EXECUTION COPY
VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as of July
23, 2006, by and between Lexington Corporate Properties Trust, a Maryland real
estate investment trust (the "Company"), and the undersigned stockholder
("Stockholder") in Xxxxxxx Realty Trust, Inc., a Maryland corporation ("NRT").
Certain capitalized terms used in this Agreement are defined in Section 6 hereof
and certain other capitalized terms used in this Agreement that are not defined
herein shall have the meaning given to such terms in the Merger Agreement (as
defined below).
RECITALS
WHEREAS, the Stockholder is the holder of record and/or the "beneficial
owner" (within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended) of NRT Common Stock;
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company and NRT are entering into an Agreement and Plan of Merger (the
"Merger Agreement") which provides, upon the terms and subject to the conditions
set forth therein, for the merger of NRT with and into the Company (the
"Merger"); and
WHEREAS, as a condition and inducement to the Company's willingness to
enter into the Merger Agreement, Stockholder has agreed to execute and deliver
this Agreement.
AGREEMENT
NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound, agree as follows:
1. Agreement to Vote Subject Securities. Prior to the Termination Date (as
defined in Section 6), at every meeting of the stockholders of NRT and/or the
unitholders of MLP called with respect to any of the following, and at every
adjournment or postponement thereof, and on every action or approval by written
consent of the stockholders of NRT with respect to any of the following,
Stockholder shall vote or cause to be voted the Subject Securities: (a) in favor
of approval and adoption of (i) the Merger Agreement including, without
limitation, the Exchange Ratio (as defined therein), (ii) the Merger, (iii) the
Second Amended and Restated Agreement of Limited Partnership of the Lexington
Master Limited Partnership (formerly know as The Xxxxxxx Master Limited
Partnership), and (iv) any other matter contemplated under the Merger Agreement
or that could reasonably be expected to facilitate the Merger that is put to a
vote of the NRT Stockholders or holders of the NRT OP Units; (b) against any NRT
Acquisition Proposal, other than in connection with the Merger, between NRT and
any Person other than the Company; and (c) against any other action or agreement
that would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of NRT under the Merger Agreement or which would
result in any of the conditions to the consummation of the Merger under the
Merger Agreement not being fulfilled.
2. Irrevocable Proxy. Concurrently with the execution of this Agreement,
Stockholder 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
permitted by law, with respect to the Subject Securities referred to therein.
3. Agreement to Retain Subject Securities.
(a) Restriction on Transfer. During the period from the date of this
Agreement through the Termination Date, Stockholder shall not, directly or
indirectly, cause or permit any Transfer, including without limitation, the
pledge of Subject Securities in accordance with the provisions of that certain
Lock-up Agreement, dated as of November 1, 2005, between the Stockholder and
certain underwriters (the "Lock-up Agreement"), of any of the Subject Securities
to be effected, unless, as a precondition to such Transfer, the transferee
agrees in a writing, reasonably satisfactory in form and substance to the
Company, to be bound by the terms of this Agreement and delivers a proxy to the
Company in substantially the form of Exhibit A. , Notwithstanding the foregoing,
nothing herein shall restrict or prohibit the transfer of Subject Securities
upon foreclosure of any pledge listed on Schedule 4(c) attached hereto.
(b) Restriction on Transfer of Voting Rights. During the period from
the date of this Agreement through the Termination Date, Stockholder shall
ensure that, without the Company's written consent: (a) none of the Subject
Securities is deposited into a voting trust; and (b) no proxy (other than the
Proxy granted herein) is granted, and no voting agreement or similar agreement
is entered into, with respect to any of the Subject Securities.
4. Representations, Warranties and Covenants of Stockholder. Stockholder
hereby represents and warrants to the Company as follows:
(a) Due Authorization, Etc. All consents, approvals, authorizations
and orders necessary for the execution and delivery by Stockholder of this
Agreement and the Proxy have been obtained, and Stockholder has full right,
power and authority to enter into this Agreement and the Proxy. This Agreement
and the Proxy have been duly executed and delivered by Stockholder and
constitute valid and binding agreements of Stockholder enforceable in accordance
with their terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditors' rights generally and subject to general principles of equity.
(b) No Conflict. The execution and delivery of this Agreement and
the Proxy by Stockholder do not, and the performance of and under this Agreement
and the Proxy by Stockholder will not, conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to the Subject Securities held
by the Stockholder.
(c) Title to Securities. As of the date of this Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions
other than pursuant to pledges listed on Schedule 4(c) attached hereto) the
number of outstanding shares of NRT Common Stock and NRT OP Units, respectively,
set forth under the headings "Shares Held of Record" on the signature page
hereof; (b) Stockholder Owns the additional securities of NRT set forth under
the heading "Additional Securities Beneficially Owned" on the signature page
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hereof; and (c) Stockholder does not directly or indirectly Own any shares of
capital stock or other securities of NRT, or any option, warrant or other right
to acquire (by purchase, conversion or otherwise) any shares of capital stock or
other securities of NRT, other than the shares and options, warrants and other
rights set forth on the signature page hereof.
5. Additional Covenants of Stockholder.
(a) Further Assurances. From time to time and without additional
consideration, Stockholder shall (at Stockholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at Stockholder's sole expense) take such further actions, as the Company may
reasonably request for the purpose of carrying out and furthering the intent of
this Agreement.
6. Certain Definitions. For purposes of this Agreement,
(a) "NRT Common Stock" means the common stock, $.01 par value per
share, of NRT.
(b) "NRT OP Units" means the partnership units of MLP.
(c) Stockholder is deemed to "Own" or to have acquired "Ownership"
of a security if Stockholder is the "beneficial owner" of such security within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended.
(d) "Person" means any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) Governmental Authority.
(e) "Subject Securities" means: (i) all securities of NRT (including
all shares of NRT Common Stock, NRT OP Units and all options, warrants and other
rights to acquire shares of NRT Common Stock or NRT OP Units) Owned by
Stockholder as of the date of this Agreement; and (ii) all additional securities
of NRT (including all additional shares of NRT Common Stock, NRT OP Units and
all additional options, warrants and other rights to acquire shares of NRT
Common Stock or NRT OP Units) of which Stockholder acquires Ownership during the
period from the date of this Agreement through the Termination Date including,
without limitation, NRT Common Stock acquired in connection with the redemption
or exchange of NRT OP Units.
(f) "Termination Date" means the earlier to occur of the date (i)
the Merger shall become effective in accordance with the terms and provisions of
the Merger Agreement, (ii) the Merger Agreement terminates in accordance with
its terms, (iii) upon which the NRT Board publicly withdraws its recommendation
of the Merger, or (iv) upon which the NRT Board publicly recommends or approves
any NRT Acquisition Proposal other than that contemplated in the Merger
Agreement.
(g) A Person is deemed to have effected a "Transfer" of a security
if such Person directly or indirectly: (i) sells, pledges (other than as
permitted under the Lock-up Agreement), encumbers, grants an option with respect
to, transfers or disposes of such security or any interest in such security to
any Person other than the Company or MLP; (ii) enters into an agreement or
commitment contemplating the possible sale of, pledge of, encumbrance of, grant
of an option with respect to, transfer of or disposition of such security or any
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interest therein to any Person other than the Company; or (iii) reduces such
Person's beneficial ownership of, interest in or risk relating to such security;
provided, however, that, notwithstanding anything in this Agreement to the
contrary, nothing herein shall restrict any redemption of NRT OP Units in
exchange for NRT Common Stock in accordance with the terms of the currently
effective amended and restated limited partnership agreement of MLP (which NRT
Common Stock shall also be Subject Securities).
7. Miscellaneous.
(a) Assignment; Binding Effect. Except as provided herein, neither
this Agreement nor any of the interests or obligations hereunder may be assigned
or delegated by Stockholder, and any attempted or purported assignment or
delegation of any of such interests or obligations shall be void. Subject to the
preceding sentence, this Agreement shall be binding upon Stockholder and his
heirs, estate, executors and personal representatives and his or its successors
and assigns, and shall inure to the benefit of the Company and its successors
and assigns. Without limiting any of the restrictions set forth in Section 3(a)
or elsewhere in this Agreement, this Agreement shall be binding upon any Person
to whom any Subject Securities are transferred. Nothing in this Agreement is
intended to confer on any Person (other than the Company and its successors and
assigns) any rights or remedies of any nature.
(b) Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement or the
Proxy were not performed in accordance with its specific terms or were otherwise
breached and in the event of any breach or threatened breach by Stockholder of
any covenant or obligation contained in this Agreement or in the Proxy, the
Company shall be entitled (in addition to any other remedy that may be available
to it, including monetary damages) to seek (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or
obligation, and (b) an injunction restraining such breach or threatened breach.
(c) Waiver. No failure on the part of the Company to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the part
of the Company in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. The Company shall not be deemed to have waived any
claim available to the Company arising out of this Agreement, or any power,
right, privilege or remedy of the Company under this Agreement, unless the
waiver of such claim, power, right, privilege or remedy is expressly set forth
in a written instrument duly executed and delivered on behalf of the Company;
and any such waiver shall not be applicable or have any effect except in the
specific instance in which it is given.
(d) Governing Law; Venue. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of New York, without giving effect to principles of conflicts or
choice of law. Any legal action or other legal proceeding relating to this
Agreement or the Proxy or the enforcement of any provision of this Agreement or
the Proxy may be brought or otherwise commenced in any state or federal court
located in the State of New York.
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(e) Counterparts. This Agreement may be executed in two or more
counterparts (including by facsimile), each of which shall be deemed an original
and all of which together shall constitute one instrument.
(f) Entire Agreement. This Agreement and the Proxy constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings between the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party unless made in writing and signed
by both parties.
(g) Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice.
[Signature page follows.]
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The parties have caused this Agreement to be duly executed on the date
first above written.
LEXINGTON CORPORATE PROPERTIES TRUST:
By:
-------------------------------------
Name:
-----------------------------------
Title:
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Address for notices:
Lexington Corporate Properties Trust
Xxx Xxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attention: X. Xxxxxx Xxxxx
Xxxxxx X. Xxxxxxxxx
with a copy (which shall not constitute
notice) to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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STOCKHOLDER:
WRT REALTY, L.P.
By: Winthrop Realty Trust
its general partner
By
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Xxxxx Xxxxxxxxx
President
Address for notices:
Winthrop Realty Trust
0 Xxxxxxxx Xxxxx, Xxxxx 000
P.O. Box 9507
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
with a copy (which shall not constitute
notice) to:
Xxxx Xxxxxx & Parks LLP
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxxx 00000
Attn: F. Xxxxxx X'Xxxxx
Facsimile: (000) 000-0000
NRT Common Stock NRT OP Units Additional Securities
Shares Held of Record Held of Record Beneficially Owned
--------------------- -------------- ------------------
4,375,000 -- --
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EXECUTION COPY
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder (the "Stockholder") of Xxxxxxx Realty Trust,
Inc., a Maryland corporation ("NRT") and/or a unit holder of The Xxxxxxx Master
Limited Partnership, a Delaware limited partnership ("MLP"), hereby irrevocably
(to the fullest extent permitted by law) appoints Xx. Xxxxxx X. Xxxxxxxxx and
Xx. Xxxxxxx Xxxxxxx, and Lexington Corporate Properties Trust, a Maryland real
estate investment trust (the "Company"), and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights expressly provided herein (to the full extent that the undersigned is
entitled to do so) and subject to all the limitations and restrictions provided
herein with respect to the Subject Securities. For purposes of this Irrevocable
Proxy (the "Proxy"), (a) "Subject Securities" means: (i) all securities of NRT
(including all shares of common stock of NRT ("NRT Common Stock"), partnership
units of MLP ("MLP Units") and all options, warrants and other rights to acquire
shares of NRT Common Stock or MLP Units) Owned by Stockholder as of the date of
this Proxy; and (ii) all additional securities of NRT (including all additional
shares of NRT Common Stock, MLP Units and all additional options, warrants and
other rights to acquire shares of NRT Common Stock or MLP Units) of which
Stockholder acquires Ownership during the period from the date of this Proxy
through the Termination Date, and (b) any Stockholder is deemed to "Own" or to
have acquired "Ownership" of a security if such Stockholder is the "beneficial
owner" of such security within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended. Upon the undersigned's execution of this
Proxy, any and all prior proxies given by the undersigned with respect to any
Subject Securities are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the Subject Securities at any time prior
to the Termination Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith, by and between the Company and the undersigned
stockholder, and is granted in consideration of the Company entering into that
certain Agreement and Plan of Merger (the "Merger Agreement"), of even date
herewith, by and among NRT and the Company. The Merger Agreement provides for
the merger of NRT with and into the Company (the "Merger"). As used herein, the
term "Termination Date" shall mean the earlier to occur of the date (i) the
Merger shall become effective in accordance with the terms and provisions of the
Merger Agreement, (ii) the Merger Agreement terminates in accordance with its
terms, (iii) upon which the NRT Board publicly withdraws its recommendation of
the Merger, or (iv) upon which the NRT Board publicly recommends or approves any
NRT Acquisition Proposal other than as contemplated in the Merger Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the
Termination Date, to act as the undersigned's attorney and proxy to vote the
Subject Securities, and to exercise all voting and other rights of the
undersigned with respect to the Subject Securities (including, without
limitation, the power to execute and deliver written consents pursuant to
Maryland General Corporation Law), at every annual, special or adjourned meeting
of the stockholders of NRT or MLP and in every written consent in lieu of such
meeting: (i) in favor of approval and adoption of (A) the Merger Agreement
including, without limitation, the Exchange Ratio (as defined therein), (B) the
Merger, (C) the Second Amended and Restated Agreement of Limited Partnership of
the Lexington Master Limited Partnership (formerly known as The Xxxxxxx Master
Limited Partnership), and (D) any other matter contemplated under the Merger
Agreement or that could reasonably be expected to facilitate the Merger; (ii)
against any NRT Acquisition Proposal (as defined in the Merger Agreement), other
than the Merger, between NRT and any person or entity (other than the Company or
Merger Sub); and (iii) against any other action or agreement that would result
in a breach of any covenant, representation or warranty or any other obligation
or agreement of NRT under the Merger Agreement or which could result in any of
the conditions to the consummation of the Merger under the Merger Agreement not
being fulfilled.
This Proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the Stockholder (including any
transferee of any of the Subject Securities).
Dated: [___________], 2006
WRT REALTY, L.P.
By: Winthrop Realty Trust
its general partner
By
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Number of shares of common stock of NRT
owned of record as of the date of this
proxy:
4,375,000
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Number of partnership units of MLP owned
of record as of the date of this proxy:
0
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Schedule 4(c)
LIENS AND RESTRICTIONS
Lock-up Agreement, dated November 7, 2005, from First Union Real Estate Equity
and Mortgage Investments (now known as Winthrop Realty Trust) in favor of Bear,
Xxxxxxx & Co. Inc. and Credit Suisse First Boston LLC, as Representatives of the
several underwriters.
486,111 shares are subject to forfeiture pursuant to the terms of that certain
Acquisition Agreement, dated as of November 7, 2005, between Xxxxxxx Realty
Trust, Inc. and First Union Real Estate Equity and Mortgage Investments (now
known as Winthrop Realty Trust)
