VOTING AGREEMENT
Exhibit 10.2
THIS VOTING AGREEMENT (this "Agreement"), dated as of February 8, 2018, is made among TERRA SECURED INCOME FUND 5, LLC, a Delaware limited liability company (the "Fund"), TERRA PROPERTY TRUST, INC., a Maryland corporation (the "REIT"), and TERRA REIT ADVISORS, LLC, a Delaware limited liability company ("TRA").
RECITALS
WHEREAS, as of the date hereof, the Fund, directly or indirectly, owns all of the shares of common stock of the REIT;
WHEREAS, on or about the date hereof, the REIT entered into that certain Amended and Restated Management Agreement with TRA (the "Management Agreement"), whereby TRA was engaged to provide certain management services for the REIT on the terms and conditions set forth therein; and
WHEREAS, in connection with the foregoing, the parties desire to enter into this Agreement, to, among other items, set forth certain agreements among them with respect to the REIT, its board of directors and the voting of the shares of common stock in the REIT directly or indirectly held by the Fund, in each case on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below.
"Agreement" has the meaning specified in the preamble of this Agreement.
"Board" means the board of directors of the REIT or the IPO Entity, as the case may be.
"Business Day" means any day other than a Saturday, a Sunday or a day on which banks located in New York, New York are required or authorized to be closed for the conduct of regular banking business. If the date set for any action hereunder is a date other than a Business Day, then such date shall be the next succeeding day that is a Business Day.
"Common Shares" means the shares of common stock of the REIT or the IPO Entity, as the case
may be.
"Directors" means the members of the Board.
"Fund" has the meaning specified in the preamble of this Agreement.
"Fund Manager" means Terra Fund Advisors, LLC, the external manager of the Fund.
"Fund Nominees" has the meaning set forth in Section 2.01.
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"Fund Operating Agreement" means the Amended and Restated Limited Liability Company Agreement of the Fund, dated as of January 1, 2016.
"Independent Directors" means Directors who meet the criteria for independent directors under the listing rules of the New York Stock Exchange (or such other national securities exchange which, at such time, may be the primary exchange on which the shares of common stock of the IPO Entity are then listed or quoted) and otherwise established by the IPO Entity.
"Initial Period" has the meaning set forth in Section 2.02.
"IPO" means any transaction or series of related transactions which results in the shares of any IPO Entity being publicly traded.
"IPO Entity" means the REIT or a Person of which it is a Predecessor (as defined under Rule 405 of the Securities Act).
"Management Agreement" has the meaning set forth in the recitals of this Agreement.
"Notice" has the meaning set forth in Section 6 of this Agreement.
"Person" means any individual, corporation, partnership, association, trust, limited liability company or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
"REIT" has the meaning specified in the preamble of this Agreement.
"Securities Act" means the U.S. Securities Act of 1933, as amended from time to time, or any successor statute, and all rules and regulations promulgated thereunder.
"TRA" has the meaning specified in the preamble of this Agreement.
"TRA Nominees" has the meaning set forth in Section 2.01.
In this Agreement, unless otherwise specified: (i) singular words include the plural and plural words include the singular; (ii) words that include a number of constituent parts, things or elements shall be construed as referring separately to each constituent part, thing or element thereof, as well as to all such constituent parts, things or elements as a whole; (iii) words importing any gender shall include the masculine, the feminine and the neuter; (iv) references to any Person include such Person's successors and permitted assigns; (v) references to any statute or other law include all applicable rules, regulations and orders adopted or made thereunder and all statutes or other laws amending, consolidating or replacing the statute or law referred to; (vi) references to any agreement or other document, including this Agreement, include all subsequent amendments thereto or hereto or other modifications thereof or hereof; (vii) the words "include" and "including" and words of similar import, shall be deemed to be followed by the words "without limitation"; (viii) the words "hereto," "herein," "hereof," "hereunder" and words of similar import, refer to this Agreement in its entirety unless the context requires otherwise; (ix) the word "will" shall be construed to have the same meaning and effect as the word "shall," and the word "or" shall not be exclusive; (x)references to Articles, Sections and paragraphs are to the Articles, Sections and paragraphs of this Agreement; (xi) numberings and headings of Articles, Sections and paragraphs are inserted as a matter of convenience and shall not affect the construction of this Agreement; and (xii) any reference herein to the giving of "consent," "approval," "discretion" or other words of similar import on the part of a Person shall mean in the sole and absolute discretion of such Person.
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Section 2. REIT Board Matters
2.01Size of the Board; Initial Board Membership. Immediately prior to the execution of this Agreement, the Board has been expanded from five to eight members and one existing Director, Xxxxx Xxxxx, has resigned from the Board. The four other existing Directors shall continue as of the date hereof to be Directors, three of whom the Board has determined qualify as Independent Directors. The four continuing Directors, together with their replacements appointed by the Fund under the provisions of this Agreement, shall be referred to as "Fund Nominees." In connection with the execution of this Agreement, TRA, as the manager under the Management Agreement, has nominated four other individuals to serve as Directors, two of whom the existing Independent Directors have determined qualify as Independent Directors. Such four TRA nominated individuals have been added to the Board. Xx. Xxxxxx Xxxxxxx, one of the individuals nominated by TRA, has been elected as Chairman of the Board. The four Directors nominated by TRA, together with their replacements appointed by TRA under the provisions of this Agreement, shall be referred to as the "TRA Nominees."
2.02Continuing Membership. The parties agree that, subject to Section 2.04(b), from and after the date hereof and until the earlier of (1) the date that is 18 months after the date hereof or (2) the date of that nominations for the Board are due for the 2019 annual meeting of stockholders of the REIT (or the IPO Entity, as the case may be) (the "Initial Period"): (a) the Board will continue to consist of eight Directors, including at least five Independent Directors, and (b) the Fund shall have the right to nominate the Fund Nominees or other individuals to replace as Directors any Fund Nominees who shall depart from the Board, while TRA shall have the right to nominate the TRA Nominees or other individuals to serve as Directors to replace any TRA Nominees who shall depart from the Board, provided that if any departing nominee is an Independent Director, the individual nominated as a replacement Director under the provisions of this Agreement shall also qualify as an Independent Director as determined in good faith by the remaining Independent Directors of the Board, and provided further that the Fund and/or TRA, as applicable, provides Notice to the REIT, TRA and the Fund of any such replacement no later than 90 days after a vacancy created by the departure of their nominee has occurred, or if any nomination is proposed in connection with an annual meeting of stockholders, Notice of such nomination is provided in advance of the date that is identified by the Board as the deadline for "management's slate" of Directors to be presented to stockholders of the REIT (or the IPO Entity, as the case may be) at such annual meeting.
2.03Nomination Rights Following the Initial Period. The nomination rights specified in Section 2.02 shall terminate at the end of the Initial Period. However, for the period beginning on the day following the Initial Period and continuing for the period that TRA remains the external manager of the IPO Entity, TRA shall have the right to nominate two individuals to serve as Directors of the IPO Entity (which nominees need not be Independent Directors) and for the period beginning on the day following the end of the Initial Period and ending on the date that the Fund no longer holds at least 10% of the outstanding shares of common stock of the IPO Entity, the Fund shall have the right to nominate one individual to serve as a Director of the IPO Entity (who need not be an Independent Director).
2.04Vacancies.
(a)The parties agree if a vacancy on the Board is created by the death, disability, retirement, resignation, refusal to stand for reelection, unwillingness to nominate or removal of any Director previously nominated by the Fund or TRA, during the period that the Fund or TRA, as the case may be, enjoys nomination rights with respect to such Director, any individual nominated by or at the direction of the Board or any duly authorized committee thereof to fill such vacancy shall be, and the REIT (or the IPO Entity) shall use its best efforts to cause such vacancy to be, filled as soon as possible, by an individual nominated by the Fund (if the former Director had been a Fund Nominee) or by an individual nominated by TRA (if the former Director had been a TRA Nominee).
(b)Notwithstanding anything to the contrary contained in Section 2.02 or Section 2.04(a), in the case of the first Independent Director Fund Nominee, if any, who departs the Board due to such Director's death, disability, voluntary resignation, refusal to stand for reelection or failure to be nominated by the Fund, TRA (and not the Fund) shall have the right to nominate an individual to replace such departing Independent Director, and such replacement Director shall thereafter also be considered a TRA Nominee for purposes of this Agreement.
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2.05Mutual Cooperation. The parties agree that, except as may be limited by law or the provisions of other agreements to which the Fund, the REIT or TRA are or may in the future become bound, they shall reasonably cooperate with each other in implementing the provisions of this Section 2, including, without limitation, the REIT (or the IPO Entity) listing the nominations made by the Fund and TRA pursuant to this Section 2 on any proxy issued by the REIT (or the IPO Entity) with respect to an election of the Board and voting all Common Shares directly or indirectly owned thereby in favor (or against the removal) of the Directors properly nominated in accordance with this Section 2. During the period that the Fund or TRA, as the case may be, enjoys nomination rights with respect to a Director, the party enjoying such nomination rights with respect to such Director may seek the removal of such Director, and the parties agree, except as may be limited by the provisions of other agreements to which the Fund, the REIT (or the IPO Entity) or TRA are or may in the future become bound, to reasonably cooperate with each other in effecting the removal of such Director and installing on the Board his or her replacement nominated by the Fund or TRA, as applicable, including calling and attending (in person or by proxy) stockholder meetings and voting all Common Shares directly or indirectly owned thereby in favor of such removal and such replacement.
2.06Director Qualification. Nothing in this Section 2 shall be deemed in any way to amend, modify or contravene any of the requirements of the REIT (or the IPO Entity, as applicable) (including, without limitation, those set forth in its organizational documents) for Directors and/or Independent Directors and all such Directors and Independent Directors shall be required to meet such applicable requirements in order to be nominated pursuant to this Section 2.
Section 3. Voting of Common Shares. Except as otherwise required by law or other agreement to which the Fund is or may become a party and other than with respect to the election of Directors as set forth above, the Fund shall vote all Common Shares directly or indirectly held by it in accordance with the recommendations made by the Board with respect to the matter being voted on.
Section 4. Termination. The rights and obligations of the Fund under this Agreement shall terminate on the earlier of (1) the date that the Fund is dissolved or (2) upon the expulsion, Event of Insolvency (as defined in the Fund Operating Agreement), or other cessation to exist of the Fund Manager.
Section 5. Execution. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed an original, and such counterparts together will constitute one and the same instrument.
Section 6. Notices. All notices, consents, approvals and other communications provided for hereunder shall be in writing and shall be delivered (i) by certified mail, return receipt requested, (ii) by hand, (iii) by recognized overnight courier delivery service (with charges prepaid) or (iv) emailed (with a hard copy sent by recognized overnight courier delivery service (with charges prepaid) on the same Business Day as such transmission), to any party at the address of such Person listed below, or, in each case, at such other address as shall be designated by such Person in a written notice to each other party complying as to delivery with the terms of this Section 6 (each, a "Notice"). All such Notices shall be effective: (x) if deposited with the United States Postal Service certified mail, return receipt requested, three Business Days after deposit therewith; (y) if sent by hand delivery or express courier, upon delivery or refusal; and (z) if transmitted by email, on the date of such transmission (provided that a confirmation copy is so sent as provided above).
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| (a) | If to the REIT or the Fund, to: |
c/o Terra Capital Partners
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Telephone: (000) 000-0000
Email: xxxxxxx@xxx-xx.xxx
and
c/o Axar Terra LLC
1330 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Email: xxxxxx@xxxxxxxxxxx.xxx
with a copy (which shall not constitute Notice) to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq. and Xxxxx Xxxxxxxxxxx, Esq.
Telephone: (000) 000-0000 (Xx. Xxxxxxxxx)
(000) 000-0000 (Xx. Xxxxxxxxxxx)
Email: xxx.xxxxxxxxx@xxxxxxxxxxxxxx.xxx (Xx. Xxxxxxxxx)
xxxxx.xxxxxxxxxxx@xxxxxxxxxxxxxx.xxx (Xx. Xxxxxxxxxxx)
and
Xxxxxxxx & Xxxxx LLP
000 X. XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, P.C.
Xxxxx X. Xxxxxxx, P.C. Xxxxxxx Xxx
Telephone: (000) 000-0000 (Xxxxxx X. Xxxxxxxxxx, P.C.)
(000) 000-0000 (Xxxxx X. Xxxxxxx, P.C.)
(000) 000-0000 (Xxxxxxx Xxx)
Email: Xxxxxx.Xxxxxxxxxx@xxxxxxxx.xxx
Xxxxx.Xxxxxxx@xxxxxxxx.xxx
Xxxxxxx.Xxx@xxxxxxxx.xxx
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| (b) | If to TRA, to: |
c/o Terra Capital Partners
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxx
Telephone: (000) 000-0000
Email: xxxxxx@xxx-xx.xxx
and
c/o Axar Terra LLC
1330 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Email: xxxxxx@xxxxxxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq. and Xxxxx Xxxxxxxxxxx, Esq.
Telephone: (000) 000-0000 (Xx. Xxxxxxxxx)
(000) 000-0000 (Xx. Xxxxxxxxxxx)
Email: xxx.xxxxxxxxx@xxxxxxxxxxxxxx.xxx (Xx. Xxxxxxxxx)
xxxxx.xxxxxxxxxxx@xxxxxxxxxxxxxx.xxx (Xx. Xxxxxxxxxxx)
and
Xxxxxxxx & Xxxxx LLP
000 X. XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, P.C.
Xxxxx X. Xxxxxxx, P.C. Xxxxxxx Xxx
Telephone: (000) 000-0000 (Xxxxxx X. Xxxxxxxxxx, P.C.)
(000) 000-0000 (Xxxxx X. Xxxxxxx, P.C.)
(000) 000-0000 (Xxxxxxx Xxx)
Email: Xxxxxx.Xxxxxxxxxx@xxxxxxxx.xxx
Xxxxx.Xxxxxxx@xxxxxxxx.xxx
Xxxxxxx.Xxx@xxxxxxxx.xxx
Section 7. Amendments and Waivers. The provisions of this Agreement may be amended with the prior written consent of all parties hereto. Any waiver, permit, consent or approval of any kind or character on the part of any party hereto of any provision or condition of this Agreement must be made in writing and shall be effective only to the extent specifically set forth in writing.
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Section 8. Successors and Assigns; No Third Party Beneficiary. This Agreement and all terms, provisions and conditions hereof shall be binding upon the parties hereto, and shall inure to the benefit of the parties hereto and, except as otherwise provided herein, to their respective heirs, executors, personal representatives, successors and assigns. This Agreement is intended solely for the benefit of the parties hereto and, except as expressly provided to the contrary in this Agreement, is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto, including, without limitation, of any creditor or other Person to whom any debts, liabilities or obligations are owed by (or who otherwise has any claim against) any party hereto.
Section 9. Governing Law. This Agreement, and the application or interpretation thereof, shall be governed exclusively by its terms and by the laws of the State of Delaware, excluding the conflict of laws provisions thereof.
Section 10. Consent to the Non-Exclusive Jurisdiction of the Courts of Delaware. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF FEDERAL AND STATE COURTS OF THE STATE OF DELAWARE IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND EACH PARTY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION, SUIT OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH DELAWARE STATE OR FEDERAL COURT. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY LEGALLY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION, SUIT OR PROCEEDING. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY ACTION, SUIT OR PROCEEDING BY THE MAILING OR DELIVERY OF COPIES OF SUCH PROCESS TO IT AT THE NOTICE ADDRESS FOR IT UNDER THIS AGREEMENT AS DETERMINED IN ACCORDANCE WITH SECTION 6.
Section 11. Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12. Severability. Each term or provision of this Agreement shall be considered severable and if for any reason any provision which is not essential to the effectuation of the basic purposes of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such invalidity shall not impair the operation of or affect those provisions of this Agreement which are valid or enforceable. In that case, this Agreement shall be construed so as to limit any term or provision so as to make it valid or enforceable within the requirements of any applicable law.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement in each case as of the day and year first above written.
TERRA SECURED INCOME FUND5, LLC,
a Delaware limited liability company
| By: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Chief Executive Officer | ||
| TERRA PROPERTY TRUST, INC., | ||
| A Maryland corporation | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Authorized Signatory | ||
| TERRA REIT ADVISORS, LLC, | ||
| A Delaware limited liability company | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Authorized Signatory | ||
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