cause the Underlying Securities to be listed on such other Trading
Market as promptly as possible, and (ii) it will take all action
reasonably necessary to continue the listing and trading of its Common
Stock on a Trading Market and will comply in all material respects with
the Company's reporting, filing and other obligations under the bylaws
or rules of the Trading Market.
18
(s) The Company agrees that it will comply with all the terms and
conditions of the Registration Rights Agreement.
6. Conditions to the Purchasers' Obligations. The obligation of each of
the Purchasers hereunder to purchase the Trust Preferred Securities on the
Closing Date is subject to the performance by the Company and the Trust of their
respective obligations hereunder and to the following additional conditions:
(a) The representations and warranties of the Company and the
Trust set forth in Section 3 above are true and correct in all material
respects (except for those representations and warranties already
qualified by materiality, which such representations and warranties
shall be true and correct in all respects) on and as of the Closing Date
as if made on and as of the Closing Date and the Company and the Trust
shall have complied in all material respects with all agreements and
satisfied all conditions on each of their respective part to be
performed or satisfied at or prior to the Closing Date.
(b) The Purchasers shall have received on and as of the Closing
Date a certificate of the Company, signed by the Chief Executive
Officer, President, or an Executive Vice President, and the Chief
Financial Officer, Treasurer or Assistant Treasurer of the Company with
specific knowledge about the Company's financial matters, satisfactory
to the Purchasers, to the effect set forth in Section 6(a) and to the
further effect that except as disclosed in the Exchange Act Documents
filed as of the date hereof, there has not occurred any Material Adverse
Effect since the date of the Interim Financial Statements.
(c) The Trust shall have furnished to the Purchasers a
certificate of the Trust, signed by an Administrative Trustee of the
Trust, in each case dated the Closing Date, to the effect set forth in
Section 6(a).
(d) On the Closing Date, the Purchaser shall have received the
favorable opinion, dated as of the Closing Date, of (i) Cadwalader
Xxxxxxxxxx & Xxxx LLP, special counsel for the Company and the Trust,
(ii) Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, special Maryland counsel to the
Company, and (iii) Xxxx X. Xxxx Esq., General Counsel of the Company, in
form and substance satisfactory to the Purchaser and counsel for the
Purchaser, to the extent set forth in Exhibit A hereto. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Purchaser. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of the officers of the
Company and certificates of public officials.
(e) On the Closing Date, the Purchasers shall have received the
favorable opinion, dated as of the Closing Date, of Cadwalader
Xxxxxxxxxx & Xxxx LLP, special tax counsel for the Company and the
Trust, in form and substance satisfactory to the Purchasers and counsel
for the Purchasers, to the extent set forth in Exhibit B hereto.
19
(f) On the Closing Date, the Purchasers shall have received the
favorable opinion, dated as of the Closing Date, of Xxxxxx Xxxxx LLP,
special Delaware counsel for the Company and the Trust, in form and
substance satisfactory to the Purchasers and counsel for the Purchasers,
to the extent set forth in Exhibit C hereto.
(g) On the Closing Date, the Purchasers shall have received the
favorable opinion, dated as of the Closing Date, of Xxxxxx Xxxxx LLP,
counsel for the Property Trustee, the Guarantee and the Indenture
Trustee, in form and substance satisfactory to the Purchasers and
counsel for the Purchasers, to the extent set forth in Exhibit D hereto.
(h) The Purchasers shall have received on or before the Closing
Date a letter, signed by Xxxxxxx Xxxxxxx in the form set forth in
Exhibit E hereto.
(i) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any public notice have been given of (i) any
intended downgrading or (ii) any review or possible change that does not
indicate an improvement in the rating accorded any securities of or
guaranteed by the Company by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; for the avoidance of doubt, the
foregoing provisions of this Section 6(i) shall not apply to any
collateralized debt obligations or other securitization structures
sponsored by the Company where the Company is not a guarantor of the
obligations of such financing vehicles.
(j) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall have been no suspension or
material limitation of trading in the Common Stock on the NYSE.
(k) The Trust Preferred Securities shall have been approved for
trading on PORTAL, subject only to notice of issuance at or prior to the
time of purchase.
(l) Each of the Company and the Trust shall have duly executed
each of the other Transaction Documents.
(m) The Purchasers shall have received on and as of the Closing
Date a certificate of the Secretary of the Company in customary form;
and all proceedings taken by the Company or the Trust in connection with
the issuance and sale of the Trust Preferred Securities as herein
contemplated shall be satisfactory in form and substance to the
Purchasers.
(n) The Company, the Trust and each "significant subsidiary" (as
such term is defined in Rule 1-02(w) of Regulation S-X under the
Securities Act) of the Company listed on Schedule II hereto (each such
subsidiary a "Significant Subsidiary"), shall have delivered to the
Purchasers one or more certificates evidencing the incorporation or
formation and good standing of each of the Company, the Trust and each
Significant Subsidiary in its respective state of incorporation or
formation issued by the Secretary of State of such state of
incorporation or formation as of a date within 10 days of the Closing
Date.
20
(o) The Company shall have obtained all governmental, regulatory
or third party consents and approvals, if any, necessary to be obtained
prior to the Closing Date for the sale of the Trust Preferred
Securities.
(p) The Company and the Trust shall have delivered to the
Purchasers such other documents relating to the transactions
contemplated by this Agreement as the Purchasers or their counsel may
reasonably request.
7. Conditions to the Company's and the Trust's Obligations. The
obligations of the Company and the Trust hereunder to issue and sell the Trust
Preferred Securities to each Purchaser on the Closing Date, are subject to the
performance by the Purchasers of all of their respective obligations hereunder,
the accuracy in all material respects of the representations and warranties of
the Purchasers contained herein on and as of the Closing Date, as if made on and
as of the Closing Date and the due execution by the Purchasers of all other
Transaction Documents to which the Purchasers are parties.
8. Indemnity and Contribution. The Company and the Trust agree to
indemnify and hold harmless each Purchaser and its respective directors,
officers, partners, employees, members, representatives and agents and each
person, if any, who controls each Purchaser within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities, including without limitation
the reasonable legal fees and other reasonable expenses incurred in connection
with any suit, action or proceeding or any claim, as incurred, arising from any
breach of any representation, warranty, covenant or agreement made by it in this
Agreement (collectively, "Liabilities").
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to the preceding
paragraph, such person (the "Indemnified Person") shall promptly notify the
person against whom such indemnity may be sought (the "Indemnifying Person") in
writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding; provided, however, that failure to so notify the
Indemnifying Person shall not relieve such Indemnifying Person from any
liability hereunder except to the extent the Indemnifying Person is prejudiced
as a result thereof. In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person or (iii) the named
parties in any such proceeding (including any impleaded parties) include both
the Indemnifying Person and the Indemnified Person, the Indemnifying Person
proposes to have the same counsel represent it and the Indemnified Person, and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. The Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) separate from their own counsel for all
Indemnified Persons and that all
21
such fees and expenses actually incurred shall be promptly reimbursed upon
delivery to the Indemnifying Person of reasonable documentation therefor setting
forth such expenses in reasonable detail.
The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any
Liabilities by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Party shall have requested the
Indemnifying Party to reimburse the Indemnified Party as contemplated by this
paragraph, the Indemnifying Party agrees that it shall be liable for any
settlement of any proceeding effected without its consent if (i) such settlement
is entered into more than 60 business days after receipt by the Indemnifying
Party of the aforesaid request, (ii) such Indemnifying Party shall not have
reimbursed the Indemnified Party in accordance with such request prior to the
date of such settlement and (iii) such Indemnified Party shall have given such
Indemnifying Party at least 30 days' prior notice of its intention to settle and
the material terms of such settlement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is a
party, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of
such proceeding and no admission of fault on the part of the Indemnified Party.
The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 8 is unavailable to, or insufficient to
hold harmless, an Indemnified Party in respect of any Liabilities, each
Indemnifying Party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such Liabilities, including legal or other expenses incurred, as
incurred, in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Party on the one hand and the Indemnified
Party on the other from the offering of the Securities or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the Indemnifying
Party on the one hand and the Indemnified Party on the other in connection with
the breach that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative fault of the parties shall be
determined by reference to, among other things, any equitable considerations
appropriate in the circumstances. The Company and the Purchasers agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation or by any other method of allocation that does not
take into account the equitable considerations referred to in the first sentence
of this paragraph. For purposes of this paragraph, each person, if any, who
controls any of the Purchasers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such Purchaser. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
22
The indemnity agreements and contribution provisions contained in this
Section 8 and the representations and warranties of the Company, the Trust and
the Purchasers set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Purchaser or any person controlling
any Purchaser or by or on behalf of the Company, its officers or directors or
any other person controlling the Company and (iii) acceptance of and payment for
any of the Securities.
9. Purchasers' Participation Right.
(a) Right. In the event that, within two years from the date of
this Agreement, the Company proposes to issue equity securities,
equity-linked securities or other securities exercisable for or
convertible into equity securities (other than Excluded Issuances set
forth in Section 9(c) below), the Company shall offer each Purchaser the
opportunity to purchase (which purchase right may be exercised by one or
more Purchasers or any Affiliate of a Purchaser), on terms no less
favorable than the most favorable terms provided to investors in such
offering, up to an aggregate maximum for all Purchasers of 10% of the
securities being offered by the Company ("Pro Rata Portion"); for the
avoidance of doubt, any Purchaser or any Affiliate of a Purchaser
participating in any such offering by the Company will not be entitled
to receive any underwriting discount which any underwriter, initial
purchaser or other distribution agent in connection with such offering
is entitled to receive.
(b) Procedure for Exercise.
(i) The Company shall deliver to each Purchaser as soon as
practicable, but in no event less than three (3) Business Days prior to
the expected settlement date of any proposed or intended issuance or
sale or exchange of securities, a written notice (the "Offer Notice") of
any such proposed or intended issuance or sale or exchange (the "Offer")
of the securities being offered (the "Offered Securities") pursuant to
Section 9(a) above, which Offer Notice shall (x) identify and describe
the Offered Securities, (y) describe the most favorable terms of such
offering, and the number or amount of the Offered Securities to be
issued, sold or exchanged, specify the expected settlement date and (z)
offer to issue and sell to or exchange with such Purchasers a Pro Rata
Portion of the Offered Securities allocated among such Purchasers based
on such Purchaser's pro rata portion of the aggregate principal amount
of Securities purchased hereunder (the "Basic Amount"), and with respect
to each Purchaser that elects to purchase its Basic Amount, any
additional portion of the Offered Securities attributable to the Basic
Amounts of other Purchasers as such Purchaser shall indicate it will
purchase or acquire should the other Purchasers subscribe for less than
their Basic Amounts (the "Undersubscription Amount").
(ii) To accept an Offer, in whole or in part, such Purchaser must
deliver a written notice to the Company no later than three (3) Business
Days prior to the expected settlement date specified in the Offer Notice
(the "Offer Period"), setting forth the portion of such Purchaser's
Basic Amount, if any, that such Purchaser elects to purchase and, if
such Purchaser shall elect to purchase all of its Basic Amount, the
23
Undersubscription Amount, if any, that such Purchaser elects to purchase
(in either case, the "Notice of Acceptance"). If the Basic Amounts
subscribed for by all Purchasers are less than the total of all of the
Basic Amounts, then each Purchaser who has set forth an
Undersubscription Amount in its Notice of Acceptance shall be entitled
to purchase, in addition to the Basic Amounts subscribed for, the
Undersubscription Amount it has subscribed for; provided, however, that
if the Undersubscription Amounts subscribed for exceed the difference
between the total of all the Basic Amounts and the Basic Amounts
subscribed for (the "Available Undersubscription Amount"), each
Purchaser who has subscribed for any Undersubscription Amount shall be
entitled to purchase only such portion of the Available
Undersubscription Amount as the Basic Amount of such Purchaser bears to
the total Basic Amounts of all Purchasers that have subscribed for
Undersubscription Amounts, subject to rounding by the Company to the
nearest whole $1,000 to the extent its deems reasonably necessary.
(iii) The Company shall have ten Business Days from the
expiration of the Offer Period above to offer, issue, sell or exchange
all or any part of such Offered Securities as to which a Notice of
Acceptance has not been given by the Purchasers (the "Refused
Securities"), only upon terms and conditions (including, without
limitation, unit prices and interest rates) that are not more favorable
to the acquiring person or persons or less favorable to the Company than
those set forth in the Offer Notice.
(iv) In the event the Company shall propose to sell less than all
the Refused Securities (any such sale to be in the manner and on the
terms specified in Section 9(b)(iii) above), then each Purchaser may, at
its sole option and in its sole discretion, reduce the number or amount
of the Offered Securities specified in its Notice of Acceptance to an
amount that shall be not less than the number or amount of the Offered
Securities that each Purchaser elected to purchase pursuant to Section
9(b)(ii) above multiplied by a fraction, (i) the numerator of which
shall be the number or amount of Offered Securities the Company actually
proposes to issue, sell or exchange (including Offered Securities to be
issued or sold to the Purchasers pursuant to Section 9(b)(iii) above
prior to such reduction) and (ii) the denominator of which shall be the
original amount of the Offered Securities. In the event that any
Purchaser so elects to reduce the number or amount of Offered Securities
specified in its Notice of Acceptance, the Company may not issue, sell
or exchange more than the reduced number or amount of the Offered
Securities unless and until such securities have again been offered to
the Purchasers in accordance with Section 9(b)(i) above.
(v) Upon the closing of the issuance, sale or exchange of all or
less than all of the Refused Securities, the Purchasers shall acquire
from the Company, and the Company shall issue to the Purchasers, the
number or amount of Offered Securities specified in the Notices of
Acceptance, as reduced pursuant to Section 9(b)(iii) above if the
Purchasers have so elected, upon the terms and conditions specified in
the Offer.
(c) Excluded Issuances. The participation rights set forth in
this Section 9 shall not apply to the following issuances (the "Excluded
Issuances"): (i) the sale of the Securities under this Agreement or the
issuance of the Underlying Securities, (ii) the grant by the Company of
employee, director or consultant stock options, (iii) the grant or
24
issuance by the Company of Common Stock options or warrants to as full
or partial payment of a customary advisory fee payable to a nationally
recognized bank or investment bank in connection with a strategic
transaction or financing, (iv) the grant of warrants exercisable solely
for cash at a premium to the then current market price of the Common
Stock, which warrants are not a principal component of an asset based
financing with a national recognized commercial banking institution
making asset based loans in the ordinary course of its business, (v) the
issuance by the Company of any shares of Common Stock upon the exercise
of an option or warrant or the conversion of a security outstanding on
the date hereof (provided that the terms of such options or warrants are
not amended or modified in any manner after the date hereof) or an
option or warrant issued or granted in compliance with this paragraph,
(vi) the issuance by the Company of any shares of Common Stock pursuant
to its dividend reinvestment plan, (vii) securities issued in connection
with strategic acquisitions by the Company involving the exchange of the
Company's stock for the stock of other entities, and (viii)
over-allotment options exercised by any underwriter, initial purchaser
or other distribution agent in connection with the issuance by the
Company of any equity securities, equity-linked securities or other
securities exercisable for or convertible into equity securities.
10. [Reserved]
11. Termination. The Purchasers may terminate this Agreement by notice
given to the Company and the Trust executed by the Purchasers purchasing more
than 50% of the aggregate principal amount of the Securities hereunder as set
forth in Schedule I hereto (except in the case of clauses (i) and (vii), which
termination right may be exercised by each Purchaser as to itself but not the
other Purchasers), if prior to the Closing Date (i) in the sole judgment of a
Purchaser a Material Adverse Effect shall have occurred between the date hereof
and the Closing Date, (ii) a downgrading shall have occurred in the rating
accorded to the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is used by the
Commission in Rule 436(g)(2) under the Securities Act, or such organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Company's debt securities or
preferred stock, (iii) the Trust shall be unable to sell and deliver to the
Purchasers at least $125,000,000 stated liquidation value of Trust Preferred
Securities, (iv) trading in any securities of or guaranteed by the Company or
securities generally on the NYSE, American Stock Exchange or the NASDAQ Stock
Market shall have been suspended or materially limited, (v) a material
disruption in securities settlement, payment or clearance services in the United
States shall have occurred, (vi) a banking moratorium shall have been declared
either by federal or New York State authorities, (vii) there shall have been (A)
an outbreak or escalation of hostilities between the United States and any
foreign power, declaration by the United States of a national emergency or war
or other calamity or crisis, or (B) an outbreak or escalation of any other
insurrection or armed conflict involving the United States, or (C) any material
change in the financial markets of the United States which, in the case of (A),
(B) or (C) above and in the judgment of a Purchaser, makes it impracticable or
inadvisable to proceed with the transactions contemplated by this Agreement or
(viii) the failure of the Company to satisfy the conditions set forth in Section
6 of this Agreement.
12. Effectiveness. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
25
13. Reimbursement. If this Agreement shall be terminated by the
Purchasers because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Purchasers' obligations cannot be
fulfilled, the Company agrees to reimburse the Purchasers for all out of pocket
expenses (including the reasonable fees and expenses of its counsel) incurred by
the Purchasers in connection with this Agreement or the issuance of Securities
contemplated hereunder.
14. Parties. This Agreement shall inure to the benefit of and be binding
upon the Trust, the Company, the Guarantor and the Purchasers, any controlling
persons referred to herein and their respective successors and, with respect to
the Purchasers, their Permitted Assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from the Purchasers shall be deemed to be a successor by reason merely of such
purchase, and rights under this Agreement may be assigned by the Purchasers only
to Permitted Assigns. For purposes of this Section 14, "Permitted Assigns" shall
mean: (i) an "affiliate" (as defined in Rule 501(b) of Regulation D) of such
Purchaser to whom Securities are assigned and (ii) a pledgee (or a transferee of
such pledgee) that succeeds to the Securities in connection with a bona fide
margin account or other loan or financing arrangement secured by the Securities.
15. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed by registered or
certified mail, postage prepaid, return receipt requested, or otherwise
delivered by hand or by messenger. Notices to the Purchasers shall be given to:
Marathon Asset Management, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq., CPA
With a copy to (solely for informational purposes):
Sidley Austin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
Notices to the Company or the Guarantor shall be given to the Company at:
American Home Mortgage Investment Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
26
Facsimile: (000) 000-0000
Attn: Chief Executive Officer
With a copy to (solely for informational purposes):
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
16. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this
Agreement, is an arm's-length commercial transaction between the Company, on the
one hand, and the several Purchasers, on the other hand, (b) in connection with
the offering contemplated hereby and the process leading to such transaction
each Purchaser is and has been acting solely as a principal and is not the agent
or fiduciary of the Company, or its stockholders, creditors, employees or any
other party, (c) no Purchaser has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether such
Purchaser has advised or is currently advising the Company on other matters) and
no Purchaser has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Purchasers and their respective affiliates may be engaged in
a broad range of transactions that involve interests that differ from those of
the Company, and (e) the Purchasers have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate.
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. To the fullest extent
permitted by applicable law, the Company and the Guarantors hereby irrevocably
submit to the non-exclusive jurisdiction of any New York State court or Federal
court sitting in the County of New York in respect of any suit, action or
proceeding arising out of or relating to the provisions of this Agreement and
irrevocably agree that all claims in respect of any such suit, action or
proceeding may be heard and determined in any such court. The parties hereto
hereby waive, to the fullest extent permitted by applicable law, any objection
that they may now or hereafter have to the laying of venue of any such suit,
action or proceeding brought in any such court, and any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
27
18. Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original and all of which together shall constitute one and
the same instrument.
19. Severability. If any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable, or
void, portions of such provision, or such provision in its entirety, to the
extent necessary, shall be severed from this Agreement and the balance of this
Agreement shall be enforceable in accordance with its terms.
20. Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
21. Amendments and Waivers. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement by each of the parties hereto.
22. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subjects
hereof. Neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by the party
against whom enforcement of any such amendment, waiver, discharge, or
termination is sought.
23. Survival. The respective representations, warranties, covenants and
agreements of the Company and the Purchasers set forth in or made pursuant to
this Agreement will remain in full force and effect and will survive delivery of
and payment for the Securities sold hereunder and any termination of this
Agreement.
24. Independence of Purchasers. The obligations of each Purchaser under
any Transaction Document are several and not joint with the obligations of any
other Purchaser, and no Purchaser shall be responsible in any way for the
performance of the obligations of any other Purchaser under any Transaction
Document. Nothing contained herein or in any other Transaction Document, and no
action taken by the Purchasers pursuant hereto or thereto, shall be deemed to
constitute the Purchasers as a partnership, an association, a joint venture or
any other kind of entity, or create a presumption that the Purchasers are in any
way acting in concert or as a group with respect to such obligations or the
transactions contemplated by the Transaction Documents. The Purchasers confirm
that they have or legal counsel has on their behalf independently participated
in the negotiation of the transaction contemplated hereby. Each Purchaser shall
be entitled to independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement or out of any other
Transaction Documents, and it shall not be necessary for any Purchaser to be
joined as an additional party in any proceeding for such purpose.
(SIGNATURE PAGES FOLLOW)
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return four counterparts hereof.
Very truly yours,
COMPANY:
AMERICAN HOME MORTGAGE INVESTMENT CORP.
By: /s/Xxxx X. Xxxx
-------------------------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President, General Counsel
& Secretary
[SIGNATURE PAGE TO PURCHASE AGREEMENT]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return four counterparts hereof.
TRUST:
AHM CAPITAL TRUST I
By: /s/Xxxx X. Xxxx
-------------------------------------------------
Name: Xxxx X. Xxxx
Title: Administrative Trustee
[SIGNATURE PAGE TO PURCHASE AGREEMENT]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return four counterparts hereof.
GUARANTOR:
AMERICAN HOME MORTGAGE INVESTMENT CORP.
By: /s/Xxxx X. Xxxx
-------------------------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President, General Counsel
& Secretary
[SIGNATURE PAGE TO PURCHASE AGREEMENT]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return four counterparts hereof.
PURCHASER:
MARATHON SPECIAL OPPORTUNITY MASTER FUND LTD.
By: MARATHON ASSET MANAGEMENT, LLC
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO PURCHASE AGREEMENT]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return four counterparts hereof.
PURCHASER:
MARATHON GLOBAL CONVERTIBLE MASTER FUND LTD.
By: MARATHON ASSET MANAGEMENT, LLC
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGE TO PURCHASE AGREEMENT]
Schedule I
Schedule of Purchasers
Trust Preferred
Name and Address of Each Purchaser Securities
---------------------------------- ---------------
Marathon Special Opportunity Master Fund, Ltd. ........... $100,000,000
c/o Marathon Asset Management, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq., CPA
Marathon Global Convertible Master Fund, Ltd. ............ $25,000,000
c/o Marathon Asset Management, LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq., CPA ---------------
TOTAL $125,000,000
---------------
===============
Schedule II
Significant Subsidiaries of the Company
American Home Mortgage Acceptance, Inc.
American Home Mortgage Corp.
American Home Mortgage Holdings, Inc.
Broadhollow Funding, LLC
Ex. E-1
