1
Exhibit 99.7
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 AUGUST 12, 1999
2
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of August 12, 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 July 14, 1999 as amended by a Letter Agreement, dated as of August
11, 1999 (as amended, 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.
-1-
3
(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
-2-
4
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
-3-
5
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.
-4-
6
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
-5-
7
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
-6-
8
(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/ Authorized Xxxxxx
-------------------------
Name:
Title:
GOTHAM PARTNERS, L.P.
By: Section H Partners, L.P.
By: Karenina Corp.
By: /s/ Authorized Xxxxxx
-------------------------
Name:
Title:
-7-
9
GOTHAM PARTNERS III, L.P.
By: Section H Partners, L.P.
By: Karenina Corp.
By: /s/ Authorized Xxxxxx
------------------------
Name:
Title:
GOTHAM PARTNERS INTERNATIONAL, LTD.
By: Gotham International Advisors, L.L.C.,
its investment manager
By: /s/ Authorized Xxxxxx
------------------------
Name:
Title:
Number of Shares:_________________________
__________________________________________
__________________________________________
-8-
