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Exhibit 2.1(d)
EXHIBIT J
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of March __, 1997, by and
among certain undersigned shareholders (each a "Shareholder" and collectively,
the "Shareholders") of Vornado Realty Trust, a Maryland real estate investment
trust (the "Company"), and Bernard H. Mendik ("Mr. Mendik").
WHEREAS, pursuant to that certain Master Consolidation Agreement, dated as
of March __, 1997, among the Company, Vornado/Saddle Brook L.L.C., a Delaware
limited liability company, The Mendik Company, L.P., a Delaware limited
partnership (the "Operating Partnership"), and various other parties defined
therein collectively as the Mendik Group (the "Consolidation Agreement"), the
Operating Partnership will acquire (through merger, contribution, transfer or
otherwise) the assets of the Company, the Mendik Property Interests (as defined
in the Consolidation Agreement) and substantially all of the interests in the
Management Business Assets (as defined in the Consolidation Agreement); and
WHEREAS, each Shareholder currently exercises direct or indirect voting
control over the number of common shares of beneficial interest, $.04 par value
per share, of the Company ("Common Shares") set forth opposite such
Shareholder's name on Schedule 1 hereto; and
WHEREAS, in order to induce the Mendik Group to enter into the
Consolidation Agreement and to consummate the Consolidation in accordance with
the terms thereof, each Shareholder has agreed, upon the terms and subject to
the conditions set forth herein, to vote such Shareholder's Shares (as defined
below) in favor of the election of Mr. Mendik to the Board of Trustees of the
Company.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Representations of the Shareholders. Each Shareholder represents and
warrants to Mr. Mendik that (a) such Shareholder exercises exclusive voting
control over such Shareholder's Shares and, except as set forth on Schedule 1
hereto or as contemplated by this Agreement, there are no rights, agreements,
arrangements or commitments of any character to which such Shareholder is a
party relating to the pledge, disposition or voting of any of such Shareholder's
Shares and there are no voting trusts or voting agreements with respect to such
Shareholder's Shares, (b) such Shareholder is duly authorized to execute and
deliver this Agreement, and (c) this Agreement is a valid and binding obligation
of such Shareholder enforceable against such Shareholder in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the rights of creditors
generally and by general equitable principles.
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2. Agreement to Vote Shares. Subject to the terms and conditions of this
Agreement, each Shareholder agrees during the term of this Agreement to vote, or
cause to be voted, such Shareholder's Shares in favor of the election of Mr.
Mendik to the Board of Trustees of the Company at every meeting of the
shareholders of the Company at which such matter is considered and at every
adjournment thereof. For all purposes of this Agreement, with respect to any
Shareholder, "Shares" shall mean those Common Shares, if any, held of record or
beneficially owned by and for the account of such Shareholder from time to time
during the term of this Agreement or over which such Shareholder exercises
voting control.
3. No Voting Trusts. Each Shareholder agrees that such Shareholder will
not, nor will such Shareholder permit any Affiliate to, deposit any of such
Shareholder's Shares in a voting trust or grant any proxies or otherwise subject
any of such Shareholder's Shares to any right, agreement, arrangement or
commitment with respect to the voting of such Shares inconsistent with the
express terms of this Agreement; provided, however, that, subject to Section 4,
nothing herein shall be deemed to restrict any Shareholder's right or ability to
sell, transfer, pledge or otherwise dispose of or encumber any of such
Shareholder's Shares at any time.
4. Disposition of Shares. Nothing contained herein shall be deemed to
require any Shareholder to own or hold beneficially or of record any Common
Shares or impose any limitation on any Shareholder's right or ability to sell,
transfer, pledge or otherwise dispose of or encumber any of such Shareholder's
Shares at any time; provided, however, that each Shareholder agrees that such
Shareholder shall not transfer such Shareholder's Shares to an Affiliate of such
Shareholder unless such Affiliate agrees prior to such transfer to be bound by
all of the terms and conditions of this Agreement by executing a counterpart
signature page to this Agreement and delivering the same to Mr. Mendik. As used
herein, "Affiliate", with respect to a Shareholder shall mean (i) an entity more
than fifty percent (50%) of the voting interests of which are held, directly or
indirectly, beneficially or of record by such Shareholder and (ii) in the case
of a Shareholder that is a natural person, such Shareholder's spouse and
children, if any, and any trust substantially all the beneficiaries of which are
such Shareholder, his spouse and/or his children.
5. Specific Performance. Each party hereto acknowledges that it will be
impossible to measure in money the damage to the other party if a party hereto
fails to comply with the obligations imposed by this Agreement and that, in the
event of any such failure, the other party will not have an adequate remedy at
law or in damages. Accordingly, each party hereto agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto agrees that it will not seek, and agrees to waive any requirement
for, the securing or posting of a bond in connection with any other party's
seeking or obtaining such equitable relief.
6. Time of Agreement; Termination. The term of this Agreement shall
commence on the date hereof, and such term and this Agreement shall terminate
upon the earliest to occur of (i) March 31, 2003; (ii) the date that Mr. Mendik
ceases to own beneficially or control Common Shares and Units (as defined in the
Consolidation Agreement)
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representing at least 80% of the Mendik Initial Investment (for purposes of this
clause (ii), the calculation of the number of Common Shares and Units
beneficially owned by Mr. Mendik shall include those Common Shares and Units
comprising any part of the Mendik Initial Investment which have been
subsequently transferred or conveyed to, and held continuously by, any trust
exclusively for the benefit of Mr. Mendik, his spouse, his lineal descendants
and/or any charitable organizations); (iii) the death, Disability (as defined
below) or criminal indictment of Mr. Mendik or the occurrence of an act by Mr.
Mendik in connection with the business and affairs of the Company or the
Operating Partnership that constitutes fraud, gross negligence or willful
misconduct, or the removal of Mr. Mendik from the Board of Trustees of the
Company pursuant to the Amended and Restated Declaration of Trust of the
Company, as may be amended from time to time (the "Charter"); (provided,
however, that each Shareholder agrees that, in connection with any vote of the
shareholders of the Company to remove Mr. Mendik from the Board of Trustees of
the Company pursuant to the Charter during the term of this Agreement, such
Shareholder will either abstain from such vote or vote (or cause to be voted)
its Shares proportionally in accordance with the votes of the other holders of
Common Shares). As used herein, "Disability" means the illness, physical or
mental disability, or other incapacity, of Mr. Mendik which has continued for at
least 180 consecutive days. As used herein, "Mendik Initial Investment" means
the aggregate number of Common Shares and Units acquired by Mr. Mendik and
certain of his affiliates in the Consolidation as identified on Schedule 2
hereto, as such number may be adjusted from time to time in the event of any
share dividend or split, recapitalization, merger, consolidation, spinoff,
combination or exchange of Common Shares or other corporate change, or any
distributions to holders of Common Shares other than regular cash dividends.
Upon such termination, no party shall have any further obligations or
liabilities hereunder; provided, that such termination shall not relieve any
party from liability for any breach of this Agreement prior to such termination.
7. Entire Agreement. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by all parties hereto. No waiver of any provisions
hereto by any party shall be deemed a waiver of any other provisions hereof by
any such party, nor shall any such waiver be deemed a continuing waiver of any
provisions hereof by such party.
8. Notices. All notices, requests, claims, demands or other communications
hereunder shall be in writing, and shall be deemed given when delivered
personally, upon receipt of a transmission confirmation if sent by telecopy or
like transmission and on the next business day when sent by Federal Express,
Express Mail or other reputable overnight courier service to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
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If to the Shareholders, to:
Mr. Steven Roth
c/o Vornado Realty Trust
Park 80 West, Plaza II
Saddle Brook, New Jersey 07663
Telecopy: (201) 291-1093
Mr. Michael Fascitelli
c/o Vornado Realty Trust
Park 80 West, Plaza II
Saddle Brook, New Jersey 07663
Telecopy: (201) 291-1093
Interstate Properties
c/o Vornado Realty Trust
Park 80 West, Plaza II
Saddle Brook, New Jersey 07663
Telecopy: (201) 291-1093
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, NY 10004
Attention: Arthur S. Adler
Patricia A. Ceruzzi
Telecopy: (212) 558-3588
If to Mr. Bernard H. Mendik to:
Mr. Bernard H. Mendik
c/o The Mendik Company
330 Madison Avenue
New York, New York 10017
Telecopy: (212) 697-2837
With a copy to:
Hogan & Hartson LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
Attention: J. Warren Gorrell, Jr.
Telecopy: (202) 637-5600
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9. Miscellaneous.
(a) THIS AGREEMENT SHALL BE DEEMED A CONTRACT MADE UNDER, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
MARYLAND, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PRINCIPLES.
(b) If any provision of this Agreement or the application of such provision
to any person or circumstances shall be held invalid or unenforceable by a court
of competent jurisdiction, such provision or application shall be unenforceable
only to the extent of such invalidity or unenforceability, and the remainder of
the provision held invalid or unenforceable and the application of such
provision to persons or circumstances, other than the party as to which it is
held invalid, and the remainder of this Agreement, shall not be affected.
(c) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(d) All Section headings herein are for convenience of reference only and
are not part of this Agreement, and no construction or reference shall be
derived therefrom.
(e) Capitalized terms used but not defined in this Agreement shall have the
respective meanings assigned to such terms in the Consolidation Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
_____________________________________
MR. STEVEN ROTH
_____________________________________
MR. MICHAEL FASCITELLI
Interstate Properties
By:___________________________________
General Partner
______________________________________
MR. MENDIK
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EXHIBIT A
Definitions
Vornado: Initially Vornado Realty Trust, then Borrower upon closing of the
contemplated acquisition.
EBITDA: Earnings before interest, taxes, depreciation, and amortization
determined in accordance with GAAP and adjusted for non-recurring
items (e.g., out-parcel sales).
Combined EBITDA: 100% of EBITDA from Vornado's wholly-owned properties and
Vornado's pro rata share of EBITDA from joint venture properties.
Combined Interest Expense: The total Interest Expense of Vornado's
wholly-owned properties and Vornado's pro rata share of Interest
Expense from joint venture properties.
Capitalized Value: Include: (i) Vornado's past four quarters combined
EBITDA capitalized at 9%; (ii) Cash and Cash equivalents; and (iii)
projects under development at cost. For the purposes of this
calculation, Vornado combined EBITDA attributable to leasing
commissions, management fees or development fees shall not exceed 5%
of Vornado Combined EBITDA.
Total Adjusted Outstanding Indebtedness: Includes: (i) 100% of all
outstanding unsecured and secured indebtedness (excluding margin debt
on cash and cash equivalent securities) for Vornado and its
wholly-owned properties; (ii) Vornado's pro rata share of debt from
joint venture properties; and (iii) Vornado's recourse contingent
obligations.
Equity Value: Capitalization Value less Total Adjusted Outstanding
Indebtedness.
Unencumbered Combined EBITDA: 100% of EBITDA for Vornado's wholly-owned
unencumbered properties and Vornado's pro rata share of EBITDA from
unencumbered joint venture properties.
Total Adjusted Unsecured Outstanding Indebtedness: Includes: (i) 100% of
all outstanding unsecured indebtedness for Vornado and its
wholly-owned properties; (ii) Vornado's pro rata share of unsecured
debt from joint venture properties; and (iii) Vornado's recourse
contingent obligations.
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Representations and Warranties
- - Valid existence and authority.
- - Binding effect of agreement.
- - Fair presentation of financial information.
- - No material adverse change.
- - No litigation with probability of material loss.
- - Compliance with applicable laws, including relevant environmental laws.
- - Payment of taxes.
- - Full disclosure (no representation will be made with respect to
projections).
- - Existence of insurance.
- - Valid existence of material subsidiaries.
Financial Covenants
At all times, Vornado is to maintain the following covenants and ratios
(quarterly test):
- - Minimum Vornado Equity Value of $600 million.
- - Total Adjusted Outstanding Indebtedness not to exceed 55% of Vornado
Capitalization Value.
- - The ratio of Combined EBITDA to Combined Interest Expense, for the prior
four quarters, shall not be less than 2.25 to 1.00.
- - Secured Indebtedness not to exceed 35% of Vornado Capitalization Value.
- - The ratio of Combined EBITDA, for the prior four quarters, to the current
Total Adjusted Outstanding Indebtedness less all unrestricted Cash and Cash
Equivalents shall not be less than 16%.
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- - The ratio of Unencumbered Combined EBITDA, for the prior four quarters, to
the current Total Adjusted Unsecured Outstanding Indebtedness less all
unrestricted Cash and Cash Equivalents shall not be less than 16%.
Provision of the following information on a quarterly (unaudited) basis:
- - Statement from a qualified representative of Vornado acceptable to Lender
presenting and certifying covenant compliance.
Provision of the following information as necessary:
- - Notice of material default.
- - Copies of any documents filed with the SEC by Vornado or any subsidiaries
thereof.
- - Notification of the bankruptcy or cessation of operations of any tenant to
which greater than 4% of Vornado's consolidated minimum rent is
attributable.
- - Notification of any asset acquisition or asset sale in excess of $25
million.
- - Full information as to Vornado's insurance coverage.
- - Other information as reasonably requested by Lender.
- - Maintenance of existence, maintenance of properties, maintenance of
insurance, payment of taxes and compliance with all applicable laws and
regulations.
- - Inspection of property, books and records at Lender's reasonable request.
Negative Covenants
- - No encumbrance or indebtedness on any unencumbered assets now held or
hereafter acquired by Vornado.
- - No additional encumbrance or indebtedness on any currently encumbered
assets.
Mandatory Prepayment Events
- - Merger, unless Borrower is the surviving entity.
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- - Sale of any asset or assets totaling more than 25% of Borrower's
Capitalization Value.
- - Cumulative total investments in minority interests in shares of other
companies in excess of 15% of Capitalization Value (not to include existing
investments in minority interests in shares of other companies).
- - Proceeds from any capital events (financings, equity offerings or
otherwise) shall be applied to prepayment of the Loan.
Events of Default
- - Failure to pay principal when due.
- - Failure to pay interest within five days after due.
- - Violation of covenants, subject, where appropriate, to cure or grace
periods to be negotiated.
- - Material inaccuracy of any representation or warranty.
- - Cross-default to recourse debt obligations in excess of $10 million.
- - Insolvency or bankruptcy of Borrower, Guarantor or a subsidiary to which
more than $100 million of Total Market Capitalization is attributable.
- - Judgement defaults in excess of $10 million that remain unremedied.
- - Failure of Guarantor to remain a publicly traded, stock exchange listed
company and to qualify as a real estate investment trust.
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March 7, 1997
Vornado Realty Trust
Park 80 West, Plaza II
Saddle Brook, New Jersey 07663
Attention: Mr. Joseph Macnow
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Re: Facility Fee
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Gentlemen:
With respect to our commitment letter issued simultaneously herewith, you
agree pay to UBS (for UBS' own account), the sum of $500,000 as a facility fee
upon the closing of the Loan referred to therein.
In addition, Borrower shall pay to UBS (for UBS' own account) an extension
fee of $500,000 per extension as a condition to the effectiveness of each of the
two extensions provided for in said commitment.
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This letter constitutes your agreement to pay the foregoing and may be
modified, supplemented, amended or terminated except by a writing executed by
you and us.
Very truly yours,
UNION BANK OF SWITZERLAND
(NEW YORK BRANCH)
By _________________________________
Name:
Title:
By _________________________________
Name:
Title:
Accepted and agreed to this
_____ day of March, 1997.
VORNADO REALTY TRUST
By ____________________________
Name:
Title:
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