EXHIBIT 10.45
VOTING AGREEMENT
THIS VOTING AGREEMENT is made October 27, 2003, among
Hospitality Properties Trust, a Maryland real estate investment trust ("HPT"),
Six Continents Hotels, Inc., a Delaware corporation ("SCH") and those
stockholders of Candlewood Hotel Company, Inc. ("CHC") listed on Schedule A, as
updated from time to time in accordance with Section 5.10 hereof (the
"Stockholders").
RECITALS:
1. As of the date hereof, each Stockholder beneficially owns
and is entitled to vote the number of (a) shares of common stock, par value
$0.01 per share ("CHC Common Stock"), of CHC or (b) shares of Series A
Cumulative Convertible Preferred Stock, par value $0.01 per share, of CHC ("CHC
Series A Stock") or (c) shares of Series B Cumulative Convertible Preferred
Stock, par value $0.01 per share, of CHC ("CHC Series B Stock", and collectively
with the CHC Series A Stock, the "CHC Preferred Stock") set forth opposite such
Stockholder's name on Schedule B hereto.
2. HPT and CHC and certain of its affiliates are
contemporaneously entering into that certain Purchase and Sale Agreement (the
"Hotel Purchase Agreement"), SCH and CHC are contemporaneously entering into
that certain Asset Purchase and Sale Agreement (the "Brand Purchase Agreement")
and HPT CW Properties Trust, John G. Murray, Trustee of HPT CW MA Realty Trust,
HH HPT CW II Properties LLC, HPT, CHC and Candlewood Leasing No. 1, Inc. are
contemporaneously entering into that certain Termination Agreement (the
"Termination Agreement", and together with the Hotel Purchase Agreement and the
Brand Purchase Agreement, the "Transaction Agreements").
3. In order to induce HPT, SCH and their respective affiliates
to enter into the Transaction Agreements and perform their respective
obligations thereunder, the Stockholders desire to make certain representations,
warranties and agreements.
In consideration of the foregoing, the parties agree as
follows:
SECTION I
DEFINITIONS
The terms set forth below shall have the following meanings:
1.1 "beneficially own": shall have the meaning set forth in Rule
13d-3 under the Securities Exchange Act of 1934 Act, as amended (the "1934
Act").
1.2 "CHC Charter Documents": shall mean CHC's Restated Certificate
of Incorporation (including any Certificates of Designation) and by-laws, in
each case, as amended.
1.3 "CHC Stock": shall mean the CHC Common Stock and the CHC
Preferred Stock.
1.4 "Discretionary Accounts": shall mean (i) JPMorgan Chase Bank,
formerly known as Morgan Guaranty Trust Company of New York, as Trustee of the
Commingled Pension Trust Fund (Multi-Market Special Investment Fund II) of
JPMorgan Chase Bank, (ii) JPMorgan Chase Bank, formerly known as Morgan Guaranty
Trust Company of New York, as Trustee of the Multi-Market Special Investment
Trust Fund of JPMorgan Chase Bank, (iii) JPMorgan Chase Bank, formerly known as
Morgan Guaranty Trust Company of New York, as Investment Manager and Agent for
the Alfred P. Sloan Foundation (Multi-Market Account) and (iv) Peck's Management
Partners Ltd.
1.5 "Effective Time": shall mean the time at which the
transactions contemplated by the Transaction Agreements close.
1.6 "Party": shall mean HPT, SCH and each of the Stockholders.
1.7 "Person": shall mean an individual, corporation, limited
liability company, partnership, association, trust or any other entity or
organization, including any domestic or foreign governmental, administrative,
judicial or regulatory authority.
1.8 "Purchase Proposal": shall mean any offer or proposal
concerning any (A) merger, consolidation, business combination, or similar
transaction involving CHC or any of its subsidiaries, (B) sale, lease or other
disposition directly or indirectly by merger, consolidation, business
combination, share exchange, joint venture, or otherwise of assets representing
25% or more of the consolidated assets of CHC and its subsidiaries or any of (x)
the "Properties" (as defined in the Hotel Purchase Agreement) or (y) the
"Assets" (as defined in the Brand Purchase Agreement), (C) issuance, sale, or
other disposition of (including by way of merger, consolidation, business
combination, share exchange, joint venture, or any similar transaction)
securities (or options, rights or warrants to purchase, or securities
convertible into or exchangeable for such securities) of CHC or any of the
"Sellers" (as defined in the Hotel Purchase Agreement), (D) transaction in which
any person shall acquire beneficial ownership, or the right to acquire
beneficial ownership or any group shall have been formed which beneficially owns
or has the right to acquire beneficial ownership of 25% or more of the
outstanding voting capital stock of CHC or (E) any combination of the foregoing;
provided however, that any offer or proposal relating to the transactions
contemplated by the Transaction Agreements shall not constitute a "Purchase
Proposal".
1.9 "Transfer" shall mean any sale, transfer, assignment, pledge,
encumbrance or other disposition, including through any "short sale" or
derivative transactions.
SECTION II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
2.1 Representations and Warranties of the Stockholders. Each
Stockholder represents and warrants, severally but not jointly, to HPT:
(a) Ownership of CHC Stock. Set forth in Schedule B
opposite the name of such Stockholder are all shares of CHC Stock owned of
record or beneficially by such Stockholder as of the date hereof. Except as set
forth in Schedule B, (i) such Stockholder has the exclusive right to vote such
securities in the manner required under this Agreement and (ii) there are no
options, warrants or other rights, agreements, arrangements or commitments of
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any character to which such Stockholder is a party relating to the pledge,
disposition or voting of any such securities (other than this Agreement) which
would prevent such Stockholder from voting such securities in the manner
required under this Agreement; provided that with respect to shares of CHC Stock
held in the Discretionary Accounts, such representation is qualified by, subject
to, and does not apply to the extent of, any rights of the beneficial owners or
clients of the Discretionary Accounts to cause a Transfer of such securities or
to have such securities returned to them and thereafter to vote or cause such
securities to be voted.
(b) Organization of Certain Stockholders. If such
Stockholder is a corporation, partnership, limited liability company or other
entity, such Stockholder is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation or incorporation.
(c) Authority to Execute and Perform Agreements. Such
Stockholder has the requisite power and authority required to enter into,
execute and deliver this Agreement and to perform fully such Stockholder's
obligations hereunder. The execution and delivery of this Agreement by such
Stockholder have been duly authorized by all requisite organizational action, if
any, on the part of such Stockholder. This Agreement has been duly executed and
delivered and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other laws affecting creditors' rights and remedies generally
and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(d) No Conflicts; Consents.
(i) The execution and delivery by such
Stockholder of this Agreement does not, and the consummation
of the transactions contemplated hereby will not, conflict
with or result in any violation of or default (with or without
notice or lapse of time, or both) under (A) any contract,
agreement or other binding arrangement to which such
Stockholder is a party or (B) any judgment, order, writ,
injunction or decree of any court, governmental body,
administrative agency or arbitrator applicable to such
Stockholder.
(ii) No consents, authorizations, orders or
approvals of any governmental commission, board, or other
regulatory body are required to be obtained or made by such
Stockholder in connection with the execution and delivery by
such Stockholder of this Agreement and the consummation of the
transactions contemplated hereby.
(e) Investigation. Such Stockholder has had a full
opportunity to review and discuss this Agreement and the Transaction Agreements
and to ask all questions of HPT, SCH, CHC and CHC's directors and executive
officers necessary in order for such Stockholder to make an informed decision to
enter into this Agreement.
2.2 Representations and Warranties of HPT and SCH. Each of SCH and
HPT, in each instance solely with respect to itself, represents and warrants to
the Stockholders that (i) it is duly organized and validly existing under the
laws of the jurisdiction of its formation, (ii) it has all necessary power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, (iii) it has duly authorized, by all necessary
action, the execution and delivery of this Agreement and the consummation of the
transactions
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contemplated hereby by HPT and SCH, (iv) its execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, conflict with or result in any violation of or default (with or
without notice or lapse of time, or both) under (A) any contract, agreement or
other binding arrangement to which it is a party or (B) any judgment, order,
writ, injunction or decree of any court, governmental body, administrative
agency or arbitrator applicable to it, (v) no consents, authorizations, orders
or approvals of any governmental commission, board, or other regulatory body are
required to be obtained or made by it in connection with it execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby, and (vi) this Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of it, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other laws affecting creditors'
rights and remedies generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
SECTION III
VOTING; WAIVER OF RIGHTS
3.1 Agreement to Vote. Each Stockholder hereby agrees that, at any
meeting of the stockholders of CHC, however called, and at every adjournment
thereof, and in any action by written consent of the stockholders of CHC, to
vote all of the shares of CHC Stock to which he is entitled to vote (including,
without limitation, shares of any class of CHC Preferred Stock whether such
shares are to be voted separately as a class or, together with shares of other
classes or on an as-converted basis, each in accordance with CHC's Charter
Documents, as applicable):
(a) in favor of (i) approval of the terms of the
transactions contemplated by the Transaction Agreements, with any modifications
that are approved by such Stockholder, (ii) any action required to consummate
such transactions and (iii) the adoption of the Plan of Dissolution of CSC in
substantially the form attached hereto as Exhibit A with any modifications that
are approved by such Stockholder, provided that each of the matters listed in
clauses (i), (ii) and (iii) of this Section 3.1(a) are contemporaneously
approved;
(b) against any Purchase Proposal;
(c) prior to the Effective Time, against any action or
proposal involving CHC or any CHC subsidiary that is intended, or could
reasonably be expected, to prevent, impede, interfere with, delay, postpone or
adversely affect the transactions contemplated by the Transaction Agreements;
(d) in favor of the amendment to CHC's certificate of
incorporation to change the name of CHC; and
(e) in favor of the adoption of the Certificate of
Amendment of Certificate of Designations, Preferences and Relative,
Participating, Optional and Other Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions thereof of Series A Cumulative
Convertible Preferred Stock and Series B Cumulative Convertible Preferred Stock
of CHC, in the form attached hereto as Exhibit B.
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SECTION IV
COVENANTS
4.1 No Disposition of Shares Prior to Effective Time. Each
Stockholder covenants and agrees that, prior to the Effective Time, such
Stockholder shall not Transfer any of the shares of CHC Stock set forth opposite
his name on Schedule B as to which such Stockholder has or shares dispositive
power; provided that with respect to shares of CHC Stock held in the
Discretionary Accounts, such representation is qualified by, subject to, and
does not apply to the extent of, any right of the beneficial owners or clients
of the Discretionary Accounts to cause a Transfer of such securities or to have
such securities returned to them and thereafter to vote or cause such securities
to be voted.
4.2 Voting Arrangements. Each Stockholder covenants and agrees
that, except pursuant to this Agreement, prior to the Effective Time such
Stockholder shall:
(a) not act in concert with any Person to solicit or
participate, directly or indirectly, in any solicitation of proxies or powers of
attorney or similar rights to vote from any holder of CHC Stock, or with respect
to any action, proposal, transaction or agreement that would reasonably be
expected to lead to a Purchase Proposal, or to recommend that the Stockholders
vote in favor of a Purchase Proposal except as otherwise expressly provided by
Section 3 of this Agreement;
(b) not, directly or indirectly: (A) solicit, initiate,
encourage, take any action to facilitate or induce any inquiry with respect to,
or the making, submission or announcement of, any proposal or offer (including
any proposal or offer to the Stockholders) that constitutes or may reasonably be
expected to lead to any Purchase Proposal, (B) furnish to any Person other than
HPT, SCH or their respective affiliates any information with respect to any
Purchase Proposal (except as required by law or regulatory authority), (C)
participate in or engage in discussions or negotiations with any Person with
respect to any Purchase Proposal, except to notify such Person as to the
existence of these provisions, (D) approve, endorse or recommend any Purchase
Proposal, or (E) enter into any letter of intent or similar document or any
agreement, commitment or understanding contemplating or otherwise relating to
any Purchase Proposal or a transaction contemplated thereby. Each Stockholder
shall, and each Stockholder other than the Discretionary Accounts and J.P.
Morgan Partners (SBIC), LLC (formerly known as Chase Venture Capital Associates,
L.P.) shall cause its affiliates to, immediately cease and cause to be
terminated all existing discussions or negotiations with any parties conducted
heretofore with respect to a Purchase Proposal; and
(c) Notwithstanding any of the provisions of this
Agreement, if a Stockholder is a member of the Board of Directors of CHC or has
an officer, employee or other representative who is a member of the Board of
Directors of CHC, nothing herein shall be construed to obligate such Stockholder
or such officer, employee or representative to act in his capacity as a director
in any manner which may conflict with such Stockholder's or such officer's,
employee's or representative's fiduciary duties as a director of CHC.
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SECTION V
MISCELLANEOUS
5.1 Termination.
(a) This Agreement shall terminate, and none of the
Parties hereto shall have any rights or obligations hereunder and this Agreement
shall become null and void and have no effect upon the earliest to occur of (i)
the consent of each of HPT, SCH and each Stockholder, (ii) the termination of
either the Hotel Purchase Agreement or the Brand Purchase Agreement or (iii)
February 28, 2004.
(b) This Agreement shall terminate with respect to a
Discretionary Account and such Discretionary Account shall have no further
obligations hereunder, at such time as shares of CHC Stock are no longer held in
such Discretionary Account.
5.2 Notices. All notices, communications and deliveries required
or permitted by this Agreement shall be made in writing signed by the Party
making the same, shall specify the section of this Agreement pursuant to which
it is given or being made, and shall be deemed given or made (i) on the date
delivered if delivered by telecopy or in person, or (ii) on the day after it is
delivered, prepaid, to an overnight express delivery service that confirms to
the sender delivery on such day, as follows:
If to HPT, to:
Hospitality Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Attn: John G. Murray
Telecopy No.: 617.969.5730
with a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Attn: Richard Teller
Telecopy No.: (617) 338-2880
If to SCH, to:
Six Continents Hotels, Inc.
Suite 100
Three Ravinia Drive
Atlanta, Georgia 30346-2149
Attn: Robert Gunkel
with copies to:
Six Continents Hotels, Inc.
Suite 100
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Three Ravinia Drive
Atlanta, Georgia 30346-2149
Attn: Robert Jackman
Sutherland Asbill & Brennan LLP
999 Peachtree Street, N.E.
Suite 2300
Atlanta, Georgia 30309-3996
Attn: James Kacena, Esq.
If to the Stockholders, to:
such Stockholder at the address set forth on Schedule A;
with a copy to (only with respect to holders of CHC Preferred
Stock):
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attn: John Evangelakos
or to such other representative or at such other address of a Party as such
Party may furnish to the other Parties in writing.
5.3 Interpretation.
(a) When a reference is made in this Agreement to a
section or schedule such reference shall be to a section or schedule of this
Agreement unless otherwise clearly indicated to the contrary.
(b) The schedules and all documents expressly referred to
in this Agreement are incorporated into this Agreement and are made a part of
this Agreement as if set out in full.
(c) The titles and captions contained in this Agreement
are inserted only as a matter of convenience and for reference and in no way
define, limit, extend or describe the scope of this Agreement or the intent of
any provision of this Agreement.
(d) The words "hereof", "herein" and "herewith" and words
of similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement.
(e) The plural of any defined term shall have a meaning
correlative to such defined term, and words denoting any gender shall include
all genders. Where a word or phrase is defined herein, each of its other
grammatical forms shall have a corresponding meaning.
(f) The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties, and no presumption or burden
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of proof shall arise favoring or disfavoring a Party by virtue of the authorship
of any provision of this Agreement.
5.4 Assignment; Successors in Interest. This Agreement shall not
be assigned by operation of law or otherwise without the prior written consent
of each of the Parties. This Agreement shall be binding upon and shall inure to
the benefit of the Parties and their successors and assigns, and any reference
to a Party shall also be a reference to a successor or assign. For the avoidance
of doubt, the preceding sentence shall not apply to any beneficial owner or
client of a Discretionary Account to which shares of CHC Stock have been
returned.
5.5 No Third-Party Beneficiaries. With the exception of the
Parties and Intercontinental Hotel Group Resources, Inc., which the Parties
agree is an intended third party beneficiary to the extent a vote in favor of
the transactions contemplated by the Brand Purchase Agreement is required, there
shall exist no right of any Person to claim a beneficial interest in this
Agreement or any rights occurring by virtue of this Agreement.
5.6 Amendments. To the extent permitted by law, this Agreement may
be amended only by a subsequent writing signed by all of the Parties.
5.7 Controlling Law; Integration; Waiver; Waiver of Trial by Jury.
(a) This Agreement and the transactions contemplated
hereby, and all disputes between the parties under or related to the Agreement
or the facts and circumstances leading to its execution, whether in contract,
tort or otherwise, shall be governed by and construed in accordance with the
Laws of the State of Delaware, without regard to the application of Delaware
principles of conflicts of laws.
(b) This Agreement supersedes all negotiations,
agreements and understandings among the Parties with respect to the subject
matter of this Agreement, constitutes the entire agreement among the Parties.
The failure of any Party at any time or times to require performance of any
provisions of this Agreement shall in no manner affect the right to enforce the
same.
(c) No waiver by any Party of any conditions, or of the
breach of any term, provision, warranty, representation, agreement or covenant
contained in this Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed or construed as a further or continuing waiver of any
such condition or breach of any other term, provision, warranty, representation,
agreement or covenant contained in this Agreement.
(d) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) 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 EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH
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WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
5.7(d).
5.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, and any such
prohibition or unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by law, the Parties waive any provision of law which renders any such
provision prohibited or unenforceable in any respect.
5.9 Further Assurances. Each Party shall execute and deliver such
additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
5.10 Additional Stockholders. The Parties agree that, from time to
time after the date hereof, additional Stockholders may be added as parties
hereto by executing a counterpart of this Agreement or an instrument, reasonably
acceptable to HPT, whereby such Stockholder shall join in and become a party to
this Agreement as a Stockholder and shall agree to be bound by and to perform
all obligations of a Stockholder hereunder, without in either case further
action by any Party. In each such event, the Schedules A and B shall be updated
to reflect information relating to such Stockholder.
5.11 Specific Performance. The Parties agree that the remedy at law
for any breach of this Agreement will be inadequate and that any Party by whom
this Agreement is enforceable shall be entitled to specific performance in
addition to any other appropriate relief or remedy. Such Party may, in its sole
discretion, apply to a court of competent jurisdiction for specific performance
or injunctive or such other equitable relief as such court may deem just and
proper in order to enforce this Agreement or prevent any violation hereof and,
to the extent permitted by applicable law, each Party waives any objection to
the imposition of such equitable relief on the basis that there is an adequate
remedy at law.
5.12 Several and Not Joint Obligations. The obligations of the
Stockholders under this Agreement are the several and not joint obligations,
each Stockholder has made an individual and separate decision relating to his
execution of this Agreement, and the Stockholders shall not by action of this
Agreement (i) be deemed to be acting in concert or as a "group" (within the
meaning of Section 13(d)(3) of the 1934 Act) or (ii) be deemed to have formed a
partnership or joint venture.
5.13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or the terms of this Agreement to
produce or account for more than one of such counterparts.
5.14 Declaration of Trust of HPT. The Declaration of Trust of HPT,
a copy of which is duly filed with the Department of Assessments and Taxation of
the State of Maryland, provides that the name "Hospitality Properties Trust"
refers to the trustees under such Declaration of Trust collectively as trustees,
but not individually or personally, and that no trustee, officer, stockholder,
employee or agent of HPT shall be held to any personal liability, jointly or
severally,
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for any obligation of, or claim against, HPT. All persons dealing with HPT in
any way shall look only to the assets of HPT for the payment of any sum or the
performance of any obligation.
5.15 Non-Recourse. Notwithstanding anything contained in this
Agreement to the contrary, it is expressly understood and agreed by the parties
hereto that each and every warranty, representation, covenant and agreement made
in this Agreement on the part of any of the Stockholders which is a corporation,
trust, partnership or limited liability company was not made or intended to be
made as a personal or individual warranty, representation, covenant or agreement
on the part of the incorporator or any stockholder (including any holder of
preferred stock of CHC), director, officer, trustee, member, manager, agent,
general or limited partner, past, present or future, of a Stockholder, and no
personal or individual liability or responsibility is assumed by and no recourse
at any time shall be asserted or enforced against, any such incorporator,
stockholder (including any holder of preferred stock of CHC), director, officer,
trustee, member, manager, agent, general or limited partner, past, present or
future, of such Stockholder, or any of them, all of such recourse, whether in
common law, in equity, by statute or otherwise) is hereby forever waived and
released, provided that for purposes of obtaining specific performance only and
for no other purpose whatsoever, this Agreement may be enforced against the
general partner of any Stockholder which is a limited partnership and provided
further that the provisions of this Section 5.15 shall have no application to
any Stockholder who is a natural person with respect to whom the warranties,
representations, covenants and agreements are personal and individual and
against whom there shall be recourse and individual liability and
responsibility.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties hereto had caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
Hospitality Properties Trust
By: /s/ John G. Murray
--------------------------------
Name: John G. Murray
Title: President
Six Continents Hotels, Inc.
By: /s/ Stevan D. Porter
--------------------------------
Name: Stevan D. Porter
Title: Chairman and President, The Americas
[Signature page to Voting Agreement]
STOCKHOLDER:
J.P. Morgan Partners (SBIC), LLC,
formerly known as
Chase Venture Capital Associates, L.P.
By: /s/ David Gilbert
--------------------------------
Name: David Gilbert
Title: Managing Director
[Signature page to Voting Agreement]
STOCKHOLDER:
JPMorgan Chase Bank, formerly known
as Morgan Guaranty Trust Company of
New York, as Trustee of the
Commingled Pension Trust Fund
(Multi-Market Special Investment
Fund II) of JPMorgan Chase Bank
By: /s/ Joan Huggins
---------------------------------
Name: Joan Huggins
Title: Vice President
[Signature page to Voting Agreement]
STOCKHOLDER:
JPMorgan Chase Bank, formerly known as Morgan
Guaranty Trust Company of New York, as Trustee
of the Multi-Market Special Investment Trust
Fund of JPMorgan Chase Bank
By: /s/ Joan Huggins
---------------------------------
Name: Joan Huggins
Title: Vice President
[Signature page to Voting Agreement]
STOCKHOLDER:
JPMorgan Chase Bank, formerly known as Morgan
Guaranty Trust Company of New York, as
Investment Manager and Agent for the Alfred P.
Sloan Foundation (Multi-Market Account)
By: /s/ Joan Huggins
---------------------------------
Name: Joan Huggins
Title: Vice President
[Signature page to Voting Agreement]
STOCKHOLDER:
Olympus Executive Fund, L.P.
By:
General Partner
By: /s/ Robert S. Morris
-------------------------
Name: Robert S. Morris
Title: Managing Member
[Signature page to Voting Agreement]
STOCKHOLDER:
Olympus Growth Fund II, L.P.
By:
General Partner
By: /s/ Robert S. Morris
---------------------------------
Name: Robert S. Morris
Title: Managing Member
[Signature page to Voting Agreement]
STOCKHOLDER:
Peck's Management Partners Ltd.
By: Peck's Management Partners
as Investment Manager and Agent
By: /s/ Robert J. Cresci
-------------------------
Name: Robert J. Cresci
Title: Managing Director
[Signature page to Voting Agreement]
STOCKHOLDER:
Equity-Linked Investors-II
By: Rohit M. Desai Associates-II
General Partner
By: /s/ Frank J. Pados
-------------------------
Name: Frank J. Pados
Title: Attorney-In-Fact
[Signature page to Voting Agreement]
STOCKHOLDER:
Private Equity Investors III, L.P.
By: Rohit M. Desai Associates-II
General Partner
By: /s/ Frank J. Pados
-------------------------
Name: Frank J. Pados
Title: Attorney-In-Fact
[Signature page to Voting Agreement]
STOCKHOLDER:
MONY Life Insurance Company
By: J. ROMEO & CO. as nominee
for MONY Life Insurance Company
By: /s/ Raymond Duffy
---------------------------------
Name: Raymond Duffy
Title: A Partner
[Signature page to Voting Agreement]
STOCKHOLDER:
Jack P. DeBoer
/s/ Jack P. DeBoer
----------------------------------------
Jack P. DeBoer
[Signature page to Voting Agreement]
STOCKHOLDER:
Arbor Lake Club, Ltd.
By: Lennar Commercial Properties, Inc.,
its General Partner
By: /s/ Jeffrey P. Krasnoff
----------------------------------
Name: Jeffrey P. Krasnoff
Title: President
[Signature page to Voting Agreement]
SCHEDULE A
STOCKHOLDER ADDRESS
----------- -------
J.P. Morgan Chase Partners (SBIC), LLC, formerly J.P. Morgan Partners
known as Chase Venture Capital Associates, L.P. 1221 Avenue of the Americas, 40th Floor
New York, New York 10020
JP Morgan Chase Bank, formerly known as Morgan JPMorgan Chase
Guaranty Trust Bank Company of New York, as Trustee of 270 Park Avenue
the Commingled Pension Trust Fund (Multi-Market New York, New York 10017
Special Investment Fund II) of JPMorgan Chase Bank
JPMorgan Chase Bank, formerly known as Morgan JPMorgan Chase Bank
Guaranty Trust Company of New York, as Trustee of 270 Park Avenue
the Multi-Market Special Investment Trust Fund of New York, New York 10017
JPMorgan Chase Bank
JPMorgan Chase Bank, formerly known as Morgan Guaranty Trust JPMorgan Chase Bank
Company of New York, as Investment Manager and Agent for the 270 Park Avenue
Alfred P. Sloan Foundation (Multi-Market Account) New York, New York 10017
Olympus Executive Fund, L.P. Olympus Partners
Metro Center, One Station Place
Stamford, Connecticut 06902
Olympus Growth Fund II, L.P. Olympus Partners
Metro Center, One Station Place
Stamford, Connecticut 06902
Peck's Management Partners, Ltd. (Peck's Peck's Management Partners, Ltd.
Management Partners as Investment Manager and Agent) One Rockefeller Plaza
New York, New York 10020
MONY Life Insurance Company MONY Life Insurance Company
1740 Broadway
New York, New York 10019
Equity-Linked Investors-II Desai Capital Management Incorporated
410 Park Avenue
New York, New York 10022
Private Equity Investors III, L.P. Desai Capital Management Incorporated
410 Park Avenue
New York, New York 10022
Jack P. DeBoer Candlewood Hotel Company, Inc.
8621 E. 21st Street North
Suite 200
Wichita, Kansas 67206
Arbor Lake Club, Ltd. c/o LNR Property Corporation
1601 Washington Avenue, Suite 800
Miami Beach, Florida 33139
SCHEDULE B
SERIES A SERIES B OPTIONS/
STOCKHOLDER COMMON STOCK PREFERRED PREFERRED WARRANTS
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J.P. Morgan Partners (SBIC), LLC, 7,000
formerly known as
Chase Venture Capital Associates, L.P.
JP Morgan Chase Bank, formerly known as Morgan 7,000
Guaranty Trust Company of New York, as Trustee of
the Commingled Pension Trust Fund (Multi-Market
Special Investment Fund II) of JPMorgan Chase Bank
JPMorgan Chase Bank, formerly known as Morgan 1,500
Guaranty Trust Company of New York, as Trustee of
the Multi-Market Special Investment Trust Fund of
JPMorgan Chase Bank
JPMorgan Chase Bank, formerly known as Morgan 1,500
Guaranty Trust Company of New York, as Investment
Manager and Agent for the Alfred P. Sloan
Foundation (Multi-Market Account)
Olympus Executive Fund, L.P. 100 49 392
Olympus Growth Fund II, L.P. 9,900 4,841 38,728
Peck's Management Partners, Ltd. (Peck's 7,000 7,900 63,200
Management Partners as Investment Manager and
Agent)
MONY Life Insurance Company 3,250 3,000 24,000
Equity-Linked Investors-II 3,500 12,000 96,000
Private Equity Investors III, L.P. 3,500 12,000 96,000
Jack P. DeBoer 2,271,099 1,000 275,000
Arbor Lake Club, Ltd. 7,000
Total: 2,271,099 52,250 39,790 593,320