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Exhibit 4
VOTING AGREEMENT
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This Voting Agreement (this "AGREEMENT") is entered into as of
September 12, 2000 by and among Apollo Real Estate Investment Fund, L.P., a
Delaware limited partnership ("APOLLO"), Blackacre WPH, LLC, a Delaware limited
liability company ("BLACKACRE"), Highridge Pacific Housing Investors, L.P., a
California limited partnership ("HIGHRIDGE"), The James and Patricia Schuler
Foundation, a Hawaii non-profit corporation (the "FOUNDATION"), and James K.
Schuler, as sole trustee for the James K. Schuler Revocable Living Trust and the
James K. Schuler 1998 Qualified Annuity Trust (collectively with the Foundation,
"JAMES SCHULER").
RECITALS
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A. Concurrently with the execution and delivery of this Agreement, Schuler
Homes, Inc., a Delaware corporation (the "COMPANY") and the Apollo, Blackacre,
Highridge, AP WP Partners, L.P., a Delaware limited partnership, AP Western GP
Corporation, a Delaware corporation, API LHI, Inc., a California corporation,
and Lamco Housing, Inc., a California corporation, have entered into an
Agreement and Plan of Reorganization (the "REORGANIZATION AGREEMENT"), dated the
date hereof, providing for, among other things, the Reorganization.
B. James Schuler is the record and beneficial owner of 10,433,828 shares of the
issued and outstanding shares of common stock, par value $0.01 per share, of the
Company (as used herein, the "SHARES" shall refer to the shares of the Company
owned by Schuler).
C. In order to induce the parties to the Reorganization Agreement to enter into
the Reorganization Agreement, James Schuler has agreed to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of representations,
covenants and agreements contained herein, the parties hereto agree as follows:
AGREEMENT
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1. AGREEMENT TO VOTE.
James Schuler shall, during the term of this Agreement, at any
meeting of the stockholders of the Company, however called, or in connection
with any written consent of the stockholders of the Company, vote (or cause to
be voted) all the Shares in favor of (a) the execution and delivery by the
Company of the Reorganization Agreement and the approval and adoption of the
Reorganization Agreement, the related agreement of merger and the transactions
contemplated thereby; (b) against any action or agreement that would result in a
breach in any material respect of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Reorganization
Agreement or this Agreement; (c) against any action which could reasonably be
expected to impede, interfere with, delay, postpone, discourage or materially
adversely affect the transactions contemplated by the Reorganization Agreement.
James Schuler shall not enter into any agreement or understanding, whether oral
or written, with any person or
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entity prior to the termination of this Agreement to vote the Shares, or take
any action by written consent, in any manner inconsistent with clauses (a), (b)
or (c) of the preceding sentence.
2. CERTAIN RESTRICTIONS.
During the term of this Agreement, James Schuler shall not
solicit, consider, encourage or accept any inquiries, proposals or offers to
acquire, or offer or sell, or agree to sell, any of the Shares or assist any
third Person in preparing or soliciting such an inquiry, proposal or offer.
James Schuler shall not have any discussions, conversations, negotiations or
other communication with, or provide any information or data to, any Person
expressing an interest in making or effecting any such inquiry, proposal or
offer. James Schuler shall not, directly or indirectly: (a) transfer, tender,
pledge, encumber, assign or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to or consent to the
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
of the Shares or any interest therein; (b) take any action that would have the
effect of preventing or disabling James Schuler from performing his obligations
under this Agreement; or (c) otherwise take any action which, in the ordinary
course, would result in the occurrence of a "Change of Control" within the
meaning of the Senior Notes Indenture or a "Risk Event" within the meaning of
the Subordinated Debentures Indenture.
As used in the preceding paragraph, "SENIOR NOTES INDENTURE"
means the Indenture, dated as of May 6, 1998, by and between the Company and
U.S. Trust Company of California, N.A., as trustee, pursuant to which the
Company's currently outstanding 9% Senior Notes, due 2008, were issued and
"SUBORDINATED DEBENTURES INDENTURE" means the Indenture, dated as of January 15,
1993, by and between the Company and Pacific Century Trust, as successor trustee
to Bishop Trust Company, Limited, pursuant to which the Company's currently
outstanding 6.5% Convertible Subordinated Debentures, due 2003, were issued.
3. AGREEMENT ATTACHED TO SHARES.
This Agreement and James Schuler's obligations hereunder shall
attach to the Shares and shall be binding upon any Person to whom or which legal
or beneficial ownership of such Shares shall pass, whether by operation of law
or otherwise, including without limitation his heirs, guardians, administrators
or successors.
4. TERMINATION.
This Agreement shall terminate on the earlier of (a) the
Effective Time or (b) termination of the Reorganization Agreement pursuant to
Section 11.1 thereof.
5. MISCELLANEOUS.
(a) NOTICES. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered or mailed if delivered personally or by
recognized overnight delivery service or mailed by
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registered or certified mail (postage prepaid, return receipt requested), or
sent by facsimile transmission (confirmation received) to the parties at the
following addresses and facsimile transmission numbers (or at such other address
or number for a party as shall be specified by like notice), except that notices
after the giving of which there is a designated period within which to perform
an act and notices of changes of address or number shall be effective only upon
receipt:
(i) if to James Schuler:
James K. Schuler
c/o Schuler Homes, Inc.
828 Fort Street Mall, 4th Floor
Honolulu, Hawaii 96813
Facsimile No.: (808) 524-8927
with a copy to:
Richard V. Smith, Esq.
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
Facsimile No.: (415) 773-5759
(ii) if to Apollo, Blackacre or Highridge:
Eugene Rosenfeld
c/o Western Pacific Housing
300 Continental Boulevard, Suite 390
El Segundo, California 90246
Facsimile No.: (310) 414-0514
AND
Rick Koenigsberger
Apollo Real Estate Advisors
1301 Avenue of the Americas, 38th Floor
New York, New York 10019
Facsimile No.: (212) 515-3282
AND
Ronald J. Kravit
Blackacre WPH, LLC
450 Park Avenue, 28th Floor
New York, New York 10022
Facsimile No.: (212) 891-2103
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with a copy to:
Peter P. Wallace, Esq.
Morgan, Lewis & Bockius LLP
300 S. Grand Avenue, 22nd Floor
Los Angeles, California 90071
Facsimile No.: (213) 612-2554
AND
Stuart D. Freedman, Esq.
Schulte, Roth & Zabel LLP
900 3rd Avenue
New York, New York 10022
Facsimile No.: (212) 832-4169
(b) INTERPRETATION. Capitalized terms used herein which are
not defined herein shall have the meanings assigned to them in the
Reorganization Agreement. When a reference is made in this Agreement to a
Section and subsection, such reference shall be to a Section or subsection to
this Agreement unless otherwise indicated. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation." The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The words "herein" and "hereby" and similar
references mean, except where a specific Section reference is expressly
indicated, the entire Agreement rather than any specific Section. All
capitalized terms defined herein are equally applicable to both the singular and
plural forms of such terms.
(c) SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall 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 greatest
extent possible.
(d) ASSIGNMENT. This Agreement may not be assigned by
operation of law or otherwise.
(e) NO THIRD-PARTY BENEFICIARIES. This Agreement is for the
sole benefit of the parties hereto and nothing herein expressed or implied shall
give or be construed to give to any Person, other than the parties hereto, any
legal or equitable rights or remedies hereunder.
(f) AMENDMENTS. This Agreement may not be amended or modified
except by an instrument in writing signed by all of the parties hereto.
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(g) FURTHER ASSURANCES. Each party agrees to cooperate fully
with the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by any other party to evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents and purposes
of this Agreement.
(h) MUTUAL DRAFTING. This Agreement is the joint product of
the parties hereto and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of the parties hereto and shall not be
construed for or against any party hereto.
(i) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Delaware
applicable to agreements made and to be performed entirely within such State
(without giving effect to such State's choice of law principles).
(j) INJUNCTION. Notwithstanding any other provision of this
Agreement, each party acknowledges and agrees that irreparable damage would
occur in the event any of the provisions, of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties hereto shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in either the Delaware
Chancery Court or the United States District Court for Delaware.
(k) DISPUTE RESOLUTION. Except as otherwise provided in
subsection 5(j) above, any dispute, controversy or claim among the parties
relating to, arising out of or in connection with this Agreement (or any
subsequent agreements or amendments thereto), including as to its existence,
enforceability, validity, interpretation, performance or breach or as to
indemnification or damages, including claims in tort, whether arising before or
after the termination of this Agreement, shall be settled without litigation and
only by use of the alternative dispute resolution procedure set forth in Section
12.13 of the Reorganization Agreement. Subsections (a) through (d) of Section
12.13 of the Reorganization Agreement are hereby incorporated herein, except
that the parties thereunder shall be deemed to be the LLC, Apollo, Blackacre,
Highridge and James Schuler.
(l) CONSENT TO JURISDICTION; WAIVERS. Each of the parties
hereto irrevocably submits to the exclusive jurisdiction of (i) the Delaware
Chancery Court, and (ii) the United States District Court for Delaware, for the
purposes of either an injunction action or confirming, modifying or vacating any
alternative dispute resolution award provided in accordance with subsection 5(k)
above ("AWARD ACTION"). Each of the parties agrees to commence any Award Action
relating hereto either in the United States District Court for Delaware or if
such Award Action may not be brought in such court for jurisdictional reasons,
in the Delaware Chancery Court. Each of the parties further agrees that service
of any process, summons, notice or document by U.S. registered mail to such
party's respective address set forth in subsection 5(a) above shall be effective
service of process for any Award Action in Delaware with respect to any matters
to which it has submitted to jurisdiction in this subsection 5(l). Each of the
parties irrevocably and unconditionally waives any objection to the laying of
venue of any Award Action arising out of this Agreement in the Delaware Chancery
Court or the United States District Court for Delaware, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such
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court that any such Award Action brought in any such court has been brought
in an inconvenient forum.
(m) WAIVER OF JURY TRIAL. Each party hereto irrevocably and
unconditionally waives trial by jury in any Action relating to this Agreement,
any transaction contemplated hereby, and for any counterclaim with respect
thereto.
(n) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
(o) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written and
oral, among the parties hereto with respect to the subject matter hereof.
[Signature Page Follows]
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The parties have executed this Agreement as of the date first above written.
APOLLO REAL ESTATE INVESTMENT FUND,
L.P., a Delaware limited partnership
By: APOLLO REAL ESTATE ADVISORS, L.P.,
a Delaware limited partnership,
Its General Partner
By: APOLLO REAL ESTATE MANAGEMENT, INC.,
a Delaware corporation,
Its General Partner
By: /s/ MICHAEL D. WEINER
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Michael D. Weiner
Its Vice President
BLACKACRE WPH, LLC,
a Delaware limited liability company
By: BLACKACRE CAPTIAL GROUP, L.P.,
a Delaware limited partnership,
Its Managing Member
By: BLACKACRE CAPTIAL MANAGEMENT CORP.,
a Connecticut corporation,
Its General Partner
By: /s/ RONALD J. KRAVIT
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Ronald J. Kravit
Its Vice President
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HIGHRIDGE PACIFIC HOUSING INVESTORS,
L.P., a California limited partnership
By: WPH ACQUISITIONS, INC.,
a California corporation,
Its General Partner
By: /s/ STEVEN A. BERLINGER
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Steven A. Berlinger
Its CFO and Secretary
THE JAMES AND PATRICIA SCHULER FOUNDATION,
a Hawaii non-profit corporation
By: /s/ JAMES K. SCHULER
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Name: James K. Schuler
Title: Chairman
JAMES K. SCHULER, as sole trustee for the
James K. Schuler Revocable Living Trust
and the James K. Schuler 1998 Qualified
Annuity Trust
By: /s/ JAMES K. SCHULER
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Name: James K. Schuler
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