Exhibit 99.10
EXECUTION COPY
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VOTING AGREEMENT
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This VOTING AGREEMENT (this "Agreement") is made as of November 17,
2003, by and among, CharterMac, a Delaware statutory trust ("CharterMac"), and
APH Associates L.P., DLK Associates L.P., Marc Associates, L.P., Related General
II L.P. and SJB Associates L.P. (each an "Investor Member" and collectively, the
"Investor Members").
WHEREAS, pursuant to (i) that certain Contribution Agreement, dated as
of December 17, 2002, by and among CharterMac Capital Company, LLC, a Delaware
limited liability company ("CCC"), and the contributors named therein (the
"Contribution Agreement"), (ii) 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"), and (iii) the Amended and
Restated Operating Agreement of CCC (the "Operating Agreement"), the Investor
Members hold Special Common Units of CCC (the "Special Common Units"), as well
as the special preferred voting shares of beneficial interest (the "Special
Preferred Shares"), in CharterMac;
WHEREAS, CCC, CharterMac Corporation, a Delaware corporation ("CM
Corp."), and the Investor Members are parties to that certain Exchange Rights
Agreement, dated as of November 17, 2003, which provides the Investor Members,
among other things, with the right 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"); and
WHEREAS, the Investor Members have agreed to enter into this Agreement
governing the voting of all of their Special Preferred Shares and any Common
Shares issuable upon exchange of their Special Common Units (the "Exchanged
Common Shares") and any other Common Shares now or hereafter owned by them
(together with the Exchanged Common Shares and the Special Preferred Shares, the
"Voting Securities").
NOW, THEREFORE, the parties hereto in consideration of the foregoing,
the covenants and agreements hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are acknowledge, do hereby
agree as follows:
Section 1. Voting of Voting Securities.
(a) Voting. Throughout the term of this Agreement, except as
hereinafter provided, each Investor Member, severally and not jointly, shall
cause all of the Voting Securities which such Investor Member, directly or
indirectly, owns or controls to be voted at any meeting of the shareholders of
CharterMac, or in all proceedings where the vote or written consent in lieu of
such a meeting of shareholders holding the Common Shares may be required or
authorized by law, with respect to the election of independent trustees of
CharterMac in favor of the independent trustees approved by the Board of
Trustees of CharterMac in accordance with the terms of CharterMac's Second
Amended and Restated Trust Agreement, including the by-laws which are a part
thereof (the "By-Laws"), or, if any Investor Member so elects by written notice
to CharterMac no later than five (5) business days prior to any such vote, in
the same proportion as the unaffiliated CharterMac common shareholders. With
respect to all other matters where the vote or written consent of shareholders
holding the Common Shares is
required or authorized by law, the Investor Members shall be entitled to vote
their Voting Securities as such Investor Members so choose. For the avoidance of
doubt, the Investor Members hereby agree that in the event that any Exchanged
Common Shares are issued in exchange for Special Common Units pursuant to the
Exchange Rights Agreement during the term of this Agreement, such Exchanged
Common Shares shall become subject to the provisions of this Agreement
immediately upon issuance.
(b) Voting Restriction. Until November 17, 2005, the Investor
Members that received Voting Securities pursuant to the SPV Purchase Agreement
shall not vote more than 90% of the voting power represented by the Voting
Securities on any matter requiring a vote of the Common Shares.
Section 2. Irrevocable Proxy. Each Investor Member hereby irrevocably
appoints CharterMac, from and after the date hereof and until the termination of
this Agreement, as its attorney-in-fact and proxy pursuant to the provisions of
Section 3806(e) of the Delaware Statutory Trust Act and Section 9 of Article II
of the By-Laws, with full power of substitution, for the sole purpose of voting
(by written consent or otherwise) as set forth in Section 1 with respect to the
Voting Securities (and all other securities issued to the Investor Members in
respect of the Voting Securities) which each Investor Member is entitled to vote
at any meeting of shareholders of CharterMac (whether annual or special and
whether or not an adjourned or postponed meeting) or in respect of any consent
in lieu of any such meeting or otherwise, and CharterMac accepts such
appointment and agrees to vote on the matters and in the manner specified in
Section 1. Except to the extent stated herein, this proxy and power of attorney
is irrevocable and coupled with an interest in favor of CharterMac; provided,
however, that this proxy and power of attorney shall terminate on the
termination of this Agreement. Each Investor Member hereby revokes all other
proxies and powers of attorney with respect to the Voting Securities (and all
other securities issued to the Investor Member in respect of the Voting
Securities) which it may have heretofore appointed or granted with respect to
the matters set forth in Section 1, and, prior to the termination of this
Agreement, no subsequent proxy or power of attorney with respect to such matters
shall be given or written consent executed (and if given or executed, shall not
be effective) by the Investor Member with respect thereto and such Voting
Securities shall not be subjected to any voting trust or other voting
arrangement or agreement.
Section 3. Nomination of Independent Trustees. Throughout the term of
this Agreement, except as hereinafter provided, none of the Investor Members
shall, and each Investor Member shall cause any holder of Voting Shares owned or
controlled directly or indirectly by such Investor Member not to, exercise any
right such Person may have as a shareholder of CharterMac to nominate any Person
for election as an Independent Trustee (as defined in the Second Amended and
Restated Trust Agreement of CharterMac) of CharterMac.
Section 4. Termination. This Agreement shall terminate automatically,
without further action by the parties hereto, on the earlier of (i) the date of
liquidation or dissolution of CharterMac; (ii) with respect only to the
applicable Investor Member, when such Investor Member (or, in the case of an
entity, the principal who established the entity), other than Xxxxxxx X. Xxxx,
ceases to be an officer, director, trustee or employee of CharterMac or any of
its subsidiaries; or (iii) with respect only to the Voting Securities being
Transferred (and, with respect to the Exchanged Common Shares and the Special
Preferred Shares, upon their permitted
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Transfer pursuant to the Lock-Up Agreement (as defined in the Operating
Agreement) and the Operating Agreement), the Transfer of such Voting Securities
to a Person who is not an Investor Member or an Affiliate (as defined in the
Contribution Agreement) of an Investor Member.
Section 5. Filing of the Agreement. CharterMac shall file a copy of this
Agreement (and any amendments, supplements or modifications hereto) in the
registered office of CharterMac in the State of Delaware, which copy CharterMac
shall cause to be open to the inspection of any shareholder of CharterMac any
business day during business hours.
Section 6. Expenses. Except as otherwise provided herein or in the
Contribution Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
Section 7. 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, 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 the
parties at the following addresses:
If to any Investor Member, to such Investor Member at such
address as set forth on Schedule A hereto.
If to CharterMac, to:
CharterMac
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Paul, Hastings, Xxxxxxxx &Walker LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxxx, Esq.
Any party may by notice given in accordance with this Section
7(a) to the other parties designate another address or Person for receipt of
notices hereunder.
(b) Amendment and Modification. This Agreement may be modified,
amended or supplemented only by an instrument in writing signed by 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 (as defined in the Second Amended and Restated Trust
Agreement of CharterMac).
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(c) 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,
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 7(c).
(d) Governing Law. This Agreement shall be governed by the laws
of the State of Delaware without regard to the conflict of laws principles
thereof.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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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(j) Interpretation.
(1) 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.
(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."
(k) 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 Agreement as
of the date first written above.
CHARTERMAC
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Chief Operating Officer
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
MARC ASSOCIATES, L.P.
By: Marc Associates, Inc., its general
partner
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
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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
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Schedule A
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Addresses for Notices
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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 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.
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