Exhibit 99.11
EXECUTION COPY
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EXCHANGE RIGHTS AGREEMENT
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This EXCHANGE RIGHTS AGREEMENT (this "Agreement"), is entered
into as of November 17, 2003, by and among CharterMac Capital Company, LLC, a
Delaware limited liability company ("CCC"), CharterMac Corporation, a Delaware
corporation ("CM Corp."), and AHP Associates L.P., DLK Associates L.P., Marc
Associates, L.P., Related General II L.P., J. Xxxxxxx Xxxxx, Fried Family 2001
Trust and SJB Associates L.P. (each an "Investor Member" and collectively, the
"Investor Members").
R E C I T A L S:
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WHEREAS, CCC was formed under the Delaware Limited Liability
Company Act (6 Del. C. Section 18-101, et seq.) (as amended from time to time,
the "Act"), by the filing of a Certificate of Formation with the Delaware
Secretary of State on November 14, 2002 (as amended from time to time, the
"Certificate") and is governed by the Amended and Restated Operating Agreement
dated as of November 17, 2003 (as amended from time to time the "Operating
Agreement");
WHEREAS, pursuant to (i) that certain Contribution Agreement,
dated as of December 17, 2002 (the "Contribution Agreement"), by and among CCC
and other parties named therein, (ii) that certain Contribution Agreement, dated
as of November 17, 2003, by and among J. Xxxxxxx Xxxxx, JMF Associates, L.P. and
Fried Family 2001 Trust and CCC (the "Fried Contribution Agreement") and (iii)
the Operating Agreement, the Investor Members (as defined below) hold units of
limited liability company interest (such units received pursuant to the
Contribution Agreement and the Fried Contribution Agreement being referred to
herein as the "Special Common Units") in CCC;
WHEREAS, pursuant to that certain Special Preferred Voting Shares
Purchase Agreement, dated as of November 17, 2003, by and among CharterMac and
the Investor Members (the "SPV Purchase Agreement"), certain of the Investor
Members hold special preferred voting shares of beneficial interest (the
"Special Preferred Shares"), in CharterMac, a statutory trust formed under the
laws of Delaware ("CharterMac") either pursuant to the SPV Purchase Agreement or
by assignment described in the SPV Purchase Agreement;
WHEREAS, CCC has agreed to provide the Investor Members with
certain rights to exchange their Special Common Units for cash or, at the
election of CM Corp., for shares of CharterMac's common shares of beneficial
interest (the "Common Shares");
WHEREAS, CharterMac has agreed to reserve the number of Common
Shares necessary to permit the exercise of the Exchange Right (as defined
below); and
WHEREAS, upon exercise of the Exchange Right, CharterMac has the
right to require the Investor Members to surrender one Special Preferred Share
for cancellation with respect to each Special Common Unit being exchanged and
CharterMac has agreed to redeem the Special Preferred Shares at their par value
upon such surrender.
NOW, THEREFORE, the parties hereto in consideration of the
foregoing, the mutual covenants and agreements hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which are
acknowledged, do hereby agree as follows:
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless
otherwise clearly indicated to the contrary, applied to the terms used in this
Agreement.
"Assignee" means a Person to whom one or more Special Common
Units have been transferred in a manner permitted under the Operating Agreement,
but who has not become a Substituted Investor Member in accordance therewith.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or required
by law to close.
"Cash Amount" means an amount of cash per Special Common Unit
equal to the Value on the Valuation Date of the Common Share Amount.
"Common Share Amount" means that number of Common Shares equal to
the sum of (i) the product of the number of Special Common Units offered for
exchange by an Exchanging Member, multiplied by the Exchange Factor as of the
Valuation Date and (ii) the result obtained by dividing the amount of any then
accrued but unpaid distributions per Special Common Unit (other than the current
accrued but unpaid distributions, if any, for the quarterly period in which the
Specified Exchange Date occurs) by the Value on the Valuation Date, provided,
that in the event CharterMac issues to all holders of Common Shares rights,
options, warrants or convertible or exchangeable securities entitling the
stockholders to subscribe for or purchase Common Shares, or any other securities
or property (collectively, the "rights"), then the Common Share Amount shall
also include such rights that a holder of that number of Common Shares would be
entitled to receive.
"Exchange Factor" means 1.0; provided, that in the event that
CharterMac (i) declares or pays a dividend on its outstanding Common Shares in
Common Shares or makes a distribution to all holders of its outstanding Common
Shares in Common Shares; (ii) subdivides its outstanding Common Shares; or (iii)
combines its outstanding Common Shares into a smaller number of shares of Common
Shares (collectively, an "Exchange Factor Event"), the Exchange Factor shall be
adjusted by multiplying the Exchange Factor by a fraction, the numerator of
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which shall be the number of shares of Common Shares issued and outstanding on
the record date for such dividend, distribution, subdivision or combination
assuming for such purpose that such dividend, distribution, subdivision or
combination has occurred as of such time, and the denominator of which shall be
the actual number of shares of Common Shares (determined without the above
assumption) issued and outstanding on the record date for such dividend,
distribution, subdivision or combination. Any adjustment to the Exchange Factor
shall become effective immediately after the effective date of such Exchange
Factor Event with all such adjustments being reflected in the final Exchange
Factor as of the Valuation Date.
"Exchanging Member" has the meaning set forth in Section 2.1
hereof.
"Exchange Right" has the meaning set forth in Section 2.1 hereof.
"Independent Trustees" has the same meaning as in the Second
Amended and Restated Trust Agreement of CharterMac dated as of November 17,
2003.
"Investor Member" has the meaning set forth in the Introduction
and includes any Persons who have become Substituted Investor Members in
accordance with the Operating Agreement.
"Lock-up Agreement" means, collectively, those certain Lock-up
Agreements from APH Associates L.P., DLK Associates L.P, Marc Associates, L.P.,
Related General II, L.P. and SJB Associates L.P. in favor of CCC and CharterMac,
dated the date hereof.
"Notice of Exchange" means the Notice of Exchange substantially
in the form of Exhibit B to this Agreement.
"Notice of Surrender" means the Notice of Surrender substantially
in the form of Exhibit C to this Agreement.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and any successor act.
"SEC" means the Securities and Exchange Commission.
"Specified Exchange Date" means the third (3rd) Business Day
after receipt by CCC and CM Corp. of a Notice of Exchange.
"Valuation Date" means the date of receipt by CCC and CM Corp. of
a Notice of Exchange or, if such date is not a Business Day, the first Business
Day thereafter.
"Value" means, with respect to the Common Shares, the average of
the closing market price for the five (5) consecutive trading days immediately
preceding the Valuation Date. The market price for each such trading day shall
be: (i) if the Common Shares are listed or
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admitted to trading on the New York Stock Exchange (the "NYSE"), the American
Stock Exchange ("AMEX"), any national securities exchange or the Nasdaq Stock
Market ("Nasdaq"), the closing price on such day, or if no such sale takes place
on such day, the average of the closing bid and asked prices on such day; (ii)
if the Common Shares are not listed or admitted to trading on the NYSE, the
AMEX, any national securities exchange or the Nasdaq, the last reported sale
price on such day or, if no sale takes place on such day, the average of the
closing bid and asked prices on such day, as reported by a reliable quotation
source designated by CharterMac; or (iii) if the Common Shares are not listed or
admitted to trading on the NYSE, the AMEX, any national securities exchange or
the Nasdaq and no such last reported sale price or closing bid and asked prices
are available, the average of the reported high bid and low asked prices on such
day, as reported by a reliable quotation source designated by CharterMac, or if
there shall be no bid and asked prices on such day, the average of the high bid
and low asked prices, as so reported, on the most recent day (not more than five
(5) days prior to the date in question) for which prices have been so reported;
provided, that if there are no bid and asked prices reported during the five (5)
days prior to the date in question, the Value of the Common Shares shall be
determined by the Independent Trustees acting in good faith on the basis of such
quotations and other information as they consider, in their reasonable judgment,
appropriate. In the event the Common Share Amount includes rights that a holder
of Common Shares would be entitled to receive, then the Value of such rights
shall be determined by the Independent Trustees acting in good faith on the
basis of such quotations and other information as they consider, in their
reasonable judgment, appropriate.
ARTICLE 2
EXCHANGE RIGHT
Section 2.1. Exchange Right.
A. Subject to Sections 2.1.B, 2.1.C, 2.1.D, 2.1.E and 2.1.G
hereof, and subject to any limitations under applicable law, CCC hereby grants
to each Investor Member and each Investor Member hereby accepts the right (the
"Exchange Right"), exercisable with respect to the Special Common Units after
the expiration of any restrictions on the right to exercise the Exchange Right
as set forth in the Lock-up Agreement, to exchange on a Specified Exchange Date
all or a portion of the Special Common Units acquired pursuant to the
Contribution Agreement held by such Investor Member at an exchange price in cash
equal to the Cash Amount. The Exchange Right shall be exercised pursuant to a
Notice of Exchange delivered to CCC, with a copy delivered to CM Corp., by the
Investor Member who is exercising the Exchange Right (the "Exchanging Member");
provided, however, that CM Corp., on behalf of CCC, may elect, after a Notice of
Exchange is delivered, to satisfy the Exchange Right which is the subject of
such notice in accordance with Section 2.1.B. An Investor Member may not
exercise the Exchange Right for less than one thousand (1,000) Special Common
Units unless such Investor Member holds less than one thousand (1,000) Special
Common Units, in which event the Investor Member must exercise the Exchange
Right for all of the Special Common Units held by such Investor Member. Any
Assignee of an Investor Member may exercise the rights of such Investor Member
pursuant to this Section 2.1, and such Investor Member shall be
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deemed to have assigned such rights to such Assignee insofar as it relates to
the Special Common Units assigned and shall be bound by the exercise of such
rights by such Assignee. In connection with any exercise of such rights by an
Assignee on behalf of an Investor Member, the Assignee shall be deemed to be the
Exchanging Member for purposes of this Agreement and the Cash Amount or the
Common Share Amount, as the case may be, shall be satisfied by CCC or CM Corp.,
as the case may be, directly to such Assignee and not to such Investor Member.
B. Notwithstanding the provisions of Section 2.1.A, CM Corp. may,
in its sole and absolute discretion, elect to satisfy an Exchanging Member's
Exchange Right by exchanging Common Shares and rights equal to the Common Share
Amount on the Specified Exchange Date for the Special Common Units offered for
exchange by the Exchanging Member. In the event CM Corp. shall elect to satisfy,
on behalf of CCC, an Exchanging Member's Exchange Right by exchanging Common
Shares and rights for the Special Common Units offered for exchange, (i) CM
Corp. hereby agrees to notify the Exchanging Member within two (2) Business Days
after the receipt by CM Corp. of such Notice of Exchange, (ii) each Exchanging
Member hereby agrees to execute such documents and instruments as CM Corp. and
CharterMac may reasonably require in connection with the issuance of the Common
Shares upon exercise of the Exchange Right and (iii) CM Corp. hereby agrees to
deliver to such Exchanging Member share certificates representing fully paid and
non-assessable shares and such other certificates or instruments as may be
required in respect of rights, in the aggregate representing such number of
Common Shares and rights equal to the Common Share Amount. If CM Corp. makes
such an election, CharterMac shall timely issue and deliver to CM Corp. such
Common Shares to be delivered to the Exchanging Member.
C. At any time on or after the date of the exercise of the
Exchange Right, CharterMac has the right to require the Exchanging Member to
surrender one Special Preferred Share for redemption by CharterMac for each
Special Common Unit being exchanged. CharterMac shall designate the date of such
surrender which may be on or after the date of exercise of the Exchange Right
and such Exchanging Member shall surrender such Special Preferred Shares
pursuant to a Notice of Surrender. Special Preferred Shares delivered to
CharterMac in connection with the exercise of an Exchange Right shall be
cancelled on the books of CharterMac as of the applicable Specified Exchange
Date. CharterMac hereby agrees to pay to the Exchanging Member the Surrender
Price (as defined in the Certificate of Designation for the Special Preferred
Shares) per Special Preferred Share upon such surrender.
D. Any Cash Amount to be paid to an Exchanging Member shall be
paid on the Specified Exchange Date.
E. Any exchange of Special Common Units pursuant to this Article
2 shall be deemed to have occurred as of the Specified Exchange Date for all
purposes, including without limitation the payment of distributions or dividends
in respect of Special Common Units or Common Shares, as applicable. Any Special
Common Units acquired by CM Corp. pursuant to an exercise by any Investor Member
of an Exchange Right shall be cancelled. CM Corp. shall amend the Operating
Agreement to reflect each such exchange and cancellation of Special
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Common Units and each corresponding recalculation of the Special Common Units of
the Investor Members.
F. In case there occurs any reclassification or change of the
outstanding Common Shares of CharterMac or any reorganization of CharterMac (or
any other corporation the stock or securities of which are at the time
receivable upon the exercise of the Exchange Right), including any issuance of
securities other than Common Shares as a distribution with respect to the Common
Shares and including pursuant to a merger or consolidation, on or after the date
hereof, then and in each such case the Investor Member, upon the exercise of the
Exchange Right at any time after the consummation of such reclassification,
change, or reorganization shall, if CM Corp. makes an election not to pay cash
in accordance with Section 2.1(B), be entitled to receive, in lieu of the stock
or other securities and property (including cash) receivable upon the exercise
of the Exchange Right prior to such consummation, the stock or other securities
or property (including cash) to which such Investor Member would have been
entitled upon such consummation if such Investor Member had exercised the
Exchange Right immediately prior thereto, all subject to further adjustment
pursuant to the provisions of this subsection F.
G. Upon receipt of a Notice of Exchange, CCC shall, if CharterMac
then is contemplating exercising its right pursuant to Section 2(a) of the
Registration Rights Agreement to not file a Registration Statement or not keep a
Registration Statement effective because additional disclosure would be
required, notify the Investor Members and grant them the opportunity, prior to
consummating the exchange pursuant to such Notice of Exchange, to rescind such
Notice of Exchange.
ARTICLE 3
OTHER PROVISIONS
Section 3.1. Covenants of CharterMac and CM Corp.
A. At all times during the pendency of the Exchange Right,
CharterMac shall reserve for issuance such number of Common Shares as may be
necessary to enable the issuance of such shares in full payment of the Common
Share Amount in regard to all Special Common Units held by Investor Members
which are from time to time outstanding. CharterMac shall use its commercially
reasonable efforts, at CharterMac's expense, to list (on the American Stock
Exchange or any other exchange on which the Common Shares are then listed)
Common Shares when issued pursuant to this Agreement.
B. During the pendency of the Exchange Right, CharterMac shall
deliver to the Investor Member in a timely manner all reports filed by
CharterMac with the SEC to the extent CharterMac also transmits such reports to
its shareholders and all other communications transmitted from time to time by
CharterMac to its shareholders generally.
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C. CCC shall notify each Investor Member, upon request, of the
then current Exchange Factor and such notice will include a reasonable
explanation of the Exchange Factor calculation to be applied at such time.
D. In connection with any transaction in which an Investor Member
becomes obligated to exchange on the closing of such transaction its Special
Common Units for securities of any Person other than CharterMac pursuant to the
Operating Agreement, if the securities issued to shareholders of CharterMac
generally are freely transferable without restriction under the federal and
state securities laws, CharterMac shall cause such Person to issue to the
Investor Member in such exchange securities which are freely transferable
without restriction under the federal and state securities laws, or securities
which are registered for resale under an effective registration statement which
will permit resale of securities issued to the Investor Member immediately
following the closing date of the transaction pursuant to which such securities
are issued.
Section 3.2. Fractional Shares.
No fractional Common Shares shall be issued upon exchange of
Special Common Units. The number of full Common Shares which shall be issuable
upon exchange of Special Common Units (or the cash equivalent amount thereof if
the Cash Amount is paid) shall be computed on the basis of the aggregate amount
of Special Common Units so surrendered. Instead of any fractional Common Shares
which would otherwise be issuable upon exchange of any Special Common Units, CCC
shall pay a cash adjustment in respect of such fraction in an amount equal to
the Cash Amount of a Special Common Unit multiplied by such fraction.
Section 3.3 Investment Representations and Warranties. By
delivering a Notice of Exchange, each Exchanging Member will make the
representations, warranties and certifications set forth in the Notice of
Exchange and will be deemed to represent and warrant to CharterMac, CM Corp. and
CCC that such Exchanging Member is aware of CM Corp.'s option to exchange such
Exchanging Member's Special Common Units for Common Shares pursuant to Section
2.1(B) hereof and that:
(a) Such Exchanging Member has received and reviewed copies of
all reports and other filings (the "SEC Reports"), including
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q
and Current Reports on Form 8-K, made by CharterMac with the
SEC pursuant to the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, as the
Exchanging Member has deemed relevant in connection with the
exercise of the Exchange Right and understands the risks of,
and other considerations relating to, an investment in
Common Shares.
(b) Such Exchanging Member, by reason of its business and
financial experience, together with the business and
financial experience of those
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persons, if any, retained by it to represent or advise it
with respect to its investment in Common Shares,
(i) has such knowledge, sophistication and experience in
financial and business matters and in making
investment decisions of this type that it is capable
of evaluating the merits and risks of and of making
an informed investment decision with respect to an
investment in Common Shares;
(ii) is capable of protecting its own interest or has
engaged representatives or advisors to assist it in
protecting its interests; and
(iii) is capable of bearing the economic risk of such
investment.
(c) Such Exchanging Member is an "accredited investor" as
defined in Rule 501 of the regulations promulgated under the
Securities Act; provided however, that if such Exchanging
Member is not an "accredited investor" at the time it
delivers a Notice of Exchange, CCC shall either pay the Cash
Amount or, at its expense, cause the registration of the
issuance of the Common Shares to such Exchanging Member in
the amount of the Common Share Amount payable to such
Exchanging Member.
(d) If such Exchanging Member has retained or retains a person
to represent or advise it with respect to its investment in
Common Shares, such Exchanging Member will advise CM Corp.
and CharterMac of such retention and, at CM Corp. or
CharterMac's request, such Exchanging Member shall, prior to
or at delivery of the Common Shares hereunder,
(i) acknowledge in writing such representation; and
(ii) cause such representative or advisor to deliver a
certificate to CM Corp. and CharterMac containing
such representations as may be reasonably requested
by CM Corp. and CharterMac.
(e) Such Exchanging Member understands that an investment in
CharterMac involves substantial risks.
(f) Such Exchanging Member has been given the opportunity to
make a thorough investigation of the activities of
CharterMac and has been furnished with materials relating to
CharterMac and its activities, including, without
limitation, the SEC Reports which it has requested.
(g) Such Exchanging Member has relied and is making its
investment decision based upon the SEC Reports and other
written information provided to the
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Exchanging Member by or on behalf of CharterMac and, as
applicable, such Exchanging Member's position as a director
or executive officer of CCC or CM Corp.
(h) The Common Shares to be issued to such Exchanging Member
hereunder will be acquired by such Exchanging Member for its
own account, for investment only and not with a view to, or
with any intention of, a distribution in violation of the
Securities Act of 1933.
(i) Such Exchanging Member was not formed for the specific
purpose of acquiring an interest in CharterMac.
(j) Such Exchanging Member acknowledges that:
(i) the Common Shares to be issued to such Exchanging
Member hereunder have not been registered under the
Securities Act or state securities laws by reason of
a specific exemption or exemptions from registration
under the Securities Act and applicable state
securities laws and, the certificates representing
such Common Shares will bear a legend to such effect,
unless the Common Shares are registered in accordance
with Section 3.3(c);
(ii) CharterMac's and CCC's reliance on such exemptions is
predicated in part on the accuracy and completeness
of the representations and warranties of such
Exchanging Member contained herein;
(iii) the Common Shares to be issued to such Exchanging
Member hereunder may not be resold or otherwise
distributed unless registered under the Securities
Act and applicable state securities laws, or unless
an exemption from registration is available;
(iv) there may be no market for unregistered Common
Shares; and
(v) CharterMac has no obligation or intention to register
such Common Shares under the Securities Act or any
state securities laws or to take any action that
would make available any exemption from the
registration requirements of such laws, except as may
be provided in the Registration Rights Agreement
entered into by CharterMac and the Exchanging Member
(the "Registration Rights Agreement").
(k) Such Exchanging Member acknowledges that because of the
restrictions on transfer or assignment of such Common Shares
to be issued hereunder, such Exchanging Member may have to
bear the economic risk of its investment in Common Shares
issued hereunder for an indefinite period of time,
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although the holder of any such Common Shares will be
afforded certain rights to have such Common Shares
registered under the Securities Act and applicable state
securities laws pursuant to the Registration Rights
Agreement.
(l) The address set forth under such Exchanging Member's name in
the Notice of Exchange is the address of the Exchanging
Member's principal place of business or, if a natural
person, the address of the Exchanging Member's residence,
and such Exchanging Member has no present intention of
becoming a resident of any country, state or jurisdiction
other than the country and state in which such principal
place of business or residence is situated.
Section 3.4. Indemnification. Each Exchanging Member shall
indemnify and hold harmless CharterMac, CM Corp. and CCC, and their respective
officers, directors, trustees, managers and employees, from and against any and
all losses, claims, judgments, amounts paid in settlement, damages, liabilities
and expenses (joint or several), including attorneys' fees and disbursements and
expenses of investigation, incurred by any such party pursuant to any actual or
threatened action, suit, proceeding or investigation in any way arising out of
relating to any inaccuracy of any of the representations, warranties or
certifications made by such Exchanging Member pursuant to the provisions of
Section 3.3 or an applicable Notice of Exchange.
ARTICLE 4
GENERAL PROVISIONS
Section 4.1. Taxable Transaction
(a) The exercise of the Exchange Right provided under this
Agreement by any Investor Member shall be treated and
reported as a taxable transaction.
(b) Each Investor Member and its Assignees hereby authorizes CCC
or CM Corp. to withhold from, or pay on behalf of or with
respect to, such Investor Member any amount of federal,
state, local, or foreign taxes that the CCC or CM Corp.
determines that CCC or CM Corp. is required to withhold or
pay with respect to any amount distributable or allocable to
such Investor Member as a result of the transactions
contemplated by this Agreement, including, without
limitation, any taxes required to be withheld or paid by CCC
or CM Corp. pursuant to Sections 1441, 1442, 1445, or 1446
of the Code, and that any taxes so withheld will reduce the
cash or Common Shares to which an Exchanging Member is
entitled. Prior to withholding, CCC or CM Corp., as the case
may be, shall endeavor to (i) provide reasonable advance
notice to the Investor Members, which shall provide the
basis for withholding and (ii) if requested, discuss the
need to withhold with the Investor Members. CCC or CM Corp.,
as the case may be, shall permit
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an Investor Member who is subject to withholding to contest
the obligation to withhold at its own expense.
Section 4.2 Notices.
All notices and other communications given or made pursuant
hereto shall be in writing and delivered by hand or sent by registered or
certified mail (postage prepaid, return receipt requested) or by nationally
recognized overnight air courier service and shall be deemed to have been duly
given or made as of the date delivered if delivered personally, or if mailed, on
the third business day after mailing (on the first business day after mailing in
the case of a nationally recognized overnight air courier service) to CCC,
CharterMac, CM Corp., an Investor Member or Assignee, as the case may be, (i) at
the address listed on Exhibit A, with respect to an Investor Member, (ii) at the
address listed on the records of CCC with respect to an Assignee, and (iii) at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: President, with respect to
CCC, CharterMac or CM Corp. Any party may by notice given in accordance with
this Section 4.2 to the other parties designate another address or person for
receipt of notices hereunder.
Section 4.3. Amendment and Modification.
This Agreement may be modified, amended or supplemented only by
an instrument in writing signed by all of the parties thereto and by CharterMac
(and approval of any modification, amendment or supplement by CharterMac shall
require approval of not less than a majority of the Independent Trustees).
Section 4.4. Waiver of Compliance; Consents.
Except as otherwise provided in this Agreement, any failure of
any of the parties to comply with any obligation, covenant, agreement or
condition herein may be waived by the party or parties entitled to the benefits
thereof only by a written instrument signed by the party granting such waiver
(which, in the case of a waiver by CharterMac, CCC or CM Corp., shall require
the approval of not less than a majority of the Independent Trustees), but such
a waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent other failure. Whenever this Agreement requires
or permits consent by or on behalf of any party hereto, such consent shall be
given in writing in a manner consistent with the requirements for a waiver of
compliance as set forth in this Section 4.4.
Section 4.5. Governing Law.
This Agreement shall be governed by the laws of the State of New
York without regard to the conflict of laws principles thereof.
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Section 4.6. Severability.
The invalidity or unenforceability of any provisions of this
Agreement in any such jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of this Agreement, including any such
provision, in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law. Upon such determination that any provision is invalid, illegal
or incapable of being enforced, the parties hereto will negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby and thereby are fulfilled to the extent possible.
Section 4.7. Counterparts.
This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Section 4.8. Section Headings.
The section headings contained in this Agreement are solely for
the purpose of reference, are not part of the agreement of the parties and shall
not in any way affect the meaning or interpretation of this Agreement. All
references in this Agreement to Sections are to sections of this Agreement,
unless otherwise indicated.
Section 4.9. Entire Agreement.
This Agreement, together with the Contribution Agreement and the
other Collateral Agreements (as defined in the Contribution Agreement), embodies
the entire agreement and understanding of the parties hereto in respect of the
transactions contemplated by this Agreement. There are no restrictions,
promises, inducements, representations, warranties, covenants or undertakings,
other than those expressly set forth or referred to herein or therein. This
Agreement, the Contribution Agreement and the other Collateral Agreements
supersede all prior written or oral agreements and understandings between the
parties with respect to the transactions.
Section 4.10. No Third-Party Beneficiaries.
This Agreement shall be binding upon and inure to the benefit of
each party thereto and their respective representatives, heirs, successors and
permitted assigns. Nothing in this Agreement, express or implied, is intended to
or shall confer upon any other person any right, benefit, claim or remedy of any
nature whatsoever under or by reason of this Agreement.
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Section 4.11. Interpretation.
(a) The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. If any
ambiguity or question of intent or interpretation arises,
this Agreement will be construed as if drafted jointly by
the parties and no presumptions or burden of proof will
arise favoring or disfavoring any party by virtue of
authorship of any provisions of this Agreement.
(b) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the
context may require.
(c) The words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation.
Section 4.12. Further Assurances.
Each of the parties shall use reasonable efforts to execute and
deliver to any other party such additional documents and take such other action,
as any other party may reasonably request to carry out the intent of this
Agreement and the transactions contemplated hereby.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Exchange
Rights Agreement as of the date first written above.
CHARTERMAC CAPITAL COMPANY, LLC
By: CharterMac Corporation, its Managing Member
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Chief Operating Officer
CHARTERMAC CORPORATION
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Chief Operating Officer
INVESTOR MEMBERS:
APH ASSOCIATES L.P.
By: APH Associates, Inc., its general
partner
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
DLK ASSOCIATES L.P.
By: DLK Associates, Inc., its general
partner
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
/s/ J. Xxxxxxx Xxxxx
-----------------------------------
J. Xxxxxxx Xxxxx
FRIED FAMILY 2001 TRUST
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Trustee
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Trustee
MARC ASSOCIATES, L.P.
By: Marc Associates, Inc., its general
partner
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
RELATED GENERAL II L.P.
By: RCMP, Inc., its general partner
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
SJB ASSOCIATES L.P.
By: SJB Associates, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
By its signature below, CharterMac is executing this Agreement
solely for the purposes of confirming its obligations pursuant to Sections
2.1.B, 2.1.C, 3.1.A, 3.1.B and 3.1.D. In connection with a CharterMac
Extraordinary Transaction (as defined in the Operating Agreement), if the
Special Common Units remain outstanding after such transaction CharterMac shall
cause its successor to execute an assumption agreement assuming CharterMac's
obligations pursuant to this Agreement.
CHARTERMAC
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Chief Operating Officer
Exhibit A
---------
Notice Addresses
If to APH Associates L.P.:
c/o Related Capital Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxx
If to DLK Associates L.P.:
c/o Related Capital Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxx
If to Marc Associates, L.P.:
c/o Related Capital Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxxxxx
If to SJB Associates L.P.:
c/o Related Capital Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx
If to Related General II L.P.:
c/o Related Capital Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx Xxxx
with a copy to:
Xxxxxxx Xxxxxxx, Esq.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
and with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
If to J. Xxxxxxx Xxxxx or Fried Family 2001 Trust:
c/o Phoenix Realty Group
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. J. Xxxxxxx Xxxxx
with a copy to:
Manatt, Xxxxxx & Xxxxxxxx, LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
and with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Exhibit B
---------
Notice of Exchange
The undersigned Investor Member or Assignee hereby irrevocably,
effective upon the Specified Exchange Date, (i) exchanges ___________ Special
Common Units in CharterMac Capital Company, LLC, in accordance with the terms of
the Exchange Rights Agreement, dated as of November 17, 2003 (the "Exchange
Rights Agreement"), and the Exchange Right referred to therein; (ii) surrenders
such Special Common Units and all right, title and interest therein; and (iii)
directs that the Cash Amount or Common Share Amount (as determined by CCC or CM
Corp. pursuant to the Exchange Rights Agreement) deliverable upon exercise of
the Exchange Right be delivered to the address specified below, and if Common
Shares are to be delivered, such Common Shares will be registered or placed in
the name(s) and at the address(es) specified below. The undersigned hereby
represents, warrants, and certifies to CharterMac, CM Corp. and CCC that the
undersigned (a) has marketable and unencumbered title to such Special Common
Units free and clear, other than any encumbrance arising pursuant to the
Operating Agreement and encumbrance(s) that will be released effective upon the
exchange on the Specified Exchange Date, of the rights or interests of any other
person or entity; (b) has the full right, power, and authority to exchange and
surrender such Special Common Units as provided herein and such exchange and
surrender does not violate the rights of any third party; and (c) has obtained
the consent or approval of all persons or entities, if any (other than consent
or approval that may be required of CharterMac, CM Corp. or CCC) having the
right to consent or approve such exchange and surrender on the part of the
undersigned.
[SIGNATURE PAGE FOLLOWS]
The undersigned hereby makes the representations and warranties
contained in Section 3.3 of the Exchange Rights Agreement as if such
representations and warranties had been set forth in full in this Notice of
Exchange.
Capitalized terms used herein and not otherwise herein defined
are used as defined in the Exchange Rights Agreement
Dated: __________________________
Name of Investor Member or Assignee:
Please Print
______________________________________________
(Signature of Investor Member or Assignee)
______________________________________________
(Xxxxxx Xxxxxxx)
______________________________________________
(City) (State) (Zip Code)
______________________________________________
Signature Guaranteed by:
If Common Shares are to be issued, issue to:
Name: ________________________________
Please insert social security or identifying number: ______________
Exhibit C
---------
Notice of Surrender
The undersigned Investor Member or Assignee is exchanging, or has
exchanged, effective upon the Specified Exchange Date, ___________ Special
Common Units in CharterMac Capital Company, LLC, in accordance with the terms of
the Exchange Rights Agreement, dated as of November 17, 2003 (the "Exchange
Rights Agreement") and the Exchange Right referred to therein and, has received
a written notice by CharterMac, a Delaware statutory trust ("CharterMac"),
requiring that it surrender its Special Preferred Shares. In connection
therewith the undersigned Investor Member or Assignee hereby irrevocably,
effective upon the date specified in the written notice from CharterMac,
surrenders an equal number of Special Preferred Shares in CharterMac and all
right, title and interest therein to CharterMac. The undersigned hereby
represents, warrants, and certifies to CharterMac, CM Corp. and CCC that the
undersigned (a) has marketable and unencumbered title to such Special Preferred
Shares free and clear, other than any encumbrance(s) that will be released
effective upon the exchange on the Specified Exchange Date, of the rights or
interests of any other person or entity; (b) has the full right, power, and
authority to surrender such Special Preferred Shares as provided herein and such
exchange and surrender does not violate the rights of any third party; and (c)
has obtained the consent or approval of all persons or entities, if any (other
than consent or approval that may be required of CharterMac, CM Corp. or CCC)
having the right to consent or approve such surrender on the part of the
undersigned.
Capitalized terms used herein and not otherwise herein defined
are used as defined in the Exchange Rights Agreement
Dated: __________________________
Name of Investor Member or Assignee:
Please Print
______________________________________________
(Signature of Investor Member or Assignee)
______________________________________________
(Xxxxxx Xxxxxxx)
______________________________________________
(City) (State) (Zip Code)
______________________________________________
Signature Guaranteed by:
