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Exhibit 10.19
AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1 (the "AMENDMENT") to Registration Rights
Agreement is entered into as of December 20, 2001, by and among American
Residential Investment Trust, Inc., a Maryland corporation (the "COMPANY") and
the Holders (the "HOLDERS"), as such term is defined in the Registration Rights
Agreement (as defined below).
RECITALS
WHEREAS, the Company and the Holders have previously entered
into that certain Registration Rights Agreement dated as of February 11, 1997
(the "REGISTRATION RIGHTS AGREEMENT").
WHEREAS, contemporaneously with the execution and delivery of
this Amendment, the Company, Home Asset Management Corp., a Delaware corporation
("HAMCO") and MDC REIT Holdings, LLC, a Delaware limited liability company
("HOLDINGS") are entering into that certain Termination and Release Agreement
(the "TERMINATION AND RELEASE AGREEMENT").
WHEREAS, in partial consideration for entering into the
Termination and Release Agreement, the Parties now desire to enter into this
Amendment.
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:
1. DEFINITIONS; REFERENCES. Unless otherwise specifically defined
herein, each term used herein that is defined in the Registration Rights
Agreement shall have the meaning assigned to such term in the Registration
Rights Agreement. Each reference to "hereof," "hereunder," "herein" and "hereby"
and other similar references contained in the Registration Rights Agreement
shall from and after the date of this Amendment refer to the Registration Rights
Agreement as amended hereby.
2. EFFECTIVENESS OF AMENDMENTS. Upon the closing of the
transactions contemplated by the Termination and Release Agreement, this
Amendment shall become effective and the Registration Rights Agreement shall be
amended as provided herein as of such date.
3. AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT. Upon the terms
and subject to the conditions of this Amendment, the Registration Rights
Agreement is hereby amended as follows:
(a) SECTION 1. The definition of "Crescent" in Section 1
of the Registration Rights Agreement is hereby amended to add "TCW/Crescent
Mezzanine Trust, a Delaware
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statutory business trust," following "TCW Shared Opportunity Fund II, L.P., a
Delaware limited partnership."
(b) SECTION 1. A new definition is hereby added to
Section 1 of the Registration Rights Agreement, as follows:
"HAMCO" shall mean Home Asset Management Corp., a
Delaware corporation, and such Persons to whom HAMCO
sells, pledges, grants a security interest in,
transfers, gives, assigns, devises or otherwise
disposes of Common Stock or Registrable Securities.
(c) SECTION 1. The definition of "Holdings" in Section 1
of the Registration Rights Agreement is hereby amended and restated to read in
its entirety as follows:
"HOLDINGS" shall mean MDC REIT Holdings, LLC, a
Delaware limited liability company, and such Persons
to whom Holdings sells, pledges, grants a security
interest in, transfers, gives, assigns, devises or
otherwise disposes of Common Stock or Registrable
Securities.
(d) SECTION 1. A new definition is hereby added to
Section 1 of the Registration Rights Agreement, as follows:
"HOLDINGS INITIATING HOLDERS" shall mean, with
respect to any registration requested by HAMCO,
Holdings, any Holder or Holders of a majority of the
then outstanding Registrable Securities held by HAMCO
or Holdings.
(e) SECTION 1. The definition of "Initiating Holder" in
Section 1 of the Registration Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"INITIATING HOLDER" shall mean any of the MDC
Initiating Holders, the Crescent Initiating Holders,
the Series A Initiating Holders, the L/C Initiating
Holders and the Holdings Initiating Holders.
(f) SECTION 1. Clauses (ii) through (iv) of the
definition of "Registrable Securities" in Section 1 of the Registration Rights
Agreement is hereby amended and restated to read in its entirety as follows:
(ii) owned by Holdings or HAMCO, (iii) acquired by
members of Holdings or holders of the capital stock
of HAMCO upon a distribution, transfer or other
disposition by Holdings or HAMCO to either of their
respective members or stockholders, (iv) acquired by
holders of Notes (or the Collateral Agent acting for
their benefit) in connection with a foreclosure upon
such Common Stock under the Pledge Agreement or other
transfer, assignment, disposition or devise of such
Common Stock in connection with any transaction
involving or relating to the Notes or
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(g) SECTION 2.1. The first paragraph of Section 2.1 of
the Registration Rights Agreement is hereby amended and restated to read in its
entirety as follows:
2.1 REQUESTED REGISTRATION. If the Company receives
from either the Crescent Initiating Holders, the MDC
Initiating Holders, the Series A Initiating Holders,
the Holdings Initiating Holders or the L/C Initiating
Holders a written request that the Company effect a
registration under the Securities Act, or (y)
following the foreclosure by the Collateral Agent or
Crescent under the Pledge Agreement, the Company
receives from the Collateral Agent, the Crescent
Initiating Holders, or the Holdings Initiating
Holders a written request that the Company effect a
registration under the Securities Act, the Company
will:
(h) SECTION 2.1(b). The first paragraph of Section 2.1(b)
of the Registration Rights Agreement is hereby amended and restated to read in
its entirety as follows:
(b) as soon as practicable, use its reasonable best
efforts to effect such registration (including,
without limitation, the execution of an undertaking
to file post-effective amendments, appropriate
qualification under applicable blue sky or other
state securities laws, and appropriate compliance
with applicable regulations issued under the
Securities Act) as may be so requested and as would
permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are
specified in such request, together with all or such
portion of the Registrable Securities of any Holder
or Holders joining in such request as are specified
in a written request given within fifteen (15) days
after receipt of such written notice from the
Company; provided that (x) the MDC Initiating
Holders, the Crescent Initiating Holders and the
Holdings Initiating Holders are each entitled to two
registrations pursuant to this Section 2.1, no more
than one of which may be effected in any given
12-month period; (y) the Series A Initiating Holders
and the L/C Initiating Holders are each entitled to
only one registration pursuant to this Section 2.1;
and (z) the Company shall not be obligated to take
any action to effect any such registration,
qualification, or compliance pursuant to this Section
2.1:
(i) SECTION 2.1(b)(iii). Section 2.1(b)(iii) of the
Registration Rights Agreement is hereby amended and restated to read in its
entirety as follows:
(iii) With respect to the MDC Initiating Holders,
after the Company has effected two registrations on
behalf of the MDC Initiating Holders requesting
registration pursuant to this Section 2.1
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and such registrations have been declared effective;
with respect to the Crescent Initiating Holders,
after the Company has effected two registrations on
behalf of the Crescent Initiating Holders requesting
registrations pursuant to Section 2.1 and such
registrations have been declared effective (subject
to paragraph (f)); with respect to the Holdings
Initiating Holders, after the Company has effected
two registrations on behalf of the Holdings
Initiating Holders requesting registrations pursuant
to Section 2.1 and such registrations have been
declared effective (subject to paragraph (f)); with
respect to the Series A Initiating Holders, after the
Company has effected one registration on behalf of
the Series A Initiating Holders requesting
registration pursuant to Section 2.1 and such
registration has been declared effective (subject to
paragraph (f)) and, with respect to the L/C
Initiating Holders, after the Company has effected
one registration on behalf of the L/C Initiating
Holders requesting registration pursuant to Section
2.1 and such registration has been declared effective
(subject to paragraph (f)); or
(j) SECTION 2.1(b)(iv). Section 2.1(b)(iv) of the
Registration Rights Agreement is hereby amended and restated to read in its
entirety as follows:
(iv) Unless the Holder or Holders requesting
registration (together with any other Holders who may
participate in such registration ) propose to dispose
of Registrable Securities which they reasonably
anticipate will have an aggregate disposition price
(before deduction of underwriting discounts and
expenses of sale) of at least $1,000,000.
(k) SECTION 2.1(b). The last paragraph of Section 2.1(b)
of the Registration Rights Agreement is hereby amended and restated to read in
its entirety as follows:
Subject to the foregoing clauses (i) through (iv) and
to Section 2.1(d), the Company shall file a
registration statement covering the Registrable
Securities so requested to be registered as soon as
practicable after receipt of the request of the MDC
Initiating Holders, the Crescent Initiating Holders,
the Series A Initiating Holders, the Holdings
Initiating Holders or the L/C Initiating Holders, and
in no event later than 90 days after receipt of such
request.
(l) SECTION 2.1(c). The first paragraph of Section 2.1(c)
of the Registration Rights Agreement is hereby amended and restated to read in
its entirety as follows:
(c) UNDERWRITING. If the MDC Initiating Holders, the
Crescent Initiating Holders, the Series A Initiating
Holders, the Holdings Initiating Holders or the L/C
Initiating Holders intend to distribute the
Registrable Securities covered by their request by
means of an underwriting, they shall so advise the
Company as a part of their request made pursuant to
this Section 2.1 and the Company shall include such
information in the written notice referred to in
Section 2.1(a). The right of each Holder to
registration pursuant to Section 2.1 shall be
conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's
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Registrable Securities in the underwriting to the
extent requested (unless otherwise mutually agreed by
a majority in interest of the Holders and such
Holder) to the extent provided herein.
(m) SECTION 2.1(c). The second paragraph of Section
2.1(c) of the Registration Rights Agreement is hereby amended and restated to
read in its entirety as follows:
The Company shall (together with all Holders
proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters
selected for such underwriting by a majority in
interest of the MDC Initiating Holders, the Crescent
Initiating Holders, the Series A Initiating Holders,
the Holdings Initiating Holders or the L/C Initiating
Holders, as the case may be; however, such selection
shall be subject to the approval of the Company, in
its sole and absolute discretion. Notwithstanding any
other provision of this Section 4.1, if the Company
and the underwriter or underwriters determine that
marketing factors require the number of shares to be
underwritten to be reduced and so advise the MDC
Initiating Holders, the Crescent Initiating Holders,
the Series A Initiating Holders, the Holdings
Initiating Holders or the L/C Initiating Holders, as
the case may be, in writing, then the MDC Initiating
Holders, the Crescent Initiating Holders, the Series
A Initiating Holders, the Holdings Initiating Holders
or the L/C Initiating Holders, as the case may be,
shall so advise all Holders who have initiated to the
Company that they intend to participate in such
underwriting and the number of Registrable Securities
that may be included in the registration and
underwriting shall be allocated as follows:
(n) SECTION 2.1(c)(i). Section 2.1(c)(i) of the
Registration Rights Agreement is hereby amended and restated to read in its
entirety as follows:
(i) Registrable Securities held by any person who is
not an MDC Holder, in the case of a registration
requested by the MDC Initiating Holders, who is not
Crescent, in the case of a registration requested by
the Crescent Initiating Holders, who is not a Series
A Holder, in the case of a registration requested by
the Series A Initiating Holders, who is not Holdings
or HAMCO, in the case of a registration requested by
the Holdings Initiating Holders, or who is not a L/C
Holder, in the case of a registration requested by
the L/C Initiating Holders, shall first be excluded
on a pro rata basis on the basis of the number of
Registrable Securities requested to be included by
such Holders;
(o) SECTION 2.1(c)(ii). Section 2.1(c)(ii) of the
Registration Rights Agreement is hereby amended and restated to read in its
entirety as follows:
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(ii) if further reductions are required, Registered
Securities held by the MDC Holders in the case of a
registration requested by the MDC Initiating Holders
or held by Crescent in the case of a registration
requested by Crescent or held by the Series A Holders
in the case of a registration requested by the Series
A Initiating Holders or held by Holdings or HAMCO in
the case of a registration requested by the Holdings
Initiating Holders or held by the L/C Holders in the
case of a registration requested by the L/C
Initiating Holders shall be excluded in proportion,
as nearly as practicable, to the respective amounts
of Registrable Securities requested to be included by
such Holders.
(p) SECTION 2.1(c)(ii). The first paragraph after Section
2.1(c)(ii) of the Registration Rights Agreement is hereby amended and restated
to read in its entirety as follows:
In the event any Non-MDC Holder is excluded as a
result of the foregoing provisions from a
registration (other than a registration requested by
the Crescent Initiating Holders or the Holdings
Initiating Holders), then such Non-MDC Holder shall
be entitled to sell, on a pro rata basis, the
excluded Registrable Securities, prior to any other
Registrable Securities, pursuant to the underwriters'
over-allotment option. Notwithstanding the preceding
sentence, if the number of shares includable by the
MDC Holders is reduced in a registration requested by
the MDC Initiating Holders, then the maximum
participation by Non-MDC Holders in the underwriters'
over-allotment option shall be limited to the number
of shares that such Holders would have been able to
sell if the reduction was pro rata among all Holders
of Registrable Securities having the right to
participate in such registration, regardless of the
reduction provisions of clause (i) above.
(q) SECTION 2.1(c)(ii). The second paragraph after
Section 2.1(c)(ii) of the Registration Rights Agreement is hereby amended and
restated to read in its entirety as follows:
Except as provided in the last sentence of this
paragraph, no Registrable Securities excluded from
the underwriting by reason of the underwriter's
marketing limitation shall be included in such
registration. If any Holder disapproves of the terms
of the underwriting, such person may elect to
withdraw therefrom by written notice to the Company,
the underwriter and the MDC Initiating Holders, the
Crescent Initiating Holders, the Series A Initiating
Holders, the Holdings Initiating Holders or the L/C
Initiating Holders, as the case may be. The
Registrable Securities and/or other securities so
withdrawn from such underwriting shall also be
withdrawn from such registration; provided, however,
that, if by the withdrawal of such Registrable
Securities a greater number of Registrable Securities
held by other Holders may be included in such
registration (up to the maximum of any limitation
imposed by the underwriters), then the Company shall
offer to all Holders who have included Registrable
Securities in the
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registration the right to include additional
Registrable Securities in the same proportion used
above in determining the underwriter limitation.
(r) SECTION 2.1(d). Section 2.1(d) of the Registration
Rights Agreement is hereby amended and restated to read in its entirety as
follows:
(d) DELAY OF REGISTRATION. If the Company shall
furnish to the MDC Initiating Holders, the Crescent
Initiating Holders, the Series A Initiating Holders,
the Holdings Initiating Holders or the L/C Initiating
Holders a certificate signed by the President of the
Company stating that, in the good faith discretion of
the Board of Directors of the Company, it would not
be in the best interest of the Company for such
registration statement to be filed on or before the
date filing would be required then the Company may
defer the filing of the registration statement for a
period or periods not in excess of an aggregate of 90
days, such right to delay a request to be exercised
by the Company not more than once in any calendar
year.
(s) SECTION 2.1(f). Section 2.1(f) of the Registration
Rights Agreement is hereby amended and restated to read in its entirety as
follows:
(f) EFFECTIVE REGISTRATION STATEMENT. A registration
requested pursuant to this Section 2.1 shall not be
deemed to have been effected (i) unless a
registration statement with respect thereto has
become effective; provided, however, that if such
registration statement does not become effective
after the Company has filed it solely by reason of
the refusal to proceed by the Holders (other than a
refusal to proceed based upon the advice of counsel
relating to a matter with respect to the Company),
then such registration shall be deemed to have been
effected unless the MDC Initiating Holders, the
Crescent Initiating Holders, the Series A Initiating
Holders, the Holdings Initiating Holders or the L/C
Initiating Holders, as the case may be, shall have
elected to pay all Registration Expenses referred to
in Section 2.4 hereof in connection with such
registration, (ii) if, after the registration
statement that relates to such registration has
become effective, such registration statement becomes
subject to any stop order, injunction or any order or
requirement of the Commission or other governmental
agency or court for any reason and such order,
injunction or requirement is not promptly withdrawn
or lifted, or (iii) the conditions to closing
specified in the purchase agreement or underwriting
agreement entered into in connection with such
registration are not satisfied, other than by reason
of some act or omission by such Holders.
(t) SECTION 2.2. The first paragraph of Section 2.2 of
the Registration Rights Agreement is hereby amended and restated to read in its
entirety as follows:
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2.2 FORM S-3. After the Company has qualified for the
use of Form S-3, the MDC Initiating Holders, the
Crescent Initiating Holders, the Series A Initiating
Holders, the L/C Initiating Holders and the Holdings
Initiating Holders each shall have the right to
registrations on Form S-3 (but not more than one
registration in any twelve (12) month period shall be
requested by each of the MDC Initiating Holders, the
Crescent Initiating Holders, the Series A Initiating
Holders, the L/C Initiating Holders, or the Holdings
Initiating Holders, as the case may be) under this
Section 2.2 (requests shall be in writing and shall
state the number of Registrable Securities to be
disposed of and the intended method of disposition of
such shares by such Holder or Holders); provided,
however, that the Company shall not be required to
effect a registration pursuant to this Section 2.2
unless (a) the Holder or Holders requesting
registration propose to dispose of Registrable
Securities which they reasonably anticipate will have
an aggregate disposition price (before deduction of
underwriting discounts and expenses of sale) of at
least $1,000,000 and (b) such Holder or Holders are
not entitled to sell all of their shares within a
three-month period under Rule 144 under the
Securities Act.
(u) SECTION 2.4. Section 2.4 of the Registration Rights
Agreement is hereby amended and restated to read in its entirety as follows:
2.4 EXPENSES OF REGISTRATION. All Registration
Expenses incurred in connection with one registration
per year pursuant to Section 2.1 requested by the MDC
Initiating Holders, one registration per year
requested by the Crescent Initiating Holders, one
registration per year requested by the Holdings
Initiating Holders, one registration requested by the
Series A Initiating Holders and one registration
requested by the L/C Initiating Holders and all
Registration Expenses incurred in connection with a
registration pursuant to Section 2.2 or Section 2.3,
including the reasonable fees and expenses of one
counsel for the selling Holders collectively, shall
be borne by the Company; and all Selling Expenses
shall be borne by the Holders of the Registrable
Securities so registered pro-rata on the basis of the
number of shares so registered.
(v) SECTION 3.11. Section 3.11 of the Registration Rights
Agreement is hereby amended and restated to read in its entirety as follows:
TERMINATION. The provisions of this Agreement shall
terminate upon the earlier of (a) the tenth
anniversary of the date of the Amendment or (b) as to
any Holder, at such time as the Holder is able to
sell all its remaining Registrable Securities
(including any securities that may become Registrable
Securities upon acquisition by any of the Holders
pursuant to distribution by Holdings to its members
or a foreclosure by the holders of
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Notes, or the Collateral Agent acting for their
benefit, under the Pledge Agreement) in accordance
with Rule 144 during a 90-day period.
4. INCORPORATION OF TERMS. This Amendment shall be governed by
and construed in accordance with Section 3.10 of the Registration Rights
Agreement.
5. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, all of which shall be considered one and the same agreement.
6. STATUS OF REGISTRATION RIGHTS AGREEMENT. Except as amended by
this Amendment, the Registration Rights Agreement remains in full force and
effect. Whenever reference is made to the Registration Rights Agreement in any
certificate, letter, notice or other instrument or communication dated after the
date of this Amendment, such reference shall be interpreted as being a reference
to the Registration Rights Agreement as amended by this Amendment.
* * *
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IN WITNESS WHEREOF, the parties have executed this Amendment
No. 1 to Registration Rights Agreement as of the date first set forth above.
COMPANY:
AMERICAN RESIDENTIAL INVESTMENT TRUST, INC.
By: /s/ John M. Robbins
-------------------------------------
Name: John M. Robbins
Title: Chief Executive Officer
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HOLDERS:
MCCOWN DE LEEUW & CO. II, L.P.
By: MDC Management Company II, L.P.
its General Partner
By: /s/ George E. McCown
-----------------------------------
Name: George E. McCown
Title: General Partner
MCCOWN DE LEEUW ASSOCIATES, L.P.
By: MDC Management Company II, L.P.
its General Partner
By: /s/ George E. McCown
-----------------------------------
Name: George E. McCown
Title: General Partner
MCCOWN DE LEEUW & CO. OFFSHORE (EUROPE), L.P.
By: MDC Management Company IIE, L.P.
its General Partner
By: /s/ George E. McCown
-----------------------------------
Name: George E. McCown
Title: General Partner
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO REGISTRATION
RIGHTS AGREEMENT]
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MCCOWN DE LEEUW & CO. OFFSHORE (ASIA), L.P.
By: MDC Management Company IIA, L.P.
its General Partner
By: /s/ George E. McCown
-----------------------------------
Name: George E. McCown
Title: General Partner
ERNEST J. GALLO 1991 FAMILY TRUST
By: /s/ Joseph E. Gallo
-----------------------------------
Name: Joseph E. Gallo
Title: Trustee
JOSEPH C. GALLO 1994 FAMILY TRUST
By: /s/ Joseph E. Gallo
-----------------------------------
Name: Joseph E. Gallo
Title: Trustee
STEPHANIE A. GALLO 1990 FAMILY TRUST
By: /s/ Joseph E. Gallo
-----------------------------------
Name: Joseph E. Gallo
Title: Trustee
PK PARTNERS
By: /s/ Peter E. Haas, Jr.
-----------------------------------
Name: Peter E. Haas, Jr.
Title: Managing General Partner
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO REGISTRATION
RIGHTS AGREEMENT]
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JOSEPHINE B. HAAS REVOCABLE TRUST
By: /s/ Josephine B. Haas
-----------------------------------
Name: Josephine B. Haas
Title: Trustee
KELLER 1991 TRUST
By: /s/ George M. Keller
-----------------------------------
Name: George M. Keller
Title: Trustee
LILLARD PARTNERS
By:
-----------------------------------
Name: John S. Lillard
Title: Managing Partner
PLF PARTNERS
By:
-----------------------------------
Name: W. Parlin Lillard Jr.
Title: General Partner
SAW ISLAND PARTNERS
By: /s/ R. Bruce Mosbacher
-----------------------------------
Name: R. Bruce Mosbacher
Title: General Partner
---------------------------------------------
Martin Anderson
/s/ Jay Fuller
---------------------------------------------
Jay Fuller
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO REGISTRATION
RIGHTS AGREEMENT]
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/s/ John Robbins
---------------------------------------------
John Robbins
---------------------------------------------
Mark Conger
---------------------------------------------
Rollie Lynn
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ John C. Rocchio
------------------------------------
Name: John C. Rocchio
Title: Managing Director
By: /s/ Darryl L. Schall
------------------------------------
Name: Darryl L. Schall
Title: Managing Director
TCW/CRESCENT MEZZANINE
INVESTMENT PARTNERS, L.P.,
TCW/CRESCENT MEZZANINE PARTNERS, L.P.,
TCW/CRESCENT MEZZANINE TRUST
By: TCW/Crescent Mezzanine, L.L.C., its
Investment Manager
By: /s/ John C. Rocchio
------------------------------------
Name: John C. Rocchio
Title: Managing Director
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO REGISTRATION
RIGHTS AGREEMENT]
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TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW INVESTMENT MANAGEMENT COMPANY,
its Investment Manager
By: /s/ John C. Rocchio
------------------------------------
Name: John C. Rocchio
Title: Managing Director
By: /s/ Darryl L. Schall
------------------------------------
Name: Darryl L. Schall
Title: Managing Director
MDC REIT HOLDINGS, LLC
By: HOME ASSET MANAGEMENT CORP., its
managing member
By: /s/ George E. McCown
------------------------------------
Name: George E. McCown
------------------------------------
Title: Chairman and President
------------------------------------
HOME ASSET MANAGEMENT CORP.
By: /s/ George E. McCown
------------------------------------
Name: George E. McCown
------------------------------------
Title: Chairman and President
------------------------------------
[COUNTERPART SIGNATURE PAGE TO AMENDMENT NO. 1 TO REGISTRATION
RIGHTS AGREEMENT]