Exhibit 99.27
EXECUTION COPY
GUARANTY
GUARANTY, dated as of December 17, 2002 (the "Guaranty"), by Charter
Municipal Mortgage Acceptance Company, a Delaware statutory trust ("Guarantor"),
in favor of the parties identified as Contributor in that certain Contribution
Agreement, dated as of December 17, 2002, among CharterMac Capital Company, LLC,
a Delaware limited liability company and an Affiliate of Guarantor ("CCC"), and
the persons named therein (the "Contribution Agreement").
Capitalized terms used herein and not otherwise herein defined are used
as defined in the Contribution Agreement.
W I T N E S S E T H:
WHEREAS, it is a condition precedent to the consummation of the
transactions contemplated by the Contribution Agreement that Guarantor and
Contributor enter into this Guaranty.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Guarantor hereby agrees as follows:
Section 1. Guarantees and Undertakings.
(a) Contribution Agreement. Guarantor guarantees to Contributor the
payment and performance of CCC's obligations pursuant to the Contribution
Agreement.
(b) CCC Operating Agreement. Guarantor (i) guarantees to each Investor
Member (as defined in the CCC Operating Agreement) the payment and performance
of the Managing Member's (as defined in the CCC Operating Agreement) obligations
pursuant to Sections 4.2(d), 4.2(e), the contribution obligation of the Managing
Member under Section 5.1 and, if applicable, 8.2(b)(ii) and (v) of the CCC
Operating Agreement; (ii) undertakes and agrees to be bound by the terms of
Section 8.2(d) of the CCC Operating Agreement; and (iii) undertakes and agrees
that in connection with any CharterMac Extraordinary Transaction (as defined in
the CCC Operating Agreement) any acquiring entity or entities shall assume
Guarantor's obligations pursuant to the preceding clauses (i) and (ii), to the
extent that (A) the Investor Members will not be required to exchange their
Special Common Units (as defined in the CCC Operating Agreement) upon closing of
such CharterMac Extraordinary Transaction pursuant to Section 8.2(d) of the CCC
Operating Agreement and (B) Guarantor is obligated pursuant to Section 8.2(d) of
the CCC Operating Agreement to require such acquiring entity or entities to
assume Guarantor's obligations pursuant to the preceding clauses (i) and (ii).
(c) Exchange Rights Agreement. Guarantor guarantees to each Investor
Member (as defined in the Exchange Rights Agreement) (i) the performance by
CharterMac Corporation, a Delaware corporation, and CCC of their respective
obligations pursuant to Article 2 of the Exchange Rights Agreement; (ii) the
obligation to pay the cash adjustment for any fractional CharterMac Common
Shares as described in Section 3.2 of the Exchange Rights Agreement; and (iii)
the obligation to pay the Cash Amount (as defined in the Exchange Rights
Agreement) if the Exchanging Member (as defined in the Exchange Rights
Agreement) is not an accredited investor as described in Section 3.3(c) of the
Exchange Rights Agreement.
(d) Shared Services Agreement. Guarantor guarantees to the Related
Entities (as defined in the Shared Services Agreement) (i) the payment of the
Monthly Fees (as defined in the Shared Services Agreement) and (ii) the payment
by CCC of the indemnification obligations set forth in Section 9 of the Shared
Services Agreement.
(e) Other Services Agreement. Guarantor guarantees to the Company (as
defined in the Other Services Agreement) the payment by CCC of the
indemnification obligations set forth in Section 9 of the Other Services
Agreement.
Section 2. Additional Terms of the Guarantees and Undertakings.
(a) Effective Dates. The guarantee set forth in Section 1(a) shall be
effective as of the date hereof. All other guarantees and undertakings set forth
in Section 1 shall be effective as of the Closing.
(b) Waiver. In connection with any payment and performance guarantee
set forth in Section 1, Guarantor hereby waives the benefits of diligence,
presentment, demand of payment, any requirement that the applicable beneficiary
of such guarantee exhaust any right or take any action against the applicable
Person whose obligations are being guaranteed by the Guarantor (the "Obligor")
or any other Person, the filing of claims with a court in the event of
insolvency or bankruptcy of the Obligor, any right to require a proceeding first
against the Obligor, protest or notice with respect to such guaranteed
obligations and all demands whatsoever
Section 3. Miscellaneous.
(a) 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 or
sent by a nationally recognized overnight air courier service, on the third
business day after mailing (one business day in the case of a nationally
recognized overnight air courier service) to the parties at the following
addresses:
If to Guarantor:
Charter Municipal Mortgage
Acceptance Company
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
2
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxxx, Esq.
and:
if to Contributor, to such Contributor at such address as
set forth on Schedule A hereto.
Any party may by notice given in accordance with this Section 3(a) to
the other parties designate another address or person for receipt of notices
hereunder.
(b) Amendment. This Guaranty may be modified, amended or supplemented
only by an instrument in writing signed by or on behalf of all of the parties
hereto; provided, however, that any such modification, amendment or supplement
shall require the approval of not less than a majority of the independent
trustees of Guarantor.
(c) Waiver of Compliance; Consents. Except as otherwise provided in
this Guaranty, 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 Guarantor, shall
require the approval of not less than a majority of its 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
Guaranty 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 3(c).
(d) Governing Law. This Guaranty shall be governed by the laws of the
State of New York without regard to the conflict of laws principles thereof.
(e) Jurisdiction. Any action or proceeding arising under or in
connection with this Guaranty shall be instituted in the United States District
Court for the Southern District of New York or the courts of the State of New
York sitting in the County of New York, and the parties hereto irrevocably
submit to the exclusive jurisdiction of such courts in any such action or
proceedings and irrevocably waive the defense of an inconvenient forum to the
maintenance of such action or proceeding. The parties hereto Consent to service
of process upon them in the manner set forth in Section 3(a) hereof.
(f) Assignment. No party may assign any of its rights or delegate any
of its duties under this Guaranty without the prior written Consent of the other
parties, except that Guarantor shall have the right to assign its rights and
obligations hereunder to a third party in the event of a transfer of
substantially all of Guarantor's assets and business whether by means of sale,
assignment, consolidation, reorganization, merger or otherwise and provided the
third party assumes all obligations and Liabilities of Guarantor hereunder.
3
(g) Severability. The invalidity or unenforceability of any provisions
of this Guaranty in any such jurisdiction shall not affect the validity,
legality or enforceability of the remainder of this Guaranty in such
jurisdiction or the validity, legality or enforceability of this Guaranty,
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 Guaranty 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 are fulfilled to the extent possible.
(h) Counterparts. This Guaranty 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.
(i) Section Headings. The section headings contained in this Guaranty
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
Guaranty. All references in this Guaranty to Sections are to sections of this
Guaranty, unless otherwise indicated.
(j) Entire Agreement. This Guaranty, together with the Contribution
Agreement and the other Collateral Agreements, embodies the entire agreement and
understanding of the parties hereto in respect of the transactions contemplated
by this Guaranty. There are no restrictions, promises, inducements,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein or therein. This Guaranty, 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.
(k) No Third Party Beneficiaries. This Guaranty 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
Guaranty, 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 Guaranty.
(l) Interpretation.
(1) The parties hereto have participated jointly in the negotiation
and drafting of this Guaranty. If any ambiguity or question of intent or
interpretation arises, this Guaranty 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
Guaranty.
(2) All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
(3) The words "include," "includes" and "including" shall be deemed
to be followed by the phrase "without limitation."
4
IN WITNESS WHEREOF, Guarantor and Contributors, intending to be bound
hereby, have caused this Guaranty to be duly executed and delivered as of the
date first above written.
GUARANTOR:
CHARTER MUNICIPAL MORTGAGE
ACCEPTANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
CONTRIBUTORS:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
APH ASSOCIATES L.P.
By: APH Associates, Inc.,
general partner
By:/s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title:
5
DLK ASSOCIATES L.P.
By: DLK Associates, Inc.,
general partner
By:/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title:
MARC ASSOCIATES L.P.
By: MDS Associates, Inc.,
general partner
By:/s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title:
THE RELATED COMPANIES, L.P.
By: The Related Realty Group, Inc.,
general partner
By:/s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: President
RELATED GENERAL II L.P.
By: RCMP, Inc., general partner
By:/s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
SJB ASSOCIATES L.P.
By: SJB Associates, Inc.,
general partner
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title:
6
Schedule A
Addresses for Notices
If to Xxxx X. Xxxxxx:
c/o Related Capital Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxx
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 Xxxxxx X. Xxxxx:
c/o Related Capital Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxx
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 Xxxx X. Xxxxxxxxx:
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 Xxxxxx X. Xxxxxx:
c/o Related Capital Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxx
If to The Related Companies, L.P. or 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.
2
