Exhibit 99.1
EXECUTION
VERSION
VOTING
AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”)
is made and entered into as of February 26, 2023 by and between Broadmark Realty Capital Inc., a Maryland corporation (the “Company”),
and Waterfall Management, LLC, a Delaware limited liability company (the “Stockholder”).
WITNESSETH:
WHEREAS, concurrently with the execution and delivery
of this Agreement, Ready Capital Corporation, a Maryland corporation (“Parent”), RCC Merger Sub, LLC, a Delaware limited
liability company and wholly owned subsidiary of Parent (“Merger Sub”), and the Company have entered into an Agreement
and Plan of Merger, dated as of the date hereof (as it may be amended from time to time, the “Merger Agreement”), which
provides for, among other things, (i) the merger of the Company with and into Merger Sub, with Merger Sub surviving such merger (the
“Merger”) and (ii) the issuance of shares of Parent Common Stock pursuant to the Merger Agreement (the “Parent
Stock Issuance”).
WHEREAS, the Stockholder is the General Partner
of Holdings (as defined on Schedule A) and in such capacity has the authority provided to it pursuant to the Limited Partnership Agreement
(as defined on Schedule A) to vote that number of shares of Parent Common Stock set forth below the Stockholder’s name on the signature
page to this Agreement.
WHEREAS, as a condition and inducement to the willingness
of the Company to enter into the Merger Agreement, the Stockholder (solely in the Stockholder’s capacity as the General Partner
of Holdings) has agreed to enter into this Agreement.
NOW, THEREFORE, intending to be legally bound,
the parties hereto agree as follows:
1. Certain
Definitions. All capitalized terms that are used but not defined herein shall have the respective meanings ascribed to them in the
Merger Agreement (as in effect as of the date hereof). For all purposes of and under this Agreement, the following terms shall have the
following respective meanings:
(a) “Expiration
Date” shall mean the earlier to occur of (i) such date and time as the Merger Agreement shall have been validly terminated
pursuant to Article VIII thereof, (ii) the Effective Time, (iii) the termination of this Agreement by mutual written consent
of the parties, (iv) the time that the Parent Board has effected a Parent Change of Recommendation, (v) the entry into or effectiveness
of any amendment, modification or waiver of any provision of the Merger Agreement (including the Schedules and Exhibits thereto) that
increases the Exchange Ratio (other than pursuant to Section 3.1(c) of the Agreement) or (vi) the one year anniversary
of the date hereof.
(b) “Shares”
shall mean all equity securities and equity interests of Parent owned by Holdings (as defined on Schedule A) the Stockholder has the
authority to vote pursuant to the Limited Partnership Agreement (as defined on Schedule A) on the record date for the meeting of Parent’s
stockholders for the purpose of obtaining the Parent Stockholder Approval.
(c) “Transfer”
shall mean, with respect to a Share, to (i) sell, pledge, encumber, exchange, assign, grant an option with respect to, transfer,
tender or otherwise dispose of such Share or any interest in such Share (including by gift), (ii) enter into any contract providing
for the sale of, pledge of, encumbrance of, exchange of, assignment of, grant of an option with respect to, transfer, tender of or other
disposition of such Share or any interest therein (including by gift) or (iii) enter into, renew or maintain any put equivalent position
(as defined in Rule 16a-1 under the Exchange Act) for the purpose of hedging economic exposure to such Share, excluding from this
clause (iii) any put equivalent position entered into prior to the date of this Agreement.
2. Transfer
of Shares.
(a) Transfer
Restrictions. From the date of this Agreement until the Expiration Date, the Stockholder shall not Transfer (or cause or permit
the Transfer of) any of the Shares or any of Holdings rights to acquire any equity securities or equity interests of Parent, or enter
into any contract (including any option, put, call or similar arrangement) that would prevent the Stockholder from performing its obligations
hereunder, except with the Company’s prior written consent and in the Company’s sole discretion. Any Transfer (or purported
Transfer) in breach of this Agreement shall be null and void and of no force or effect. Notwithstanding the foregoing, the Stockholder
may Transfer the Shares (which shall continue to be subject to all of the restrictions, liabilities and rights under this Agreement) to
any of its Affiliates without the Company’s prior written consent; provided that the transferee (which term, as used herein,
shall include any and all transferees and subsequent transferees of the initial transferee) agrees in writing, reasonably satisfactory
in form and substance to the Company, to be bound by the terms and conditions of this Agreement.
(b) Involuntary
Transfer. If any involuntary Transfer of any Shares shall occur, the transferee shall take and hold such Shares subject to all of
the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect until the valid termination
of this Agreement in accordance with its terms.
(c) Transfer
of Voting Rights. From the date hereof until the termination of this Agreement pursuant to Section 11, the Stockholder
(solely in the Stockholder’s capacity as General Partner of Holdings) shall not (i) grant or permit the grant of any proxy,
power-of-attorney or other authorization or consent or execute any written consent in or with respect to any or all of the Shares, with
any such proxy, power-of-attorney, authorization or consent purported to be granted being void ab initio, or (ii) deposit
or permit the deposit of any of the Shares into a voting trust (collectively, “Encumbrances”) except for any such Encumbrances
that may be imposed pursuant to this Agreement or any applicable restrictions on transfer under the Securities Act or any state securities
law (“Permitted Encumbrances”).
(d) Acquisition
of Shares. In the event that the Stockholder acquires Shares (or any right or interest therein) after the execution of this Agreement,
the Stockholder shall promptly deliver to the Company a written notice indicating the number of such Shares (or right or interest therein)
acquired or received.
(e) Notwithstanding
anything herein to the contrary, nothing herein shall restrict or prevent the Stockholder from complying with the terms of, or performing
its obligations under, the Limited Partnership Agreement. The Stockholder shall take any and all action necessary under the terms of the
Limited Partnership Agreement to allow the Stockholder to take the actions contemplated by this Agreement.
3. Agreement
to Vote Shares; Support.
(a) From
the date hereof until the termination of this Agreement pursuant to Section 11, at any meeting of the stockholders of Parent
called with respect to the following matters or at which any of the following matters are acted upon, and at every adjournment or postponement
thereof, and on every action or approval by written resolution of the stockholders of Parent, the Stockholder (solely in the Stockholder’s
capacity as the General Partner of Holdings) shall, or shall cause the holder of record on any applicable record date to, vote all Shares
that are then owned by such Stockholder and entitled to vote or act by written consent:
(i) in
favor of the Parent Stock Issuance;
(ii) against
approval of any proposal made in opposition to, in competition with, or would result in a breach of, the Merger Agreement or the Merger,
the Parent Stock Issuance or any Parent Competing Proposal; and
(iii) against
any of the following actions, proposals or agreements (other than those actions that relate to the Merger, the Parent Stock Issuance and
any other transactions contemplated by the Merger Agreement): (A) any merger, consolidation, amalgamation, business combination,
reorganization or recapitalization of or involving Parent or any of its Subsidiaries, (B) any sale, lease or transfer of all or substantially
all of the assets of Parent or any of its Subsidiaries, (C) any reorganization, recapitalization, dissolution, liquidation or winding
up of Parent or any of its Subsidiaries, (D) any material change in the capitalization of Parent or any of its Subsidiaries, or the
corporate structure, articles of incorporation or bylaws of Parent or any of its Subsidiaries or (E) any action, proposal or agreement
that would reasonably be expected to (x) result in a breach of any covenant, representation or warranty of Parent under the Merger
Agreement or (y) prevent or materially delay or adversely affect in the good faith determination of the Stockholder the consummation
of the Merger or the Parent Stock Issuance.
(b) The
Stockholder (solely in the Stockholder’s capacity as the General Partner of Holdings) shall retain at all times its existing right
to vote its Shares (or to direct how its Shares shall be voted) in its sole discretion and without any other limitation on any matters
other than those already existing or as set forth in Section 3(a)(i), Section 3(a)(ii) and Section 3(a)(iii) that
are, from the date hereof until the termination of this Agreement pursuant to Section 11, at any time or from time to time
presented for consideration to Parent’s stockholders generally, subject to the terms of this Agreement.
(c) In
the event that a meeting of the stockholders of Parent is held, the Stockholder shall, or shall cause the holder of record of the Shares
on any applicable record date to, be present in person or by proxy at such meeting or otherwise cause the Shares to be counted as present
thereat for purposes of establishing a quorum.
(d) The
Stockholder shall not enter into any commitment, agreement or understanding with any Person to vote or give instructions in any manner
inconsistent with the terms of this Section 3 or Section 4.
4. No
Adverse Act. The Stockholder agrees that, except as expressly provided or permitted by this Agreement, the Stockholder shall not,
without the prior written consent of the Company in its sole discretion, (a) enter into any contract, option or other arrangement
or understanding (including any profit sharing arrangement) with respect to any of the Shares or any interest therein or (b) take
or permit any other action that would materially (i) restrict, limit or interfere with the performance of the Stockholder’s
obligations hereunder or (ii) otherwise materially restrict, limit or interfere with the performance of this Agreement, or the transactions
contemplated hereby. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit the Stockholder from enforcing its rights
under this Agreement.
5. Manager;
Directors and Officers. Notwithstanding any provision of this Agreement to the contrary, nothing in this Agreement shall limit or
restrict the Stockholder (or any Affiliate, Representative or designee of the Stockholder) (a) in its capacity as a manager of Parent
or any of its Subsidiaries, or (b) in any of their capacities as a director or officer of Parent or any of its Subsidiaries, from
acting in such capacity or fulfilling the obligations of such office (including, for the avoidance of doubt, exercising his or her fiduciary
duties), including by voting, in his or her capacity as a manager, director or officer of Parent or any of its Subsidiaries in the Stockholder’s
(or its designee’s) sole discretion on any matter (it being understood that this Agreement shall apply to the Stockholder solely
in the Stockholder’s capacity as the General Partner of Holdings), including with respect to Section 6.4 of the Merger
Agreement. In this regard, the Stockholder shall not be deemed to make any agreement or understanding in this Agreement in the Stockholder’s
capacity as a manager, director or officer of Parent, including with respect to Section 6.4 of the Merger Agreement.
6. No
Solicitation.
(a) From
the date hereof until the termination of this Agreement pursuant to Section 11, the Stockholder shall comply with Section 6.4(a) and
Section 6.4(b) of the Merger Agreement as though the Stockholder were a party thereto.
(b) Notwithstanding
Section 6(a) above, the Stockholder may, and may permit its Affiliates and its and their respective Representatives to,
participate in discussions and negotiations with any Person making a Parent Competing Proposal (or its Representatives) with respect to
such Parent Competing Proposal if Parent is engaging in discussions or negotiations with such Person in accordance with Section 6.4
of the Merger Agreement.
7. Representations
and Warranties of the Stockholder. The Stockholder hereby represents and warrants to the Company as follows:
(a) Power;
Binding Agreement. The Stockholder has the requisite power and legal capacity to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement has been duly executed and delivered by the Stockholder. Assuming this Agreement constitutes
a valid and binding obligation of the Company and this Agreement has been approved by the Parent Board, this Agreement constitutes a valid
and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except as enforcement may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights generally
and by general principles of equity.
(b) No
Conflicts; Consents. The execution, delivery and performance of this Agreement by the Stockholder, and the consummation by
the Stockholder of the transactions contemplated hereby, do not and will not (i) conflict with or violate any Law that is applicable
to the Stockholder or by which any of its assets or properties is subject or bound or (ii) result in any breach or violation of,
or constitute a default (or an event which with notice or lapse of time or both would become a default), or result in a right of payment
or loss of a benefit under, or give rise to any right of termination, cancellation, amendment or acceleration of, any contract. The execution,
delivery and performance by the Stockholder of this Agreement, and the consummation by the Stockholder of the transactions contemplated
hereby, require no action by or in respect of, or filing with, any Governmental Entity.
(c) Voting
Power. Subject to complying with the terms of, and performing its obligations under, the Limited Partnership Agreement, the
Stockholder has, and will at the time of the Parent Stockholder Meeting have, sole voting power, sole power of disposition, sole power
to Transfer, sole power to issue instructions with respect to the matters set forth herein and sole power to agree to all of the matters
set forth in this Agreement, in each case, with respect to all of the Shares, with no limitations, qualifications or restrictions on such
rights, subject to applicable federal securities laws and the terms of this Agreement.
(d) No
Ownership. As of the date hereof, neither the Stockholder nor any of its Subsidiaries own any shares of Parent Common Stock other
than the Shares owned by Holdings.
(e) No
Finder’s Fees. Other than as disclosed pursuant to the Merger Agreement, no broker, investment banker, financial advisor, finder,
agent or other Person is entitled to any broker’s, finder’s, financial adviser’s or other similar fee or commission
in connection with this Agreement based upon arrangements made by or on behalf of the Stockholder in its capacity as a stockholder of
Parent.
(f) No
Litigation. There are no Proceedings pending or, to the knowledge of the Stockholder, threatened against the Stockholder, or any order
to which the Stockholder is subject, except, in each case, for those that, individually or in the aggregate, would not reasonably be expected
to, in any material respect, impair or adversely affect the ability of the Stockholder to perform its obligations under this Agreement.
8. Disclosure.
The Stockholder shall permit the Company to publish and disclose in all documents and schedules filed with the SEC, and any press release
or other disclosure document required in connection with the Merger, the Parent Stock Issuance and any transactions contemplated by the
Merger Agreement, the Stockholder’s identity and ownership of Shares and the nature of the Stockholder’s commitments, arrangements
and understandings under this Agreement, in each case after providing the Stockholder with a reasonable opportunity to review and comment
thereon. The Stockholder shall not, and shall cause its Affiliates not to, make any press release, public announcement or other public
communication with respect to this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby, without the prior
written consent of the Company (such consent not to be unreasonably withheld or delayed); provided that such consent shall not
be required for any disclosure required by applicable Law, including revising the Stockholder’s existing 13D (provided that
reasonable notice of any such disclosure will be provided to the Company as promptly as reasonably practicable).
9. No
Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in the Company any direct or indirect ownership or
incidence of ownership of or with respect to any Shares. Except as provided in this Agreement, all rights, ownership and economic benefits
relating to the Shares shall remain vested in and belong to the Stockholder pursuant to the terms of the Limited Partnership Agreement.
For the avoidance of doubt, the Stockholder shall be entitled to any dividends or other distributions declared by the Parent Board with
respect to the Shares having a record date prior to the Expiration Date.
10. Further
Assurances. Subject to the terms and conditions of this Agreement, upon request of the Company, the Stockholder shall use commercially
reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary to fulfill such Stockholder’s
obligations under this Agreement.
11. Termination.
This Agreement, and all rights and obligations of the parties hereunder, shall terminate and shall have no further force or effect as
of the Expiration Date. Notwithstanding the foregoing, nothing set forth in this Section 11 or elsewhere in this Agreement
shall relieve either party hereto from liability, or otherwise limit the liability of the Stockholder, for any intentional breach of
this Agreement prior to such termination. This Section 11 and Section 1, Section 5, and Section 12
(as applicable) shall survive any termination of this Agreement.
12. Miscellaneous.
(a) Binding
Effect; Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any
of the parties (whether by operation of law or otherwise) without the prior written consent of the other party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors
and permitted assigns. Any purported assignment in violation of this Section 12(a) shall be void.
(b) Amendments;
Waiver. This Agreement may be amended by the parties hereto, and the terms and conditions hereof may be waived, only by an
instrument in writing signed on behalf of each of the parties hereto, or, in the case of a waiver, by an instrument signed on behalf of
the party waiving compliance. Notwithstanding the foregoing, no failure or delay by any party hereto in exercising any right hereunder
shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any other
right hereunder.
(c) Specific
Performance; Injunctive Relief. The parties hereto acknowledge that the Company shall be irreparably harmed and that there
shall be no adequate remedy at law for a violation of any of the covenants or agreements of the Stockholder set forth herein. Therefore,
it is agreed that, in addition to any other remedies that may be available to the Company upon any such violation, the Company shall have
the right to enforce such covenants and agreements by specific performance, injunctive relief or by any other means available to the Company
at law or in equity.
(d) Notices.
All notices, requests and other communications to any party under, or otherwise in connection with, this Agreement shall be in writing
and shall be deemed to have been duly given (i) if delivered in person; (ii) if transmitted by facsimile (but only upon confirmation
of transmission by the transmitting equipment); (iii) if transmitted by electronic mail (“e-mail”) (but only if confirmation
of receipt of such e-mail is requested and received); or (iv) if transmitted by national overnight courier, in each case as addressed
as follows:
if to the Company:
Broadmark Realty Capital Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Seattle, WA 98101
Attention: Xxxxx Xxxxxxx
Email: xxxxx@xxxxxxxxx.xxx
with a required copy to (which copy shall not constitute notice):
Sidley Austin LLP
One South Dearborn
Chicago, IL 60603
Attention: Xxxxx Xxxxxxxx; Xxxxxxx Xxx
Email: xxxxxxxxx@xxxxxx.xxx; xxxxxxx.xxx@xxxxxx.xxx
if to the Stockholder:
Waterfall Asset Management, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Floor
New York, NY 10020
Attention: Xxxxxxx Xxxx, General Counsel & Chief
Compliance Officer/Acting Head of Human Resources
Email: XXxxx@xxxxxxxxxxx.xxx
with a required copy to (which copy shall not constitute notice):
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
New York, NY 10178
Attention: X. Xxxx Xxxxxx
Email: xxxx.xxxxxx@xxxxxxxxxxx.xxx
(e) No
Third Party Beneficiaries. This Agreement is not intended to confer and does not confer upon any Person other than the parties
hereto any rights or remedies hereunder.
(f) Governing
Law; Venue; Waiver of Jury Trial.
(i) THIS
AGREEMENT, AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE TO THIS
AGREEMENT, OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS AGREEMENT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF MARYLAND, WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF THAT WOULD RESULT IN THE APPLICATION OF
THE LAWS OF ANY OTHER JURISDICTION.
(ii) THE
PARTIES IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE CIRCUIT COURT OF BALTIMORE CITY, MARYLAND AND TO THE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE STATE OF MARYLAND AND ANY APPELLATE COURTS THEREOF (COLLECTIVELY, THE “CHOSEN COURTS”)
IN ANY PROCEEDING THAT ARISES IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT, AND HEREBY WAIVE,
AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR ANY SUCH DOCUMENT THAT IT IS NOT SUBJECT
THERETO OR THAT SUCH PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN THE CHOSEN COURTS OR THAT VENUE THEREOF MAY NOT
BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES IRREVOCABLY
AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH PROCEEDING SHALL BE HEARD AND DETERMINED EXCLUSIVELY BY SUCH COURTS. IN ANY SUCH JUDICIAL PROCEEDING,
EACH OF THE PARTIES FURTHER CONSENTS TO THE ASSIGNMENT OF ANY PROCEEDING IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND TO THE BUSINESS
AND TECHNOLOGY CASE MANAGEMENT PROGRAM PURSUANT TO MARYLAND RULE 16-205 (OR ANY SUCCESSOR THEREOF). THE PARTIES HEREBY CONSENT TO AND
XXXXX ANY SUCH CHOSEN COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING
OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH PROCEEDING IN THE MANNER PROVIDED IN SECTION 12(D) OR IN SUCH OTHER
MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
(iii) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS
OF THE FOREGOING WAIVER; (C) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY; AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 12(F).
(g) Non-Survival
of Representations, Warranties and Covenants. The representations, warranties and covenants of the Stockholder contained herein shall
not survive the Expiration Date, other than those contained within the provisions that the parties have agreed will survive the termination
of this Agreement pursuant to Section 11.
(h) Entire
Agreement. This Agreement constitutes the entire agreement of the parties hereto in respect of the subject matter hereof, and
supersedes all prior negotiations, agreements and understandings, both written and oral, between the parties hereto with respect to the
subject matter hereof.
(i) Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any applicable Law or as a matter
of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to
any party hereto. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties
shall 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 be consummated as originally contemplated to the fullest extent
possible.
(j) Rules of
Construction; Interpretation. All references in this Agreement to Sections, subsections and other subdivisions refer to the corresponding
Sections, subsections and other subdivisions of this Agreement unless expressly provided otherwise. The headings contained in this Agreement
are for convenience only, do not constitute any part of such Sections, subsections or other subdivisions, and shall be disregarded in
construing the language contained therein. The words “this Agreement,” “herein,” “hereby,” “hereunder”
and “hereof” and words of similar import, refer to this Agreement as a whole and not to any particular subdivision unless
expressly so limited. The words “this Section,” “this subsection” and words of similar import, refer only to the
Sections or subsections hereof in which such words occur. The word “including” (in its various forms) means “including,
without limitation.” Pronouns in masculine, feminine or neuter genders shall be construed to state and include any other gender
and words, terms and titles (including terms defined herein) in the singular form shall be construed to include the plural and vice versa,
unless the context otherwise expressly requires. Unless the context otherwise requires, all defined terms contained herein shall include
the singular and plural and the conjunctive and disjunctive forms of such defined terms. In this Agreement, except as the context may
otherwise require, references to: (i) any agreement (including this Agreement), contract, statute or regulation are to the agreement,
contract, statute or regulation as amended, modified, supplemented, restated or replaced from time to time (in the case of an agreement
or contract, to the extent permitted by the terms thereof and, if applicable, by the terms of this Agreement); (ii) any Governmental
Entity includes any successor to that Governmental Entity; and (iii) any applicable Law refers to such applicable Law as amended,
modified, supplemented or replaced from time to time (and, in the case of statutes, include any rules and regulations promulgated
under such statute) and references to any section of any applicable Law or other law include any successor to such section. Each of the
parties acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution
of this Agreement and that it has executed the same with the advice of independent counsel. Each party and its counsel cooperated in the
drafting and preparation of this Agreement and the documents referred to herein, and any and all drafts relating thereto exchanged between
the parties shall be deemed the work product of the parties and may not be construed against any party by reason of its preparation. Accordingly,
any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any party that
drafted it is of no application and is hereby expressly waived.
(k) Expenses.
All fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees, costs and expenses.
(l) Counterparts.
This Agreement may be executed in two or more counterparts, including via facsimile or email in “portable document format”
(“.pdf”) form transmission, all of which shall be considered one and the same agreement and shall become effective
when two or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission
in .pdf format or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have executed
and caused to be effective this Agreement as of the date first above written.
| | Name: | Xxxxxxx X. Xxxxx |
| | Title: | Interim Chief Executive Officer |
[Signature page to
Voting Agreement]
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STOCKHOLDER:
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WATERFALL MANAGEMENT, LLC |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Member |
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Shares as of the date hereof: |
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11,431,049 |
[Signature page to Voting Agreement]
Schedule A
Limited Partnership Agreement of Xxxxxxxxxx REIT Holdings, LP (“Holdings”),
dated as of November 26, 2013, by and among Waterfall Management, LLC and the limited partners of the Partnership (the “Limited
Partnership Agreement”).
