Exhibit 99.8
EXECUTION COPY
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SPECIAL PREFERRED VOTING SHARES PURCHASE AGREEMENT
THIS SPECIAL PREFERRED VOTING SHARES PURCHASE AGREEMENT (this
"Agreement"), dated as of November 17, 2003 is entered into 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 a "Purchaser," and collectively "Purchasers").
RECITALS
WHEREAS, an affiliate of CharterMac, CharterMac Capital Company,
LLC, a Delaware limited liability company ("CCC"), is acquiring, among other
things, certain assets from the Purchasers pursuant to (i) a Contribution
Agreement, dated as of December 17, 2002 (the "Contribution Agreement"), by and
among CCC and the parties named therein including the Purchasers (capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms in the Contribution Agreement) and (ii) a Contribution Agreement,
dated as of November 17, 2003, by and among J. Xxxxxxx Xxxxx, JMF Associates,
L.P. and Fried Family 2001 Trust (collectively, the "Fried Parties") (the "Fried
Contribution Agreement"); and
WHEREAS, in order to induce the Purchasers to consummate the
transactions contemplated by the Contribution Agreement and the Fried
Contribution Agreement, CharterMac has agreed to sell, and the Purchasers have
agreed to purchase, in accordance with Section 1 hereof, special preferred
voting shares of beneficial interest in CharterMac (the "Special Preferred
Voting Shares"), having the rights, preferences, privileges and restrictions set
forth in the Certificate of Designation of CharterMac Special Preferred Voting
Shares substantially in the form of Exhibit A hereto (the "CharterMac
Certificate of Designation").
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, hereby agree as follows:
Section 1. Purchase and Sale. (a) Purchase of Shares. Subject to the
terms and conditions set forth herein, and in reliance upon the representations
and warranties contained herein, CharterMac agrees to sell, convey, transfer and
deliver to the Purchasers, and the Purchasers agree to purchase from CharterMac,
on the date hereof, 15,905,512 Special Preferred Voting Shares.
(b) Purchase Price. The purchase price to be paid by the
Purchasers to CharterMac for the purchase of the Special Preferred Voting Shares
shall be equal to the amount
equal to $.01 per Special Preferred Voting Share (the "Per
Share Purchase Price"), payable as provided in Section 1(d) hereof.
(c) Allocation of the Special Preferred Voting Shares. The
Special Preferred Voting Shares shall be allocated among the Persons comprising
Purchaser in accordance with the allocation of CCC Units on Schedule 2.5 of the
Contribution Agreement, as such Schedule is adjusted for any adjustment
thereunder, as directed by Contributor's Agent with the Consent of CCC.
(d) Payment for and Delivery of the Shares.
(1) The parties agree to effect the transactions contemplated
hereby on the date hereof (the "Special Preferred Voting Shares Closing"),
simultaneously with, and conditioned upon, the Closing of the transactions
contemplated under the Contribution Agreement, at the offices of Paul, Hastings,
Xxxxxxxx & Xxxxxx LLP located at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
(2) At the Special Preferred Voting Shares Closing:
(i) each Purchaser shall pay to CharterMac in cash an
amount equal to the Per Share Purchase Price multiplied by the number of Special
Preferred Voting Shares allocated to such Purchaser, by wire transfer of
immediately available funds to an account specified by CharterMac in writing to
the Purchasers not less than one Business Day prior to the Special Preferred
Voting Shares Closing.
(ii) upon receipt by CharterMac of such amount,
CharterMac shall deliver to each Purchaser one or more share certificates
representing the Special Preferred Voting Shares allocated to such Purchaser;
provided that, to the extent such Purchaser has agreed to assign Special
Preferred Voting Shares to the Fried Parties in accordance with the terms of
that certain Transaction Agreement, dated as of September 8, 2003, by and
between the Fried Parties and the Persons named therein comprising the RCC
Parties, CharterMac shall cause the delivery of the share certificates
representing such Special Preferred Voting Shares to the Fried Parties in lieu
of such Purchaser.
(e) At the Special Preferred Voting Shares Closing, the following
certificates, documents, instruments and agreements shall be executed and/or
delivered, subject to the terms of this Agreement, by the parties as set forth
below:
(1) CharterMac shall deliver the CharterMac Certificate of
Designation.
(2) CharterMac shall deliver the amended and restated by-laws
of CharterMac substantially in the form of Exhibit B hereto (the "CharterMac
Bylaws").
(3) The amended and restated trust agreement of CharterMac,
substantially in the form of Exhibit C hereto, shall be executed and delivered
by the parties identified thereon as signatories thereto (the "CharterMac Trust
Agreement," and together with
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the CharterMac Certificate of Designation and the CharterMac Bylaws, the "Other
Documents").
(4) CharterMac and the Purchasers shall each deliver such
other certificates, documents, instruments and agreements as CharterMac or the
Purchasers, as the case may be, shall deem reasonably necessary in order to
effectuate the transactions contemplated hereby in form and substance reasonably
satisfactory to the party requesting the same.
Section 2. Representations and Warranties of the Purchaser. Each
Purchaser hereby, severally and not jointly, represents and warrants to
CharterMac as to itself as follows:
(a) Organization. Purchaser is duly organized and validly
existing under the laws of its place of formation. Purchaser has the requisite
power and authority to conduct its business in the manner and in the
jurisdictions where it is now conducted, and is duly qualified as a foreign
partnership in each jurisdiction where such qualification is necessary for the
conduct of its business as currently conducted, except where the failure to be
so qualified would not reasonably be likely to have a Material Adverse Effect.
(b) Authority; Power. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary action on the part of Purchaser.
Purchaser has the requisite power and authority to enter into, deliver and
perform this Agreement. This Agreement is, or upon the execution and delivery
thereof will be, a legal, valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms, except as such enforceability
may be limited by bankruptcy, reorganization, insolvency, moratorium or other
laws relating to or affecting creditors' rights generally.
(c) No Registration; Legend. Purchaser has been advised that the
Special Preferred Voting Shares have not been registered under the Securities
Act of 1933, as amended, and the rules and regulations thereunder (the "Act")
and, therefore, cannot be resold unless they are registered under the Act or
unless an exemption from registration is available. Purchaser acknowledges that
the certificate(s) representing the Special Preferred Voting Shares contain a
legend substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH OFFER,
SALE, PLEDGE OR TRANSFER.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON TRANSFERABILITY AS SET FORTH IN THE CERTIFICATE OF DESIGNATION OF THE
SPECIAL PREFERRED VOTING SHARES.
(d) Purchase for Investment, etc.
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(1) Purchaser is purchasing the Special Preferred Voting
Shares for its own account, for investment and not with a view to, or for resale
in connection with, the distribution thereof or with any present intention of
distributing or reselling any thereof in violation of the Act.
(2) Purchaser has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of an investment in the Special Preferred Voting Shares and is aware that
it may have to bear the economic risk of such investment for an indefinite
period of time or to suffer a complete loss of its investment.
(3) Purchaser is an "accredited investor" (as defined in
Rule 501 promulgated under the Act).
(4) The Special Preferred Voting Shares were not offered
to any persons by means of a general solicitation or publicly disseminated
advertisement or sales literature, nor is the Purchaser aware of any offers made
to other persons by such means.
Section 3. Representations and Warranties of CharterMac. CharterMac
hereby represents and warrants to the Purchasers as follows:
(a) Organization. CharterMac is duly formed and validly existing
under the laws of the State of Delaware. CharterMac has the requisite power and
authority to conduct its business in the manner and in the jurisdictions where
it is now conducted, and is duly qualified as a foreign trust in each
jurisdiction where such qualification is necessary for the conduct of its
business as currently conducted, except where the failure to be so qualified
would not reasonably be likely to have a Material Adverse Effect.
(b) Authority; Power. The execution and delivery of this
Agreement and the Other Documents and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary action on the part of CharterMac. CharterMac has the requisite power
and authority to enter into, deliver and perform this Agreement and the Other
Documents. Upon their execution and delivery, this Agreement and the Other
Documents will be legal, valid and binding obligations of CharterMac,
enforceable against CharterMac in accordance with their respective terms, except
as such enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium or other laws relating to or affecting creditors' rights generally.
(c) Special Preferred Voting Shares. Each Special Preferred
Voting Share issued to the Purchasers will be, when so issued against payment
therefor as provided in Section 1(d) hereof, duly authorized, validly issued,
fully paid and nonassessable.
Section 4. 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
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case of a nationally recognized overnight air courier service) to the parties at
the following addresses:
if to CharterMac, to:
CharterMac
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxxx, Esq.
and:
if to the Purchasers, to such Purchaser at such
address as set forth on Schedule A hereto.
Any party may by notice given in accordance with this Section
4(a) to the other parties designate another address or Person for receipt of
notices hereunder.
(b) Amendments and Waivers. This Agreement may be modified,
amended or supplemented only by an instrument in writing signed by or on behalf
of all of the parties hereto; provided, however, that any such modification,
amendment or supplement shall require the approval of not less than a majority
of the independent trustees of CharterMac.
(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 its independent
trustees), but such a waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent other failure. Whenever this
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 4(c).
(d) Governing Law. This Agreement shall be governed by the laws
of the State of New York without regard to the conflict of laws principles
thereof.
(e) Jurisdiction. Any action or proceeding arising under or in
connection with this Agreement shall be instituted in the United States District
Court for the Southern District of New York or the courts of the State of New
York sitting in the County of New York, and the parties hereto irrevocably
submit to the exclusive jurisdiction of such courts in any such action or
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proceedings and irrevocably waive the defense of an inconvenient forum to the
maintenance of such action or proceeding. The parties hereto Consent to service
of process upon them in the manner set forth in Section 4(a) hereof.
(f) Assignment. No party may assign any of its rights or delegate
any of its duties under this Agreement without the prior written Consent of the
other parties.
(g) 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 are fulfilled to the extent possible.
(h) 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.
(i) 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.
(j) Entire Agreement. This Agreement, together with the
Contribution Agreement, the other Collateral Agreements and the Other Documents,
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, the other Collateral Agreements and the
Other Documents supersede all prior written or oral agreements and
understandings between the parties with respect to the transactions.
(k) 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.
(l) 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
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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."
(m) 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, or caused
this Agreement to be duly executed on its behalf, 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:
DLK ASSOCIATES L.P.
By: DLK Associates, Inc., its general
partner
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title:
MARC ASSOCIATES L.P.
By: Marc Associates, Inc., its general
partner
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title:
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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:
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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 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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