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Exhibit 99.10
VOTING AGREEMENT
BY AND BETWEEN
RADIANT INVESTORS LLC
AND
APOLLO REAL ESTATE INVESTMENT FUND II, L.P.
A SHAREHOLDER OF
FIRST UNION REAL ESTATE
EQUITY AND MORTGAGE INVESTMENTS
DATED AS OF SEPTEMBER 15, 2000
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VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of September 15, 2000 (the "Agreement"),
is made by and between Radiant Investors LLC ("Radiant") and Apollo Real Estate
Investment Fund II, L.P. (the "Shareholder").
Radiant ("Radiant'), a Delaware limited liability company, 55
Public LLC, a Delaware limited liability company, North Valley Tech, LLC, a
Delaware limited liability company, Southwest Shopping Centers Co. I, L.L.C, a
Delaware limited liability company, First Union Madison L.L.C., an Illinois
limited liability company, Printers Alley Garage, LLC, a Delaware limited
liability company, First Union Real Estate Equity and Mortgage Investments
("FUR"), an Ohio unincorporated association in the form of a business trust,
First Union Commercial Properties Expansion Company, a Delaware corporation
(collectively, the "Sellers"), are parties to a Contract of Sale, dated as of
September 15, 2000 ("Contract-1") and Radiant and FUR are parties to a Contract
of Sale, dated as of September 15, 2000 ("Contract-2", Contract-1 and Contract-2
,collectively, hereinafter referred to as the "Contract"), pursuant to which
Radiant has agreed, subject to the terms and conditions set forth in the
Contract, to purchase certain properties (the "Properties") from Sellers (the
"Sale"). The Shareholder is a shareholder of First Union Real Estate Equity and
Mortgage Investments ("FUR") and has the voting power with respect to the number
of shares of beneficial interest, par value $1.00 per Share, of FUR
(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 Contract.
In order to induce Radiant to enter into the Contract and to
provide reasonable assurances that the transactions contemplated by the Contract
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), in person or by proxy, all of the issued and
outstanding Shareholder's Shares entitled to vote thereon, (i) in favor of the
Sale pursuant to the Contract and each of the other actions contemplated by the
Contract and this Agreement and any actions required in furtherance thereof and
hereof, (ii) against any action or agreement that would result in an action or
breach in any material respect of any covenant, representation or warranty or
any other material obligation or agreement of FUR under the Contract or this
Agreement and (iii) against any sale of any of the Properties to any party other
than Radiant.
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(b) The Shareholder hereby appoints Radiant 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 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 Contract) at any Company shareholders' meeting called to
consider the Sale in favor of the Sale pursuant to the Contract. This proxy does
not accord any voting rights to Radiant other than the right to vote in favor of
the Sale pursuant to the Contract; Radiant shall not have the right under this
proxy to vote on any other matter that may be presented to FUR 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
pursuant to this Section 1(b). This proxy shall be irrevocable and shall survive
the bankruptcy, merger, dissolution or liquidation of the Shareholder unless
terminated pursuant to the terms hereof. If the shareholders of FUR approve the
Sale pursuant to the Contract by written consent in lieu of a meeting of
shareholders, the Shareholder will execute such consent and provide a copy to
Radiant. 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, including the proxy granted to Radiant
under this Agreement to the same extent as if they were considered shares held
by the Shareholder at the time the proxy was granted.
3. COVENANTS, REPRESENTATION AND WARRANTIES OF THE
SHAREHOLDER. The Shareholder hereby covenants and warrants to Radiant that:
(a) The Shareholder is the beneficial owner of
the number of Shares listed below the Shareholder's signature hereto and 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 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 Radiant), 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
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executed and delivered by such Shareholder and, assuming the due authorization,
execution and delivery by Radiant, constitutes a valid and binding obligation of
such Shareholder, enforceable against such Shareholder in accordance with its
terms.
(c) 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.
(d) 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.
(e) From time to time, at Radiant's request and
without further consideration, the Shareholder shall execute and deliver such
additional documents reasonably requested by Radiant as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
(f) 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 Radiant an agreement in the form
hereof.
4. REPRESENTATIONS AND WARRANTIES OF RADIANT. Radiant
represents 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 Radiant and constitutes a valid
and binding obligation of Radiant.
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(c) 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 Radiant and the consummation by
Radiant 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 Radiant's ability to perform
its obligations hereunder, and none of the execution and delivery of this
Agreement by Radiant, the consummation by Radiant of the transactions
contemplated hereby or compliance by Radiant 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 Radiant is a party or by
which Radiant 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 Radiant 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 Radiant to
perform its obligations hereunder.
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 director, trustee or
officer of FUR, and nothing herein shall limit or affect any action taken by any
such person as a director, trustee or officer of FUR.
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; CONSENT TO JURISDICTION. 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
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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 Radiant 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, Radiant 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 constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes 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. 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.
14. 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.
15. 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.
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16. TERMINATION OF AGREEMENT. This Agreement shall
terminate upon the earliest of (a) Xxxxx 00, 0000, (x) the termination of the
Contract in accordance with its terms, (c) the consummation of the Transaction
pursuant to the Contract, (d) upon any material amendment or modification of the
Contract, (e) upon any waiver of any material provision of the Contract and (f)
upon any amendment, modification or waiver of the Contract which could result in
a change in the amount or timing of any or all payments or deposits due under
the Contract, 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 Radiant or the Shareholder, and all rights and obligations of the parties to
this Agreement shall cease.
17. 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) Radiant Investors LLC
c/o Radiant Partners LLC
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxx Weprin & Ustin LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(ii) If to the Shareholder:
Apollo Real Estate Investment Fund II, L.P.
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Akin, Gump, Strauss, Xxxxx & Xxxx, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
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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.
18. AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the date first above written.
RADIANT INVESTORS LLC, a Delaware limited
liability company
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Managing Member
APOLLO REAL ESTATE INVESTMENT
FUND II, L.P.
By: Apollo Real Estate Advisors II, L.P.,
its general partner
By: Apollo Real Estate Capital Advisors II,
Inc., its general partner
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice Chairman
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Number of Shares: Approximately 2,990,379
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