CONSENT AND VOTING AGREEMENT
BY AND AMONG
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AND
EACH OF THE STOCKHOLDERS OF
CASDEN PROPERTIES INC.
AND
CASDEN PARK LA BREA INC.
SIGNATORY HERETO
Dated as of December 3, 2001
CONSENT AND VOTING AGREEMENT
CONSENT AND VOTING AGREEMENT, dated as of December 3,
2001 (this "Agreement"), by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), and each of the other
stockholders of Casden Properties Inc., a Maryland corporation ("Casden"),
and Casden Park La Brea Inc., a Maryland corporation ("PLB"), set forth on
the signature pages hereto (each a "Stockholder" and, collectively, the
"Stockholders"). Initially capitalized terms used but not otherwise defined
herein shall have the meanings attributed to them in the REIT Merger
Agreement (as defined herein).
WHEREAS, concurrently herewith, AIMCO, Casden and XYZ
Holdings LLC, a Delaware limited liability company ("XYZ"), are entering
into an Agreement and Plan of Merger (as amended from time to time, the
"REIT Merger Agreement") pursuant to which, among other transactions, AIMCO
shall acquire Casden in a merger (the "REIT Merger"), whereby each eligible
share of Common Stock, par value $0.01 per share, of Casden ("Casden Common
Stock"), Class A Cumulative Preferred Stock, par value $0.01 per share, of
Casden ("Casden Class A Preferred Stock") and Junior Cumulative Preferred
Stock, par value $0.01 per share, of Casden ("Casden Junior Preferred
Stock" and, together with the Casden Common Stock, the Casden Class A
Preferred Stock and any other shares of capital stock of Casden, the
"Casden Capital Stock") will be converted into the right to receive shares
of Common Stock, par value $0.01 per share, of AIMCO ("AIMCO Common
Stock"), cash or a portion of the Deferred Consideration;
WHEREAS, concurrently herewith, AIMCO, AIMCO Park La Brea
Merger Sub, Inc., a Maryland corporation and wholly owned subsidiary of
AIMCO ("Merger Sub") and PLB, are entering into an Agreement and Plan of
Merger (as amended from time to time, the "PLB Merger Agreement" and,
together with the REIT Merger Agreement, the "Merger Agreements") pursuant
to which Merger Sub will be merged with and into PLB (the "PLB Merger" and,
together with the REIT Merger, the "Mergers") and
(a) each eligible share of Common Stock, par value $0.01
per share, of PLB ("PLB Common Stock" and, together with any other shares
of capital stock of PLB, the "PLB Capital Stock") issued and outstanding
immediately prior to the Effective Time of the PLB Merger, will be
converted into the right to receive cash and a pro rata portion of the
Deferred Consideration, and
(b) each share of Common Stock, par value $0.01 per
share, of Merger Sub issued and outstanding immediately prior to the
Effective Time of the PLB Merger shall be converted into and become one
fully paid and non-assessable share of Common Stock of the Surviving
Corporation (as defined in the PLB Merger Agreement);
WHEREAS, as of the date hereof, each Stockholder is the
record or beneficial owner of the number of shares of Casden Capital Stock
and/or PLB Capital Stock set forth opposite such Stockholder's name on
Schedule I attached hereto (such Stockholder's "Shares"); and
WHEREAS, as a condition to its willingness to enter into
the Merger Agreements, AIMCO has required that the Stockholders enter into
this Agreement pursuant to which, among other things, the Stockholders have
agreed to certain consent and voting provisions in connection with and in
favor of the Mergers.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement and
intending to be legally bound hereby, AIMCO and each of the Stockholders
agrees as follows:
1. Consent and Voting Matters.
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1.1 Consent. Subject to termination pursuant to Section 9.9, each
Stockholder who holds shares of Casden Class A Preferred Stock agrees that
concurrently with the execution and delivery of this Agreement and the REIT
Merger Agreement, it shall execute and deliver, or cause to be executed and
delivered by the record owner thereof, in accordance with Section 2-505(b)
of the Maryland General Corporation Law (the "MGCL"), the Stockholders
Consent in the form of Exhibit A hereto (the "Consent"), which shall be
irrevocable (except as provided in Section 9.9), with respect to all shares
of Casden Class A Preferred Stock that are owned beneficially or of record
by such Stockholder or as to which such Stockholder has, directly or
indirectly, the right to vote or direct the voting.
1.2 Agreement to Vote. Each Stockholder hereby further agrees
that, during the term of this Agreement, it shall, from time to time, at
any meeting (whether annual or special and whether or not an adjourned or
postponed meeting) of stockholders of Casden or PLB, as the case may be,
however called, or in connection with any written consent of the holders of
Casden Capital Stock or PLB Capital Stock, as the case may be, in either
case, prior to the earlier of the effectiveness of the Mergers and the
termination of this Agreement pursuant to its terms, if a meeting is held,
appear at such meeting or otherwise cause such Stockholder's Shares to be
counted as present thereat for purposes of establishing a quorum, and it
shall vote or consent (or cause to be voted or consented), in person or by
proxy, all such Stockholder's Shares, and any other voting securities of
Casden or PLB (whether acquired heretofore or hereafter), that are
beneficially owned by such Stockholder or its wholly owned affiliates or as
to which such Stockholder has, directly or indirectly, the right to vote or
direct the voting, (a) in favor of the Casden Reverse Stock Split and the
CPLB Reverse Stock Split, as applicable; (b) in favor of the amendment to
the Casden Charter contemplated by Section 7.34 of the REIT Agreement and
amendment to the CPLB Charter contemplated by Section 7.17 of the PLB
Merger Agreement; (c) in favor of the Mergers, the approval of the Merger
Agreements and the approval of the terms thereof and each of the other
Transactions and other matters contemplated by the Merger Agreements and
this Agreement and any actions required in furtherance hereof or thereof;
(d) against any action or agreement that is reasonably likely to result in
a breach in any material respect of any covenant, representation or
warranty or any other obligation or agreement of Casden or PLB under either
of the Merger Agreements; (e) if AIMCO OP elects, pursuant to Section 7.4
of the OP Contribution Agreement, in favor of the Alternative Merger (as
defined in the OP Unit Contribution Agreement); and (f) against the
following actions (except as otherwise provided in (a), (b), (c), (d) and
(e)): (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving Casden, PLB or any of
their respective subsidiaries; (ii) a sale, lease or transfer of assets of
Casden, PLB or any of their respective subsidiaries or a reorganization,
recapitalization, dissolution or liquidation of Casden, PLB or any of their
respective subsidiaries; (iii) any material change in the present
capitalization of Casden or PLB or any amendment of their respective
organizational documents (other than the amendments prior to the Effective
Time to the Casden Charter pursuant to Section 7.34 of the REIT Merger
Agreement); (iv) any other material change in the corporate structure or
business of Casden or PLB; or (v) any other action which is reasonably
likely to impede, frustrate, prevent, interfere with, delay, or postpone
the Mergers or the Transactions or this Agreement or change in any manner
the voting rights of the Casden Capital Stock or the PLB Common Stock. Such
Stockholder shall not enter into any agreement or understanding with any
person or entity prior to the termination of this Agreement in accordance
with its terms to vote or give instructions after such termination in a
manner inconsistent with clauses (a), (b), (c), (d) or (e) of the preceding
sentence.
1.3 Proxy. Simultaneously with the execution of this Agreement,
each Stockholder of Casden agrees to deliver to AIMCO a proxy in the form
attached hereto as Exhibit B (the "Casden Proxy") and each Stockholder of
PLB agrees to deliver to AIMCO a proxy in the form attached hereto as
Exhibit C (the "PLB Proxy") with respect to the matters set forth in
Section 1.2, which is irrevocable (except as provided in Section 9.9). Each
Stockholder intends such proxy to be irrevocable (except as provided in
Section 9.9) and, by reason of the Merger Agreements, coupled with an
interest and will take such further action and execute such other
instruments as may be necessary to effectuate the intent of such proxy.
Each Stockholder hereby revokes any and all previous proxies with respect
to such Stockholder's Shares or any other voting securities of Casden or
PLB that relate to the approval of the Mergers or the Merger Agreements.
1.4 Dissenters' Rights. By virtue of his, her or its execution of
this Agreement, each Stockholder hereby irrevocably waives any and all
rights to demand and receive payment of the fair market value of such
Stockholder's Shares or otherwise assert any dissenters' rights, appraisal
rights or other similar rights with respect to, or to dissent from, the
Mergers or any other transactions contemplated by the Merger Agreements.
Each Stockholder further agrees it will not file with Casden, AIMCO or the
Surviving Corporation a written objection to the Mergers or any other
transactions contemplated by the Merger Agreements, nor will it make a
written demand on the Surviving Corporation for payment of such
Stockholder's Shares pursuant to Sections 3-203 through 3-213 of the
Maryland General Corporation Law.
2. Representations and Warranties of the Stockholders. Each Stockholder
makes the following representations and warranties to AIMCO:
2.1 Power; Binding Agreement. Such Stockholder has the legal
capacity, power and authority to enter into and perform all of its
obligations under this Agreement (including the power and authority without
further action on the part of any stockholders, members or partners thereof
or any other juridical or nonjuridical person to comply with the consent
and voting obligations of Section 1 of this Agreement). The execution,
delivery and performance of this Agreement by such Stockholder will not
violate any other agreement to which such Stockholder is a party (including
any trust agreement, voting agreement, stockholders agreement or voting
trust), except to the extent any such violations, individually or in the
aggregate, would not reasonably be expected (a) to have a material adverse
effect on AIMCO, (b) to materially interfere with the Stockholder's ability
to perform such Stockholder's obligations under this Agreement, or (c) to
prevent or materially delay the consummation of the Transactions. This
Agreement has been duly and validly authorized, executed and delivered by
such Stockholder and constitutes a valid and binding agreement of such
Stockholder, enforceable against it in accordance with its terms.
2.2 No Conflict. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Stockholder or the
consummation by the Stockholder of the transactions contemplated hereby,
except for (a) any such filings the failure of which to be made,
individually or in the aggregate, would not reasonably be expected (i) to
have a material adverse effect on AIMCO, (ii) to materially interfere with
the Stockholder's ability to perform such Stockholder's obligations under
this Agreement, or (iii) to prevent or materially delay the consummation of
the Transactions and (b) filings required in connection with the
consummation of the Mergers. Except as set forth on Schedule 2.4, neither
the execution and delivery of this Agreement by such Stockholder nor the
consummation by such Stockholder of the transactions contemplated hereby
nor compliance by such Stockholder with any of the provisions hereof shall
(i) conflict with or result in any breach of such Stockholder's certificate
of incorporation, bylaws, operating agreement, partnership agreement or
other organizational or governing document or agreement, as the case may be
(if any), (ii) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which such Stockholder is a party or by which such Stockholder or any of
the Stockholder's properties or assets may be bound, (iii) require any
material consent, authorization or approval of any person other than a
governmental entity, or (iv) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such
Stockholder, the Stockholder's Shares or any of the Stockholder's
stockholders, members, partners, properties or assets, except to the extent
any of the foregoing, individually or in the aggregate, would not
reasonably be expected (a) to have a material adverse effect on AIMCO, (b)
to materially interfere with the Stockholders' ability to perform such
Stockholder's obligations under this Agreement, or (c) to prevent or
materially delay the consummation of the Transactions.
2.3 Reliance. Such Stockholder understands and acknowledges that
AIMCO is entering into each of the Merger Agreements in reliance upon such
Stockholder's execution and delivery of this Agreement and the performance
of its obligations hereunder.
2.4 Ownership of Shares.
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(a) With respect to the Stockholders of Casden, such Stockholder
is the record and beneficial owner of (i) the number of shares of Casden
Common Stock and Casden Class A Preferred Stock set forth opposite its name
on Schedule I, and (ii) the number of shares of Casden Junior Preferred
Stock set forth opposite its name on Schedule I. Except as set forth in
Schedule 2.4 attached hereto, such Stockholder has good and valid title to
such Stockholder's shares of Casden Capital Stock, free and clear of any
Liens, qualifications or restrictions. Such Stockholder has sole voting
power, and sole power of disposition, with respect to all of such
Stockholder's shares of Casden Capital Stock.
(b) With respect to the Stockholders of PLB, such Stockholder is
the record and beneficial owner of the number of shares of PLB Common Stock
set forth opposite its name on Schedule I. Such Stockholder has good and
valid title to such Stockholder's shares of PLB Common Stock, free and
clear of any Liens, qualifications or restrictions. Such Stockholder has
sole voting power, and sole power of disposition, with respect to all of
such Stockholder's shares of PLB Common Stock.
2.5 No Broker. Such Stockholder has not employed any investment
banker, broker, finder, consultant or intermediary in connection with the
transactions contemplated by this Agreement, the Merger Agreements or the
other Transaction Documents which would be entitled to any investment
banking, brokerage, finder's or similar fee or commission in connection
with this Agreement or the Transactions.
3. Investment Representations. Each Stockholder makes the following
representations and warranties to AIMCO and acknowledges that AIMCO is
entering into the Merger Agreements in reliance on such representations and
warranties.
3.1 Such Stockholder is, and at the Closing Date will be, an
"accredited investor" ("Accredited Investor") as defined in Rule 501 of the
General Rules and Regulations promulgated under the Securities Act of 1933,
as amended (the "Act").
3.2 If Stockholder is a corporation, partnership, limited
liability company, trust, or other entity, it was not organized for the
specific purpose of acquiring AIMCO Common Stock.
3.3 Such Stockholder (a) has received and reviewed the Merger
Agreements relating to the proposed acquisition of the AIMCO Common Stock and
(b) has had access to such financial and other information, and has been
afforded the opportunity to ask questions of representatives of AIMCO, and to
receive answers to those questions, as such Stockholder has deemed necessary
in connection with the acquisition of the AIMCO Common Stock acquired pursuant
to the Merger Agreements.
3.4 Such Stockholder (a) acknowledges that the AIMCO Common Stock
that will be acquired pursuant to the Merger Agreements will be acquired in a
transaction not involving any public offering within the meaning of the Act
and that the AIMCO Common Stock has not been registered and may never be
registered under the Act and (b) agrees not to offer, sell, transfer or
otherwise dispose of all or any portion of the AIMCO Common Stock in the
absence of registration under the Act unless such Stockholder delivers to
AIMCO an opinion of counsel reasonably satisfactory to AIMCO to the effect
that the proposed sale, transfer or other disposition may be effected without
registration under the Act and under applicable state securities or blue sky
laws; provided, however, that such Stockholder shall not be required to
deliver an opinion of counsel if such sale is made in accordance with Rule 144
of the Act, as such rule may be amended from time to time.
3.5 Such Stockholder acknowledges and agrees that the certificates
evidencing the AIMCO Common Stock will bear a legend to the following
effect:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION,
UNLESS THE TRANSFEROR PARTY DELIVERS TO THE COMPANY AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY, IN FORM AND SUBSTANCE
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT THE PROPOSED
SALE, TRANSFER OR OTHER DISPOSITION MAY BE EFFECTED WITHOUT
REGISTRATION UNDER THE ACT (EXCEPT THAT SUCH AN OPINION OF
COUNSEL IS NOT REQUIRED IN CONNECTION WITH A SALE IN
COMPLIANCE WITH RULE 144 OF THE ACT) AND UNDER APPLICABLE
STATE SECURITIES OR "BLUE SKY" LAWS.
3.6 Such Stockholder (a) has such knowledge and experience in
financial and business matters that such Stockholder is capable of evaluating
the merits and risks of an acquisition of the AIMCO Common Stock and is able
to bear the economic risk of a complete loss of an investment in the AIMCO
Common Stock and (b) is not acquiring any AIMCO Common Stock with a view to
the distribution of the AIMCO Common Stock or any present intention of
offering or selling any of the AIMCO Common Stock in a transaction that would
violate the Act or the securities laws of any state or any other applicable
jurisdiction.
3.7 With respect to individual or partnership tax, accounting,
legal, financial and other economic considerations involved in the
transactions contemplated by the Merger Agreements, including an investment
in AIMCO Common Stock, except for the representations and warranties of
AIMCO or Merger Sub explicitly set forth in the REIT Merger Agreement or
the PLB Merger Agreement, Stockholder is not relying on AIMCO (or any agent
or representative of AIMCO). Stockholder has carefully considered and has,
to the extent Stockholder believes such discussion necessary, discussed
with Stockholder's professional legal, tax, accounting and financial
advisors the suitability of an investment in the AIMCO Common Stock for
Stockholder's particular tax and financial situation and has determined
that the AIMCO Common Stock being acquired by Stockholder is a suitable
investment.
3.8 Stockholder has not seen, received, been presented with or
been solicited by any leaflet, public promotional meeting, newspaper or
magazine article or advertisement, radio or television advertisement, or
any other form of advertising or general solicitation with respect to the
acquisition of AIMCO Common Stock.
3.9 Stockholder agrees it shall promptly notify AIMCO in writing
prior to the Closing, if the undersigned is aware of or has knowledge of
such Stockholder's breach of any representation, warranty or covenant
hereunder. Each such notice shall specify in reasonable detail the nature
and grounds for the alleged breach, the representation, warranty or
covenant to which such alleged breach relates and a good faith estimate of
the estimates, damages or losses which are reasonably likely to result from
such alleged breach if no curative measures are taken.
3.10 Stockholder agrees it shall promptly provide AIMCO with any
additional information that AIMCO may reasonably request to verify any of
the representations and warranties of such Stockholder contained in this
Agreement. If Stockholder indicates that any such information is
confidential, AIMCO shall maintain the confidentiality of such information;
provided, however, such information shall not include information which (a)
is or becomes publicly available other than as a result of a disclosure by
the party receiving such information or its representatives, (b) is made
available by a party disclosing such information to a third party on an
unrestricted, non-confidential basis, (c) is independently developed by any
party hereto without breach of this Agreement, (d) is or becomes available
to any party hereto on a nonconfidential basis from a source (other than
the parties hereunder) which, to the best of such party's knowledge after
due inquiry, is not prohibited from disclosing such information to another
party by a legal, contractual or fiduciary obligation to any party
hereunder (other than the party receiving such information) or (e) is
required to be disclosed pursuant to applicable law, regulation or legal
process (by oral questions, interrogatories, requests for information or
documents, subpoena, civil or criminal investigative demand or other
process).
4. Covenants of the Stockholders. The Stockholders, severally
(and not jointly), hereby covenant and agree as follows:
4.1 Commercially Reasonable Efforts. Subject to the terms and
conditions of this Agreement, each of the Stockholders agrees to use its
commercially reasonable efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable
to consummate and make effective the transactions provided for by this
Agreement. Each Stockholder hereby agrees, while this Agreement is in
effect and except as contemplated hereby, not to take any action that would
(a) make any of its representations or warranties contained herein untrue
or incorrect in any material respect, (b) materially breach any of its
covenants or obligation contained herein, (c) have the effect of materially
interfering with, preventing or disabling it from performing its
obligations under this Agreement or (d) prevent or materially delay the
consummation of the Transactions.
4.2 No Solicitation. None of the Stockholders shall and shall not
authorize or permit any of its Affiliates or Representatives to, directly
or indirectly, solicit, initiate or encourage (including by way of
furnishing information) or take any other action to facilitate knowingly
any inquiries or the making of any proposal which constitutes or may
reasonably be expected to lead to an Acquisition Proposal from any Person,
or engage in any discussion or negotiations relating thereto or accept any
Acquisition Proposal. Each Stockholder shall immediately cease and
terminate any existing solicitation, initiation, encouragement, activity,
discussion or negotiation with any parties conducted heretofore by such
Stockholder, its Affiliates or Representatives with respect to the
foregoing. Each Stockholder agrees that it will take the necessary steps to
inform its Affiliates and Representatives of the obligations undertaken in
this Section 4.2.
4.3 No Encumbrances. During the term of this Agreement, except as
required by Section 1 or as set forth on Schedule 2.4, all of the
Stockholder's Shares shall be held by such Stockholder, or by a nominee or
custodian for the benefit of Stockholder, or by a family member or
Affiliate of Stockholder free and clear of all Liens, proxies, voting
trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any Liens, proxies, voting trusts or
agreements, understandings or arrangements or other encumbrances that do
not materially interfere with the Stockholders' ability to perform such
Stockholder's obligations under this Agreement, or to prevent or materially
delay the consummation of the Transactions.
4.4 Restriction on Transfer of Shares, Proxies and
Non-Interference; Restriction on Withdrawal. No Stockholder shall, directly
or indirectly: (a) offer for sale, sell (including short sales), transfer,
tender, pledge, encumber, assign or otherwise dispose of (including by
gift) or enter into any contract, option, derivative, hedging or other
arrangement or understanding (including any profit-sharing arrangement)
with respect to or consent to the offer for sale, sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of (any of the
foregoing, a "Transfer"), any or all of such Stockholder's Shares or any
interest therein; (b) except as contemplated by this Agreement grant any
proxies or powers of attorney, deposit any Shares into a voting trust or
enter into any other voting arrangement with respect to any Shares; or (c)
commit or agree to take any of the foregoing actions.
4.5 Additional Share Purchases; Recapitalization; Option Exercise.
In the event (a) of any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of shares of capital stock of
Casden on, of or affecting the Shares, or (b) a Stockholder shall become
the beneficial owner of any additional shares of Casden Capital Stock or
PLB Capital Stock or other securities entitling the holder thereof to vote
or give consent with respect to the matters set forth in Section 1 hereof,
then the terms of this Agreement shall apply to the shares of Casden
Capital Stock or PLB Capital Stock or other securities of the Casden or PLB
held by Stockholder immediately following the effectiveness of the events
described in clause (a) or a Stockholder's becoming the beneficial owner
thereof, as described in clause (b), as though they were Shares hereunder.
5. Indemnification.
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(a) In the event the Transactions are consummated, the
Stockholders will severally (but not jointly) indemnify, defend and hold
harmless AIMCO, AIMCO OP and their present and future Affiliates, and the
Representatives of the foregoing against all Damages (as defined in the
Master Indemnification Agreement), arising out of any breach by the
Stockholders of any of their respective representations, warranties or
covenants contained in or made by or pursuant to this Agreement.
(b) Each party entitled to indemnification under this Section (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim or proceeding by a Person other
than an AIMCO Indemnitee (as defined in the Master Indemnification
Agreement) or a Casden Indemnitee (as defined in the Master Indemnification
Agreement) or a Casden Indemnitor (as defined in the Master Indemnification
Agreement) (a "Third Party Claim") as to which indemnity may be sought, but
the omission to so notify the Indemnifying Party shall not relieve it from
any liability which it may have to the Indemnified Party otherwise than
pursuant to the provisions of this Section and then, only to the extent of
the actual damages suffered by such delay in notification. The Indemnifying
Party shall assume the defense of such action, including the employment of
counsel to be chosen by the Indemnifying Party to be reasonably
satisfactory to the Indemnified Party and payment of expenses. The
Indemnified Party shall have the right to employ its own counsel in any
such case, but the legal fees and expenses of such counsel shall be at the
expense of the Indemnified Party, unless the employment of such counsel
shall have been authorized in writing by the Indemnifying Party in
connection with the defense of such action, or the Indemnifying Party shall
not have employed counsel to take charge of the defense of such action or
the Indemnified Party shall have reasonably concluded (upon advice from
legal counsel) that there may be defenses available to it or them which are
different from or additional to those available to the Indemnifying Party
(in which case the Indemnifying Party shall not have the right to direct
the defense of such action on behalf of the Indemnified Party), in any of
which events such fees and expenses shall be borne by the Indemnifying
Party. No Indemnifying Party, in the defense of any such Third Party Claim
or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation.
(c) If the indemnification provided for in this Section is
unavailable to a party that would have been an Indemnified Party under this
Section in respect of any Damages referred to herein, then each party that
would have been an Indemnifying Party hereunder shall, in lieu of
indemnifying such Indemnified Party, contribute to the amount paid or
payable by such Indemnified Party as a result of such expenses, claims,
losses, damages and liabilities in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and
such Indemnified Party on the other in connection with the statement or
omission which resulted in such expenses, claims, losses, damages and
liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Indemnifying Party or such Indemnified Party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. Each party
agrees that it would not be just and equitable if contribution pursuant to
this Section were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this paragraph.
(d) Each Stockholder and AIMCO hereby consent to the non-exclusive
jurisdiction of any court in which a Third-Party Claim is brought against
any indemnified party for purposes of resolving issues of indemnity under
this Agreement, or for the purpose of resolving any of the matters alleged
herein, and agree that process may be served on them with respect to such a
claim anywhere in the world.
(e) A claim for indemnification for any matter not involving a
Third Party Claim may be asserted by written notice to the party from whom
indemnification is sought.
(f) In no event will the liability of a Stockholder pursuant to
this Section 5 exceed the amount of the consideration received by such
Stockholder pursuant to the Merger Agreements, provided, however, that
liability arising out of breaches by the Stockholders of the
representations, warranties and covenants set forth in Section 3 of this
Agreement shall not be subject to the limitation set forth in this Section
5(f).
(g) Notwithstanding anything in this Agreement to the contrary, in
no event shall any amount paid to AIMCO, AIMCO OP and their present and
future Affiliates pursuant to this Agreement in any tax year exceed the
maximum amount that can be paid to AIMCO, AIMCO OP and their present and
future Affiliates in such year without causing AIMCO to fail to meet the
requirements of sections 856(c)(2) and (3) of the Code (the "REIT
Requirements") for such year, determined as if the payment of such amount
did not constitute income described in sections 856(c)(2)(A)-(H) and
856(c)(3)(A)-(I) of the Code ("Qualifying Income") as determined by
independent accountants to AIMCO. If the amount payable for any tax year
under the preceding sentence is less than the amount which the Indemnifying
Party would otherwise be obligated to pay to AIMCO, AIMCO OP or their
present or future Affiliates pursuant to this Agreement (the "Indemnifiable
Amount"), AIMCO or AIMCO OP shall so notify the Indemnifying Party and the
Indemnifying Party shall (at AIMCO's or AIMCO OP's sole cost and expense)
place the remaining portion of the Indemnifiable Amount in escrow and shall
not execute any instrumentation permitting any release of any portion
thereof to AIMCO, AIMCO OP or their present or future Affiliates and AIMCO,
AIMCO OP and their present and future Affiliates shall not be entitled to
any such amount, unless and until the Indemnifying Party and escrow holder
receive (all at AIMCO's or AIMCO OP's sole cost and expense) notice from
AIMCO or AIMCO OP, together with either (a) an opinion of AIMCO's tax
counsel to the effect that such amount, if and to the extent paid, would
not constitute gross income which is not Qualifying Income or (b) a letter
from AIMCO's independent accountants indicating the maximum amount that can
be paid at that time to AIMCO, AIMCO OP and their present and future
Affiliates without causing AIMCO to fail to meet the REIT Requirements for
any relevant taxable year, together with either a ruling from the IRS
issued to AIMCO or an opinion of AIMCO's tax counsel to the effect that
such payment would not be treated as includible in the income of AIMCO for
any prior taxable year, in which event the escrow holder shall pay such
maximum amount. The Indemnifying Party's and escrow holder's obligation to
pay any unpaid portion of the Indemnifiable Amount shall terminate ten (10)
years from the date of this Agreement and upon such date, escrow holder
shall remit any remaining funds in escrow to the Indemnifying Party and the
Indemnifying Party shall have no obligation to make any further payments to
AIMCO or AIMCO OP notwithstanding that the entire Indemnifiable Amount has
not been paid as of such date.
6. Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be
reasonably necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
7. Certain Events. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder's Shares and shall
be binding upon any person or entity to which legal or beneficial ownership
of such Shares shall pass, whether by operation of law or otherwise,
including without limitation, the Stockholder's administrators, successors
or receivers.
8. Stop Transfer. Each Stockholder agrees with, and covenants to, AIMCO
that it shall not request that Casden or PLB, or any of its agents,
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Shares unless such transfer
is made in compliance with this Agreement. Such Stockholder agrees to hold
all Shares in certificated form, and that, prior to effecting any transfer
of any Shares, it will present to the issuer the certificates representing
the Shares, and Casden or PLB, as the case may be, will inscribe upon the
certificates representing the Shares the following legend: "The shares of
stock represented by this certificate are subject to a Consent and Voting
Agreement and may not be sold or otherwise transferred, except in
accordance therewith. Copies of such Consent and Voting Agreement may be
obtained at the principal executive offices of the Company."
Such Stockholder agrees that it will not hold any Shares
in "street name" or in the name of any nominee.
9. General Provisions.
------------------
9.1 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given (a) when delivered personally, (b)
when sent by reputable overnight courier service, or (c) when telecopied
(which is confirmed by copy sent within one business day by a reputable
overnight courier service) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) If to AIMCO, to:
---------------
Apartment Investment and Management Company
00000 Xx. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
and
Apartment Investment and Management Company
0000 Xxxxx Xxxxxxxx Xxxxxxxxx
Tower Two, Suite 2-1000
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx and Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with copies (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Coco, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(b) If to any Stockholder: to it at the address or fax number on its
signature page.
with copies (which shall not constitute notice) to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx, Esq. and Xxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Blackacre Capital Management, LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx/Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Xxxxxx Xxxxxx Zavis
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
and
Xxxxxxx, Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
9.2 Miscellaneous. This Agreement and the documents and
instruments referred to herein constitute the entire agreement and
supersede all other prior or contemporaneous oral or written agreements and
understandings among the parties, or any of them, with respect to the
subject matter hereof. This Agreement shall not be assigned by any party
and shall be governed by and construed in accordance with the laws of the
State of Maryland, without regard to its conflicts of laws principles.
9.3 Interpretation. When a reference is made in this Agreement to
Sections or Exhibits, such reference shall be to a Section or Exhibit of
this Agreement, respectively, unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. Whenever
the words "include," "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without limitation."
9.4 Counterparts; Effect. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
9.5 Parties' Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to confer upon any other Person
and rights or remedies of any nature whatsoever under or by reason of this
Agreement.
9.6 Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
court of the United States located in the State of Maryland or in Maryland
state court, these being the only remedies to which they are entitled other
than under the Merger Agreements or the Master Indemnification Agreement or
as explicitly set forth in this Agreement. In addition, each of the parties
hereto (a) consents to submit itself to the personal jurisdiction of any
federal court located in Maryland or any Maryland state court in the event
any dispute arises out of this Agreement or any of the Transactions, (b)
agrees that it will not attempt to deny such personal jurisdiction by
motion or other request for leave from any such court and (c) agrees that
it will not bring any action relating to this Agreement or any of the
Transactions in any court other than a federal or state court sitting in
the State of Maryland.
9.7 Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If
any provision of this Agreement, or the application thereof to any Person
or entity or any circumstance, is invalid or unenforceable, (a) a suitable
and equitable provision shall be substituted therefor in order to carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid or unenforceable provision and (b) the remainder of this Agreement
and the application of such provision to other Persons, entities or
circumstances shall not be affected by such invalidity or unenforceability,
nor shall such invalidity or unenforceability affect the validity or
enforceability of such provision, or the application thereof, in any other
jurisdiction.
9.8 Amendment; Waiver. This Agreement may be amended, supplemented
or otherwise modified only by a written agreement executed by the party
against whom enforcement is sought. No provision of this Agreement
applicable to any Stockholder may be waived unless in writing signed by
AIMCO. Any provision of this Agreement applicable to AIMCO may be waived by
Stockholders holding a majority of the voting power of each class of Casden
Capital Stock. The waiver of any one provision of this Agreement shall not
be deemed to be a waiver of any other provision.
9.9 Termination. This Agreement and the irrevocable proxies
granted in Section 1.3 hereof will terminate automatically with no further
action by any party upon the termination of the REIT Merger Agreement and
the PLB Agreement, in accordance with their respective terms and upon such
a termination, all proxies granted pursuant to this Agreement will then be
deemed automatically revoked and of no further force or effect.
9.10 Expenses. Any costs and expenses, including without
limitation, the fees and expenses of their respective counsel and financial
advisors incurred in connection with this Agreement, shall be paid in
accordance with Section 7.8 of the REIT Merger Agreement and Section 2(d)
of the Master Indemnification Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
AIMCO:
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
STOCKHOLDERS:
/s/ Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx
Address:
0000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
THE CASDEN COMPANY
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Capacity: Chairman
Address:
0000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
CASDEN INVESTMENT CORP.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Capacity: Chairman
Address:
0000 Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
XX Xxxxxx Investors, LLC
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Capacity: Authorized Signatory
Address:
Blackacre Capital Management, LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxx/Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
Blackacre Park La Brea LLC
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Capacity: Authorized Signatory
Address:
Blackacre Capital Management, LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxx/Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
CASDEN PARK LA BREA MEMBER
LLC
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Capacity: Senior Vice President
and General Counsel
