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Exhibit (d)(3)
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-l") 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 THF,
SHARE-1101-DER. 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 fight, 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 Agrcenient 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 (tile "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
all 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) April 30, 2001, (b) 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
551 Fifth Avenue
Suite 1416
New York, New York 10176
Attention: Daniel Friedman
Facsimile: (212) 905-1102
with a copy (which shall not constitute notice) to:
Goldberg Weprin & Ustin LLP
1501 Broadway, 22nd Floor
New York, New York 10036
Attention: Andrew Albstein, Esq.
Facsimile: (212) 730-4518
(ii) If to the Shareholder:
Apollo Real Estate Investment Fund II, L.P.
1301 Avenue of the Americas, 38th Floor
New York, NY 10019
Attention: William Scully
Facsimile: (212) 515-3282
with a copy (which shall not constitute notice) to:
Akin, Gump, Strauss, Hauer & Feld, LLP
590 Madison Avenue
New York, New York 10022
Attention: Louis Vitali, Esq.
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Facsimile: (212) 872-8155
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:
----------------------------------
Name:
Title:
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/ William Scully
----------------------------------
Name: William Scully
Title:
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Facsimile: (212) 515-3282
with a copy (which shall not constitute notice) to:
Akin, Gump, Strauss, Hauer & Feld, LLP
590 Madison Avenue
New York, New York 10022
Attention: Louis Vitali, Esq.
Facsimile: (212) 872-8155
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/ Daniel Friedman
---------------------------------
Name: Daniel Friedman
Title: Managing Partner
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:
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Name:
Title:
Number of Shares: Approximately 2,990,379
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