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Exhibit 9.1
VOTING AGREEMENT
This Voting Agreement (the "AGREEMENT") is entered into as of
December 20, 2001, by and among American Residential Investment Trust, Inc., a
Maryland corporation (the "COMPANY"), MDC REIT Holdings, LLC, a Delaware limited
liability company ("HOLDINGS"), Home Asset Management Corp., a Delaware
corporation ("HAMCO") and John M. Robbins, Jr. ("ROBBINS"). The Company,
Holdings, HAMCO and Robbins are collectively referred to herein as the
"PARTIES."
RECITALS
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, the Company, HAMCO and Holdings are entering into that certain
Termination and Release Agreement (the "TERMINATION AND RELEASE AGREEMENT").
WHEREAS, HAMCO is the managing member of Holdings.
WHEREAS, Robbins and Holdings are stockholders of the Company.
WHEREAS, a condition precedent to the closing of the
transactions contemplated by the Termination and Release Agreement is the
execution and delivery of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual
representations, warranties, undertakings and covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties agree as follows:
ARTICLE I
VOTING OF SHARES
1.1 AGREEMENT TO VOTE. Holdings, HAMCO, Robbins and any entity to
whom Holdings, HAMCO or Robbins transfer any Shares (as defined in Section 1.2)
will at any meeting of the stockholders of the Company and on any solicitation
of written consents of the stockholders of the Company, vote the Shares in favor
of any motion or proposition that is made solely to (i) revoke the Company's
election to be a real estate investment trust or "REIT" under the Internal
Revenue Code of 1986, as amended (the "CODE") and (ii) amend the Company's
Articles of Amendment and Restatement ("ARTICLES") and Bylaws to remove all
provisions that (a) restrict the acquisition and transfer of shares of the
Company's common stock and are designed to preserve the Company's status as a
REIT under the Code, and (b) provide special rights, preferences and privileges
to Crescent (as defined in the Articles) or the holders of the Senior Secured
Notes (as defined in the Articles), and (c) make references to Crescent or the
Senior Secured Notes.
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1.2 SHARES. "Shares" shall mean 1,600,000 shares of common stock
of the Company owned by Holdings on the date hereof and 8,000 shares of common
stock of the Company owned by Robbins on the date hereof. In the event of a
stock dividend or distribution, or any change in the capital stock of the
Company by reason of any stock dividend or distribution, or any change in the
capital stock of the Company by reason of any split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall be deemed
to refer to and include the Shares as well as all such stock dividends and
distributions and any securities into which or for which any or all of the
Shares may be changed or exchanged or which are received in such transaction.
1.3 PROXY. Concurrently with the delivery of this Agreement,
Holdings agrees to deliver to the Company a proxy in the form attached hereto as
EXHIBIT A (the "PROXY"), which shall be irrevocable to the fullest extent
permissible by law but subject to termination as stated therein, with respect to
the Shares.
1.4 LIMITATIONS ON SALES. During the term of this Agreement,
Holdings, HAMCO and Robbins agree not to sell, assign, transfer, loan, tender,
pledge, hypothecate, exchange, encumber or otherwise dispose of, or issue an
option or call with respect to, any of the Shares or impair the Shares or cause
any of the foregoing to occur; PROVIDED, HOWEVER, that Holdings, HAMCO and
Robbins may sell or otherwise dispose of any of the Shares if the transferee of
such Shares agrees to be bound by and subject to the terms and conditions of
this Agreement as if such transferee had executed this Agreement on the date
hereof.
ARTICLE II
MISCELLANEOUS PROVISIONS
2.1 TERM. This Agreement and the proxy described in Section 1.3
hereof shall each expire and be of no further force and effect upon the earlier
of (i) the cessation of the Company's next meeting of stockholders and any
postponement or adjournment thereof (annual or special) held after December 31,
2001, and (ii) August 15, 2002.
2.2 SPECIFIC PERFORMANCE. The Parties agree that in the event that
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached, damages would be difficult to
measure. 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.
2.3 LEGEND. Holdings, HAMCO and Robbins agree that the reverse
side of each stock certificate evidencing the Shares shall bear an endorsement
(which shall be made conspicuous by using capital letters, bold-face or
contrasting type, underlining or by similar means) in substantially the
following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A
VOTING AGREEMENT, A COPY OF WHICH HAS BEEN DEPOSITED WITH THE
COMPANY AT ITS
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PRINCIPAL OFFICE AND WILL BE PROVIDED TO THE HOLDER HEREOF
UPON REQUEST. THE VOTING AGREEMENT EXPIRES ON THE EARLIER TO
OCCUR OF (X) THE CESSATION OF THE COMPANY'S NEXT MEETING OF
STOCKHOLDERS AND ANY ADJOURNMENT OR POSTPONEMENT THEREOF
(ANNUAL OR SPECIAL) HELD AFTER DECEMBER 31, 2001, AND (Y)
AUGUST 15, 2002."
The Company consents and agrees to the placement of such a legend on
certificates evidencing the Shares and agrees to endorse the foregoing legends
on such certificates and to notify any potential transferee of the Shares of the
existence and terms of this Agreement.
In no event shall such legend be allowed to remain on the Shares
following the expiration of the term of this Agreement. The Company consents and
agrees to the removal of such legend immediately upon the expiration of the term
of this Agreement.
2.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without giving
effect to the choice of law principles thereof.
2.5 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
2.6 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and its successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
2.7 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 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 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.
2.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
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2.9 INTERPRETATION.
(a) The words "hereof," "herein," 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, and article,
section, paragraph, exhibit, and schedule references are to the articles,
sections, paragraphs, exhibits, and schedules of this Agreement unless otherwise
specified. Whenever the words "include," "includes," or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." All terms defined in this Agreement shall have the defined meanings
contained herein when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms. Any agreement, instrument, or statute defined or referred
to herein or in any agreement or instrument that is referred to herein means
such agreement, instrument, or statute as from time to time, amended, qualified
or supplemented, including (in the case of agreements and instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor
statutes and all attachments thereto and instruments incorporated therein.
References to a person are also to its permitted successors and assigns.
(b) The phrases "the date of this Agreement," "the date
hereof," and terms of similar import, unless the context otherwise requires,
shall be deemed to refer to the date first set forth above.
(c) 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 of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement.
2.10 NOTICES. All notices, requests, instructions or other
documents to be given under this Agreement shall be in writing and shall be
deemed given, (i) five business days following sending by registered or
certified mail, postage prepaid, (ii) when sent if sent by facsimile; PROVIDED,
HOWEVER, that the facsimile is promptly confirmed by telephone confirmation
thereof, (iii) when delivered, if delivered personally to the intended
recipient, and (iv) one business day following sending by overnight delivery via
a national courier service, and in each case, addressed to a party at the
following address for such party:
if to Company or
Robbins, to: American Residential Investment Trust, Inc.
445 Marine View Avenue, Suite 230
Del Mar, California 92014
Attention: Chief Financial Officer
Fax: (858) 350-6484
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with a copy to: Gray Cary Ware & Freidenrich LLP
4365 Executive Drive, Suite 1100
San Diego, California 92121-2133
Attention: Christopher M. Smith, Esq.
Facsimile: (858) 677-1477
if to Holdings, to: MDC Reit Holdings, LLC
11100 Santa Monica Blvd., Suite 2000
Los Angeles, California 90025
Attention: President
Facsimile: (310) 235-5967
with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
34th Floor
Los Angeles, California 90071
Attention: Jeffrey H. Cohen, Esq.
Facsimile: (213) 687-5600
if to HAMCO, to: Home Asset Management Corp.
11100 Santa Monica Blvd., Suite 2000
Los Angeles, California 90025
Attention: President
Facsimile: (310) 235-5967
with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
34th Floor
Los Angeles, California 90071
Attention: Jeffrey H. Cohen, Esq.
Facsimile: (213) 687-5600
or to such other address or facsimile number as the person to
whom notice is given may have previously furnished to the other in writing in
the manner set forth above.
2.11 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the Parties hereto in respect of the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties in respect of the subject matter hereof.
2.12 ATTORNEYS' FEES. In the event of any Action at law or in
equity in relation to this Agreement, the prevailing party in such Action shall
be entitled to receive its reasonable attorneys' fees and all other costs and
expenses of such Action. For purposes of this Section
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2.12, "Action" means any action, appeal, petition, plea, charge, complaint,
claim, suit, demand, litigation, arbitration, mediation, hearing, inquiry,
investigation or similar event, occurrence, or proceeding at law or at equity.
2.13 SUCCESSORS IN INTEREST OF HOLDINGS, HAMCO AND ROBBINS. The
provisions of this Agreement shall be binding upon the successors in interest of
Holdings, HAMCO and Robbins to any of the Shares. The Company shall not permit
the transfer of any of the Shares on its books or issue a new certificate
representing any of the Shares unless and until the person to whom such security
is to be transferred shall have executed a written agreement, satisfactory in
form and substance to the Company, pursuant to which such person becomes a party
to this Agreement and agrees to be bound by all the provisions hereof as if such
person was a Party hereto.
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IN WITNESS WHEREOF, the parties have executed this Voting
Agreement as of the date first set forth above.
COMPANY:
American Residential Investment Trust, Inc.
By: /s/ John M. Robbins, Jr.
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Name: John M. Robbins, Jr.
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Title: Chairman of the Board and Chief
Executive Officer
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Address: 445 Marine View Avenue, Suite 230
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Del Mar, CA 92014
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ROBBINS:
/s/ John M. Robbins, Jr.
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John M. Robbins, Jr.
HOLDINGS:
MDC REIT HOLDINGS, LLC
By: Home Asset Management Corp., its
managing member
By: /s/ George E. McCown
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Name: George E. McCown
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Title: Chairman of the Board and President
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Address:
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HAMCO:
Home Asset Management Corp.
By: /s/ George E. McCown
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Name: George E. McCown
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Title: Chairman of the Board and President
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Address:
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EXHIBIT A
IRREVOCABLE PROXY
MDC REIT Holdings, LLC, a Delaware limited liability company
("HOLDINGS") and a stockholder of American Residential Investment Trust, Inc., a
Maryland corporation (the "COMPANY"), hereby irrevocably (to the fullest extent
permitted by law), but subject to the termination provisions hereof, appoints
the Company, as the sole and exclusive attorney and proxy of the undersigned,
with full power of substitution and resubstitution, to vote and exercise all
voting and related rights (to the full extent that the undersigned is entitled
to do so) with respect to all of the shares of the Company that now are
beneficially owned by the undersigned, and any and all other shares or
securities of the Company issued or issuable in respect thereof on or after the
date hereof (collectively, the "SHARES"), but solely in accordance with the
terms of this Proxy. The Shares beneficially owned by Holdings as of the date of
this Proxy are 1,600,000 shares of the Company's common stock. Upon the
undersigned's execution of this Proxy, any and all prior proxies given by the
undersigned with respect to such Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to the Shares and the
matters set forth in the third paragraph hereof.
This Proxy is irrevocable (to the fullest extent permitted by law),
subject to the termination provisions hereof, is coupled with an interest and is
granted pursuant to that certain Voting Agreement of even date herewith by and
between the Company, Holdings, HAMCO and Robbins (HAMCO and Robbins, as defined
in the Voting Agreement) (the "VOTING AGREEMENT"), and is granted in
consideration of the Company's execution and delivery of the Termination and
Release Agreement (as defined in the Voting Agreement).
The Company is hereby authorized and empowered by the undersigned,
subject to the termination provisions in Section 2.1 of the Voting Agreement, to
act as the undersigned's attorney and proxy to vote the Shares, and to exercise
all voting, consent and similar rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents) at every annual, special or adjourned meeting of stockholders of the
Company and in every written consent in lieu of such meeting, in favor of any
motion or proposition that is made solely to (i) terminate the Company's status
as a real estate investment trust or "REIT" under the Internal Revenue Code of
1986, as amended (the "CODE"), and (ii) amend the Company's Articles of
Amendment and Restatement ("ARTICLES") and Bylaws to remove all provisions that
(a) restrict the acquisition and transfer of shares of the Company's common
stock and are designed to preserve the Company's status as a REIT under the
Code, (b) provide special rights, preferences and privileges to Crescent (as
defined in the Articles) or the holders of the Senior Secured Notes (as defined
in the Articles), and (c) make reference to Crescent and the Senior Secured
Notes.
The Company may not exercise this Proxy on any other matter except as
provided above. The undersigned (or other owner of the Shares) may vote the
Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
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This Proxy, and all obligations of the undersigned hereunder, shall
terminate immediately, without any further action being required, upon any
termination of the Voting Agreement.
Dated: December 20, 2001
MDC REIT Holdings, LLC
By: /s/ George E. McCown
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Name: George E. McCown
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Title: Chairman of the Board and President
of Home Asset Management Corp., its
General Partner
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Address:
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[SIGNATURE PAGE TO IRREVOCABLE PROXY]
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