EXHIBIT 59
VOTING AGREEMENT
BY AND BETWEEN
WXI/Z SOUTHWEST MALLS
REAL ESTATE LIMITED PARTNERSHIP
AND
A SHAREHOLDER OF
FIRST UNION REAL ESTATE
EQUITY AND MORTGAGE INVESTMENTS
DATED AS OF JULY 14, 1999
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of July 14, 1999 (the "Agreement"), is
made by and between WXI/Z Southwest Malls Real Estate Limited Partnership,
a Delaware limited partnership ("Southwest") and Gotham Partners, L.P.,
Gotham Partners III, L.P. and Gotham Partners International, Ltd.
(collectively, the "Shareholder").
Southwest, First Union Real Estate Equity and Mortgage Investments, a
trust organized under the laws of Ohio (the "Company") and Southwest
Shopping Centers Co. II, L.L.C., a Delaware limited liability company and a
wholly-owned subsidiary of the Company ("Sub"), are parties to a Purchase
and Sale Agreement, dated as of the date hereof (the "Purchase and Sale
Agreement"), pursuant to which Southwest has agreed, subject to the terms
and conditions set forth in the Purchase and Sale Agreement, to purchase
certain properties (the "Properties") from Sub (the "Sale"). The
Shareholder is a shareholder of the Company and has the voting power with
respect to the number of shares of beneficial interest, par value $1.00 per
Share, of the Company (collectively "Company Common Shares") set forth
below the Shareholder's signature hereto (the "Shares"). Capitalized terms
not otherwise defined herein shall have the respective meanings set forth
in the Purchase and Sale Agreement.
In order to induce Southwest to enter into the Purchase and Sale
Agreement and to provide reasonable assurances that the transactions
contemplated by the Purchase and Sale Agreement will be consummated, the
Shareholder is making certain agreements regarding the Shares upon the
terms and subject to the conditions set forth below.
Accordingly, the parties hereto agree as follows:
1. Voting of Shares.
(a) From and after the date of this Agreement and ending as of
the first to occur of the Closing or the termination of this Agreement, at
any meeting of the holders of Company Common Shares, however called, or in
any other circumstance upon which the vote, consent or other approval of
holders of Shares is sought, the Shareholder shall vote or cause to be
voted (including by written consent, if applicable) all of the issued and
outstanding Shareholder's Shares entitled to vote thereon, (i) in favor of
the Sale pursuant to the Purchase and Sale Agreement and each of the other
actions contemplated by the Purchase and Sale Agreement and this Agreement
and any actions required in furtherance thereof and hereof, (ii) against
any action or agreement that would result in a breach in any material
respect of any covenant, representation or warranty or any other material
obligation or agreement of the Company under the Purchase and Sale
Agreement or this Agreement and (iii) against any sale of any of the
Properties to any party other than Southwest.
(b) The Shareholder hereby appoints Southwest its proxy, with
full power of substitution and revocation, for and in the name, place and
stead of the Shareholder, to vote upon and act with respect to all of the
Company Common Shares registered in the name of the Shareholder or with
respect to which the Shareholder is entitled to vote and act only in
respect of the Sale (as described in the Purchase and Sale Agreement) at
any Company shareholders' meeting called to consider the Sale, or at any
adjournment of such meeting, and the Shareholder directs that such proxy be
voted in favor of the Sale pursuant to the Purchase and Sale Agreement.
This proxy does not accord any voting rights to Southwest other than the
right to vote in favor of the Sale pursuant to the Purchase and Sale
Agreement; Southwest shall not have the right under this proxy to vote on
any other matter that may be presented to the Company shareholders. The
Shareholder has not heretofore granted any proxy or proxies to vote upon or
act with respect to the Sale. Additionally, the Shareholder hereby ratifies
and confirms all that said proxy, its substitutes, or any of them, may
lawfully do by virtue hereof. This proxy shall be irrevocable and shall
survive the bankruptcy, merger, dissolution or liquidation of the
Shareholder, unless terminated pursuant to the terms hereof. In the event
that the shareholders of the Company take action to approve the Sale
pursuant to the Purchase and Sale Agreement by written consent in lieu of a
meeting of shareholders, the Shareholder will execute such consent and
provide a copy to Southwest. In addition to the other covenants and
agreements of the Shareholder provided for elsewhere in this Agreement, the
Shareholder shall not enter into any agreement or understanding with any
person or entity the effect of which would be inconsistent with or violate
the provisions and agreements contained in this Section 1.
2. Acquisition of Company Securities. The Shareholder agrees that any
Company Common Shares that the Shareholder purchases or with respect to
which the Shareholder otherwise acquires beneficial ownership after the
date of this Agreement and prior to the Closing shall be subject to the
terms and conditions of this Agreement, and shall be subject to the proxy
granted to Southwest under Section 1, to the same extent as if they
constituted Shares held by the Shareholder at the time the proxy was
granted.
3. Covenants, Representation and Warranties of the Shareholder. The
Shareholder hereby covenants, represents and warrants to Southwest that:
(a) The Shareholder is the beneficial owner of the number of
Shares listed below the Shareholder's signature hereto, no person has a
right to acquire or direct the disposition, or holds a proxy or other right
to vote or direct the vote, of such Shares, and such Shares constitute all
of the Company Common Shares that are beneficially owned by the
Shareholder. Other than this Agreement, there is no option, warrant, right,
call, proxy, agreement, commitment or understanding of any nature
whatsoever, fixed or contingent, that directly or indirectly (i) calls for
the sale, pledge or other transfer or disposition of any of such
Shareholder's Shares, any interest therein or any rights with respect
thereto, or relates to the voting, disposition or control of such Shares
(except under pledge agreements with commercial lenders, copies of which
have been furnished to Southwest), or (ii) obligates such Shareholder to
grant, offer or enter into any of the foregoing and the Shareholder will
not enter into any of the foregoing until the earlier of the Closing or the
termination of this Agreement unless such action complies with Section 3(c)
hereof.
(b) The Shareholder has the full right, power, authority and
legal capacity to enter into this Agreement, and this Agreement has been
duly and validly executed and delivered by such Shareholder and, assuming
the due authorization, execution and delivery by Southwest, constitutes a
valid and binding obligation of such Shareholder, enforceable against such
Shareholder in accordance with its terms.
(c) The Shareholder will not sell, dispose of or otherwise
transfer any Shares unless the purchaser, recipient or transferee (as the
case may be) executes and delivers to Southwest an agreement in the form
hereof.
(d) The Shareholder will not take any action that could
reasonably be expected to have the effect of preventing or disabling the
Shareholder from performing the Shareholder's obligations under this
Agreement.
(e) No filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for
the execution of this Agreement by the Shareholder and the consummation by
the Shareholder of the transactions contemplated hereby, except where the
failure to make such filing or obtain such permit, authorization, consent
or approval would not interfere in any material respect with the
Shareholder's ability to perform its obligations hereunder, and none of the
execution and delivery of this Agreement by the Shareholder, the
consummation by the Shareholder of the transactions contemplated hereby or
compliance by the Shareholder with any of the provisions hereof shall (i)
result in a violation or breach of, or constitute (with or without notice
or lapse of time or both) a default (or give rise to any third party right
of termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which the
Shareholder is a party or by which the Shareholder or any of its properties
or assets may be bound, or (ii) violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to the
Shareholder or any of its properties or assets, in each such case except to
the extent that any conflict, breach, default or violation would not
interfere in any material respect with the ability of the Shareholder to
perform its obligations hereunder.
(f) From time to time, at Southwest's request and without further
consideration, the Shareholder shall execute and deliver such additional
documents reasonably requested by Southwest as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
4. Representations and Warranties of Southwest. Southwest represents
and warrants that:
(a) It has the corporate power to execute, deliver and perform
this Agreement and to consummate the transactions contemplated hereby.
(b) It has taken all corporate action necessary to authorize its
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby; and this Agreement has been duly
and validly executed and delivered by Southwest and constitutes a valid and
binding obligation of Southwest.
5. Recapitalization. In the event of a stock dividend or distribution,
or any change in the Shares (or any class thereof) by reason of any
split-up, recapitalization, combination, exchange of shares or the like,
the term "Shares" shall include, without limitation, all such stock
dividends and distributions and any shares into which or for which any or
all of the Shares (or any class thereof) maybe changed or exchanged as may
be appropriate to reflect such event.
6. Shareholder Capacity. No member, manager, officer, director,
employee, principal or stockholder of the Shareholder makes any agreement
or understanding herein, in his capacity as a trustee or officer of the
Company, and nothing herein shall limit or affect any action taken by any
such person in such capacity.
7. Benefit and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns.
8. Headings. The headings of this Agreement are for the convenience of
the parties only, and shall be given no substantive or interpretative
effect whatsoever.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
rules of conflict of laws. Each of the parties hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the
courts of the State of New York and of the United States of America located
in the City of New York (the "New York Courts") for any litigation arising
out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto except
in such courts), waives any objection to the laying of venue of any such
litigation in the New York Courts and agrees not to plead or claim in any
New York Court that such litigation brought therein has been brought in an
inconvenient forum.
10. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
11. Enforcement of Agreement. Each of the parties hereto recognizes
and acknowledges that a breach by the Shareholder of any covenants or
agreements contained in this Agreement will cause Southwest to sustain
damages for which they would not have an adequate remedy at law for money
damages, and therefore each of the parties hereto agrees that, in the event
of any such breach, Southwest shall be entitled to seek the remedy of
specific performance of such covenants and agreements and injunctive and
other equitable relief, without the necessity of posting bond or proving
actual damages, in addition to any other remedy to which they may be
entitled, at law or in equity.
12. Entire Agreement. This Agreement and the Purchase and Sale
Agreement, and any documents delivered by the parties in connection
herewith constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and
understandings among the parties with respect thereto. No addition to or
modification of any provision of this Agreement shall be binding upon any
party hereto unless made in writing and signed by all parties hereto.
13. Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
14. Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute
one and the same instrument. Each counterpart may consist of a number of
copies hereof each signed by less than all, but together signed by all of
the parties hereto.
15. Interpretation. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and
vice versa, and words denoting any gender shall include all genders and
words denoting natural persons shall include corporations and partnerships
and vice versa.
16. Waivers. Except as provided in this Agreement, no action taken
pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any
representations, warranties, covenants or agreements contained in this
Agreement. The waiver by any party hereto of a breach of any provision
hereunder shall not operate or be construed as a waiver of any prior or
subsequent breach of the same or any other provision hereunder.
17. Termination of Agreement. This Agreement shall terminate upon the
termination of the Purchase and Sale Agreement in accordance with its
terms, or upon (i) any material amendment or modification of the Purchase
and Sale Agreement, (ii) any material waiver of any material provision of
the Purchase and Sale Agreement or (iii) any amendment, modification or
waiver of the Purchase and Sale Agreement which could result in a change in
the amount or timing of any or all payments or deposits due under the
Purchase and Sale Agreement, in each case, without the prior written
consent of the Shareholder. In the event of the termination of this
Agreement, this Agreement shall become void, there shall be no liability
under this Agreement on the part of Southwest or the Shareholder, and all
rights and obligations of the parties to this Agreement shall cease.
18. Notices. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by facsimile transmission and by courier
service (with proof of service), hand delivery or certified or registered
mail (return receipt requested and first-class postage prepaid), addressed
as follows:
(i) if to WXI/Z Southwest Malls Real Estate Limited Partnership:
c/o Zamias Services, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Whitehall Street Real Estate Limited Partnership XI
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
(ii) If to the Shareholder:
Gotham Partners, L.P.
000 Xxxx 00x Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
or to such other address as any party shall specify by written notice so
given, and such notice shall be deemed to have been delivered as of the
date so telecommunicated, personally delivered or mailed.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the date first above written.
WXI/Z SOUTHWEST MALLS REAL ESTATE LIMITED
PARTNERSHIP
By: WXI/Z Southwest Malls GEN-PAR LLC
By: /s/ Xxx Xxxxxxx
-----------------------------------
Name: Xxx Xxxxxxx
Title: Assistant Vice President
GOTHAM PARTNERS, L.P.
By: Section H Partners, L.P.
By: Karenina Corp.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
GOTHAM PARTNERS III, L.P.
By: Section H Partners, L.P.
By: Karenina Corp.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
GOTHAM PARTNERS INTERNATIONAL, LTD.
By: Gotham International Advisors, L.L.C., its
investment manager
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Managing Member
Number of Shares: 5,841,233
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