Exhibit 10.17
TERMINATION AND RELEASE AGREEMENT
This Termination and Release Agreement (the "AGREEMENT") is
entered into as of December 20, 2001 by and among American Residential
Investment Trust, Inc., a Maryland corporation (the "COMPANY"), Home Asset
Management Corp., a Delaware corporation (the "MANAGER"), TCW/Crescent Mezzanine
Partners, L.P., TCW/Crescent Mezzanine Trust, TCW/Crescent Mezzanine Investment
Partners, L.P., Crescent/Mach I Partners, L.P. and TCW Shared Opportunity Fund
II, L.P. (collectively, the "TCW ENTITIES") and MDC REIT Holdings, L.L.C., a
Delaware limited liability company ("HOLDINGS"). The Company, the Manager, the
TCW Entities and Holdings are collectively referred to herein as the "PARTIES".
RECITALS
WHEREAS, the Company and the Manager have previously entered
into that certain Management Agreement, dated as of February 11, 1997 and as
amended August 1997, in connection with the initial funding of the Company (as
amended, the "MANAGEMENT AGREEMENT").
WHEREAS, the Company and the Manager now desire to terminate
the Management Agreement and provide for certain other ongoing obligations
between them.
WHEREAS, in order to induce the Company to enter into this
Agreement, and as a condition to closing the transactions contemplated by this
Agreement, the Parties have agreed to amend the Securities Purchase Agreement,
dated as of February 11, 1997, by and among the Parties (the "SECURITIES
PURCHASE AGREEMENT").
WHEREAS, the TCW Entities will be the indirect beneficiaries
of the Purchase Price (as defined herein) paid by the Company to the Manager
pursuant to the covenant in this Agreement obligating the Manager to apply the
Purchase Price as partial payment of the 12% Senior Secured Notes due February
11, 2002 that the Manager issued to the TCW Entities pursuant to the Securities
Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual
representations, warranties, undertakings and covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties agree as follows:
ARTICLE I
TERMINATION OF THE MANAGEMENT AGREEMENT
1.1 TERMINATION OF THE MANAGEMENT AGREEMENT. Upon the terms and
subject to the conditions of this Agreement, at the closing of the transactions
contemplated by this Agreement,
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the Management Agreement shall be terminated in its entirety and shall be of no
further force and effect.
1.2 CLOSING. The Closing shall take place at the offices of ▇▇▇▇
▇▇▇▇ ▇▇▇▇ & Freidenrich LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇ at 10:00 a.m. local time as soon as practical following the execution
of this Agreement, which shall be no later than the fifth business day after the
satisfaction or waiver of the conditions of the obligations of the Parties set
forth in ARTICLE V of this Agreement and in no event later than December 31,
2001, unless another date or place is agreed to in writing by the Company and
the Manager (the "CLOSING DATE").
1.3 ACTIONS OF THE CLOSING. At the closing:
(a) The Company shall deliver to the Manager all of the
certificates, instruments and documents referred to in Section 5.2;
(b) The Manager shall deliver to the Company all of the
certificates, instruments and documents referred to in Section 5.3 including,
without limitation, the Amended Registration Rights Agreement (as defined in
Section 5.2(e)), the Amended Securities Purchase Agreement (as defined in
Section 5.3(g)) and the Voting Agreement (as referenced in Section 5.3(h)). The
Amended Registration Rights Agreement, the Amended Securities Purchase
Agreement, the Voting Agreement and this Agreement are collectively referred to
herein as the "TRANSACTION DOCUMENTS".
(c) The Company shall also deliver to the Manager Ten
Million Dollars ($10,000,000) (the "PURCHASE PRICE"), as adjusted pursuant to
Section 1.3(d) below, in immediately available funds, which shall be wired to an
account designated by the Manager.
(d) The Purchase Price shall be adjusted pursuant to
Schedule 1.3(d) attached hereto.
1.4 EQUITY PAYMENTS.
(a) At the end of each of the first sixteen (16) full
calendar quarters following the Closing, if the weighted average closing price
("AVERAGE TRADING PRICE") of the Company's common stock reported by the New York
Stock Exchange has exceeded $11.875 per share for that quarter (a "QUALIFYING
QUARTER"), the Company shall be entitled to an equity payment payable by the
Manager as set forth below.
(b) On the tenth day following a Qualifying Quarter, the
Manager will pay to the Company, in cash or shares of the Company's common stock
(the value of the Company stock being equal to the Average Trading Price of the
Qualifying Quarter), at the Manager's election, an amount, if any, equal to (i)
the product of (a) 1.6 million and (b) the amount by which the Average Trading
Price for the Qualifying Quarter exceeds $11.875 per share, minus (ii) the
aggregate amount previously paid in accordance with the terms of this Section
1.4(b).
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(c) The aggregate of all payments made pursuant to this
Section 1.4 shall not exceed an amount equal to $5 million minus the sum of (i)
$1.67 million if the $5 million Senior Subordinated Secured Revolving Credit
Facility to be provided by the TCW Entities (the "REVOLVER") is drawn upon by
the Company within one year of the Closing, (ii) $1.67 million the first time
the Revolver is renewed (whether or not any amounts are actually drawn down from
the Revolver), and (iii) $1.67 million the second time the Revolver is renewed.
(d) The Company shall immediately reimburse the Manager
for any payment previously made pursuant to this Section 1.4 that exceeds the
aggregate amount payable determined in accordance with the above Section 1.4(c).
(e) No payments shall be required to be made pursuant to
this Section 1.4 if at any time payment would otherwise be due there exists any
Default or Event of Default (each as defined in the Revolver) under the
Revolver, PROVIDED, HOWEVER, that if such Default or Event of Default is cured
pursuant to the terms of the Revolver than any such payment due pursuant to this
Section shall be due and payable immediately following such cure.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE MANAGER, THE TCW ENTITIES AND HOLDINGS
The Manager, the TCW Entities and Holdings each hereby represents and
warrants, with respect to itself only, severally and not jointly, to the Company
as follows:
2.1 AUTHORITY. The Manager, the TCW Entities or Holdings, as
applicable, has the corporate or other power and authority to enter into the
Transaction Documents and to carry out its obligations thereunder. The execution
and delivery of the Transaction Documents and the consummation of the
transactions contemplated thereby have been duly and validly authorized by the
Board of Directors (or similar governing body) of the Manager, the TCW Entities
or Holdings, as applicable, and no other corporate, limited liability company or
limited liability partnership proceedings, as the case may be, on its part is
necessary to authorize the execution and delivery of the Transaction Documents
or the performance by it of its respective obligations thereunder. The
Transaction Documents have been duly and validly executed and delivered by the
Manager, the TCW Entities or Holdings, as applicable, and constitute valid and
binding agreements, enforceable against the Manager, the TCW Entities or
Holdings, as applicable, in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
2.2 NO CONFLICTS. The execution, delivery and performance of the
Transaction Documents and the consummation of the transactions contemplated
thereby will not (i) conflict with or result in any breach of any provision of
the certificate of incorporation, bylaws or similar organizational documents of
the Manager, the TCW Entities or Holdings, as applicable, or (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or
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both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any material note, bond, mortgage, indenture, lease, license, contract,
agreement or other material instrument or obligation to which the Manager, the
TCW Entities or Holdings, as applicable, is a party or by which any of its
properties or assets may be bound, or (iii) violate any order, writ, injunction,
decree, judgment, permit, license, ordinance, law, statute, rule or regulation
applicable to the Manager, the TCW Entities or Holdings, as applicable, or any
of its properties or assets.
2.3 CONSENTS. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality is required by or
with respect to the Manager, the TCW Entities or Holdings, as applicable, in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Manager, the TCW
Entities and Holdings as follows:
3.1 AUTHORITY. The Company has the corporate power and authority
to enter into the Transaction Documents and to carry out its obligations
thereunder. The execution and delivery of the Transaction Documents and the
consummation of the transactions contemplated thereby have been duly and validly
authorized by the Board of Directors of the Company, and no other corporate
proceedings on the part of the Company are necessary to authorize the execution
and delivery of the Transaction Documents or the performance by the Company of
its obligations thereunder. The Transaction Documents have been duly and validly
executed and delivered by the Company and constitute valid and binding
agreements of the Company, enforceable against the Company in accordance with
their terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
3.2 NO CONFLICTS. The execution, delivery and performance of the
Transaction Documents and the consummation of the transactions contemplated
thereby will not (i) conflict with or result in any breach of any provision of
the certificate of incorporation, bylaws or similar organizational documents of
the Company, or (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which the
Company is a party or by which any of its properties or assets may be bound, or
(iii) violate any order, writ, injunction, decree, judgment, permit, license,
ordinance, law, statute, rule or regulation applicable to the Company or any of
its properties or assets.
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3.3 CONSENTS. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality is required by or
with respect to the Company in connection with the execution and delivery of the
Transaction Documents or the consummation of the transactions contemplated
thereby.
ARTICLE IV
COVENANTS; ADDITIONAL AGREEMENTS
4.1 BOARD REPRESENTATION
(a) Upon the closing of the transactions contemplated by
this Agreement, the Board of Directors of the Company (the "BOARD") will be
increased from seven (7) members to eight (8) members. The vacancy created by
the increase in the size of the Board will be allocated to the Class I
Directors.
(b) The Board will initially nominate and elect to fill
the vacancy in the Class I Directors a representative designated by the Manager
(the "MANAGER DESIGNEE").
(c) The Manager Designee shall be appointed to the
Compensation Committee of the Board and in the event an Executive Committee is
created, to the Executive Committee of the Board (collectively, the
"COMMITTEES").
(d) The Company shall take all reasonable steps to
maintain the Manager Designee on the Board and the Committees, including
nominating the Manager Designee for re-election, provided that the Manager and
the TCW Entities (and their affiliates) collectively beneficially own at least
800,000 shares of common stock of the Company.
(e) In the event that the Manager no longer has any
Manager Designee on the Board, then the TCW Entities shall be entitled to have
one representative (the "BOARD REPRESENTATIVE") observe, but with no right to
participate or vote at, all Board and Committee meetings, PROVIDED THAT (i) such
representative is subject to the Company's ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and to an
appropriate confidentiality agreement with the Company; and (ii) the TCW
Entities (and their affiliates) beneficially owns at least 400,000 shares of the
common stock of the Company, or the Company has any amounts owing under the
Revolver. PROVIDED, HOWEVER, that such Board Representative will not be allowed
to attend a Board meeting if a majority of the Board reasonably believes, based
upon advice from counsel, that such Board Representative's attendance at such
meeting would adversely affect attorney-client privilege relating to matters
directly involving the Manager or the TCW Entities, between the Company and its
counsel, and in such case, only for the portion of such meeting during which
confidential matters relating to such privilege are being discussed.
(f) During the period that the Manager has a right to
nominate a Manager Designee to the Board or the TCW Entities have a right to a
Board Representative, each pursuant to Section 4.1, then the TCW Entities shall
be entitled to have one analyst observe, but with no right to participate or
vote at, all Board meetings, PROVIDED THAT such analyst is subject to the
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Company's ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and to an appropriate confidentiality agreement
with the Company. PROVIDED, HOWEVER, that such Board Representative will not be
allowed to attend a Board meeting if a majority of the Board reasonably
believes, based upon advice of counsel, that such analyst's attendance at such
meeting would adversely affect attorney-client privilege relating to matters
directly involving the Manager or the TCW Entities between the Company and its
counsel, and in such case, only for the portion of such meeting during which
confidential matters relating to such privilege are being discussed.
(g) For so long as there is a Manager Designee on the
Board, the Manager, the TCW Entities or Holdings shall not nominate, including
but not limited to submitting any stockholder proposal to nominate, any other
nominee to the Board who was or is an employee, officer, director, manager,
agent or affiliate of the TCW Entities, TCW/Crescent Mezzanine, L.L.C., TCW
Asset Management Company, or TCW Investment Management Company.
4.2 MUTUAL RELEASE. In consideration of the covenants and
agreements contained herein, and on behalf of their affiliates, agents,
representatives, successors, assigns, officers, directors, employees, control
persons and subsidiaries or affiliate companies and successors, the Company on
the one hand and the Manager, the TCW Entities and Holdings on the other, hereby
fully and forever release and discharge each other (and all of their respective
officers, directors, managers, employees, agents, successors, assigns, control
persons and subsidiaries or affiliate companies), from any and all claims,
demands, liabilities, obligations, responsibilities, suits, actions and causes
of action, whether liquidated or unliquidated, fixed or contingent, known or
unknown, past, present or future, or otherwise, including, but not limited to,
current and past defaults, arising out of or relating to the Management
Agreement or the Securities Purchase Agreement. The Parties acknowledge that
each of them may discover facts or law different from, or in addition to, the
facts or law that each knows or believes to be true with respect to the claims
released in this Agreement and agrees, nonetheless, that this Agreement and the
releases contained herein shall be effective and remain effective in all
respects notwithstanding such different or additional facts or the discovery of
them.
(a) WAIVER. All rights under Section 1542 of the Civil
Code of the State of California, and under any and all similar laws of any
governmental entity, are hereby expressly waived. Each party is aware that said
Section 1542 of the Civil Code provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Parties acknowledge that they have read all of this Agreement and
the other Transaction Documents, including the above Civil Code section, and
that they fully understand both the Agreement and the other Transaction
Documents and the Civil Code section.
(b) FULL SETTLEMENT. The Company on the one hand and the
Manager, the TCW Entities and Holdings on the other, agree that this Agreement
and the other Transaction
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Documents are in full and complete settlement of the rights and obligations of
the Company to the Manager, the TCW Entities and Holdings, and of the Manager,
the TCW Entities and Holdings to the Company in connection with the Management
Agreement and the Securities Purchase Agreement. The Parties agree that they
will not prosecute, or allow to be prosecuted on their behalf, in an
administrative agency or court, whether state or federal, any claim or demand of
any type related to the matters released herein, it being the intention of the
Parties that with the execution of this Agreement and the other Transaction
Documents, the Parties will as and to the extent set forth herein be absolutely,
unconditionally and forever discharged of and from all obligations related in
any way to the matters discharged herein. This Agreement may be pleaded as full
and complete defense to any action, suit or claim or other proceeding of any
type which may be prosecuted, initiated or attempted in violation of the terms
hereof. The Parties shall be entitled to receive their reasonable attorneys'
fees and other related legal expenses incurred in defending against any suit,
action or claim brought or attempted in violation of the terms of this
Agreement, including any appeal thereof.
4.3 USE OF PROCEEDS. The Manager shall apply the entire Purchase
Price as partial payment of the 12% Senior Secured Notes due February 11, 2002,
issued pursuant to the Securities Purchase Agreement.
4.4 EQUITY PAYMENT ASSURANCE. The Manager and/or Holdings will
retain a sufficient number of shares of the Company's common stock currently
held by Holdings, or will take all actions necessary to ensure that 240,000
shares of the Company's common stock currently held by Holdings (the "RETAINED
SHARES"), are retained by Holdings, to satisfy any obligation the Manager may
have pursuant to Section 1.4. The Retained Shares shall be properly legended to
restrict the transfer of the Retained Shares pending (i) the lapse of the
Company's right to equity payments pursuant to Section 1.4, or (ii) the
negotiation of substitute assets, as discussed below. In the event that the
Manger and/or Holdings desires to transfer any of the Retained Shares and not
retain them, then prior to such transfer, the Company, the Manager and Holdings
shall negotiate for substitute assets to be held by the Manager and/or Holdings
to satisfy the obligations of this Section 4.4 and such negotiations shall be
memorialized by definitive fully executed and delivered documents by the
Company, the Manager and Holdings.
4.5 EXPENSES. The Company, the Manager, the TCW Entities and
Holdings shall each bear its respective expenses and legal fees incurred with
respect to the Transaction Documents and the Revolver and the transactions
contemplated thereby, except that the Company will reimburse all out of pocket
expenses, including legal and due diligence fees and related expenses, incurred
by the Manager, the TCW Entities and Holdings in connection with the
transactions contemplated by the Transaction Documents and the Revolver up to an
aggregate maximum of $250,000.
4.6 ADDITIONAL AGREEMENTS; REASONABLE EFFORTS. Subject to the
terms and conditions of this Agreement, each of the Parties agree to use all
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by the Transaction Documents, including cooperating fully with the
other parties, including by
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providing any requested information. In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes of any of the
Transaction Documents, the Parties shall make reasonable efforts to take all
such necessary action.
ARTICLE V
CONDITIONS TO CLOSING
5.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS. The respective
obligations of each Party to this Agreement shall be subject to the satisfaction
on or prior to the Closing Date of the following conditions:
(a) All authorizations, consents, orders or approvals of,
or declarations or filings with, or expirations of waiting periods imposed by,
any governmental authority shall have been filed, occurred or been obtained.
(b) There shall be no temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal or regulatory restraint or prohibition
preventing the consummation of the transactions contemplated hereby; nor shall
any proceeding brought by a domestic administrative agency or commission or
other domestic governmental entity seeking any of the foregoing be pending; nor
shall there be any action taken, or any statute, rule, regulation or order
enacted, entered, enforced or deemed applicable to the transactions contemplated
hereby which makes the consummation of the transactions contemplated hereby
illegal.
5.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF THE MANAGER, THE TCW
ENTITIES AND HOLDINGS. The obligations of each of the Manager, the TCW Entities
and Holdings to effect the transactions contemplated hereby are subject to the
satisfaction of each of the following conditions, any of which may be waived in
writing executed by the Manager, the TCW Entities and Holdings:
(a) The representations and warranties of the Company set
forth in this Agreement shall be true and correct in all material respects as of
the date of this Agreement and as of the Closing Date as though made on and as
of the Closing Date, and the Manager, the TCW Entities and Holdings shall have
received a certificate signed on behalf of the Company by an executive officer
of the Company to such effect;
(b) The Company shall have performed in all material
respects all obligations required to be performed by it under this Agreement at
or prior to the Closing Date, and the Manager, the TCW Entities and Holdings
shall have received a certificate signed on behalf of the Company by an
executive officer of the Company to such effect;
(c) The Manager, the TCW Entities and Holdings shall have
received from the Company a certificate of the Secretary of the Company
certifying to be true, complete and correct in every particular attached copies
of (i) the Company's charter documents as amended to date, (ii) the Company's
Bylaws as amended to date and (iii) the resolutions of the Company's
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Board of Directors approving the Transaction Documents and the transactions
contemplated thereby;
(d) The Manager, the TCW Entities and Holdings shall have
received a legal opinion from the Company's legal counsel as to the matters
listed in EXHIBIT A;
(e) The Company shall have executed and delivered the
Amendment No. 1 to the Registration Rights Agreement, dated as of February 11,
1997 (the "AMENDED REGISTRATION RIGHTS AGREEMENT"), by and among the Company and
the signatories thereto substantially in the form attached hereto as EXHIBIT B;
and
(f) The Manager, the TCW Entities and Holdings shall have
received from the Company such other documents as the Manager's or the TCW
Entities' or Holdings' counsel shall have reasonably requested, in form and
substance reasonably satisfactory to the Manager's or TCW Entities' or Holdings'
counsel as applicable.
5.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF THE COMPANY. The
obligations of the Company to close the transactions contemplated hereby is
subject to the satisfaction of each of the following conditions, any of which
may be waived, in writing, executed by the Company:
(a) The representations and warranties of the Manager set
forth in this Agreement shall be true and correct in all material respects as of
the date of this Agreement and as of the Closing Date as though made on and as
of the Closing Date and the Company shall have received a certificate signed on
behalf of the Manager by an executive officer of the Manager to such effect;
(b) The representations and warranties of the TCW
Entities set forth in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date and the Company shall have received a
certificate signed on behalf of each of the TCW Entities by its General Partner
or Managing Director to such effect;
(c) The representations and warranties of Holdings set
forth in this Agreement shall be true and correct in all material respects as of
the date of this Agreement and as of the Closing Date as though made on and as
of the Closing Date and the Company shall have received a certificate signed on
behalf of Holdings by the Managing Member of Holdings to such effect;
(d) The Manager shall have performed in all material
respects all obligations required to be performed by it under this Agreement at
or prior to the Closing Date, and the Company shall have received a certificate
signed on behalf of the Manager by an executive officer of the Manager to such
effect;
(e) Each of TCW Entities shall have performed in all
material respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date,
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and the Company shall have received a certificate signed on behalf of each of
the TCW Entities by its General Partner or Managing Director to such effect;
(f) Holdings shall have performed in all material
respects all obligations required to be performed by it under this Agreement at
or prior to the Closing Date, and the Company shall have received a certificate
signed on behalf of Holdings by the Managing Member of Holdings to such effect;
(g) The Company shall have received the fully executed
Amendment No. 1 to the Securities Purchase Agreement (the "AMENDED SECURITIES
PURCHASE AGREEMENT"), in substantially the form attached hereto as EXHIBIT C;
(h) The Company shall have received the fully executed
Voting Agreement, substantially in the form attached hereto as EXHIBIT D;
(i) The closing of the transactions contemplated by the
Revolver shall occur simultaneously with or prior to the Closing;
(j) The Company has received an opinion from their
financial advisor that the transactions contemplated by this Agreement are fair,
from a financial point of view, to the stockholders of the Company;
(k) The Company has received a legal opinion from the
Manager's, the TCW Entities' and Holdings' legal counsel as to the matters
listed in EXHIBIT E; and
(l) The Company shall have received from the Manager, the
TCW Entities and Holdings such other documents as the Company or its counsel
shall have reasonably requested, in form and substance reasonably satisfactory
to the Company and its counsel.
ARTICLE VI
INDEMNIFICATION
6.1 INDEMNIFICATION BY THE COMPANY. The Company shall indemnify,
defend, protect and hold harmless the Manager, the TCW Entities and Holdings,
each of their respective successors and assigns and each of their directors,
managers, officers, employees, agents and affiliates (each a "MANAGER
INDEMNIFIED PARTY"), against all losses, claims, damages, actions, suits,
proceedings, demands, assessments, adjustments, costs and expenses (including
specifically, but without limitation, reasonable attorneys' fees and expenses of
investigation ("LOSSES")) based upon, resulting from or arising out of (i) any
inaccuracy or breach of any representation or warranty of the Company contained
in or made in connection with this Agreement, and (ii) the breach by the Company
of, or the failure by the Company to observe, any of its covenants or other
agreements contained in or made in connection with this Agreement. The
indemnification provided for in this Section 6.1 shall terminate two (2) years
after the Closing Date (and no claims shall be made by the Manager, the TCW
Entities or Holdings under this Section 6.1 thereafter).
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6.2 INDEMNIFICATION BY THE MANAGER. The Manager, the TCW Entities
and Holdings shall each severally, and not jointly, indemnify, defend, protect
and hold harmless the Company, each of its directors, managers, officers,
successors and assigns and each of its respective trustees, beneficiaries,
employees, agents and affiliates (each a "COMPANY INDEMNIFIED PARTY"), against
all losses, claims, damages, actions, suits, proceedings, demands, assessments,
adjustments, costs and expenses (including specifically, but without limitation,
reasonable attorneys' fees and expenses of investigation ("LOSSES")) based upon,
resulting from or arising out of (i) any inaccuracy or breach of any of its
representations or warranties contained in or made in connection with this
Agreement, and (ii) its breach of, or failure to observe, any of its respective
covenants or other agreements contained in or made in connection with this
Agreement. The indemnification provided for in this Section 6.2 shall terminate
two (2) years after the Closing Date (and no claims shall be made by the Company
under this Section 6.2 thereafter).
6.3 MANNER OF INDEMNIFICATION. All indemnification under this
ARTICLE VI shall be effected by the payment of cash or delivery of a bank
cashier's check, or by a combination of the foregoing.
6.4 PROCEDURES FOR INDEMNIFICATION.
(a) As used in this ARTICLE VI, the term "INDEMNITEE"
means the Manager Indemnified Party or, as the case may be, the Company
Indemnified Party and the term "INDEMNIFYING PARTY" shall mean the Manager, the
TCW Entities and Holdings in the case where a Company Indemnified Party is the
Indemnitee, and the Company in the case where a Manager Indemnified Party is the
Indemnitee.
(b) An Indemnitee shall promptly give the Indemnifying
Party notice of any matter which the Indemnitee has determined has given rise to
a right of indemnification under this Agreement. Such notice shall state the
amount of the Loss, if known, the method of computation thereof and the nature
of such matter, all with reasonable particularity.
(c) If the claim for indemnification involves a Third
Party Claim (as defined below), the procedures set forth in Section 6.5 hereof
shall be observed by the Indemnitee and the Indemnifying Party.
6.5 DEFENSE OF THIRD PARTY CLAIMS. Should any claim be made or
suit or proceeding be instituted against an Indemnitee which, if prosecuted
successfully, would be a matter for which such Indemnitee is entitled to
indemnification under this ARTICLE VI (a "THIRD PARTY CLAIM"), the obligations
and liabilities of the parties hereunder with respect to such Third Party Claim
shall be subject to the following terms and conditions:
(a) Indemnitee shall give the Indemnifying Party written
notice of any such Third Party Claim promptly after receipt by Indemnitee of
notice thereof, and the Indemnifying Party may undertake control of the defense
thereof by counsel of his or its own choosing reasonably acceptable to
Indemnitee. Notwithstanding the Indemnifying Party's election to assume the
defense or investigation of such claim, action or proceeding, the Indemnitee
shall
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have the right to employ separate counsel at the expense of the Indemnifying
Party and to direct the defense or investigation of such claim, action or
proceeding if (i) based upon the advice of counsel to the Indemnitee, use of
counsel of the Indemnifying Party's choice could reasonably be expected to give
rise to a conflict of interest, or (ii) the Indemnifying Party shall not have
employed counsel reasonably satisfactory to the Indemnitee to represent the
Indemnitee within a reasonable time after notice of the assertion of any such
claim or institution of any such action or proceeding. If Indemnifying Party has
undertaken control of the defense of the matter, Indemnitee may participate in
the defense through his or its own counsel at his or its own expense. In the
event an Indemnitee desires to assume the defense of the matter, the Indemnitee
shall provide the Indemnifying Party with reasonable assurances of the
Indemnitee's ability to bear the costs of such defense and any likely outcome.
If, however, the Indemnifying Party fails or refuses to undertake the defense of
such Third Party Claim within fifteen (15) days after written notice of such
claim has been delivered by Indemnitee, Indemnitee shall have the right to
undertake the defense, compromise and settlement of such Third Party Claim in
any manner which the Indemnitee deems is reasonable with counsel of its own
choosing; PROVIDED, HOWEVER, that neither party shall settle a third party claim
except as provided in Section 6.5(c). Failure of Indemnitee to furnish written
notice to the Indemnifying Party of a Third Party Claim shall not release the
Indemnifying Party from his or its obligations hereunder, except to the extent
he or it is materially prejudiced by such failure.
(b) The Indemnitee and the Indemnifying Party shall
cooperate with each other in all reasonable respects in connection with the
defense of any Third Party Claim, including making available records relating to
such claim.
(c) Unless the Indemnifying Party has failed to fulfill
his or its obligations under this ARTICLE VI, no settlement by Indemnitee of a
Third Party Claim shall be made without the prior written consent by or on
behalf of the Indemnifying Party, which consent shall not be unreasonably
withheld or delayed. If the Indemnifying Party has assumed the defense of a
Third Party Claim as contemplated by this Section 6.5, without the consent of
the Indemnitee, the Indemnifying Party shall not consent to, and the Indemnitee
shall not be required to agree to, the entry of any judgment or settlement
unless such judgment or settlement (i) includes as an unconditional term thereof
the giving of a release from all liability with respect to such claim by each
claimant or plaintiff to each Indemnitee that is the subject of such claim and
(ii) does not include a statement as to or an admission of fault, culpability or
failure to act, by or on behalf of an Indemnitee.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 SPECIFIC PERFORMANCE. The Parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the Parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which they are entitled at law or in equity.
12
7.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without giving
effect to the choice of law principles thereof.
7.3 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
7.4 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and its successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
7.5 SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
7.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
7.7 INTERPRETATION.
(a) The words "hereof," "herein," and words of similar
import shall, unless otherwise stated, be construed to refer to this Agreement
as a whole and not to any particular provision of this Agreement, and article,
section, paragraph, exhibit, and schedule references are to the articles,
sections, paragraphs, exhibits, and schedules of this Agreement unless otherwise
specified. Whenever the words "include," "includes," or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." All terms defined in this Agreement shall have the defined meanings
contained herein when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms. Any agreement, instrument, or statute defined or referred
to herein or in any agreement or instrument that is referred to herein means
such agreement, instrument, or statute as from time to time, amended, qualified
or supplemented, including (in the case of agreements and instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor
statutes and all attachments thereto and instruments incorporated therein.
References to a person are also to its permitted successors and assigns.
13
(b) The phrases "the date of this Agreement," "the date
hereof," and terms of similar import, unless the context otherwise requires,
shall be deemed to refer to the date first set forth above.
(c) The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement.
7.8 NOTICES. All notices, requests, instructions or other
documents to be given under this Agreement shall be in writing and shall be
deemed given, (i) five business days following sending by registered or
certified mail, postage prepaid, (ii) when sent if sent by facsimile; PROVIDED,
HOWEVER, that the facsimile is promptly confirmed by confirmation thereof, (iii)
when delivered, if delivered personally to the intended recipient, and (iv) one
business day following sending by overnight delivery via a national courier
service, and in each case, addressed to a party at the following address for
such party:.
if to Company, to: American Residential Investment
Trust, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Manager, to: Home Asset Management Corp.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to TCW, to: TCW Crescent Mezzanine, L.L.C.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
14
with a copy, in
either instance, to: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or facsimile number as the person to
whom notice is given may have previously furnished to the other in writing in
the manner set forth above.
7.9 ENTIRE AGREEMENT; ASSIGNMENT.
(a) This Agreement constitutes the entire agreement
between the Parties hereto in respect of the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties in respect of the subject matter hereof.
(b) Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by operation of law
(including, by merger or consolidation) or otherwise. Any assignment in
violation of the preceding sentence shall be void. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and permitted
assigns.
7.10 ATTORNEYS' FEES. In the event of any Action at law or in
equity in relation to this Agreement, the prevailing party in such Action shall
be entitled to receive its reasonable attorneys' fees and all other costs and
expenses of such Action. For purposes of this Section 7.10, "Action" means any
action, appeal, petition, plea, charge, complaint, claim, suit, demand,
litigation, arbitration, mediation, hearing, inquiry, investigation or similar
event, occurrence, or proceeding at law or at equity.
* * *
15
IN WITNESS WHEREOF, the parties have executed this Termination
and Release Agreement as of the date first set forth above.
COMPANY:
AMERICAN RESIDENTIAL INVESTMENT TRUST, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
----------------------------------------
Title: Chairman of the Board and Chief
Executive Officer
---------------------------------------
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
-------------------------------------
▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------
MANAGER:
Home Asset Management Corp.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title:
---------------------------------------
Address:
-------------------------------------
-------------------------------------
TCW ENTITIES:
TCW/CRESCENT MEZZANINE PARTNERS, L.P.
TCW/CRESCENT MEZZANINE TRUST
TCW/CRESCENT MEZZANINE
INVESTMENT PARTNERS, L.P.
By: TCW/CRESCENT MEZZANINE, L.L.C.
Its: Investment Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
CRESCENT/MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
Its: Investment Advisor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW INVESTMENT MANAGEMENT COMPANY,
Its: Investment Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
HOLDINGS:
MDC REIT HOLDINGS, L.L.C.
By: Home Asset Management Corp., its
Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title:
---------------------------------------
Address:
-------------------------------------
-------------------------------------
EXHIBIT A
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Maryland.
2. The Company has the corporate power and authority to enter
into the Transaction Agreements and to consummate the transactions
contemplated thereby.
3. The Transaction Agreements have been duly authorized for
execution and delivery by the Company.
4. The Transaction Agreements are enforceable against the Company
in accordance with their terms.
5. The execution and delivery of the Transaction Agreements by
the Company and the consummation of the transactions contemplated thereby
does not and will not (i) violate or result in a violation of the Articles of
Amendment and Restatement, Articles Supplementary or Bylaws of the Company or
(ii) violate any provision of any applicable California, Maryland or federal
law, rule or regulation.
6. To our knowledge, no authorizations, approvals or consents of
or notice to, or registrations, declarations or filings with, any court or
governmental authority or agency are required in connection with the execution
and delivery of the Transaction Agreements by the Company, and the consummation
of the transactions contemplated therein.
EXHIBIT B
Amendment No 1. to
Registration Rights Agreement
EXHIBIT C
Amendment No 1. to
the Securities Purchase Agreement
EXHIBIT D
Voting Agreement
EXHIBIT E
1. Home Asset Management Corp. ("HAMCO") is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware. MDC REIT Holdings, L.L.C. ("Holdings") is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware.
2. HAMCO and Holdings each have the corporate power and authority
to execute and deliver the Transaction Agreements and to perform their
respective obligations thereunder.
3. The Transaction Agreements have been duly authorized by all
necessary corporate action on the part of HAMCO and Holdings and have been duly
executed and delivered by HAMCO and Holdings and are enforceable against HAMCO
and Holdings in accordance with their terms.
4. The execution and delivery of the Transaction Agreements by
HAMCO and Holdings and the consummation of the transactions contemplated thereby
does not and will not (i) violate or result in a violation of the organizational
documents of HAMCO or Holdings or (ii) violate any provision of any applicable
federal or California law, rule or regulation.
5. To our knowledge, no authorizations, approvals or consents of
or notice to, or registrations, declarations or filings with, any court or
governmental authority or agency are required in connection with the execution
and delivery of the Transaction Agreements by HAMCO or Holdings, and the
consummation of the transactions contemplated therein.
6. TCW/Crescent Mezzanine Partners, L.P., TCW/Crescent
Mezzanine Investment Partners, L.P., Crescent/Mach I Partners, L.P. and TCW
Shared Opportunity Fund II, L.P. (collectively, the "TCW PARTNERSHIPS") are
each limited partnerships validly existing and in good standing under the
laws of the State of Delaware. TCW/Crescent Mezzanine Trust (the "TCW TRUST"
and, together with the TCW Partnerships, the "TCW ENTITIES") is a statutory
business trust, validly existing and in good standing under the laws of the
State of Delaware.
7. The execution, delivery and performance of each of the
Agreements are within the trust or limited partnership powers, as applicable,
of each TCW Entity.
8. The TCW Agreements have been duly authorized by all necessary
corporate action on the part of each TCW Entity and have been duly executed and
delivered by each TCW Entity and are enforceable against each TCW Entity in
accordance with their terms under the laws of the State of California.
9. The execution and delivery of the TCW Agreements by each TCW
Entity and the consummation of the transactions contemplated thereby does not
and will not (i) violate or result
in a violation of any of the TCW Entities' organizational documents or (ii)
violate any provision of any applicable federal or California law, rule or
regulation.
10. No authorizations, approvals or consents of or notice to, or
registrations, declarations or filings with, any court or governmental authority
or agency are required in connection with the execution and delivery of the TCW
Agreements by each TCW Entity, and the consummation of the transactions
contemplated therein.
SCHEDULE 1.3(d)
Purchase Price Adjustment
The Purchase Price will not be adjusted.