EXHIBIT 99.7
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of October 6,
2005, is by and between BREF ONE, LLC-Series A, a Delaware limited liability
company (the "Stockholder"), and CDP Capital-Financing Inc., a Quebec charter
corporation ("Parent").
WHEREAS, concurrently herewith, Parent and Cadim W.F. Co., a Maryland
corporation and an indirect, wholly owned subsidiary of Parent ("Sub"), are
entering into an Agreement and Plan of Merger (the "Merger Agreement") with
CRIIMI MAE Inc., a Maryland corporation (the "Company"), that provides for,
among other things, the merger of Sub with and into the Company, with the
Company as the Surviving Corporation and a wholly-owned subsidiary of Parent;
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Sub have required that the Stockholder enter into this
Agreement; and
WHEREAS, the Stockholder is entering into this Agreement in order to
induce Parent and Sub to enter into the Merger Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. Certain Definitions. This Agreement is the voting agreement referred
to in the preamble to the Merger Agreement. Capitalized terms used but not
defined in this Agreement are used in this Agreement with the meanings given to
such terms in the Merger Agreement. In addition, for purposes of this Agreement
the following terms shall have the following meanings:
"Beneficially Owned" or "Beneficial Ownership" shall include, with
respect to any securities, the beneficial ownership of such securities by the
Stockholder and by any direct or indirect subsidiary, or other controlled
Affiliate of the Stockholder.
"Shares" shall mean the Existing Shares (as hereinafter defined) and
any additional shares of Company Common Stock as to which the Stockholder
acquires record ownership or Beneficial Ownership after the date hereof (any
such shares, "Additional Shares"), including, without limitation, through any
stock dividend or stock split or conversion, exchange or exercise of Rights.
"Rights" shall mean the Existing Rights (as hereinafter defined) and
any additional securities convertible into or exchangeable for, or options,
warrants or other rights to acquire, shares of Capital Stock as to which the
Stockholder acquires record ownership or Beneficial Ownership after the date
hereof (any such convertible or exchangeable securities or options, warrants or
rights, "Additional Rights").
"Transfer" means, with respect to any security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or constructive sale or other
disposition of such security or the Beneficial Ownership thereof, the offer to
make such a sale, transfer, constructive sale or other disposition, and each
option, agreement, arrangement or understanding, whether or not in writing, to
effect any of the foregoing. The term "constructive sale" means a short sale
with respect to such security, entering into or acquiring an offsetting
derivative contract with respect to such security, entering into or acquiring a
futures or forward contract to deliver such security or entering into any
transaction that has substantially the same effect as any of the foregoing.
2. Representations; Warranties and Covenants of the Stockholder. The
Stockholder hereby represents and warrants to Parent, as follows:
2.1 Title. As of the date hereof, the Stockholder is the sole record
holder and Beneficial Owner of 1,212,617 shares of Company Common Stock
("Existing Shares") and warrants to purchase 336,835 shares of Company Common
Stock ("Existing Rights"). The Stockholder is the lawful owner of the Existing
Shares and Existing Rights, free and clear of all liens, claims, charges,
security interests or other encumbrances. As of the date hereof, the Existing
Shares constitute all of the Capital Stock of the Company Beneficially Owned or
owned of record by the Stockholder (excluding the Existing Rights) and the
Stockholder does not own of record or Beneficially Own, or have the right to
acquire (whether currently, upon lapse of time, following the satisfaction of
any conditions, upon the occurrence of any event or any combination of the
foregoing) any shares of Company Common Stock, Preferred Stock or any other
securities convertible into or exchangeable or exercisable for shares of Company
Common Stock or Preferred Stock, except pursuant to the Existing Rights. As of
the date hereof, other than the Existing Shares, the Stockholder does not have
the right or power to vote any other shares of Company Common Stock or Preferred
Stock.
2.2 Right to Vote. The Stockholder has, with respect to all of the
Existing Shares, and will have at the Company Stockholders' Meeting, with
respect to the Existing Shares and any Additional Shares held as of the record
date for the Company Stockholders' Meeting, sole voting power, sole power of
disposition or to issue instructions with respect to the matters set forth in
Section 4 hereof and to fulfill its obligations under Section 4 and shall not,
except as set forth herein, take any action or grant any person any proxy
(revocable or irrevocable) or power-of-attorney with respect to any Shares or
Rights inconsistent with its obligations as provided by Sections 4 and 5 hereof.
The Stockholder hereby revokes any and all proxies with respect to the Shares or
Rights to the extent they are inconsistent with the Stockholder's obligations
under this Agreement.
2.3 Authority. The Stockholder has full legal power, authority, legal
capacity and right to execute and deliver, and to perform its obligations under,
this Agreement. No other proceedings or actions on the part of the Stockholder
are necessary to authorize the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by the Stockholder
and, assuming due authorization, execution and delivery by Parent, constitutes a
valid and binding agreement of the Stockholder enforceable against the
Stockholder in accordance with its terms, subject to (i) bankruptcy, insolvency,
moratorium and other similar laws now or hereafter in effect relating to or
affecting creditors rights generally and (ii) general principles of equity
(regardless of whether considered in a proceeding at law or in equity).
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2.4 Conflicting Instruments. Neither the execution and delivery of
this Agreement, nor the performance by the Stockholder of its agreements and
obligations hereunder will result in any breach or violation of, or be in
conflict with or constitute a default under, any term of any agreement,
judgment, injunction, order, decree, law or regulation to which the Stockholder
is a party or by which the Stockholder or any of its assets is bound.
2.5 Parent's and Sub's Reliance. The Stockholder understands and
acknowledges that Parent and Sub are entering into the Merger Agreement in
reliance upon the Stockholder's execution, delivery and performance of this
Agreement.
3. Restriction on Transfer; Other Restrictions.
Other than with Parent's prior written consent given prior to the
termination of this Agreement, the Stockholder agrees not to Transfer or agree
to Transfer any Shares or Rights owned of record or Beneficially Owned by the
Stockholder, except Transfers to any Affiliate of the Stockholder that agrees in
writing to be bound by the terms of this Agreement or Transfers which occur by
operation of law if the transferee remains, and agrees in writing to remain,
bound by the terms of this Agreement.
4. Agreement to Vote.
The Stockholder hereby irrevocably and unconditionally agrees to vote
or to cause to be voted, or to provide a consent with respect to, all Shares
that it owns of record or Beneficially Owns, or has the right to vote, as of the
record date for the Company Stockholders' Meeting at the Company Stockholders'
Meeting, and at any other annual or special meeting of stockholders of the
Company or action by written consent where such matters arise:
(a) in favor of the Merger and the Merger Agreement (as it may be
amended from time to time) and approval of the terms thereof and
each of the transactions contemplated thereby in accordance with
the terms thereof; and
(b) against, and will not consent to, (i) any Takeover Proposal, (ii)
any liquidation. or winding up of the Company, (iii) any
extraordinary dividend by the Company, (iv) any change in the
capital structure of the Company (other than pursuant to the
Merger Agreement) or (v) any other action that may reasonably be
expected to impede, interfere with, delay, postpone or attempt to
discourage the consummation of the Merger or any of the other
transactions contemplated by the Merger Agreement or result in a
breach of any of the covenants therein.
The obligations of the Stockholder specified in this Section 4 shall
apply until the termination of this Agreement in accordance with its terms and
thereafter shall be of no further force or effect. Notwithstanding anything to
the contrary in this Agreement, the Stockholder is not, and this Agreement shall
not be deemed to have the effect of, giving up any other rights as a stockholder
of the Company and specifically retains all rights and privileges applicable to
the Stockholder contained in the Company's certificate of incorporation, as
amended.
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5. Additional Shares and Additional Rights. Upon the acquisition of any
Additional Shares or Additional Rights, the Stockholder shall, within two
business days, notify Parent of such acquisition.
6. No Limitation on Discretion as Director. Notwithstanding anything
herein to the contrary, the covenants and agreements set forth herein shall not
prevent the Stockholder (or any of its Affiliates), if the Stockholder (or such
Affiliate) is serving on the Board of Directors of the Company, from exercising
his duties and obligations as a director of the Company or otherwise taking any
action while acting in such capacity as a director of the Company, and any such
action shall not be deemed to be a breach of the Stockholder's obligations under
this Agreement.
7. Miscellaneous.
7.1 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, between the
parties hereto with respect to the Transfer or voting of Shares or the Transfer
of Rights. This Agreement is not intended to confer upon any Person other than
the parties hereto any rights or remedies hereunder.
7.2 Costs and Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.
7.3 Invalid Provisions. If any provision of this Agreement shall be
invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
it affecting the remaining provisions of this Agreement.
7.4 Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original with the same
effect as if the signatures hereto and thereto were upon the same instrument.
The covenants and agreements of the Stockholder herein are made only in its
capacity as a stockholder of the Company and not in any other capacity
(including as directors or officers of the Company).
7.5 Specific Performance. The Stockholder agrees with Parent that if
for any reason the Stockholder fails to perform any of its agreements or
obligations under this Agreement, irreparable harm or injury to Parent would be
caused as to which money damages would not be an adequate remedy. Accordingly,
the Stockholder agrees that, in seeking to enforce this Agreement against the
Stockholder, Parent shall be entitled, in addition to any other remedy available
at law, equity or otherwise, to specific performance and injunctive and other
equitable relief without any bond or other security being required. The
provisions of this Section 7.5 are without prejudice to any other rights or
remedies, whether at law or in equity, that Parent may have against the
Stockholder for any failure to perform any of its agreements or obligations
under this Agreement.
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7.6 Amendments; Termination.
(a) This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
(b) This Agreement shall terminate upon the earliest to occur of (i)
the Closing Date, (ii) the termination of the Merger Agreement in accordance
with its terms, (iii) the amendment of the Merger Agreement, without the prior
written consent of the Stockholder, in any manner that affects the economic
terms of the Merger, and (iv) March 31, 2006, if the Merger has not been
consummated before such date.
7.7 Governing Law; Submission and Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the State of New
York without giving effect to the principles of conflicts of laws thereof.
7.8 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
legal successors and permitted assigns; provided that, except as otherwise set
forth in this Agreement, no party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement.
7.9 Notices. All notices, consents, waivers and other communications
under this Agreement must be in writing and will be deemed to have been duly
given: (a) delivered by hand (with written confirmation of receipt); (b) sent by
telecopier (with written confirmation of receipt); provided that a copy is
mailed by registered mail, return receipt requested or nationally recognized
overnight delivery service; or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in each
case to the appropriate addresses and telecopier numbers set forth below (or to
such other addresses and telecopier addresses as a party may designate by notice
to the other parties):
(a) if to the Stockholder:
BREF ONE, LLC - Series A
Three World Financial Center
New York, New York 10281
Attention: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
(b) if to Parent:
Cadim
0000 Xxxxx Xxxx Xxxx Xxxxxxxx
Xxxxx X-000
Xxxxxxxx (Xxxxxx)
X0X 0X0, Xxxxxx
Attention: Corporate Secretary
Facsimile: (000) 000-0000
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7.10 Granting of Proxy. In furtherance of the terms and provisions of
this Agreement, the Stockholder hereby grants an irrevocable proxy, coupled with
an interest, to each of Line Xxxxxxxx and Xxxxxx Xxxxxxxxx for the sole purpose
to vote all the Shares owned of record or Beneficially Owned, or empowered to
vote, by the Stockholder in favor of the Merger Agreement, the Merger, the other
transactions contemplated thereby and each of the other documents, agreements
and transactions referred to therein, and in accordance with the provisions of
Section 4. The Stockholder hereby ratifies and approves of each and every action
taken by Line Xxxxxxxx and Xxxxxx Xxxxxxxxx pursuant to the foregoing proxy.
Notwithstanding the foregoing, if requested by Parent, each Stockholder will
execute and deliver applicable proxy material and/or consents in furtherance of
the provisions of Section 4 and this Section 7.10.
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IN WITNESS WHEREOF, Parent and the Stockholder have executed and
delivered this Agreement as of the day and year first written:
CDP CAPITAL-FINANCING INC.
By /s/ Line Xxxxxxxx
-------------------------------------
Name: Line Xxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
By /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director, Legal Affairs
BREF ONE, LLC,
a Delaware limited liability company,
as to its Series A
By: BREF ONE Series A Manager LLC,
Manager of Series A
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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