Exhibit 99.1
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of July 8, 1998, by
Metropolitan Partners LLC, a Delaware limited liability company ("Purchaser"),
Reckson Associates Realty Corp., a Maryland corporation, Crescent Real Estate
Equities Company, a Texas real estate investment trust, and the persons listed
on Schedule A hereto (each a "Stockholder"), each a stockholder of Tower
Realty Trust, Inc., a Maryland corporation (the "Company").
RECITALS
A. Purchaser and the Company are concurrently herewith entering into
an Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement"), pursuant to which the Company shall be merged with and into the
Purchaser.
B. Each Stockholder is a significant stockholder of the Company.
C. The execution and delivery of this Agreement is a condition to
Purchaser entering into the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties
hereby agree as follows:
1. Voting. At the meeting of the Company's stockholders convened to
------
consider and vote upon approval of the Merger (the "Transaction") and adoption
of the Merger Agreement, each Stockholder shall vote or cause to be voted all
of the shares of common stock of the Company, par value $0.01 per share (the
"Company Common Stock"), owned of record by such Stockholder at the record
date for such vote and which Xxxxxx Xxxxxxx Asset Management, Inc. ("MSAM")
has the power to vote (the "Shares") (a) in favor of the authorization of the
transactions contemplated by the Merger Agreement and (b) against (i) approval
of any proposal made in opposition to or in competition with the Transaction,
(ii) any merger, consolidation, sale of assets, business combination, share
exchange, reorganization or recapitalization of the Company or any of its
subsidiaries, with or involving any party other than the Purchaser or one of
its subsidiaries, (iii) any liquidation or winding up of the Company, and (iv)
any other action that may reasonably be expected to result in a breach of any
of the covenants, representations, warranties or other obligations or
agreements of the Company under the Merger Agreement which would materially
and adversely affect the Company or its ability to consummate the transactions
contemplated by the Merger Agreement.
2. No Solicitation. Each Stockholder shall not, directly or
----------------
indirectly: (i) take any action to seek, initiate or solicit any offer from
any person, entity or group to acquire any shares of capital stock of the
Company or its subsidiaries, to merge or consolidate with the Company or its
subsidiaries, or to otherwise acquire any significant portion of the assets of
the Company or its subsidiaries except for acquisitions solely of inventory in
the ordinary course of business (a "Third Party Acquisition Offer"), or (ii)
engage in negotiations or discussions concerning a Third Party Acquisition
Offer or the business or assets of the Company or its subsidiaries with, or
disclose financial information relating to the Company or its subsidiaries, or
any confidential or proprietary trade or business information relating to the
business of the Company or its subsidiaries to, or afford access to the
properties, books or records of the Company or its subsidiaries to, any third
party that may be considering a Third Party Acquisition Offer. Each
Stockholder shall immediately cease and cause to be terminated all existing
discussions and negotiations, if any, with any parties conducted heretofore
with respect to any Third Party Acquisition Offer. Notwithstanding anything in
this Section 2 to the contrary, (i) no affiliate of any Stockholder in his
capacity as a director of the Company shall be prohibited from taking any
action permitted to be taken pursuant to the Merger Agreement, (ii) no such
action shall be deemed to constitute a breach of this Agreement by any
Stockholder and (iii) no Stockholder or any affiliate of such Stockholder
shall be prohibited from providing usual and customary services to clients in
the business in which it operates.
3. No Transfer. No Stockholder shall sell, pledge, assign or
------------
otherwise transfer or dispose of, or authorize, propose or agree to the sale,
pledge, assignment or other transfer or disposition of, any of its Shares.
4. Representations and Warranties. Each Stockholder represents and
------------------------------
warrants to Purchaser as follows:
(a) ORGANIZATION. Such Stockholder is duly organized and
validly existing under the laws of the jurisdiction in which it was
established.
(b) REQUISITE POWER. Such Stockholder has the requisite
power and authority to enter into this Agreement, and to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
(c) VALIDITY. This Agreement has been duly and validly
executed and delivered by such Stockholder.
(d) AUTHORITY TO VOTE SHARES. The Stockholder owns of record
the number of shares of Company Common Stock and, if different, the number of
Shares set forth opposite its name on Schedule A hereto. MSAM has legal power,
authority and right to vote all Shares in favor of the approval of the
Transaction and the adoption of the Merger Agreement without the consent or
approval of, or any other action on the part of, any other person or entity.
(e) NONCONTRAVENTION. Neither the execution and delivery of
this Agreement, nor the consummation of any of the transactions contemplated
hereby or by the Merger Agreement, nor compliance with any of the provisions
hereof or thereof, will violate, conflict with, or result in a breach of any
provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination or suspension of, or accelerate the performance required by, or
result in a right of termination or acceleration under, or result in the
creation of any lien upon any of the properties or assets of such Stockholder
under, any of the terms, conditions or provision of any agreement or
instrument to which such Stockholder is a party or any statute, rule,
regulation, judgment, order, decree or other legal requirement applicable to
such Stockholder; except for any such breach, violation, conflict or default
which, individually or in the aggregate, would not prevent MSAM from voting
the Shares in accordance with Section 1 hereof.
(f) LITIGATION. There is no claim, action, proceeding or
investigation pending or, to the knowledge of such Stockholder, threatened
against or relating to such Stockholder before any court or governmental or
regulatory authority or body and such Stockholder is not subject to any
outstanding order, writ, injunction or decree which, if determined adversely,
individually or in the aggregate, could reasonably be expected to prevent the
Stockholder from performing its obligations hereunder.
5. Termination. This Agreement may be terminated upon the earliest to
------------
occur of (i) the termination of the Merger Agreement pursuant to Article VII
thereof and (ii) the consummation of the Transaction. In the event of a
termination of this Agreement pursuant to this Section 5, this Agreement shall
forthwith become void and there shall be no liability or obligation on the
part of any party hereto; provided, however, that nothing herein shall release
any party hereto from any liability for any breach of this Agreement.
6. Miscellaneous.
-------------
(a) NOTICES. All notices and other communications hereunder
shall be in writing (including telex or similar writing) and shall be deemed
given if delivered in person or by messenger, cable, telegram or telex or
facsimile transmission or by a reputable overnight delivery service which
provides for evidence of receipt to the parties at the address set forth on
Schedule A (with respect to each Stockholder) or at the following address or
telecopier number (with respect to the Purchaser):
if to Purchaser at:
Metropolitan Partners LLC
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.; and
with a copy to:
Metropolitan Partners LLC
c/o Crescent Real Estate Equities Company
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
(b) INTERPRETATION. 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.
(c) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement.
(d) ENTIRE AGREEMENT. This Agreement (including the
documents and instruments referred to herein) constitutes the entire agreement
and supersedes all prior and contemporaneous agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof.
(e) SEVERABILITY; SAVINGS. The invalidity or
unenforceability or any provision of this Agreement shall not affect the
validity or enforceability of any other provisions of this Agreement, which
shall remain in full force and effect. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of law of such state. Each of the Stockholder
and the Purchaser 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 State of New York for any litigation
arising out of or relating to this Agreement.
(g) ASSIGNMENT. Neither this Agreement nor any of the
rights, interest or obligations hereunder shall be assigned by any party
hereto, whether by operation of law or otherwise, without the express prior
written consent of each of the other parties hereto. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors, heirs, legal
representatives and permitted assigns.
(h) AMENDMENT. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified except upon the execution and
delivery of a written agreement executed by the parties hereto.
(i) REMEDIES. In addition to all other remedies available,
the parties agree that, in the event of a breach by a party of any of its
obligations hereunder, the non-breaching party shall be entitled to specific
performance or injunctive relief.
(J) DEFINED TERMS. All capitalized terms used herein and not
defined herein shall have the meaning set forth in the Merger Agreement.
(K) REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by each Stockholder in Section 4 hereof are several and not
joint.
IN WITNESS WHEREOF, each of the parties hereto have signed this
Agreement as of the date first above written.
XXXXXX XXXXXXX ASSET
MANAGEMENT, INC., as
attorney-in-fact for each of
the Stockholders listed on
Schedule A hereto
By: /s/ Xxxxxxx Xxxxx
____________________________
Name: Xxxxxxx Xxxxx
Title: Managing Director
METROPOLITAN PARTNERS LLC
By: /s/ Xxxxx X. Xxxxxxx
___________________________
Name: Xxxxx X. Xxxxxxx
Title:
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Xxxxx X. Xxxxxxx
__________________________
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Operating Officer
CRESCENT REAL ESTATE EQUITIES COMPANY
By: /s/ Xxxxx X. Xxxx
__________________________
Name: Xxxxx X. Xxxx
Title: Senior Vice President,
Law and Secretary
Schedule A
The Stockholder
---------------
Number of Shares
Name Company Common Stock
---- --------------------
MS Real Estate Special Situations Inc. 79,468
Xxxxxx Xxxxxxx Real Estate Special 30,507
Situations Investors, L.P.
The Xxxxxx Xxxxxxx Real Estate 358,577
Special Situations Fund I, L.P.
The Xxxxxx Xxxxxxx Real Estate 478,102
Special Situations Fund II, L.P.
Stichting Bedrijfspensioenfonds Voor 235,896
De Metaalnijverheid
Stichting Pensioenfonds ABP 354,544
MS Special Funds Pte Ltd 118,336
Address
-------
Xxxxxx Xxxxxxx Asset Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxx
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as July 8, 1998, by
Metropolitan Partners LLC, a Delaware limited liability company ("Purchaser"),
Reckson Associates Realty Corp., a Maryland corporation, Crescent Real Estate
Equities Company, a Texas real estate investment trust, and DRA Opportunity
Fund (the "Stockholder"), a stockholder of Tower Realty Trust, Inc., a
Maryland corporation (the "Company").
RECITALS
A. Purchaser and the Company are concurrently herewith entering into
an Agreement and Plan of Merger dated as of the date hereof (a copy of which
has been provided to the Stockholder) (the "Merger Agreement"), pursuant to
which the Company shall be merged with and into the Purchaser.
B. The Stockholder is a significant stockholder of the Company.
C. The execution and delivery of this Agreement is a condition to
Purchaser entering into the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties
hereby agree as follows:
1. Voting. At the meeting of the Company's stockholders convened to
------
consider and vote upon approval of the Merger (the "Transaction") and adoption
of the Merger Agreement, the Stockholder shall vote or cause to be voted all
of the shares of common stock of the Company, par value $0.01 per share (the
"Company Common Stock"), owned of record by it at the record date for such
vote and which it has the sole power to vote (the "Shares") (a) in favor of
the authorization of the transactions contemplated by the Merger Agreement and
(b) against (i) approval of any proposal made in opposition to or in
competition with the Transaction, (ii) any merger, consolidation, sale of
assets, business combination, share exchange, reorganization or
recapitalization of the Company or any of its subsidiaries, with or involving
any party other than the Purchaser or one of its subsidiaries, (iii) any
liquidation or winding up of the Company, and (iv) any other action that may
reasonably be expected to result in a breach of any of the covenants,
representations, warranties or other obligations or agreements of the Company
under the Merger Agreement which would materially and adversely affect the
Company or its ability to consummate the transactions contemplated by the
Merger Agreement.
2. No Solicitation. The Stockholder shall not, directly or
----------------
indirectly: (i) take any action to seek, initiate or solicit any offer from
any person, entity or group to acquire any shares of capital stock of the
Company or its subsidiaries, to merge or consolidate with the Company or its
subsidiaries, or to otherwise acquire any significant portion of the assets of
the Company or its subsidiaries except for acquisitions solely of inventory in
the ordinary course of business (a "Third Party Acquisition Offer"), or (ii)
engage in negotiations or discussions concerning a Third Party Acquisition
Offer or the business or assets of the Company or its subsidiaries with, or
disclose financial information relating to the Company or its subsidiaries, or
any confidential or proprietary trade or business information relating to the
business of the Company or its subsidiaries to, or afford access to the
properties, books or records of the Company or its subsidiaries to, any third
party that may be considering a Third Party Acquisition Offer. The Stockholder
shall immediately cease and cause to be terminated all existing discussions
and negotiations, if any, with any parties conducted heretofore with respect
to any Third Party Acquisition Offer. Notwithstanding anything in this Section
2 to the contrary, (i) no affiliate of the Stockholder in his capacity as a
director of the Company shall be prohibited from taking any action permitted
to be taken pursuant to the Merger Agreement, (ii) no such action shall be
deemed to constitute a breach of this Agreement by the Stockholder and (iii)
no Stockholder or affiliate of such Stockholder shall be prohibited from
providing usual and customary services to clients in the business in which it
operates.
3. No Transfer. The Stockholder shall not sell, pledge, assign or
-----------
otherwise transfer or dispose of, or authorize, propose or agree to the sale,
pledge, assignment or other transfer or disposition of, any of its Shares.
4. Representations and Warranties. The Stockholder represents and
-------------------------------
warrants to Purchaser as follows:
(a) ORGANIZATION. The Stockholder is duly organized and
validly existing under the laws of the jurisdiction in which it was
established.
(b) REQUISITE POWER. The Stockholder has the requisite power
and authority to enter into this Agreement, and to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
(c) VALIDITY. This Agreement has been duly and validly
executed and delivered by the Stockholder.
(d) AUTHORITY TO VOTE SHARES. The Stockholder owns of record
the number of shares of Company Common Stock and, if different, the number of
Shares set forth opposite its name on Schedule A hereto. The Stockholder has
full legal power, authority and right to vote all Shares in favor of the
approval of the Transaction and the adoption of the Merger Agreement without
the consent or approval of, or any other action on the part of, any other
person or entity.
(e) NONCONTRAVENTION. Neither the execution and delivery of
this Agreement, nor the consummation of any of the transactions contemplated
hereby or by the Merger Agreement, nor compliance with any of the provisions
hereof or thereof, will violate, conflict with, or result in a breach of any
provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination or suspension of, or accelerate the performance required by, or
result in a right of termination or acceleration under, or result in the
creation of any lien upon any of the properties or assets of the Stockholder
under, any of the terms, conditions or provision of any agreement or
instrument to which the Stockholder is a party or any statute, rule,
regulation, judgment, order, decree or other legal requirement applicable to
the Stockholder; except for any such breach, violation, conflict or default
which, individually or in the aggregate, would not prevent the Stockholder
from voting the Shares in accordance with Section 1 hereof.
(f) LITIGATION. There is no claim, action, proceeding or
investigation pending or, to the knowledge of the Stockholder, threatened
against or relating to the Stockholder before any court or governmental or
regulatory authority or body and the Stockholder is not subject to any
outstanding order, writ, injunction or decree which, if determined adversely,
individually or in the aggregate, could reasonably be expected to prevent the
Stockholder from performing its obligations hereunder.
5. Termination. This Agreement may be terminated upon the earliest to
------------
occur of (i) the termination of the Merger Agreement pursuant to Article VII
thereof and (ii) the consummation of the Transaction. In the event of a
termination of this Agreement pursuant to this Section 5, this Agreement shall
forthwith become void and there shall be no liability or obligation on the
part of any party hereto; provided, however, that nothing herein shall release
any party hereto from any liability for any breach of this Agreement.
6. Miscellaneous.
-------------
(a) NOTICES. All notices and other communications hereunder
shall be in writing (including telex or similar writing) and shall be deemed
given if delivered in person or by messenger, cable, telegram or telex or
facsimile transmission or by a reputable overnight delivery service which
provides for evidence of receipt to the parties at the address set forth on
Schedule A (with respect to the Stockholder) or at the following address or
telecopier number (with respect to the Purchaser):
if to Purchaser at:
Metropolitan Partners LLC
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.; and
with a copy to:
Metropolitan Partners LLC
c/o Crescent Real Estate Equities Company
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
(b) INTERPRETATION. 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.
(c) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement.
(d) ENTIRE AGREEMENT. This Agreement (including the
documents and instruments referred to herein) constitutes the entire agreement
and supersedes all prior and contemporaneous agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof.
(e) SEVERABILITY; SAVINGS. The invalidity or
unenforceability or any provision of this Agreement shall not affect the
validity or enforceability of any other provisions of this Agreement, which
shall remain in full force and effect. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of law of such state. Each of the Stockholder
and the Purchaser 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 State of New York for any litigation
arising out of or relating to this Agreement.
(g) ASSIGNMENT. Neither this Agreement nor any of the
rights, interest or obligations hereunder shall be assigned by any party
hereto, whether by operation of law or otherwise, without the express prior
written consent of each of the other parties hereto. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors, heirs, legal
representatives and permitted assigns.
(h) AMENDMENT. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified except upon the execution and
delivery of a written agreement executed by the parties hereto.
(i) REMEDIES. In addition to all other remedies available,
the parties agree that, in the event of a breach by a party of any of its
obligations hereunder, the non-breaching party shall be entitled to specific
performance or injunctive relief.
(j) DEFINED TERMS. All capitalized terms used herein and not
defined herein shall have the meaning set forth in the Merger Agreement.
IN WITNESS WHEREOF, each of the parties hereto have signed this
Agreement as of the date first above written.
DRA OPPORTUNITY FUND
By: /s/ Xxxxx Xxxxxx
_________________________
Name: Xxxxx Xxxxxx
Title: President
METROPOLITAN PARTNERS LLC
By: /s/ Xxxxx X. Xxxxxxx
_________________________
Name: Xxxxx X. Xxxxxxx
Title:
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Xxxxx X. Xxxxxxx
_________________________
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Operating Officer
CRESCENT REAL ESTATE EQUITIES COMPANY
By: /s/ Xxxxx X. Xxxx
__________________________
Name: Xxxxx X. Xxxx
Title: Senior Vice President,
Law and Secretary
Schedule A
The Stockholder
---------------
Number of Shares
Name Company Common Stock
----- --------------------
DRA Opportunity Fund 465,400
Address
--------
c/o DRA Advisors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as July 8, 1998, by
Metropolitan Partners LLC, a Delaware limited liability company ("Purchaser"),
Reckson Associates Realty Corp., a Maryland corporation, Crescent Real Estate
Equities Company, a Texas real estate investment trust, and Office Invest Sub
LLC (the "Stockholder"), a stockholder of Tower Realty Trust, Inc., a Maryland
corporation (the "Company").
RECITALS
C. Purchaser and the Company are concurrently herewith entering into
an Agreement and Plan of Merger dated as of the date hereof (a copy of which
has been provided to the Stockholder) (the "Merger Agreement"), pursuant to
which the Company shall be merged with and into the Purchaser.
D. The Stockholder is a significant stockholder of the Company.
C. The execution and delivery of this Agreement is a condition
to Purchaser entering into the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties
hereby agree as follows:
1. Voting. At the meeting of the Company's stockholders convened to
------
consider and vote upon approval of the Merger (the "Transaction") and adoption
of the Merger Agreement, the Stockholder shall vote or cause to be voted all
of the shares of common stock of the Company, par value $0.01 per share (the
"Company Common Stock"), owned of record by it at the record date for such
vote and which it has the sole power to vote (the "Shares") (a) in favor of
the authorization of the transactions contemplated by the Merger Agreement and
(b) against (i) approval of any proposal made in opposition to or in
competition with the Transaction, (ii) any merger, consolidation, sale of
assets, business combination, share exchange, reorganization or
recapitalization of the Company or any of its subsidiaries, with or involving
any party other than the Purchaser or one of its subsidiaries, (iii) any
liquidation or winding up of the Company, and (iv) any other action that may
reasonably be expected to result in a breach of any of the covenants,
representations, warranties or other obligations or agreements of the Company
under the Merger Agreement which would materially and adversely affect the
Company or its ability to consummate the transactions contemplated by the
Merger Agreement.
2. No Solicitation. The Stockholder shall not, directly or
----------------
indirectly: (i) take any action to seek, initiate or solicit any offer from
any person, entity or group to acquire any shares of capital stock of the
Company or its subsidiaries, to merge or consolidate with the Company or its
subsidiaries, or to otherwise acquire any significant portion of the assets of
the Company or its subsidiaries except for acquisitions solely of inventory in
the ordinary course of business (a "Third Party Acquisition Offer"), or (ii)
engage in negotiations or discussions concerning a Third Party Acquisition
Offer or the business or assets of the Company or its subsidiaries with, or
disclose financial information relating to the Company or its subsidiaries, or
any confidential or proprietary trade or business information relating to the
business of the Company or its subsidiaries to, or afford access to the
properties, books or records of the Company or its subsidiaries to, any third
party that may be considering a Third Party Acquisition Offer. The Stockholder
shall immediately cease and cause to be terminated all existing discussions
and negotiations, if any, with any parties conducted heretofore with respect
to any Third Party Acquisition Offer. Notwithstanding anything in this Section
2 to the contrary, (i) no affiliate of the Stockholder in his capacity as a
director of the Company shall be prohibited from taking any action permitted
to be taken pursuant to the Merger Agreement, (ii) no such action shall be
deemed to constitute a breach of this Agreement by the Stockholder and (iii)
no Stockholder or affiliate of such Stockholder shall be prohibited from
providing usual and customary services to clients in the business in which it
operates.
3. No Transfer. The Stockholder shall not sell, pledge, assign or
-----------
otherwise transfer or dispose of, or authorize, propose or agree to the sale,
pledge, assignment or other transfer or disposition of, any of its Shares.
4. Representations and Warranties. The Stockholder represents and
-------------------------------
warrants to Purchaser as follows:
(a) ORGANIZATION. The Stockholder is duly organized and
validly existing under the laws of the jurisdiction in which it was
established.
(b) REQUISITE POWER. The Stockholder has the requisite power
and authority to enter into this Agreement, and to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
(c) VALIDITY. This Agreement has been duly and validly
executed and delivered by the Stockholder.
(d) AUTHORITY TO VOTE SHARES. The Stockholder owns of record
the number of shares of Company Common Stock and, if different, the number of
Shares set forth opposite its name on Schedule A hereto. The Stockholder has
full legal power, authority and right to vote all Shares in favor of the
approval of the Transaction and the adoption of the Merger Agreement without
the consent or approval of, or any other action on the part of, any other
person or entity.
(e) NONCONTRAVENTION. Neither the execution and delivery of
this Agreement, nor the consummation of any of the transactions contemplated
hereby or by the Merger Agreement, nor compliance with any of the provisions
hereof or thereof, will violate, conflict with, or result in a breach of any
provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination or suspension of, or accelerate the performance required by, or
result in a right of termination or acceleration under, or result in the
creation of any lien upon any of the properties or assets of the Stockholder
under, any of the terms, conditions or provision of any agreement or
instrument to which the Stockholder is a party or any statute, rule,
regulation, judgment, order, decree or other legal requirement applicable to
the Stockholder; except for any such breach, violation, conflict or default
which, individually or in the aggregate, would not prevent the Stockholder
from voting the Shares in accordance with Section 1 hereof.
(f) LITIGATION. There is no claim, action, proceeding or
investigation pending or, to the knowledge of the Stockholder, threatened
against or relating to the Stockholder before any court or governmental or
regulatory authority or body and the Stockholder is not subject to any
outstanding order, writ, injunction or decree which, if determined adversely,
individually or in the aggregate, could reasonably be expected to prevent the
Stockholder from performing its obligations hereunder.
5. Termination. This Agreement may be terminated upon the earliest to
-----------
occur of (i) the termination of the Merger Agreement pursuant to Article VII
thereof and (ii) the consummation of the Transaction. In the event of a
termination of this Agreement pursuant to this Section 5, this Agreement shall
forthwith become void and there shall be no liability or obligation on the
part of any party hereto; provided, however, that nothing herein shall release
any party hereto from any liability for any breach of this Agreement.
6. Miscellaneous.
-------------
(a) NOTICES. All notices and other communications hereunder
shall be in writing (including telex or similar writing) and shall be deemed
given if delivered in person or by messenger, cable, telegram or telex or
facsimile transmission or by a reputable overnight delivery service which
provides for evidence of receipt to the parties at the address set forth on
Schedule A (with respect to the Stockholder) or at the following address or
telecopier number (with respect to the Purchaser):
if to Purchaser at:
Metropolitan Partners LLC
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.; and
with a copy to:
Metropolitan Partners LLC
c/o Crescent Real Estate Equities Company
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
(b) INTERPRETATION. 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.
(c) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement.
(d) ENTIRE AGREEMENT. This Agreement (including the
documents and instruments referred to herein) constitutes the entire agreement
and supersedes all prior and contemporaneous agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof.
(e) SEVERABILITY; SAVINGS. The invalidity or
unenforceability or any provision of this Agreement shall not affect the
validity or enforceability of any other provisions of this Agreement, which
shall remain in full force and effect. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of law of such state. Each of the Stockholder
and the Purchaser 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 State of New York for any litigation
arising out of or relating to this Agreement.
(g) ASSIGNMENT. Neither this Agreement nor any of the
rights, interest or obligations hereunder shall be assigned by any party
hereto, whether by operation of law or otherwise, without the express prior
written consent of each of the other parties hereto. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors, heirs, legal
representatives and permitted assigns.
(h) AMENDMENT. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified except upon the execution and
delivery of a written agreement executed by the parties hereto.
(i) REMEDIES. In addition to all other remedies available,
the parties agree that, in the event of a breach by a party of any of its
obligations hereunder, the non-breaching party shall be entitled to specific
performance or injunctive relief.
(j) DEFINED TERMS. All capitalized terms used herein and not
defined herein shall have the meaning set forth in the Merger Agreement.
IN WITNESS WHEREOF, each of the parties hereto have signed this
Agreement as of the date first above written.
OFFICE INVEST SUB LLC
By: /s/ Xxxxx Xxxxxx
__________________________
Name: Xxxxx Xxxxxx
Title: President
METROPOLITAN PARTNERS LLC
By: /s/ Xxxxx X. Xxxxxxx
__________________________
Name: Xxxxx X. Xxxxxxx
Title:
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Xxxxx X. Xxxxxxx
__________________________
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Operating Officer
CRESCENT REAL ESTATE EQUITIES COMPANY
By: /s/ Xxxxx X. Xxxx
___________________________
Name: Xxxxx X. Xxxx
Title: Senior Vice President,
Law and Secretary
Schedule A
The Stockholder
---------------
Number of Shares
Name Company Common Stock
----- --------------------
Office Invest Sub LLC 459,400
Address
--------
c/o DRA Advisors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as July 8, 1998, by
Metropolitan Partners LLC, a Delaware limited liability company ("Purchaser"),
Reckson Associates Realty Corp., a Maryland corporation, Crescent Real Estate
Equities Company, a Texas real estate investment trust, and the persons listed
on Schedule A hereto (each a "Stockholder"), each a stockholder of Tower
Realty Trust, Inc., a Maryland corporation (the "Company").
RECITALS
E. Purchaser and the Company have entered into an Agreement and Plan
of Merger dated as of July 9, 1998 (a copy of which has been provided to each
Stockholder) (the "Merger Agreement"), pursuant to which the Company shall be
merged with and into the Purchaser on the terms set forth in the Merger
Agreement (the "Merger").
F. Each Stockholder owns the shares of common stock of the Company
set forth on Schedule A hereto.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties
hereby agree as follows:
1. Voting. At the meeting of the Company's stockholders convened to
------
consider and vote upon approval of the Merger (the "Transaction") and adoption
of the Merger Agreement, each Stockholder shall vote or cause to be voted all
of the shares of common stock of the Company, par value $0.01 per share (the
"Company Common Stock"), owned of record by it at the record date for such
vote and which it has the sole power to vote (the "Shares") (a) in favor of
the authorization of the transactions contemplated by the Merger Agreement so
long as there is no reduction to the Merger Consideration (as defined in the
Merger Agreement) or in its form of payment set forth in the Merger Agreement
as of the date hereof and (b) against (i) approval of any proposal made in
opposition to or in competition with the Transaction, (ii) any merger,
consolidation, sale of assets, business combination, share exchange,
reorganization or recapitalization of the Company or any of its subsidiaries,
with or involving any party other than the Purchaser or one of its
subsidiaries, (iii) any liquidation or winding up of the Company, and (iv) any
other action that may reasonably be expected to result in a breach of any of
the covenants, representations, warranties or other obligations or agreements
of the Company under the Merger Agreement which would materially and adversely
affect the Company or its ability to consummate the transactions contemplated
by the Merger Agreement.
2. No Solicitation. Each Stockholder shall not, directly or
-----------------
indirectly: (i) take any action to seek, initiate or solicit any offer from
any person, entity or group to acquire any shares of capital stock of the
Company or its subsidiaries, to merge or consolidate with the Company or its
subsidiaries, or to otherwise acquire any significant portion of the assets of
the Company or its subsidiaries except for acquisitions solely of inventory in
the ordinary course of business (a "Third Party Acquisition Offer"), or (ii)
engage in negotiations or discussions concerning a Third Party Acquisition
Offer or the business or assets of the Company or its subsidiaries with, or
disclose financial information relating to the Company or its subsidiaries, or
any confidential or proprietary trade or business information relating to the
business of the Company or its subsidiaries to, or afford access to the
properties, books or records of the Company or its subsidiaries to, any third
party that may be considering a Third Party Acquisition Offer. Each
Stockholder shall immediately cease and cause to be terminated all existing
discussions and negotiations, if any, with any parties conducted heretofore
with respect to any Third Party Acquisition Offer. Notwithstanding anything in
this Section 2 to the contrary, (i) no affiliate of any Stockholder in his
capacity as a director of the Company shall be prohibited from taking any
action permitted to be taken pursuant to the Merger Agreement, (ii) no such
action shall be deemed to constitute a breach of this Agreement by any
Stockholder and (iii) no Stockholder or affiliate of such Stockholder shall be
prohibited from providing usual and customary services to clients in the
business in which it operates.
3. No Transfer. No Stockholder shall sell, pledge, assign or
------------
otherwise transfer or dispose of, or authorize, propose or agree to the sale,
pledge, assignment or other transfer or disposition of, any of its Shares.
4. Representations and Warranties. Each Stockholder, severally and
------------------------------
not jointly, represents and warrants to Purchaser as follows:
(a) ORGANIZATION. Such Stockholder is duly formed and
validly existing under the laws of the jurisdiction in which it was
established.
(b) REQUISITE POWER. Such Stockholder has the requisite
power and authority to enter into this Agreement, and to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
(c) VALIDITY. This Agreement has been duly and validly
executed and delivered by such Stockholder.
(d) AUTHORITY TO VOTE SHARES. Such Stockholder owns of
record the number of shares of Company Common Stock and, if different, the
number of Shares set forth opposite its name on Schedule A hereto. Such
Stockholder has full legal power, authority and right to vote all Shares in
favor of the approval of the Transaction and the adoption of the Merger
Agreement without the consent or approval of, or any other action on the part
of, any other person or entity.
(e) NONCONTRAVENTION. Neither the execution and delivery of
this Agreement, nor the consummation of any of the transactions contemplated
hereby or by the Merger Agreement, nor compliance with any of the provisions
hereof or thereof, will violate, conflict with, or result in a breach of any
provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination or suspension of, or accelerate the performance required by, or
result in a right of termination or acceleration under, or result in the
creation of any lien upon any of the properties or assets of such Stockholder
under, any of the terms, conditions or provision of any agreement or
instrument to which such Stockholder is a party or any statute, rule,
regulation, judgment, order, decree or other legal requirement applicable to
such Stockholder; except for any such breach, violation, conflict or default
which, individually or in the aggregate, would not prevent such Stockholder
from voting the Shares in accordance with Section 1 hereof.
(f) LITIGATION. There is no claim, action, proceeding or
investigation pending or, to the knowledge of such Stockholder, threatened
against or relating to such Stockholder before any court or governmental or
regulatory authority or body and such Stockholder is not subject to any
outstanding order, writ, injunction or decree which, if determined adversely,
individually or in the aggregate, could reasonably be expected to prevent such
Stockholder from performing its obligations hereunder.
5. Termination. This Agreement may be terminated by any party upon
------------
the earliest to occur of (i) the termination of the Merger Agreement pursuant
to Article VII thereof and (ii) the consummation of the Transaction. In the
event of a termination of this Agreement pursuant to this Section 5, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of any party hereto; provided, however, that nothing
herein shall release any party hereto from any liability for any breach of
this Agreement.
6. Miscellaneous.
-------------
(a) NOTICES. All notices and other communications hereunder
shall be in writing (including telex or similar writing) and shall be deemed
given if delivered in person or by messenger, cable, telegram or telex or
facsimile transmission or by a reputable overnight delivery service which
provides for evidence of receipt to the parties at the address set forth on
Schedule A (with respect to each Stockholder) or at the following address or
telecopier number (with respect to the Purchaser):
if to Purchaser at:
Metropolitan Partners LLC
c/o Reckson Associates Realty Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.; and
with a copy to:
Metropolitan Partners LLC
c/o Crescent Real Estate Equities Company
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
(b) INTERPRETATION. 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.
(c) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement.
(d) ENTIRE AGREEMENT. This Agreement (including the
documents and instruments referred to herein) constitutes the entire agreement
and supersedes all prior and contemporaneous agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof.
(e) SEVERABILITY; SAVINGS. The invalidity or
unenforceability or any provision of this Agreement shall not affect the
validity or enforceability of any other provisions of this Agreement, which
shall remain in full force and effect. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of law of such state. Each of the Stockholder
and the Purchaser 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 State of New York for any litigation
arising out of or relating to this Agreement.
(g) ASSIGNMENT. Neither this Agreement nor any of the
rights, interest or obligations hereunder shall be assigned by any party
hereto, whether by operation of law or otherwise, without the express prior
written consent of each of the other parties hereto. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors, heirs, legal
representatives and permitted assigns.
(h) AMENDMENT. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified except upon the execution and
delivery of a written agreement executed by the parties hereto.
(i) REMEDIES. In addition to all other remedies available,
the parties agree that, in the event of a breach by a party of any of its
obligations hereunder, the non-breaching party shall be entitled to specific
performance or injunctive relief.
(j) DEFINED TERMS. All capitalized terms used herein and not
defined herein shall have the meaning set forth in the Merger Agreement.
IN WITNESS WHEREOF, each of the parties hereto have signed this
Agreement as of the date first above written.
CARLYLE REALTY PARTNERS, L.P.
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By: /s/ Xxxxxx X. X'Xxxxxxx
------------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Managing Member
CARLYLE REALTY QUALIFIED PARTNERS, L.P.
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By: /s/ Xxxxxx X. X'Xxxxxxx
------------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Managing Member
CARLYLE REALTY PARTNERS SUNRISE, L.P.,
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By: /s/ Xxxxxx X. X'Xxxxxxx
------------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Managing Member
CARLYLE REALTY COINVESTMENT, L.P.,
By: Carlyle Realty, L.P., its general partner
By: DBD Investors III, L.L.C., its general partner
By: /s/ Xxxxxx X. X'Xxxxxxx
------------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Managing Member
METROPOLITAN PARTNERS LLC
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief Operating Officer
CRESCENT REAL ESTATE EQUITIES COMPANY
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President,
Law and Secretary
Schedule A
List of Stockholders
--------------------
Number of Shares
Name Company Common Stock
---- ---------------------
CARLYLE REALTY PARTNERS, L.P. 123,150
CARLYLE REALTY QUALIFIED PARTNERS, L.P. 130,506
CARLYLE REALTY PARTNERS SUNRISE, L.P. 79,489
CARLYLE REALTY COINVESTMENT, L.P. 51,470
Address for Stockholders:
c/o Carlyle Realty, L.P.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000 Xxxxx
Xxxxxxxxxx, X.X. 00000-0000
