UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN
STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
Under the Securities Exchange Act of 1934
(Amendment No. 8)*
Condor Hospitality Trust, Inc. (CDOR)
(Name of Issuer)
Common Stock
(Title of Class of Securities)
20676Y403
(CUSIP Number)
Saúl Zang
Juan Manuel Quintana
Carolina Zang
Pablo Vergara del Carril
Zang, Bergel y Viñes Abogados
Florida 537, 18th Floor C1005AAK
Buenos Aires, Argentina
+54(11) 4322-0033
+54 (11) 5166-7000
(Name, Address and Telephone Number of Person authorized to Receive Notices and Communications)
July 19, 2019
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box. ☐
Note : Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to who copies are to be sent.
* |
The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes ).
CUSIP No. 20676Y403 | Page 2 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Eduardo S. Elsztain |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Argentina |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
3,787,166* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
3,787,166* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,787,166* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.6%* |
|||||
14. |
TYPE OF REPORTING PERSON
IN |
* |
Unless otherwise noted, the Reporting Persons beneficially own 3,787,166 shares of common stock, $0.01 par value per share (Common Stock), consisting of (i) 2,197,023 shares of Common Stock held by Real Estate Investment Group VII L.P., 1,092,513 shares of Common Stock held by Real Estate Strategies L.P. and 48,076 shares of Common Stock held by Efanur S.A., (ii) 64,964 shares of Common Stock issuable upon conversion of a promissory note held for the benefit of Real Estate Investment Group VII L.P. and 32,305 shares of Common Stock issuable upon conversion of a promissory note held by Real Estate Strategies L.P. and (iii) 352,285 shares of Common Stock which would be received upon the conversion of the 487,738 shares of Series E Cumulative Convertible Preferred Stock (Series E Stock), which is convertible at the option of the holders. The percentage of class shown represents the percentage based on 11,920,775 shares of Common Stock outstanding as of May 1, 2019. |
CUSIP No. 20676Y403 | Page 3 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Agroinvestment S.A. |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Uruguay |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
3,787,166* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
3,787,166* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,787,166* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.6%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Refer to note at bottom of Page 2. |
CUSIP No. 20676Y403 | Page 4 of 33 Pages |
1. |
NAME OF REPORTING PERSON
IFIS Limited |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
3,787,166* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
3,787,166* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,787,166* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.6%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Refer to note at bottom of Page 2. |
CUSIP No. 20676Y403 | Page 5 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Inversiones Financieras del Sur S.A. |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Uruguay |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
3,787,166* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
3,787,166* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,787,166* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.6%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Refer to note at bottom of Page 2. |
CUSIP No. 20676Y403 | Page 6 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Cresud Sociedad Anónima Comercial Inmobiliaria Financiera y Agropecuaria |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Argentina |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
3,787,166* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
3,787,166* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,787,166* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.6%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Refer to note at bottom of Page 2. |
CUSIP No. 20676Y403 | Page 7 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Helmir S.A. |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Uruguay |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
3,787,166* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
3,787,166* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,787,166* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.6%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Refer to note at bottom of Page 2. |
CUSIP No. 20676Y403 | Page 8 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Consultores Venture Capital Limited |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
3,787,166* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
3,787,166* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,787,166* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.6%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Refer to note at bottom of Page 2. |
CUSIP No. 20676Y403 | Page 9 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Consultores Assets Management S.A. |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Argentina |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
3,787,166* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
3,787,166* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,787,166* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.6%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Refer to note at bottom of Page 2. |
CUSIP No. 20676Y403 | Page 10 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Consultores Venture Capital Uruguay S.A. |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Uruguay |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
3,787,166* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
3,787,166* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,787,166* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.6%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Refer to note at bottom of Page 2. |
CUSIP No. 20676Y403 | Page 11 of 33 Pages |
1. |
NAME OF REPORTING PERSON
IRSA Inversiones y Representaciones Sociedad Anónima |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Argentina |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
3,787,166* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
3,787,166* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,787,166* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
30.6%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Refer to note at bottom of Page 2. |
CUSIP No. 20676Y403 | Page 12 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Efanur S.A. |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Uruguay |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
2,545,348* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
2,545,348* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,545,348* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.8%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Efanur S.A. beneficially owns 2,545,348 shares of Common Stock, consisting of (i) 2,197,023 shares of Common Stock held by Real Estate Investment Group VII L.P. and 48,076 shares of Common Stock held directly, (ii) 64,964 shares of Common Stock issuable upon conversion of a promissory note held for the benefit of Real Estate Investment Group VII L.P. and (iii) 235,285 shares of Common Stock which would be received upon the conversion of the 325,752 shares of Series E Stock held by Real Estate Investment Group VII L.P., which is convertible at the option of the holder. The percentage of class shown represents the percentage based on 11,920,775 shares of Common Stock outstanding as of May 1, 2019. |
CUSIP No. 20676Y403 | Page 13 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Tyrus S.A. |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Uruguay |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
2,497,272* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
2,497,272* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,497,272* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.4%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Tyrus S.A. beneficially own 2,497,272 shares of common stock, $0.01 par value per share (Common Stock), consisting of (i) 2,197,023 shares of Common Stock held by Real Estate Investment Group VII L.P., (ii) 64,964 shares of Common Stock issuable upon conversion of a promissory note held for the benefit of Real Estate Investment Group VII L.P. and (iii) 235,285 shares of Common Stock which would be received upon the conversion of the 352,752 shares of Series Stock, which is convertible at the option of the holders. The percentage of class shown represents the percentage based on 11,920,775 shares of Common Stock outstanding as of May 1, 2019. |
CUSIP No. 20676Y403 | Page 14 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Jiwin S.A. |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Republic of Uruguay |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
2,497,272* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
2,497,272* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,497,272* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.4%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Jiwin S.A. beneficially own 2,497,272 shares of common stock, $0.01 par value per share (Common Stock), consisting of (i) 2,197,023 shares of Common Stock held by Real Estate Investment Group VII L.P., (ii) 64,964 shares of Common Stock issuable upon conversion of a promissory note held for the benefit of Real Estate Investment Group VII L.P. and (iii) 235,285 shares of Common Stock which would be received upon the conversion of the 352,752 shares of Series Stock, which is convertible at the option of the holders. The percentage of class shown represents the percentage based on 11,920,775 shares of Common Stock outstanding as of May 1, 2019. |
CUSIP No. 20676Y403 | Page 15 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Elsztain Managing Partner Limited |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
1,241,818* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
1,241,818* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,241,818* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.3%* |
|||||
14. |
TYPE OF REPORTING PERSON
CO |
* |
Elsztain Managing Partners Limited beneficially own 1,241,818 shares of common stock, $0.01 par value per share (Common Stock), consisting of (i) 1,092,513 shares of Common Stock held by Real Estate Strategies L.P ;(ii) 32,305 shares of Common Stock issuable upon conversion of a promissory note held for the benefit of Real Real Estate Strategies L.P.; and (iii) 117,000 shares of Common Stock which would be received upon the conversion of the 161,986 shares of Series E Stock, which is convertible at the option of the holders. The percentage of class shown represents the percentage based on 11,920,775 shares of Common Stock outstanding as of May 1, 2019. |
CUSIP No. 20676Y403 | Page 16 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Real Estate Strategies L.P. |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF - WC |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
1,241,818* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
1,241,818* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,241,818* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.3%* |
|||||
14. |
TYPE OF REPORTING PERSON
PN |
* |
Real Estate Strategies L.P. beneficially owns 1,241,818 shares of Common Stock, consisting of (i) 1,092,513 shares of Common Stock, (ii) 32,305 shares of Common Stock issuable upon conversion of a promissory note and (iii) 117,000 shares of Common Stock which would be received upon the conversion of the 161,986 shares of Series E Stock, which is convertible at the option of the holder. The percentage of class shown represents the percentage based on 11,920,775 shares of Common Stock outstanding as of May 1, 2019. |
CUSIP No. 20676Y403 | Page 17 of 33 Pages |
1. |
NAME OF REPORTING PERSON
Real Estate Investment Group VII L.P. |
|||||
2. |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☒ (b) ☐
|
|||||
3. |
SEC USE ONLY
|
|||||
4. |
SOURCE OF FUNDS
AF |
|||||
5. |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
☐ |
|||||
6. |
CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda |
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7. |
SOLE VOTING POWER
0 |
||||
8. |
SHARED VOTING POWER
2,497,272* |
|||||
9. |
SOLE DISPOSITIVE POWER
0 |
|||||
10. |
SHARED DISPOSITIVE POWER
2,497,272* |
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,497,272* |
|||||
12. |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☒ |
|||||
13. |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.4%* |
|||||
14. |
TYPE OF REPORTING PERSON
PN |
* |
Real Estate Investment Group VII L.P. beneficially owns 2,497,272 shares of Common Stock, consisting of (i) 2,197,023 shares of Common Stock, (ii) 64,964 shares of Common Stock issuable upon conversion of a promissory note held for its benefit and (iii) 235,285 shares of Common Stock which would be received upon the conversion of the 325,752 shares of Series E Stock, which is convertible at the option of the holder. The percentage of class shown represents the percentage based on 11,920,775 shares of Common Stock outstanding as of May 1, 2019. |
CUSIP No. 20676Y403 | Page 18 of 33 Pages |
Explanatory Note
This Amendment is being filed to report voting agreements with respect to securities of Condor Hospitality Trust, Inc., a Maryland corporation (Condor), beneficially owned by certain of the Reporting Persons. The voting agreements are not purchases or sales of securities of Condor and have no effect on the overall number of securities of Condor beneficially owned in the aggregate by the Reporting Persons.
Item 1. |
Security and Issuer |
This Amendment No. 8 amends and supplements the statement on Schedule 13D (the Statement) originally filed with the Securities and Exchange Commission on February 13, 2012, and as amended on February 17, 2012, and as amended on June 18, 2014 and as amended on March 23, 2016, and as amended on January 27, 2017, and as amended on February 28, 2017, and as amended on April 7, 2017, and as amended on July 3, 2018, jointly by Mr. Eduardo S. Elsztain (Elsztain), Consultores Assets Management S.A. (CAM), Consultores Venture Capital Uruguay S.A. (CVC Uruguay), Agroinvestment S.A. (Agroinvestment), Consultores Venture Capital Ltd. (CVC Cayman), IFIS Limited (IFIS), Inversiones Financieras del Sur S.A. (IFISA), Cresud Sociedad Anónima Comercial, Inmobiliaria, Financiera y Agropecuaria (Cresud), Helmir S.A. (Helmir), IRSA Inversiones y Representaciones Sociedad Anónima (IRSA), Tyrus S.A. (Tyrus), Jiwin S.A. (Jiwin), Elsztain Managing Partners Ltd (EMP); Efanur SA (Efanur) and Real Estate Strategies L.P. (RES and together with Elsztain, CAM, CVC Uruguay, Agroinvestment, CVC Cayman, IFIS, IFISA, Cresud, IRSA, Tyrus, Jiwin, EMP, Efanur and Real Estate Investment Group VII, L.P. (REIG VII), which is joining as a reporting person on this Statement, the Reporting Persons) relating to the common stock, par value $0.01 per share (the Common Stock) of Condor Hospitality Trust, Inc., a Maryland corporation (Condor) beneficially owned by the Reporting Persons. Unless otherwise indicated, each capitalized term used but not defined herein shall have the meaning assigned to such term in the Statement. From and after the date hereof, all references in the Statement to the Statement or terms of similar import shall be deemed to refer to the Statement as amended and supplemented hereby. Information regarding the ownership of Common Stock set forth herein is as of the close of business on July 19, 2019. The address of the principal executive offices of Condor is 4800 Montgomery Lane, Suite 220, Bethesda, MD 20814.
Item 2. |
Identity and Background |
Item 2 is amended to add the following:
(d) None of the Reporting Persons nor, to their knowledge, any person named in Schedule A hereto, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) within the last five years.
(e) During the last five years, none of the Reporting Persons nor, to their knowledge, any person named in Schedule A hereto, has been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which any such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation of such laws.
Item 3. |
Source and Amount of Funds or Other Consideration |
The voting agreements are not purchases or sales of securities of Condor by the Reporting Persons and the Reporting Persons continue to beneficially own, in the aggregate, the same number of securities of Condor as beneficially owned prior to entering into the voting agreements.
Item 4. |
Purpose of the Transaction |
Item 4 is supplemented with the information set forth in Item 6 below which is incorporated herein by reference.
CUSIP No. 20676Y403 | Page 19 of 33 Pages |
Item 5. |
Interests in Securities of the Issuer |
Item 5 is hereby amended and restated in its entirety as follows:
The information contained in rows 7, 8, 9, 10, 11, 12 and 13 on each of the cover pages of this Amendment No. 7 is incorporated by reference in its entirety into this Item 5.
The Reporting Persons beneficially own, in the aggregate, 3,787,166 shares of Common Stock consisting of (i) 3,337,612 shares of Common Stock, (ii) 97,269 shares of Common Stock issuable on conversion of a convertible promissory note in $1,011,599 principal amount, at a conversion price of $10.40 per share of Common Stock and (iii) 352,285 shares of Common Stock which would be received upon the conversion of 487,738 shares of Series E Stock beneficially owned by the Reporting Persons which are convertible by the holders.
(i) |
Elsztain is the Chairman of the Board of Directors of IFISA, Cresud, CAM, CVC Uruguay, Agroinvestment, IRSA, Efanur, Jiwin, EMP, and Tyrus, except for RES a company in which EMP (a company wholly owned by CVC Cayman) is the General Partner and REIG VII, a company in which Jiwin (a company wholly owned by IRSA) is the General Partner; |
(ii) |
As of the date of this report, Elsztain holds (through companies controlled by him and proxies) a majority of the voting power in IFIS Ltd. Elsztain also owns 85% of CAM which owns 100% of CVC Uruguay, which in turn owns 0.0002% of Cresuds shares, 1.03% of IRSA´s shares, and 100% of CVC Cayman. None of these companies directly own Common Stock. As of that same date, Elsztain directly owns the equivalent of 203,751 common shares of the outstanding equity capital of Cresud, representing approximately 0.04% of Cresuds issued and outstanding common shares; |
(iii) |
CVC Cayman serves as the Investment Manager of IFIS; |
(iv) |
IFIS is the direct owner of 100% of the common shares of IFISA; |
(v) |
IFISA directly owns the equivalent of 114,926,563 common shares of Cresud representing approximately 22.91% of Cresuds issued and outstanding common shares; Agroinvestment directly owns the equivalent of 67,360,740 common shares of Cresud representing approximately 13.43% of Cresuds issued and outstanding common shares. Neither IFISA nor Agroinvestment directly own Common Stock; |
(vi) |
Cresud directly owns 61.68% of IRSAs common shares. Cresud does not directly own Common Stock; Helmir, a company wholly owned by Cresud, owns 0.38% of IRSAs common shares and does not directly own Common Stock. |
(vii) |
IRSA owns 100% of Tyrus and Efanurs capital stock. IRSA does not directly own Common Stock; |
(viii) |
Tyrus owns 100% of the capital stock of Jiwin. Tyrus does not directly own Common Stock; |
(ix) |
Jiwin serves as general Partner of REIG VII; Jiwin does not directly own Common Stock; |
(x) |
EMP serves as general Partner of RES; EMP does not directly own Common Stock; |
(x) |
Efanur is the sole limited partner of REIG VII. Efanur owns directly 48,076 shares of Common Stock; |
(xi) |
RES owns directly 1,092,513 Shares of Common Stock of Condor. RES owns directly 161,986 shares of Series E Stock, which is convertible into 117,000 shares of Common Stock. RES holds directly a promissory note convertible for up to 32,305 shares of Common Stock attributable to RES, subject to the 49% ownership limitation; and |
(xii) |
REIG VII owns directly 2,197,023 Shares of Common Stock of Condor. REIG VII owns directly 325,752 shares of Series E Stock which is convertible into 235,285 shares of Common Stock. REIG VII holds an interest in a promissory note convertible for up to 64,964 shares of Common Stock attributable to REIG VII, subject to the 49% ownership limitation. |
CUSIP No. 20676Y403 | Page 20 of 33 Pages |
Given the foregoing, as of July 19, 2019, the Reporting Persons may be deemed to be currently the beneficial owners of 3,787,166 shares of Common Stock, representing approximately 30.6% of the voting stock of Condor.
(b) | Item 5(a) is incorporated herein by reference. | |
(c) | Item 3 is incorporated herein by reference. | |
(d)-(e) | Not applicable. |
CUSIP No. 20676Y403 | Page 21 of 33 Pages |
Item 6. |
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer |
Item 6 is amended to add the following:
On July19, 2019, Condor and Condor Limited Partnership, a Virginia limited partnership (the Operating Partnership) entered into an Agreement and Plan of Merger (the Merger Agreement) with NHT Operating Partnership, LLC, a Delaware limited liability company (Parent), NHT Merger Sub, LLC, a Delaware limited liability company (Merger Sub), and NHT Operating Partnership II, LLC, a Virginia limited liability company (Merger OP, and together with Parent and Merger Sub, the Parent Parties) pursuant to which, on the terms and subject to the conditions set forth therein, (a) Merger Sub will merge with and into Condor, with Condor surviving such merger as a wholly owned subsidiary of Parent (the Company Merger) and (b) Merger OP will merge with and into the Operating Partnership, with Merger OP surviving such merger (the Partnership Merger and, together with the Company Merger, the Mergers).
Concurrently with the execution of the Merger Agreement, Efanur, RES and REIG VII each entered into voting agreements (collectively the Voting Agreements and each a Voting Agreement) with the Parent Parties, each dated July19, 2019, pursuant to which, among other things and subject to the terms and conditions of the Voting Agreements, each of Efanur, RES and REIG VII have agreed at every meeting of the shareholders of Condor called with respect to any of the following matters, and at every adjournment or postponement thereof, and on every action or approval by written consent of the shareholders of Condor with respect to any of the following matters, they will, or will cause the holder of record on any applicable record date to (including via proxy), to vote 100% of the Common Stock, the Series E Preferred Stock, and any Common Stock, Series E Preferred Stock or other capital stock of Condor they acquire prior to the expiration date of the Voting Agreements, owned beneficially or of record by them: in favor of (i) approval of the Mergers, (ii) approval and adoption of the Merger Agreement and (iii) any proposal to adjourn a meeting of the Condors stockholders to solicit additional proxies in favor of the approval of the Merger Agreement and (b) against any (i) Acquisition Proposal (as defined in the Merger Agreement) for Condor, (ii) action or agreement that would reasonably be expected to result in any condition to the consummation of the Mergers set forth in the Merger Agreement not being fulfilled and (c) action which would reasonably be expected to impede, interfere with, materially delay, materially postpone or materially adversely affect consummation of the transactions contemplated by the Merger Agreement.
Each Voting Agreement terminates upon the earlier of (i) the effective time of the Mergers, (ii) termination of the Merger Agreement in accordance with its terms, (iii) the date and time within 30 days following the date of the Merger Agreement as Condors board of directors makes a Change in Recommendation (as defined in the Merger Agreement) pursuant to Section 5.2(e)(ii) of the Merger Agreement, (iv) the termination of the Merger Agreement by mutual consent of the parties, (v) the termination of the Voting Agreement by mutual written consent of the parties, or (vi) the date of any amendment, waiver or modification of the Merger Agreement without the shareholders prior written consent that has the effect of (a) decreasing the Merger Consideration (as defined in the Merger Agreement) or (b) changing the form of Merger Consideration (in the case of each of subclauses (a) and (b), payable to the shareholders pursuant to the Merger Agreement), (c) to extend the End Date (as defined in the Merger Agreement) of the Merger Agreement except as contemplated by Section 7.4 of the Merger Agreement, or (d) to impose any material restrictions or additional material conditions on the consummation of the Mergers provided for in the Merger Agreement or the payment of the Merger Consideration or otherwise in a manner material and adverse to the shareholder.
Efanur, RES and REIG VII have granted the Parent Parties irrevocable proxies to vote their Condor securities as provided in the Voting Agreements. The Reporting Persons also agreed to certain restrictions on transfer of their shares of Common Stock and Series E Stock as further set forth in the Voting Agreement.
CUSIP No. 20676Y403 | Page 22 of 33 Pages |
Copies of the Voting Agreement are filed as Exhibit 99.1, Exhibit 99.2 and Exhibit 99.3 hereto. The description of the Voting Agreements included in this Schedule 13D/A are qualified in its entirety by reference to the filed exhibits.
Item 7. |
Material to be filed as Exhibits |
Exhibit 99.1 VOTING AGREEMENT, dated as of July 19, 2019 by and among NHT Operating Partnership, LLC, NHT REIT Merger Sub, LLC, NHT Operating Partnership II, LLC and Efanur S.A.
Exhibit 99.2 VOTING AGREEMENT, dated as of July 19, 2019 by and among NHT Operating Partnership, LLC, NHT REIT Merger Sub, LLC, NHT Operating Partnership II, LLC and Real Estate Strategies L.P.
Exhibit 99.3 VOTING AGREEMENT, dated as of July 19, 2019 by and among NHT Operating Partnership, LLC, NHT REIT Merger Sub, LLC, NHT Operating Partnership II, LLC and Real Estate Investment Group VII, L.P.
CUSIP No. 20676Y403 | Page 23 of 33 Pages |
Schedule A
Eduardo S. Elsztain
Bolívar 108, 1st floor
(1066) Buenos Aires
Republic of Argentina
Citizen of Argentina
Directors of IFIS Limited
1. |
Eduardo S. Elsztain Director Washington Mall West, 7 Reid Street, Hamilton HM 11, Bermuda. Citizen of Argentina |
3. |
Mariana Renata Carmona de Elsztain Director Washington Mall West, 7 Reid Street, Hamilton HM 11, Bermuda. Citizen of Argentina |
|||
2. |
Saul Zang Director Washington Mall West, 7 Reid Street, Hamilton HM 11, Bermuda. Citizen of Argentina |
4. |
Alejandro Gustavo Elsztain Director Washington Mall West, 7 Reid Street, Hamilton HM 11, Bermuda. Citizen of Argentina |
Directors of Consultores Venture Capital Uruguay S.A.
1. |
Eduardo S. Elsztain (Chairman) Director Ruta 8K 17.500 Edificio@3 Local 003, CP 91609 Montevideo Republic of Uruguay Citizen of Argentina |
3. |
Olga Stirling Director Ruta 8K 17.500 Edificio@3 Local 003, CP 91609 Montevideo Citizen of Uruguay |
|||
2. |
Eduardo Simon Bartfeld Director Ruta 8K 17.500 Edificio@3 Local 003, CP 91609 Montevideo Citizen of Uruguay |
4. |
Saul Zang Director Ruta 8K 17.500 Edificio@3 Local 003, CP 91609 Montevideo Citizen of Argentina |
CUSIP No. 20676Y403 | Page 24 of 33 Pages |
Directors of Consultores Assets Management S.A.
1. |
Eduardo S. Elsztain (Chairman) Chairman Bolívar 108, 1st floor (1066) Buenos Aires Republic of Argentina Citizen of Argentina |
3. |
Mariana Renata Carmona de Elsztain Vice Chairman I Bolívar 108, 1st floor (1066) Buenos Aires Republic of Argentina Citizen of Argentina |
|||
2. |
Saul Zang Vice Chairman IIBolívar 108, 1st floor (1066) Buenos Aires Republic of Argentina Citizen of Argentina |
4. |
Ilan Ariel Elsztain Alternate Director Bolívar 108, 1st floor (1066) Buenos Aires Republic of Argentina Citizen of Argentina |
Directors of Consultores Venture Capital Limited
1. |
Eduardo S. Elsztain (Chairman) Director 89 Nexus Way, 2nd floor Camana Bay, P.O. Box 31106, SMB Grand Cayman, KY1-1205, Cayman Islands Citizen of Argentina |
2. |
Saul Zang Director 89 Nexus Way, 2nd floor Camana Bay, P.O. Box 31106, SMB Grand Cayman, KY1-1205, Cayman Islands Citizen of Argentina |
Directors of Inversiones Financieras del Sur S.A.
1. |
Eduardo S. Elsztain Chairman of the Board Zabala 1422, 2nd floor (11500) Montevideo Republic of Uruguay Citizen of Argentina |
3. |
Eduardo Simon Bartfeld Director Zabala 1422, 2nd floor (11500) Montevideo Citizen of Uruguay |
|||
2. |
Saúl Zang Director Zabala 1422, 2nd floor (11500) Montevideo Citizen of Argentina |
4. |
Olga Stirling Director Zabala 1422, 2nd floor (11500) Montevideo Citizen of Uruguay |
CUSIP No. 20676Y403 | Page 25 of 33 Pages |
Directors of Agroinvestment S.A.
1. |
Eduardo S. Elsztain Chairman of the Board Colonia 810, Of. 803 (11000) Montevideo Republic of Uruguay Citizen of Argentina |
3. |
Eduardo Simon Bartfeld Director Colonia 810, Of. 803 (11000) Montevideo Citizen of Uruguay |
|||
2. |
Mariana Renata Carmona de Elsztain Director Colonia 810, Of. 803 (11000) Montevideo Republic of Uruguay Citizen of Argentina |
Directors of Elsztain Managing Partners Ltd.
1. |
Eduardo S. Elsztain President Wickhams Cay, P.O. Box 662, Road Town Tortola British Virgin Islands Citizen of Argentina |
2. |
Saul Zang Sole Director Wickhams Cay, P.O. Box 662, Road Town Tortola British Virgin Islands Citizen of Argentina |
Directors of Helmir S.A.
1. |
Eduardo S. Elsztain (Chairman) Director Zabala 1422, Montevideo Republic of Uruguay Citizen of Argentina |
3. |
Olga Stirling Director Zabala 1422 Montevideo Republic of Uruguay Citizen of Uruguay |
CUSIP No. 20676Y403 | Page 26 of 33 Pages |
2. |
Alejandro Gustavo Elsztain Second Vice Chairman Zabala 1422 Montevideo Republic of Uruguay Citizen of Uruguay |
4. |
Saul Zang Vice Chairman Zabala 1422 Montevideo Republic of Uruguay Citizen of Argentina |
Directors and Executive Officers of
Cresud Sociedad Anónima Comercial, Inmobiliaria, Financiera y Agropecuaria
Directors
1. |
Eduardo Sergio Elsztain Director Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
9. |
Daniel E. Melicovsky Director Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
|||||
2. |
Saúl Zang Director Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
10. |
Alejandro Casaretto Director Moreno 877, 23rd Floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
|||||
3. |
Alejandro Gustavo Elsztain Director Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
CUSIP No. 20676Y403 | Page 27 of 33 Pages |
4. |
Gabriel Adolfo Reznik Director Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
11. |
Gastón Armando Lernoud Alternate Director Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
|||
5. |
Jorge Oscar Fernández Director Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
12. |
Enrique Antonini Alternate Director Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
|||
6. |
Fernando Adrián Elsztain Director Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
13. |
Eduardo Kalpakian Alternate Director Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
|||
7. |
Pedro Damaso Labaqui Palácio Director Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
Senior Management
1. |
Alejandro Gustavo Elsztain Chief Executive Officer Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
3. |
Carlos Blousson General Manager for Argentina & Bolivia Operations Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
|||
2. |
Matías Iván Gaivironsky Chief Financial Officer Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
CUSIP No. 20676Y403 | Page 28 of 33 Pages |
Directors and Executive Officers of
IRSA Inversiones y Representaciones Sociedad Anónima
Directors
1. |
Eduardo Sergio Elsztain Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
11. |
Mauricio Wior Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
|||
2. |
Saul Zang Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
12. |
Mario Blejer Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
|||
3. |
Alejandro Gustavo Elsztain Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
13. |
Ricardo Liberman Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
|||
4. |
Fernando Adrián Elsztain Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
14. |
Gabriel A. Reznik Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
|||
5. |
Carlos Ricardo Estevez Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
15. |
Gastón Armando LernoudAlternate Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
|||
6. |
Cedric D. Bridger Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
16. |
Enrique Antonini Alternate Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
CUSIP No. 20676Y403 | Page 29 of 33 Pages |
7. |
Daniel R. Elsztain Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
|
8. |
Marcos Moisés Fishman Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
|
9. |
Fernando Rubín Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of Argentina |
|
10. |
Gary S. Gladstein Director Bolívar 108, 1 floor (C1066AAD) Buenos Aires Republic of Argentina Citizen of USA |
Senior Management
1. |
Eduardo Sergio Elsztain Chief Executive Officer Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
3. |
Daniel R. Elsztain Chief Operating Officer Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
|||
2. |
Matías Iván Gaivironsky Chief Financial Officer Moreno 877, 23rd floor (C1091AAQ) Buenos Aires Republic of Argentina Citizen of Argentina |
CUSIP No. 20676Y403 | Page 30 of 33 Pages |
Tyrus S.A.
1. |
Eduardo S. Elsztain Chairman of the Board Colonia 810, Of. 403 (11000) Montevideo Republic of Uruguay Citizen of Argentina |
3. |
Alejandro Gustavo Elsztain Director Colonia 810, Of. 403 (11000) Montevideo Citizen of Uruguay |
|||
2. |
Saúl Zang Director Colonia 810, Of. 403 (11000) Montevideo Republic of Uruguay Citizen of Argentina |
4. |
Olga Stirling Director Colonia 810, Of. 403 (11000) Montevideo Citizen of Uraguay |
Jiwin S.A.
1. |
Eduardo S. Elsztain Chairman of the Board Colonia 810, Of. 403 (11000) Montevideo Republic of Uruguay Citizen of Argentina |
3. |
Alejandro Gustavo Elsztain Director Colonia 810, Of. 403 (11000) Montevideo Citizen of Uruguay |
|||
2. |
Saúl Zang Director Colonia 810, Of. 403 (11000) Montevideo Republic of Uruguay Citizen of Argentina |
4. |
Olga Stirling Director Colonia 810, Of. 403 (11000) Montevideo Citizen of Uraguay |
Efanur S.A.
1. |
Eduardo S. Elsztain Chairman of the Board Colonia 810, Of. 403 (11000) Montevideo Republic of Uruguay Citizen of Argentina |
3. |
Alejandro Gustavo Elsztain Director Colonia 810, Of. 403 (11000) Montevideo Citizen of Uruguay |
CUSIP No. 20676Y403 | Page 31 of 33 Pages |
2. |
Saúl Zang Director Colonia 810, Of. 403 (11000) Montevideo Republic of Uruguay Citizen of Argentina |
4. |
Olga Stirling Director Colonia 810, Of. 403 (11000) Montevideo Citizen of Uraguay |
CUSIP No. 20676Y403 | Page 32 of 33 Pages |
SIGNATURE
After reasonable inquiry and to the best of his knowledge and belief, the undersigned certifies that the information set forth in this Statement on Schedule 13D is true, complete and correct.
DATED: July 23, 2019
Eduardo S. Elsztain | Consultores Assets Management S.A. | |||||||
By: |
/s/ Eduardo S. Elsztain |
By: |
/s/ Eduardo S. Elsztain |
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Name: | Eduardo S. Elsztain | Name: | Eduardo S. Elsztain | |||||
Title: | Chairman of the Board | |||||||
IFIS Limited | Consultores Venture Capital Limited | |||||||
By: |
/s/ Eduardo S. Elsztain |
By: |
/s/ Eduardo S. Elsztain |
|||||
Name: | Eduardo S. Elsztain | Name: | Eduardo S. Elsztain | |||||
Title: | Director of the Board | Title: | Director of the Board | |||||
Inversiones Financieras del Sur S.A. |
Cresud Sociedad Anónima Comercial, Inmobiliaria, Financiera y Agropecuaria |
|||||||
By: |
/s/ Eduardo S. Elsztain |
By: |
/s/ Eduardo S. Elsztain |
|||||
Name: | Eduardo S. Elsztain | Name: | Eduardo S. Elsztain | |||||
Title: | Chairman of the Board | Title: | Chairman of the Board | |||||
Consultores Venture Capital Uruguay | Efanur S.A. | |||||||
By: |
/s/ Eduardo S. Elsztain |
By: |
/s/ Eduardo S. Elsztain |
|||||
Name: | Eduardo S. Elsztain | Name: | Eduardo S. Elsztain | |||||
Title: | Chairman of the Board | Title: | Chairman of the Board | |||||
Tyrus S.A. | Agroinvestment S.A. | |||||||
By: |
/s/ Eduardo S. Elsztain |
By: |
/s/ Eduardo S. Elsztain |
|||||
Name: | Eduardo S. Elsztain | Name: | Eduardo S. Elsztain | |||||
Title: | Chairman of the Board | Title: | Chairman of the Board |
CUSIP No. 20676Y403 | Page 33 of 33 Pages |
Real Estate Strategies L.P. | Jiwin S.A. | |||||||
By: | Elsztain Managing Partners Ltd., its general partner | By: |
/s/ Eduardo S. Elsztain |
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Name: | Eduardo S. Elsztain | |||||||
By: |
/s/ Eduardo S. Elsztain |
Title: | Chairman of the Board | |||||
Name: | Eduardo S. Elsztain | |||||||
Title: | President | |||||||
Irsa Inversiones y Representaciones Sociedad Anonima | Real Estate Investment Group VII, L.P. | |||||||
By: |
/s/ Eduardo S. Elsztain |
By: | Jiwin S.A., its general partner | |||||
Name: | Eduardo S. Elsztain | By: |
/s/ Eduardo S. Elsztain |
|||||
Title: | Chairman of the Board | Name: | Eduardo S. Elsztain | |||||
Title: | Chairman of the Board | |||||||
Helmir S.A. | Elsztain Managing Partners Ltd | |||||||
By: |
/s/ Eduardo S. Elsztain |
By: |
/s/ Eduardo S. Elsztain |
|||||
Name: | Eduardo S. Elsztain | Name: | Eduardo S. Elsztain | |||||
Title: | Director | Title: | President |
Exhibit 99.1
Execution Version
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of July 19, 2019 (this Agreement ), is made by and among NHT Operating Partnership, LLC, a Delaware limited liability company ( Parent ), NHT REIT Merger Sub, LLC, a Delaware limited liability company ( Merger Sub ), NHT Operating Partnership II, LLC, a Virginia limited liability company ( Merger OP and, together with Parent and Merger Sub, the Parent Parties ), and the undersigned stockholder (the Stockholder ) of Condor Hospitality Trust, Inc., a Maryland corporation (the Company ).
W I T N E S S E T H :
WHEREAS, concurrently with the execution of this Agreement, the Parent Parties, the Company and Condor Hospitality Limited Partnership, a Virginia limited partnership (the Operating Partnership and, together with the Company, the Company Parties ) have entered into an Agreement and Plan of Merger (the Merger Agreement ) which, among other things, provides for (i) the merger of Merger Sub with and into the Company with the Company surviving the merger as a wholly owned subsidiary of Parent (the Company Merger ) and (ii) the merger of Merger OP with and into the Operating Partnership, with Merger OP continuing as the surviving entity (the Partnership Merger and, together with the Company Merger, the Mergers );
WHEREAS, as a condition and an inducement to the Parent Parties willingness to enter into the Merger Agreement, the Parent Parties have required that the Stockholder agree, and the Stockholder has agreed, to enter into this Agreement with respect to (i) all common stock, par value $0.01 per share, of the Company (the Company Common Shares ), (ii) all 6.25% Series E Cumulative Convertible Preferred Stock, par value $0.01 per share, of the Company (the Company Series E Preferred Shares ) and (iii) all common limited partnership units of the Operating Partnership (the Partnership Common Units ) under the Partnership Agreement (as defined in the Merger Agreement), in each case that the Stockholder beneficially owns (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) or owns of record;
WHEREAS, the Stockholder is the beneficial or record owner, and has either sole or shared voting power over, such number of shares of the Company Common Shares, Company Series E Preferred Shares and Partnership Common Units, if any, as is indicated opposite the Stockholders name on Schedule A attached hereto; and
WHEREAS, Parent desires that the Stockholder agree, and the Stockholder is willing to agree, subject to the limitations herein, not to Transfer (as defined below) any of its Subject Securities (as defined below), and to vote its Subject Securities to approve and adopt the Merger Agreement and the Mergers.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, do hereby agree as follows:
1. Definitions . Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. When used in this Agreement, the following terms in all of their tenses, cases and correlative forms shall have the meanings assigned to them in this Section 1 or elsewhere in this Agreement.
Expiration Date shall mean the earliest to occur of (i) the Effective Time, (ii) such date and time as the Merger Agreement shall be validly terminated pursuant to Article 7 thereof, (iii) such date and time within 30 days following the date of the Merger Agreement as the Board makes a Change in Recommendation pursuant to Section 5.2(e)(ii) of the Merger Agreement, (iv) the termination of this Agreement by mutual written consent of the parties hereto or (v) the date of any amendment, waiver or modification of the Merger Agreement without the Stockholders prior written consent that has the effect of (a) decreasing the Merger Consideration, (b) changing the form of Merger Consideration (in the case of each of subclauses (a) and (b), payable to the stockholders of the Company pursuant to the Merger Agreement in effect on the date of this Agreement), (c) to extend the End Date (except as contemplated by Section 7.4 of the Merger Agreement), or (d) to impose any material restrictions or additional material conditions on the consummation of the Mergers or the payment of the Merger Consideration or otherwise in a manner material and adverse to this Stockholder (except for amendments contemplated by the last sentence of Section 8.1 of the Merger Agreement).
Permitted Transfer shall mean, in each case, with respect to the Stockholder, so long as (i) such Transfer is in accordance with applicable Law and (ii) the Stockholder is and at all times has been in compliance with this Agreement, any Transfer of Subject Securities by the Stockholder (x) to an Affiliate of the Stockholder or (y) to any member of the Stockholders or Affiliates immediate family, or to a trust for the benefit of the Stockholder or Affiliate or any member of the Stockholders or Affiliates immediate family, so long as such Affiliate or other permitted transferee (if applicable), in connection with such Transfer, executes a joinder to this Agreement pursuant to which such Affiliate or other permitted transferee (if applicable) agrees to become a party to this Agreement and be subject to the restrictions applicable to the Stockholder and otherwise become a party for all purposes of this Agreement; provided, that no such Transfer shall relieve the Stockholder from its obligations under this Agreement, other than with respect to the Company Common Shares, the Company Series E Preferred Shares or the Partnership Common Units transferred in accordance with the foregoing provision.
Subject Securities shall mean, collectively, the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units and any New Company Shares and New Partnership Units.
Transfer shall mean any direct or indirect sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer (by operation of Law or otherwise), either voluntary or involuntary, or entry into any contract, option or other arrangement or understanding with respect to any offer, sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer (by operation of Law or otherwise), of any Subject Securities (or any security convertible or exchangeable into Subject Securities) or interest in any Subject Securities, including, without limitation, a redemption by the Stockholder of the Partnership Common Units for cash pursuant to Section 8.05 of the Partnership Agreement, but excluding, for the avoidance of doubt, entry into this Agreement.
2. Agreement to Retain the Subject Securities .
2.1 Transfer and Encumbrance of Subject Securities . Other than a Permitted Transfer, hereafter until the Expiration Date, the Stockholder agrees, with respect to any Subject Securities owned beneficially or of record by the Stockholder, not to (i) Transfer any such Subject Securities, or (ii) deposit any such Subject Securities into a voting trust or enter into a voting agreement or arrangement with respect to such Subject Securities or grant any proxy (except as otherwise provided herein) or power of attorney with respect thereto.
2.2 Additional Purchases . The Stockholder agrees that any Company Common Shares, Company Series E Preferred Shares and other capital shares of the Company that the Stockholder purchases or otherwise acquires or with respect to which the Stockholder otherwise acquires sole or shared voting power after the execution of this Agreement and prior to the Expiration Date (the New Company Shares ) and any Partnership Common Units or other partnership interests of the Operating Partnership that the Stockholder purchases or otherwise acquires or with respect to which the Stockholder otherwise acquires sole or shared voting power after the execution of this Agreement and prior to the Expiration Date (the New Partnership Units ) shall, in each case, be subject to the terms and conditions of this Agreement to the same extent as if they constituted the Company Common Shares, the Company Series E Preferred Shares or the Partnership Common Units, as applicable.
2.3 Unpermitted Transfers . Any Transfer or attempted Transfer of any Subject Securities in violation of this Section 2 shall, to the fullest extent permitted by Law, be null and void ab initio.
3. Agreement to Vote and Approve .
3.1 Company Common Shares and Company Series E Preferred Shares . Hereafter until the Expiration Date, at every meeting of the stockholders of the Company called with respect to any of the following matters, and at every adjournment or postponement thereof, and on every action or approval by written consent of the stockholders of the Company with respect to any of the following matters, the Stockholder shall, or shall cause the holder of record on any applicable record date to
(including via proxy), vote 100% of the Company Common Shares, the Company Series E Preferred Shares and any New Company Shares owned beneficially or of record by the Stockholder: (i) in favor of the approval of the Company Merger; (ii) in favor of the approval and adoption of the Merger Agreement; (iii) in favor of any proposal to adjourn a meeting of the stockholders of the Company to solicit additional proxies in favor of the approval of the Merger Agreement; and (iv) against (a) any Acquisition Proposal (including a Superior Proposal) for the Company, (b) any action or agreement that would reasonably be expected to result in any condition to the consummation of the Mergers set forth in Article 6 of the Merger Agreement not being fulfilled, and (c) any action which would reasonably be expected to impede, interfere with, materially delay, materially postpone or materially adversely affect consummation of the transactions contemplated by the Merger Agreement. For the avoidance of doubt, until the Expiration Date, the Stockholder shall vote in favor of the Company Merger even in the event the Board makes a Change in Recommendation.
3.2 Partnership Common Units . Hereafter until the Expiration Date, on every action or approval by written consent of the partners of the Operating Partnership with respect to any of the following matters, whether contemplated now or at any time prior to the Expiration Date, and at every meeting of the partners of the Operating Partnership called with respect to any of the following matters, and at every adjournment or postponement thereof, the Stockholder shall, or shall cause the holder of record on any applicable record date to (including via proxy), vote the Partnership Common Units and any New Partnership Units: (i) in favor of the approval of the Partnership Merger; (ii) in favor of any amendment to the Partnership Agreement proposed to facilitate the Partnership Merger or the other transactions contemplated by the Merger Agreement; and (iii) against (a) any action or agreement that would reasonably be expected to result in any condition to the consummation of the Mergers set forth in Article 6 of the Merger Agreement not being fulfilled, (b) any action or agreement that would reasonably be expected to result in any condition to the consummation of the Mergers set forth in Article 6 of the Merger Agreement not being fulfilled and (c) any action which would reasonably be expected to impede, interfere with, materially delay, materially postpone or materially adversely affect consummation of the transactions contemplated by the Merger Agreement.
4. Irrevocable Proxy . By execution of this Agreement, the Stockholder does hereby appoint and constitute Parent, and any one or more other individuals designated by Parent, and each of them individually, until the Expiration Date (at which time this proxy shall automatically be revoked), with full power of substitution and resubstitution, as the Stockholders true and lawful attorneys-in-fact and irrevocable proxies, to the fullest extent of the Stockholders rights with respect to the Subject Securities owned beneficially or of record by the Stockholder, to vote such Subject Securities solely with respect to the matters set forth in Section 3 hereof. The Stockholder shall retain the authority to vote its Subject Securities in its discretion on all other matters. The Stockholder intends this proxy to be irrevocable and coupled with an interest hereafter until the Expiration Date (at which time this proxy shall automatically be revoked) for all purposes and hereby revokes any proxy previously granted by the Stockholder with respect to its Subject Securities. The Stockholder hereby ratifies and confirms all actions that the proxies appointed hereunder may lawfully do or cause to be done in accordance with this Agreement.
5. Action of Governmental Entity . Notwithstanding anything to the contrary in this Agreement, if at any time following the date hereof and prior to the Expiration Date a Governmental Entity of competent jurisdiction enters an order restraining, enjoining or otherwise prohibiting the Stockholder or its Affiliates from (a) consummating the transactions contemplated by the Merger Agreement or (b) taking any action pursuant to Section 3 or Section 4 hereof, then the obligations of the Stockholder set forth in Section 3 and the irrevocable proxy and power of attorney in Section 4 shall be of no force and effect for so long as such order is in effect.
6. Representations and Warranties of the Stockholder . The Stockholder hereby represents and warrants to the Parent Parties as follows:
6.1 Due Authority . The Stockholder has the legal capacity and power and authority to make, enter into and carry out the terms of this Agreement and to grant the irrevocable proxy as set forth in Section 4 hereof. This Agreement has been duly and validly executed and delivered by the Stockholder and, assuming proper execution and delivery by the Parent Parties, constitutes a valid and binding agreement of the Stockholder enforceable against it in accordance with its terms, except to the extent enforceability may be limited by the effect of applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the enforcement of creditors rights generally and the effect of general principles of equity, regardless of whether such enforceability is considered in a proceeding at Law or in equity.
6.2 Ownership of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units . As of the date hereof, the Stockholder (i) is the beneficial or record owner of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units indicated on Schedule A hereto opposite the Stockholders name, free and clear of any and all Liens, other than those created by this Agreement, as disclosed on Schedule A or as would not reasonably be expected to prevent the Stockholder from performing its obligations under this Agreement, and (ii) has either sole or shared voting power over all of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units beneficially owned by the Stockholder. As of the date hereof, the Stockholder does not own, beneficially or of record, any capital stock or other equity interests of the Company or the Operating Partnership other than the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units set forth on Schedule A opposite the Stockholders name. As of the date hereof, the Stockholder does not own, beneficially or of record, any rights to purchase or acquire any shares of capital stock of equity interests of the Company or the Operating Partnership except as set forth on Schedule A opposite the Stockholders name.
6.3 No Conflict; Consents .
(a) The execution and delivery of this Agreement by the Stockholder do not, and the performance by the Stockholder of the obligations under this Agreement and the compliance by the Stockholder with any provisions hereof do not and will not: (i) conflict with or violate in any material respect any Laws applicable to the Stockholder, or (ii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the Company Common Shares, the Company Series E Preferred Shares or the Partnership Common Units owned beneficially or of record by the Stockholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Stockholder is a party or by which the Stockholder is bound which would reasonably be expected to materially and adversely affect the Stockholders ability to perform its obligations hereunder.
(b) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity or any other Person, is required by or with respect to the Stockholder in connection with the execution and delivery of this Agreement or the performance by the Stockholder of its obligations hereunder.
6.4 Absence of Litigation . There is no Legal Proceeding pending against, or, to the knowledge of the Stockholder, threatened against or affecting, the Stockholder or any of its Affiliates or any of their respective properties or assets (including the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units owned beneficially or of record by the Stockholder) at Law or in equity that would reasonably be expected to materially and adversely affect the Stockholders ability to perform its obligations hereunder.
7. Further Assurances . From time to time, at the request of Parent and without further consideration, the Stockholder shall take such further action as may reasonably be requested by Parent to carry out the intent of this Agreement.
8. Termination . This Agreement shall terminate and shall have no further force or effect immediately following the Expiration Date.
9. Notice of Certain Events . The Stockholder shall notify Parent promptly of (a) any fact, event or circumstance that would cause, or reasonably be expected to cause or constitute, a breach in any material respect of the representations and warranties of the Stockholder under this Agreement and (b) the receipt by the Stockholder of any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with this Agreement; provided, however, that the delivery of any notice pursuant to this Section 9 shall not limit or otherwise affect the remedies available to any party.
10. Dissenters Rights . The Stockholder hereby unconditionally and irrevocably waives, and agrees to prevent the execution of, any rights of appraisal and dissenters rights relating to the Company Merger that the Stockholder may have directly or indirectly by virtue of the ownership of the Subject Securities.
11. Miscellaneous .
11.1 Notices . Any notice, request, claim, demand and other communications hereunder shall be in writing, shall be deemed to have been given (i) upon confirmation of successful transmission if sent by facsimile transmission or e-mail of a pdf attachment (provided that any notice received by facsimile or e-mail on any Business Day after 5:00 p.m. (Eastern time) shall be deemed to have been received at 9:00 a.m. (Eastern time) on the next Business Day), or (ii) upon receipt by the receiving party if sent by reliable overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), and shall be addressed as follows (or at such other address for a party as shall be specified in a notice given in accordance with this Section 11.1 ):
if to the Parent Parties:
NHT Operating Partnership, LLC
300 Crescent Court, Suite 700
Dallas, TX 75201
Attention: Brian Mitts
Email: bmitts@nexpointsecurities.com
with a copy (which shall not constitute notice) to:
Winston & Strawn LLP
2121 North Pearl Street, Suite 900
Dallas, TX 75201
Attention: Charlie Haag
Email: chaag@winston.com
if to the Stockholder:
To the address for notice set forth on the last page hereof.
Or to such other address as any party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective upon receipt.
11.2 Severability . If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
11.3 Binding Effect and Assignment . This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Company and the Operating Partnership shall be express third party beneficiaries of the agreements of the Stockholder contained in this Agreement.
11.4 Amendments and Modification . This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto.
11.5 Entire Agreement . This Agreement (including the exhibits, schedules, annexes and appendices hereto) constitutes the entire agreement between the parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof.
11.6 Specific Performance . The parties hereto agree that irreparable damage, for which monetary damages (even if available) would not be an adequate remedy, would occur in the event that the parties hereto do not perform the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. Accordingly, the parties acknowledge and agree that the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which they are entitled at Law or in equity. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at Law or that any award of specific performance is not an appropriate remedy for any reason at Law or in equity. Any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction.
11.7 Counterparts . This Agreement may be executed and delivered (including by facsimile or .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an Electronic Delivery )) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
11.8 Governing Law . This Agreement and all actions, proceedings or counterclaims (whether based on contract, tort or otherwise) directly or indirectly arising out of or relating to this Agreement or the actions of Parent or the Stockholder in the negotiation, administration, performance and enforcement thereof, shall be governed by, and construed in accordance with, the laws of the State of Maryland, without giving effect to any choice or conflict of Laws provision or rule (whether of the State of Maryland or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Maryland.
11.9 Consent to Jurisdiction .
(a) Each of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of the courts of the State of Maryland and to the jurisdiction of the United States District Court for the District of Maryland, for the purpose of any action, proceeding or counterclaim (whether based on contract, tort or otherwise) directly or indirectly arising out of or relating to this Agreement or the actions of the parties hereto in the negotiation, administration, performance and enforcement thereof, and each of the parties hereto hereby irrevocably agrees that all claims in respect to such action or proceeding may be heard and determined exclusively in any state or federal court located in the State of Maryland.
(b) Each of the parties hereto (i) irrevocably consents to the service of the summons and complaint and any other process in any other action or proceeding relating to the transactions contemplated by this Agreement, on behalf of itself or its property, by personal delivery of copies of such process to such party and nothing in this Section 11.9 shall affect the right of any party to serve legal process in any other manner permitted by Law, (ii) consents to submit itself to the personal jurisdiction of any United States federal court located in the State of Maryland or any Maryland state court in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (iii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iv) agrees that it will not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than any United States federal court located in the State of Maryland or any Maryland state court. Each of Parent and the Stockholder agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
11.10 WAIVER OF JURY TRIAL . EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH OF THE PARTIES HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.11 .
11.11 No Agreement Until Executed . Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute or be deemed to evidence a contract, agreement, arrangement or understanding between the parties hereto unless and until (i) the Merger Agreement is executed and delivered by all parties thereto, and (ii) this Agreement is executed and delivered by all parties hereto.
11.12 Legal Representation . This Agreement was negotiated by the parties with the benefit of legal representation and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any party shall not apply to any construction or interpretation thereof.
11.13 Expenses . All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense, whether or not the Mergers are consummated.
11.14 Action in Stockholder Capacity Only . No Person executing this Agreement (or designee or Representative of such Person) who has been, is or becomes during the term of this Agreement a director, trustee, officer or fiduciary of the Company shall be deemed to make any agreement or understanding in this Agreement in such Persons capacity as a director, trustee, officer or fiduciary of the Company. The parties acknowledge and agree that this Agreement is entered into by the Stockholder solely in its capacity as the beneficial owner or record holder of Company Common Shares, Company Series E Preferred Shares or Partnership Common Units and nothing in this Agreement shall restrict, limit or affect (or require the Stockholder to attempt to restrict, limit or affect) in any respect any actions taken by the Stockholder or its designees or Representatives who are a director, trustee, officer or fiduciary of the Company in its capacity as a director, trustee, officer or fiduciary of the Company. Neither the Stockholder nor any of its designees or Representatives shall have any liability under this Agreement as a result of any action or inaction by the Stockholder or its designees or Representatives acting in its capacity as an officer, trustee, director or fiduciary of the Company, it being understood that any action taken (or failure to take action) by the Stockholder or its designees or Representatives in such capacity to approve a Change in Recommendation shall have no effect on the obligations of the Stockholder under this Agreement as the record holder or beneficial owner of Subject
Securities if this Agreement has not been validly terminated in accordance with its terms. For the avoidance of doubt, nothing in this Section 11.14 shall in any way modify, alter or amend any of the terms of the Merger Agreement.
11.15 Documentation and Information . The Stockholder consents to and authorizes the publication and disclosure by Parent and the Company of the Stockholders identity and holdings of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units, and the nature of the Stockholders commitments, arrangements and understandings under this Agreement, in any press release or any other disclosure document required in connection with the Mergers or any other transaction contemplated by the Merger Agreement; provided, that counsel to the Stockholder shall have a reasonable opportunity to review and provide comments on any such press release or other disclosure document (which comments Parent and the Company shall consider in good faith). As promptly as practicable, the Stockholder shall notify Parent of any required corrections with respect to any written information supplied by the Stockholder specifically for use in any such disclosure document, if and to the extent the Stockholder becomes aware that any have become false or misleading in any material respect.
11.16 Additional Agreements .
(a) Section 6(c)(vi) of the Articles Supplementary of the Company governing the Company Series E Preferred Shares provides that the Company shall not agree or commit to merge the Company without the consent of the holders of not less than 75% of the outstanding Company Series E Preferred Shares. The Stockholder acknowledges and agrees that the execution and delivery of this Agreement by the Stockholder shall be deemed consent by the Stockholder, in its capacity as holder of Company Series E Preferred Shares, to the Companys execution and delivery of the Merger Agreement pursuant to which the Company agreed and committed to merge the Company (in each case, subject to the Company Shareholder Approval).
(b) The Stockholder acknowledges and agrees that (i) pursuant to Section 5.1(b) of the Merger Agreement, the Company is restricted from paying dividends on the Subject Securities (subject to any permitted dividends under Section 7.4 of the Merger Agreement), and (ii) unless the Merger Agreement is terminated, from and after the date hereof, the Stockholder waives the right to receive the dividends contemplated under Section 4 of the Articles Supplementary governing the Company Series E Preferred Shares other than with respect to any dividends that are declared by the Company pursuant Section 7.4 of the Merger Agreement over which the Company Series E Preferred Shares will have priority of payment as contemplated by the Articles Supplementary governing the Company Series E Preferred Shares; provided, that if this Agreement is terminated, then such waiver shall be of no effect and such dividends shall have continued to accrue from the date hereof through the date of such termination.
[ Remainder of page intentionally left blank; signature page follows. ]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above.
NHT OPERATING PARTNERSHIP, LLC | ||||
a Delaware limited liability company | ||||
By: | NHT OPERATING PARTNERSHIP GP, | |||
LLC, its manager | ||||
By: |
/s/ Neil Labatte |
|||
Name: | Neil Labatte | |||
Title: | Sole Member |
NHT REIT MERGER SUB, LLC, | ||
a Delaware limited liability company | ||
By: |
/s/ Brian Mitts |
|
Name: | Brian Mitts | |
Title: | Chief Financial Officer and Secretary | |
NHT OPERATING PARTNERSHIP II, LLC | ||
a Virginia limited liability company | ||
By: |
/s/ Brian Mitts |
|
Name: | Brian Mitts | |
Title: | Chief Financial Officer and Secretary |
[ Signature Page to Voting Agreement ]
EFANUR S.A. | ||
an Uruguay public limited company | ||
By: |
/s/ Alejandro G. Casaretto |
|
Name: | Alejandro G. Casaretto | |
Title: | Authorized Signatory | |
By: |
/s/ Daniel Sanguinetti |
|
Name: | Daniel Sanguinetti | |
Title: | Authorized Signatory | |
Address for Notice: | ||
Efanur S.A. | ||
Attention: Eduardo S. Elsztain | ||
Colonia 810, Of. 403 | ||
Montevideo, Uruguay |
[ Signature Page to Voting Agreement ]
Schedule A
Name |
Company
Common Shares |
Company
Series E Preferred Shares |
Partnership
Common Units |
Company
Restricted Shares (Unvested) |
||||||||||||
Efanur S.A. |
2,310,063 | * | 0 | 0 | 0 |
* |
Includes (i) 48,076 Common Shares held directly by Efanur S.A., (ii) 2,197,023 Common Shares held indirectly by Real Estate Investment Group VII L.P. (REIG VII) and (iii) 64,964 Common Shares issuable upon conversion of a promissory note held for the benefit of REIG VII. |
Exhibit 99.2
Execution Version
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of July 19, 2019 (this Agreement ), is made by and among NHT Operating Partnership, LLC, a Delaware limited liability company ( Parent ), NHT REIT Merger Sub, LLC, a Delaware limited liability company ( Merger Sub ), NHT Operating Partnership II, LLC, a Virginia limited liability company ( Merger OP and, together with Parent and Merger Sub, the Parent Parties ), and the undersigned stockholder (the Stockholder ) of Condor Hospitality Trust, Inc., a Maryland corporation (the Company ).
W I T N E S S E T H :
WHEREAS, concurrently with the execution of this Agreement, the Parent Parties, the Company and Condor Hospitality Limited Partnership, a Virginia limited partnership (the Operating Partnership and, together with the Company, the Company Parties ) have entered into an Agreement and Plan of Merger (the Merger Agreement ) which, among other things, provides for (i) the merger of Merger Sub with and into the Company with the Company surviving the merger as a wholly owned subsidiary of Parent (the Company Merger ) and (ii) the merger of Merger OP with and into the Operating Partnership, with Merger OP continuing as the surviving entity (the Partnership Merger and, together with the Company Merger, the Mergers );
WHEREAS, as a condition and an inducement to the Parent Parties willingness to enter into the Merger Agreement, the Parent Parties have required that the Stockholder agree, and the Stockholder has agreed, to enter into this Agreement with respect to (i) all common stock, par value $0.01 per share, of the Company (the Company Common Shares ), (ii) all 6.25% Series E Cumulative Convertible Preferred Stock, par value $0.01 per share, of the Company (the Company Series E Preferred Shares ) and (iii) all common limited partnership units of the Operating Partnership (the Partnership Common Units ) under the Partnership Agreement (as defined in the Merger Agreement), in each case that the Stockholder beneficially owns (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) or owns of record;
WHEREAS, the Stockholder is the beneficial or record owner, and has either sole or shared voting power over, such number of shares of the Company Common Shares, Company Series E Preferred Shares and Partnership Common Units, if any, as is indicated opposite the Stockholders name on Schedule A attached hereto; and
WHEREAS, Parent desires that the Stockholder agree, and the Stockholder is willing to agree, subject to the limitations herein, not to Transfer (as defined below) any of its Subject Securities (as defined below), and to vote its Subject Securities to approve and adopt the Merger Agreement and the Mergers.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, do hereby agree as follows:
1. Definitions . Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. When used in this Agreement, the following terms in all of their tenses, cases and correlative forms shall have the meanings assigned to them in this Section 1 or elsewhere in this Agreement.
Expiration Date shall mean the earliest to occur of (i) the Effective Time, (ii) such date and time as the Merger Agreement shall be validly terminated pursuant to Article 7 thereof, (iii) such date and time within 30 days following the date of the Merger Agreement as the Board makes a Change in Recommendation pursuant to Section 5.2(e)(ii) of the Merger Agreement, (iv) the termination of this Agreement by mutual written consent of the parties hereto or (v) the date of any amendment, waiver or modification of the Merger Agreement without the Stockholders prior written consent that has the effect of (a) decreasing the Merger Consideration, (b) changing the form of Merger Consideration (in the case of each of subclauses (a) and (b), payable to the stockholders of the Company pursuant to the Merger Agreement in effect on the date of this Agreement), (c) to extend the End Date (except as contemplated by Section 7.4 of the Merger Agreement), or (d) to impose any material restrictions or additional material conditions on the consummation of the Mergers or the payment of the Merger Consideration or otherwise in a manner material and adverse to this Stockholder (except for amendments contemplated by the last sentence of Section 8.1 of the Merger Agreement).
Permitted Transfer shall mean, in each case, with respect to the Stockholder, so long as (i) such Transfer is in accordance with applicable Law and (ii) the Stockholder is and at all times has been in compliance with this Agreement, any Transfer of Subject Securities by the Stockholder (x) to an Affiliate of the Stockholder or (y) to any member of the Stockholders or Affiliates immediate family, or to a trust for the benefit of the Stockholder or Affiliate or any member of the Stockholders or Affiliates immediate family, so long as such Affiliate or other permitted transferee (if applicable), in connection with such Transfer, executes a joinder to this Agreement pursuant to which such Affiliate or other permitted transferee (if applicable) agrees to become a party to this Agreement and be subject to the restrictions applicable to the Stockholder and otherwise become a party for all purposes of this Agreement; provided, that no such Transfer shall relieve the Stockholder from its obligations under this Agreement, other than with respect to the Company Common Shares, the Company Series E Preferred Shares or the Partnership Common Units transferred in accordance with the foregoing provision.
Subject Securities shall mean, collectively, the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units and any New Company Shares and New Partnership Units.
Transfer shall mean any direct or indirect sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer (by operation of Law or otherwise), either voluntary or involuntary, or entry into any contract, option or other arrangement or understanding with respect to any offer, sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer (by operation of Law or otherwise), of any Subject Securities (or any security convertible or exchangeable into Subject Securities) or interest in any Subject Securities, including, without limitation, a redemption by the Stockholder of the Partnership Common Units for cash pursuant to Section 8.05 of the Partnership Agreement, but excluding, for the avoidance of doubt, entry into this Agreement.
2. Agreement to Retain the Subject Securities .
2.1 Transfer and Encumbrance of Subject Securities . Other than a Permitted Transfer, hereafter until the Expiration Date, the Stockholder agrees, with respect to any Subject Securities owned beneficially or of record by the Stockholder, not to (i) Transfer any such Subject Securities, or (ii) deposit any such Subject Securities into a voting trust or enter into a voting agreement or arrangement with respect to such Subject Securities or grant any proxy (except as otherwise provided herein) or power of attorney with respect thereto.
2.2 Additional Purchases . The Stockholder agrees that any Company Common Shares, Company Series E Preferred Shares and other capital shares of the Company that the Stockholder purchases or otherwise acquires or with respect to which the Stockholder otherwise acquires sole or shared voting power after the execution of this Agreement and prior to the Expiration Date (the New Company Shares ) and any Partnership Common Units or other partnership interests of the Operating Partnership that the Stockholder purchases or otherwise acquires or with respect to which the Stockholder otherwise acquires sole or shared voting power after the execution of this Agreement and prior to the Expiration Date (the New Partnership Units ) shall, in each case, be subject to the terms and conditions of this Agreement to the same extent as if they constituted the Company Common Shares, the Company Series E Preferred Shares or the Partnership Common Units, as applicable.
2.3 Unpermitted Transfers . Any Transfer or attempted Transfer of any Subject Securities in violation of this Section 2 shall, to the fullest extent permitted by Law, be null and void ab initio.
3. Agreement to Vote and Approve .
3.1 Company Common Shares and Company Series E Preferred Shares . Hereafter until the Expiration Date, at every meeting of the stockholders of the Company called with respect to any of the following matters, and at every adjournment or postponement thereof, and on every action or approval by written consent of the stockholders of the Company with respect to any of the following matters, the Stockholder shall, or shall cause the holder of record on any applicable record date to
(including via proxy), vote 100% of the Company Common Shares, the Company Series E Preferred Shares and any New Company Shares owned beneficially or of record by the Stockholder: (i) in favor of the approval of the Company Merger; (ii) in favor of the approval and adoption of the Merger Agreement; (iii) in favor of any proposal to adjourn a meeting of the stockholders of the Company to solicit additional proxies in favor of the approval of the Merger Agreement; and (iv) against (a) any Acquisition Proposal (including a Superior Proposal) for the Company, (b) any action or agreement that would reasonably be expected to result in any condition to the consummation of the Mergers set forth in Article 6 of the Merger Agreement not being fulfilled, and (c) any action which would reasonably be expected to impede, interfere with, materially delay, materially postpone or materially adversely affect consummation of the transactions contemplated by the Merger Agreement. For the avoidance of doubt, until the Expiration Date, the Stockholder shall vote in favor of the Company Merger even in the event the Board makes a Change in Recommendation.
3.2 Partnership Common Units . Hereafter until the Expiration Date, on every action or approval by written consent of the partners of the Operating Partnership with respect to any of the following matters, whether contemplated now or at any time prior to the Expiration Date, and at every meeting of the partners of the Operating Partnership called with respect to any of the following matters, and at every adjournment or postponement thereof, the Stockholder shall, or shall cause the holder of record on any applicable record date to (including via proxy), vote the Partnership Common Units and any New Partnership Units: (i) in favor of the approval of the Partnership Merger; (ii) in favor of any amendment to the Partnership Agreement proposed to facilitate the Partnership Merger or the other transactions contemplated by the Merger Agreement; and (iii) against (a) any action or agreement that would reasonably be expected to result in any condition to the consummation of the Mergers set forth in Article 6 of the Merger Agreement not being fulfilled, (b) any action or agreement that would reasonably be expected to result in any condition to the consummation of the Mergers set forth in Article 6 of the Merger Agreement not being fulfilled and (c) any action which would reasonably be expected to impede, interfere with, materially delay, materially postpone or materially adversely affect consummation of the transactions contemplated by the Merger Agreement.
4. Irrevocable Proxy . By execution of this Agreement, the Stockholder does hereby appoint and constitute Parent, and any one or more other individuals designated by Parent, and each of them individually, until the Expiration Date (at which time this proxy shall automatically be revoked), with full power of substitution and resubstitution, as the Stockholders true and lawful attorneys-in-fact and irrevocable proxies, to the fullest extent of the Stockholders rights with respect to the Subject Securities owned beneficially or of record by the Stockholder, to vote such Subject Securities solely with respect to the matters set forth in Section 3 hereof. The Stockholder shall retain the authority to vote its Subject Securities in its discretion on all other matters. The Stockholder intends this proxy to be irrevocable and coupled with an interest hereafter until the Expiration Date (at which time this proxy shall automatically be revoked) for all purposes and hereby revokes any proxy previously granted by the Stockholder with respect to its Subject Securities. The Stockholder hereby ratifies and confirms all actions that the proxies appointed hereunder may lawfully do or cause to be done in accordance with this Agreement.
5. Action of Governmental Entity . Notwithstanding anything to the contrary in this Agreement, if at any time following the date hereof and prior to the Expiration Date a Governmental Entity of competent jurisdiction enters an order restraining, enjoining or otherwise prohibiting the Stockholder or its Affiliates from (a) consummating the transactions contemplated by the Merger Agreement or (b) taking any action pursuant to Section 3 or Section 4 hereof, then the obligations of the Stockholder set forth in Section 3 and the irrevocable proxy and power of attorney in Section 4 shall be of no force and effect for so long as such order is in effect.
6. Representations and Warranties of the Stockholder . The Stockholder hereby represents and warrants to the Parent Parties as follows:
6.1 Due Authority . The Stockholder has the legal capacity and power and authority to make, enter into and carry out the terms of this Agreement and to grant the irrevocable proxy as set forth in Section 4 hereof. This Agreement has been duly and validly executed and delivered by the Stockholder and, assuming proper execution and delivery by the Parent Parties, constitutes a valid and binding agreement of the Stockholder enforceable against it in accordance with its terms, except to the extent enforceability may be limited by the effect of applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the enforcement of creditors rights generally and the effect of general principles of equity, regardless of whether such enforceability is considered in a proceeding at Law or in equity.
6.2 Ownership of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units . As of the date hereof, the Stockholder (i) is the beneficial or record owner of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units indicated on Schedule A hereto opposite the Stockholders name, free and clear of any and all Liens, other than those created by this Agreement, as disclosed on Schedule A or as would not reasonably be expected to prevent the Stockholder from performing its obligations under this Agreement, and (ii) has either sole or shared voting power over all of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units beneficially owned by the Stockholder. As of the date hereof, the Stockholder does not own, beneficially or of record, any capital stock or other equity interests of the Company or the Operating Partnership other than the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units set forth on Schedule A opposite the Stockholders name. As of the date hereof, the Stockholder does not own, beneficially or of record, any rights to purchase or acquire any shares of capital stock of equity interests of the Company or the Operating Partnership except as set forth on Schedule A opposite the Stockholders name.
6.3 No Conflict; Consents .
(a) The execution and delivery of this Agreement by the Stockholder do not, and the performance by the Stockholder of the obligations under this Agreement and the compliance by the Stockholder with any provisions hereof do not and will not: (i) conflict with or violate in any material respect any Laws applicable to the Stockholder, or (ii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the Company Common Shares, the Company Series E Preferred Shares or the Partnership Common Units owned beneficially or of record by the Stockholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Stockholder is a party or by which the Stockholder is bound which would reasonably be expected to materially and adversely affect the Stockholders ability to perform its obligations hereunder.
(b) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity or any other Person, is required by or with respect to the Stockholder in connection with the execution and delivery of this Agreement or the performance by the Stockholder of its obligations hereunder.
6.4 Absence of Litigation . There is no Legal Proceeding pending against, or, to the knowledge of the Stockholder, threatened against or affecting, the Stockholder or any of its Affiliates or any of their respective properties or assets (including the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units owned beneficially or of record by the Stockholder) at Law or in equity that would reasonably be expected to materially and adversely affect the Stockholders ability to perform its obligations hereunder.
7. Further Assurances . From time to time, at the request of Parent and without further consideration, the Stockholder shall take such further action as may reasonably be requested by Parent to carry out the intent of this Agreement.
8. Termination . This Agreement shall terminate and shall have no further force or effect immediately following the Expiration Date.
9. Notice of Certain Events . The Stockholder shall notify Parent promptly of (a) any fact, event or circumstance that would cause, or reasonably be expected to cause or constitute, a breach in any material respect of the representations and warranties of the Stockholder under this Agreement and (b) the receipt by the Stockholder of any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with this Agreement; provided, however, that the delivery of any notice pursuant to this Section 9 shall not limit or otherwise affect the remedies available to any party.
10. Dissenters Rights . The Stockholder hereby unconditionally and irrevocably waives, and agrees to prevent the execution of, any rights of appraisal and dissenters rights relating to the Company Merger that the Stockholder may have directly or indirectly by virtue of the ownership of the Subject Securities.
11. Miscellaneous .
11.1 Notices . Any notice, request, claim, demand and other communications hereunder shall be in writing, shall be deemed to have been given (i) upon confirmation of successful transmission if sent by facsimile transmission or e-mail of a pdf attachment (provided that any notice received by facsimile or e-mail on any Business Day after 5:00 p.m. (Eastern time) shall be deemed to have been received at 9:00 a.m. (Eastern time) on the next Business Day), or (ii) upon receipt by the receiving party if sent by reliable overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), and shall be addressed as follows (or at such other address for a party as shall be specified in a notice given in accordance with this Section 11.1 ):
if to the Parent Parties:
NHT Operating Partnership, LLC
300 Crescent Court, Suite 700
Dallas, TX 75201
Attention: Brian Mitts
Email: bmitts@nexpointsecurities.com
with a copy (which shall not constitute notice) to:
Winston & Strawn LLP
2121 North Pearl Street, Suite 900
Dallas, TX 75201
Attention: Charlie Haag
Email: chaag@winston.com
if to the Stockholder:
To the address for notice set forth on the last page hereof.
Or to such other address as any party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective upon receipt.
11.2 Severability . If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
11.3 Binding Effect and Assignment . This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Company and the Operating Partnership shall be express third party beneficiaries of the agreements of the Stockholder contained in this Agreement.
11.4 Amendments and Modification . This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto.
11.5 Entire Agreement . This Agreement (including the exhibits, schedules, annexes and appendices hereto) constitutes the entire agreement between the parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof.
11.6 Specific Performance . The parties hereto agree that irreparable damage, for which monetary damages (even if available) would not be an adequate remedy, would occur in the event that the parties hereto do not perform the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. Accordingly, the parties acknowledge and agree that the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which they are entitled at Law or in equity. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at Law or that any award of specific performance is not an appropriate remedy for any reason at Law or in equity. Any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction.
11.7 Counterparts . This Agreement may be executed and delivered (including by facsimile or .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an Electronic Delivery )) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
11.8 Governing Law . This Agreement and all actions, proceedings or counterclaims (whether based on contract, tort or otherwise) directly or indirectly arising out of or relating to this Agreement or the actions of Parent or the Stockholder in the negotiation, administration, performance and enforcement thereof, shall be governed by, and construed in accordance with, the laws of the State of Maryland, without giving effect to any choice or conflict of Laws provision or rule (whether of the State of Maryland or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Maryland.
11.9 Consent to Jurisdiction .
(a) Each of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of the courts of the State of Maryland and to the jurisdiction of the United States District Court for the District of Maryland, for the purpose of any action, proceeding or counterclaim (whether based on contract, tort or otherwise) directly or indirectly arising out of or relating to this Agreement or the actions of the parties hereto in the negotiation, administration, performance and enforcement thereof, and each of the parties hereto hereby irrevocably agrees that all claims in respect to such action or proceeding may be heard and determined exclusively in any state or federal court located in the State of Maryland.
(b) Each of the parties hereto (i) irrevocably consents to the service of the summons and complaint and any other process in any other action or proceeding relating to the transactions contemplated by this Agreement, on behalf of itself or its property, by personal delivery of copies of such process to such party and nothing in this Section 11.9 shall affect the right of any party to serve legal process in any other manner permitted by Law, (ii) consents to submit itself to the personal jurisdiction of any United States federal court located in the State of Maryland or any Maryland state court in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (iii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iv) agrees that it will not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than any United States federal court located in the State of Maryland or any Maryland state court. Each of Parent and the Stockholder agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
11.10 WAIVER OF JURY TRIAL . EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH OF THE PARTIES HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.11 .
11.11 No Agreement Until Executed . Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute or be deemed to evidence a contract, agreement, arrangement or understanding between the parties hereto unless and until (i) the Merger Agreement is executed and delivered by all parties thereto, and (ii) this Agreement is executed and delivered by all parties hereto.
11.12 Legal Representation . This Agreement was negotiated by the parties with the benefit of legal representation and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any party shall not apply to any construction or interpretation thereof.
11.13 Expenses . All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense, whether or not the Mergers are consummated.
11.14 Action in Stockholder Capacity Only . No Person executing this Agreement (or designee or Representative of such Person) who has been, is or becomes during the term of this Agreement a director, trustee, officer or fiduciary of the Company shall be deemed to make any agreement or understanding in this Agreement in such Persons capacity as a director, trustee, officer or fiduciary of the Company. The parties acknowledge and agree that this Agreement is entered into by the Stockholder solely in its capacity as the beneficial owner or record holder of Company Common Shares, Company Series E Preferred Shares or Partnership Common Units and nothing in this Agreement shall restrict, limit or affect (or require the Stockholder to attempt to restrict, limit or affect) in any respect any actions taken by the Stockholder or its designees or Representatives who are a director, trustee, officer or fiduciary of the Company in its capacity as a director, trustee, officer or fiduciary of the Company. Neither the Stockholder nor any of its designees or Representatives shall have any liability under this Agreement as a result of any action or inaction by the Stockholder or its designees or Representatives acting in its capacity as an officer, trustee, director or fiduciary of the Company, it being understood that any action taken (or failure to take action) by the Stockholder or its designees or Representatives in such capacity to approve a Change in Recommendation shall have no effect on the obligations of the Stockholder under this Agreement as the record holder or beneficial owner of Subject
Securities if this Agreement has not been validly terminated in accordance with its terms. For the avoidance of doubt, nothing in this Section 11.14 shall in any way modify, alter or amend any of the terms of the Merger Agreement.
11.15 Documentation and Information . The Stockholder consents to and authorizes the publication and disclosure by Parent and the Company of the Stockholders identity and holdings of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units, and the nature of the Stockholders commitments, arrangements and understandings under this Agreement, in any press release or any other disclosure document required in connection with the Mergers or any other transaction contemplated by the Merger Agreement; provided, that counsel to the Stockholder shall have a reasonable opportunity to review and provide comments on any such press release or other disclosure document (which comments Parent and the Company shall consider in good faith). As promptly as practicable, the Stockholder shall notify Parent of any required corrections with respect to any written information supplied by the Stockholder specifically for use in any such disclosure document, if and to the extent the Stockholder becomes aware that any have become false or misleading in any material respect.
11.16 Additional Agreements .
(a) Section 6(c)(vi) of the Articles Supplementary of the Company governing the Company Series E Preferred Shares provides that the Company shall not agree or commit to merge the Company without the consent of the holders of not less than 75% of the outstanding Company Series E Preferred Shares. The Stockholder acknowledges and agrees that the execution and delivery of this Agreement by the Stockholder shall be deemed consent by the Stockholder, in its capacity as holder of Company Series E Preferred Shares, to the Companys execution and delivery of the Merger Agreement pursuant to which the Company agreed and committed to merge the Company (in each case, subject to the Company Shareholder Approval).
(b) The Stockholder acknowledges and agrees that (i) pursuant to Section 5.1(b) of the Merger Agreement, the Company is restricted from paying dividends on the Subject Securities (subject to any permitted dividends under Section 7.4 of the Merger Agreement), and (ii) unless the Merger Agreement is terminated, from and after the date hereof, the Stockholder waives the right to receive the dividends contemplated under Section 4 of the Articles Supplementary governing the Company Series E Preferred Shares other than with respect to any dividends that are declared by the Company pursuant Section 7.4 of the Merger Agreement over which the Company Series E Preferred Shares will have priority of payment as contemplated by the Articles Supplementary governing the Company Series E Preferred Shares; provided, that if this Agreement is terminated, then such waiver shall be of no effect and such dividends shall have continued to accrue from the date hereof through the date of such termination.
[ Remainder of page intentionally left blank; signature page follows. ]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above.
NHT OPERATING PARTNERSHIP, LLC a Delaware limited liability company |
||||
By: | NHT OPERATING PARTNERSHIP GP, | |||
LLC, its manager | ||||
By: |
/s/ Neil Labatte |
|||
Name: | Neil Labatte | |||
Title: | Sole Member |
NHT REIT MERGER SUB, LLC, | ||
a Delaware limited liability company | ||
By: |
/s/ Brian Mitts |
|
Name: | Brian Mitts | |
Title: | Chief Financial Officer and Secretary | |
NHT OPERATING PARTNERSHIP II, LLC | ||
a Virginia limited liability company | ||
By: |
/s/ Brian Mitts |
|
Name: | Brian Mitts | |
Title: | Chief Financial Officer and Secretary |
[ Signature Page to Voting Agreement ]
REAL ESTATE STRATEGIES L.P. a Bermuda limited partnership |
||||
By: | Jiwin S.A., its General Partner | |||
By: |
/s/ Alejandro G. Casaretto |
|||
Name: | Alejandro G. Casaretto | |||
Title: | Authorized Signatory | |||
By: |
/s/ Daniel Sanguinetti |
|||
Name: | Daniel Sanguinetti | |||
Title: | Authorized Signatory | |||
Address for Notice:
Real Estate Strategies L.P. Clarendon House 2, Church Street, Hamilton HM CX, Bermuda: c/o IRSA Inversiones y Representaciones Sociedad Anónima C1091AAQ, Buenos Aires Argentina Attention: Mr. Eduardo Elsztain Facsimile: +54 (11) 4323-7499 |
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[ Signature Page to Voting Agreement ]
Exhibit 99.3
Execution Version
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of July 19, 2019 (this Agreement ), is made by and among NHT Operating Partnership, LLC, a Delaware limited liability company ( Parent ), NHT REIT Merger Sub, LLC, a Delaware limited liability company ( Merger Sub ), NHT Operating Partnership II, LLC, a Virginia limited liability company ( Merger OP and, together with Parent and Merger Sub, the Parent Parties ), and the undersigned stockholder (the Stockholder ) of Condor Hospitality Trust, Inc., a Maryland corporation (the Company ).
W I T N E S S E T H :
WHEREAS, concurrently with the execution of this Agreement, the Parent Parties, the Company and Condor Hospitality Limited Partnership, a Virginia limited partnership (the Operating Partnership and, together with the Company, the Company Parties ) have entered into an Agreement and Plan of Merger (the Merger Agreement ) which, among other things, provides for (i) the merger of Merger Sub with and into the Company with the Company surviving the merger as a wholly owned subsidiary of Parent (the Company Merger ) and (ii) the merger of Merger OP with and into the Operating Partnership, with Merger OP continuing as the surviving entity (the Partnership Merger and, together with the Company Merger, the Mergers );
WHEREAS, as a condition and an inducement to the Parent Parties willingness to enter into the Merger Agreement, the Parent Parties have required that the Stockholder agree, and the Stockholder has agreed, to enter into this Agreement with respect to (i) all common stock, par value $0.01 per share, of the Company (the Company Common Shares ), (ii) all 6.25% Series E Cumulative Convertible Preferred Stock, par value $0.01 per share, of the Company (the Company Series E Preferred Shares ) and (iii) all common limited partnership units of the Operating Partnership (the Partnership Common Units ) under the Partnership Agreement (as defined in the Merger Agreement), in each case that the Stockholder beneficially owns (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) or owns of record;
WHEREAS, the Stockholder is the beneficial or record owner, and has either sole or shared voting power over, such number of shares of the Company Common Shares, Company Series E Preferred Shares and Partnership Common Units, if any, as is indicated opposite the Stockholders name on Schedule A attached hereto; and
WHEREAS, Parent desires that the Stockholder agree, and the Stockholder is willing to agree, subject to the limitations herein, not to Transfer (as defined below) any of its Subject Securities (as defined below), and to vote its Subject Securities to approve and adopt the Merger Agreement and the Mergers.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, do hereby agree as follows:
1. Definitions . Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. When used in this Agreement, the following terms in all of their tenses, cases and correlative forms shall have the meanings assigned to them in this Section 1 or elsewhere in this Agreement.
Expiration Date shall mean the earliest to occur of (i) the Effective Time, (ii) such date and time as the Merger Agreement shall be validly terminated pursuant to Article 7 thereof, (iii) such date and time within 30 days following the date of the Merger Agreement as the Board makes a Change in Recommendation pursuant to Section 5.2(e)(ii) of the Merger Agreement, (iv) the termination of this Agreement by mutual written consent of the parties hereto or (v) the date of any amendment, waiver or modification of the Merger Agreement without the Stockholders prior written consent that has the effect of (a) decreasing the Merger Consideration, (b) changing the form of Merger Consideration (in the case of each of subclauses (a) and (b), payable to the stockholders of the Company pursuant to the Merger Agreement in effect on the date of this Agreement), (c) to extend the End Date (except as contemplated by Section 7.4 of the Merger Agreement), or (d) to impose any material restrictions or additional material conditions on the consummation of the Mergers or the payment of the Merger Consideration or otherwise in a manner material and adverse to this Stockholder (except for amendments contemplated by the last sentence of Section 8.1 of the Merger Agreement).
Permitted Transfer shall mean, in each case, with respect to the Stockholder, so long as (i) such Transfer is in accordance with applicable Law and (ii) the Stockholder is and at all times has been in compliance with this Agreement, any Transfer of Subject Securities by the Stockholder (x) to an Affiliate of the Stockholder or (y) to any member of the Stockholders or Affiliates immediate family, or to a trust for the benefit of the Stockholder or Affiliate or any member of the Stockholders or Affiliates immediate family, so long as such Affiliate or other permitted transferee (if applicable), in connection with such Transfer, executes a joinder to this Agreement pursuant to which such Affiliate or other permitted transferee (if applicable) agrees to become a party to this Agreement and be subject to the restrictions applicable to the Stockholder and otherwise become a party for all purposes of this Agreement; provided, that no such Transfer shall relieve the Stockholder from its obligations under this Agreement, other than with respect to the Company Common Shares, the Company Series E Preferred Shares or the Partnership Common Units transferred in accordance with the foregoing provision.
Subject Securities shall mean, collectively, the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units and any New Company Shares and New Partnership Units.
Transfer shall mean any direct or indirect sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer (by operation of Law or otherwise), either voluntary or involuntary, or entry into any contract, option or other arrangement or understanding with respect to any offer, sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer (by operation of Law or otherwise), of any Subject Securities (or any security convertible or exchangeable into Subject Securities) or interest in any Subject Securities, including, without limitation, a redemption by the Stockholder of the Partnership Common Units for cash pursuant to Section 8.05 of the Partnership Agreement, but excluding, for the avoidance of doubt, entry into this Agreement.
2. Agreement to Retain the Subject Securities .
2.1 Transfer and Encumbrance of Subject Securities . Other than a Permitted Transfer, hereafter until the Expiration Date, the Stockholder agrees, with respect to any Subject Securities owned beneficially or of record by the Stockholder, not to (i) Transfer any such Subject Securities, or (ii) deposit any such Subject Securities into a voting trust or enter into a voting agreement or arrangement with respect to such Subject Securities or grant any proxy (except as otherwise provided herein) or power of attorney with respect thereto.
2.2 Additional Purchases . The Stockholder agrees that any Company Common Shares, Company Series E Preferred Shares and other capital shares of the Company that the Stockholder purchases or otherwise acquires or with respect to which the Stockholder otherwise acquires sole or shared voting power after the execution of this Agreement and prior to the Expiration Date (the New Company Shares ) and any Partnership Common Units or other partnership interests of the Operating Partnership that the Stockholder purchases or otherwise acquires or with respect to which the Stockholder otherwise acquires sole or shared voting power after the execution of this Agreement and prior to the Expiration Date (the New Partnership Units ) shall, in each case, be subject to the terms and conditions of this Agreement to the same extent as if they constituted the Company Common Shares, the Company Series E Preferred Shares or the Partnership Common Units, as applicable.
2.3 Unpermitted Transfers . Any Transfer or attempted Transfer of any Subject Securities in violation of this Section 2 shall, to the fullest extent permitted by Law, be null and void ab initio.
3. Agreement to Vote and Approve .
3.1 Company Common Shares and Company Series E Preferred Shares . Hereafter until the Expiration Date, at every meeting of the stockholders of the Company called with respect to any of the following matters, and at every adjournment or postponement thereof, and on every action or approval by written consent of the stockholders of the Company with respect to any of the following matters, the Stockholder shall, or shall cause the holder of record on any applicable record date to
(including via proxy), vote 100% of the Company Common Shares, the Company Series E Preferred Shares and any New Company Shares owned beneficially or of record by the Stockholder: (i) in favor of the approval of the Company Merger; (ii) in favor of the approval and adoption of the Merger Agreement; (iii) in favor of any proposal to adjourn a meeting of the stockholders of the Company to solicit additional proxies in favor of the approval of the Merger Agreement; and (iv) against (a) any Acquisition Proposal (including a Superior Proposal) for the Company, (b) any action or agreement that would reasonably be expected to result in any condition to the consummation of the Mergers set forth in Article 6 of the Merger Agreement not being fulfilled, and (c) any action which would reasonably be expected to impede, interfere with, materially delay, materially postpone or materially adversely affect consummation of the transactions contemplated by the Merger Agreement. For the avoidance of doubt, until the Expiration Date, the Stockholder shall vote in favor of the Company Merger even in the event the Board makes a Change in Recommendation.
3.2 Partnership Common Units . Hereafter until the Expiration Date, on every action or approval by written consent of the partners of the Operating Partnership with respect to any of the following matters, whether contemplated now or at any time prior to the Expiration Date, and at every meeting of the partners of the Operating Partnership called with respect to any of the following matters, and at every adjournment or postponement thereof, the Stockholder shall, or shall cause the holder of record on any applicable record date to (including via proxy), vote the Partnership Common Units and any New Partnership Units: (i) in favor of the approval of the Partnership Merger; (ii) in favor of any amendment to the Partnership Agreement proposed to facilitate the Partnership Merger or the other transactions contemplated by the Merger Agreement; and (iii) against (a) any action or agreement that would reasonably be expected to result in any condition to the consummation of the Mergers set forth in Article 6 of the Merger Agreement not being fulfilled, (b) any action or agreement that would reasonably be expected to result in any condition to the consummation of the Mergers set forth in Article 6 of the Merger Agreement not being fulfilled and (c) any action which would reasonably be expected to impede, interfere with, materially delay, materially postpone or materially adversely affect consummation of the transactions contemplated by the Merger Agreement.
4. Irrevocable Proxy . By execution of this Agreement, the Stockholder does hereby appoint and constitute Parent, and any one or more other individuals designated by Parent, and each of them individually, until the Expiration Date (at which time this proxy shall automatically be revoked), with full power of substitution and resubstitution, as the Stockholders true and lawful attorneys-in-fact and irrevocable proxies, to the fullest extent of the Stockholders rights with respect to the Subject Securities owned beneficially or of record by the Stockholder, to vote such Subject Securities solely with respect to the matters set forth in Section 3 hereof. The Stockholder shall retain the authority to vote its Subject Securities in its discretion on all other matters. The Stockholder intends this proxy to be irrevocable and coupled with an interest hereafter until the Expiration Date (at which time this proxy shall automatically be revoked) for all purposes and hereby revokes any proxy previously granted by the Stockholder with respect to its Subject Securities. The Stockholder hereby ratifies and confirms all actions that the proxies appointed hereunder may lawfully do or cause to be done in accordance with this Agreement.
5. Action of Governmental Entity . Notwithstanding anything to the contrary in this Agreement, if at any time following the date hereof and prior to the Expiration Date a Governmental Entity of competent jurisdiction enters an order restraining, enjoining or otherwise prohibiting the Stockholder or its Affiliates from (a) consummating the transactions contemplated by the Merger Agreement or (b) taking any action pursuant to Section 3 or Section 4 hereof, then the obligations of the Stockholder set forth in Section 3 and the irrevocable proxy and power of attorney in Section 4 shall be of no force and effect for so long as such order is in effect.
6. Representations and Warranties of the Stockholder . The Stockholder hereby represents and warrants to the Parent Parties as follows:
6.1 Due Authority . The Stockholder has the legal capacity and power and authority to make, enter into and carry out the terms of this Agreement and to grant the irrevocable proxy as set forth in Section 4 hereof. This Agreement has been duly and validly executed and delivered by the Stockholder and, assuming proper execution and delivery by the Parent Parties, constitutes a valid and binding agreement of the Stockholder enforceable against it in accordance with its terms, except to the extent enforceability may be limited by the effect of applicable bankruptcy, reorganization, insolvency, moratorium or other Laws affecting the enforcement of creditors rights generally and the effect of general principles of equity, regardless of whether such enforceability is considered in a proceeding at Law or in equity.
6.2 Ownership of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units . As of the date hereof, the Stockholder (i) is the beneficial or record owner of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units indicated on Schedule A hereto opposite the Stockholders name, free and clear of any and all Liens, other than those created by this Agreement, as disclosed on Schedule A or as would not reasonably be expected to prevent the Stockholder from performing its obligations under this Agreement, and (ii) has either sole or shared voting power over all of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units beneficially owned by the Stockholder. As of the date hereof, the Stockholder does not own, beneficially or of record, any capital stock or other equity interests of the Company or the Operating Partnership other than the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units set forth on Schedule A opposite the Stockholders name. As of the date hereof, the Stockholder does not own, beneficially or of record, any rights to purchase or acquire any shares of capital stock of equity interests of the Company or the Operating Partnership except as set forth on Schedule A opposite the Stockholders name.
6.3 No Conflict; Consents .
(a) The execution and delivery of this Agreement by the Stockholder do not, and the performance by the Stockholder of the obligations under this Agreement and the compliance by the Stockholder with any provisions hereof do not and will not: (i) conflict with or violate in any material respect any Laws applicable to the Stockholder, or (ii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the Company Common Shares, the Company Series E Preferred Shares or the Partnership Common Units owned beneficially or of record by the Stockholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Stockholder is a party or by which the Stockholder is bound which would reasonably be expected to materially and adversely affect the Stockholders ability to perform its obligations hereunder.
(b) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity or any other Person, is required by or with respect to the Stockholder in connection with the execution and delivery of this Agreement or the performance by the Stockholder of its obligations hereunder.
6.4 Absence of Litigation . There is no Legal Proceeding pending against, or, to the knowledge of the Stockholder, threatened against or affecting, the Stockholder or any of its Affiliates or any of their respective properties or assets (including the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units owned beneficially or of record by the Stockholder) at Law or in equity that would reasonably be expected to materially and adversely affect the Stockholders ability to perform its obligations hereunder.
7. Further Assurances . From time to time, at the request of Parent and without further consideration, the Stockholder shall take such further action as may reasonably be requested by Parent to carry out the intent of this Agreement.
8. Termination . This Agreement shall terminate and shall have no further force or effect immediately following the Expiration Date.
9. Notice of Certain Events . The Stockholder shall notify Parent promptly of (a) any fact, event or circumstance that would cause, or reasonably be expected to cause or constitute, a breach in any material respect of the representations and warranties of the Stockholder under this Agreement and (b) the receipt by the Stockholder of any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with this Agreement; provided, however, that the delivery of any notice pursuant to this Section 9 shall not limit or otherwise affect the remedies available to any party.
10. Dissenters Rights . The Stockholder hereby unconditionally and irrevocably waives, and agrees to prevent the execution of, any rights of appraisal and dissenters rights relating to the Company Merger that the Stockholder may have directly or indirectly by virtue of the ownership of the Subject Securities.
11. Miscellaneous .
11.1 Notices . Any notice, request, claim, demand and other communications hereunder shall be in writing, shall be deemed to have been given (i) upon confirmation of successful transmission if sent by facsimile transmission or e-mail of a pdf attachment (provided that any notice received by facsimile or e-mail on any Business Day after 5:00 p.m. (Eastern time) shall be deemed to have been received at 9:00 a.m. (Eastern time) on the next Business Day), or (ii) upon receipt by the receiving party if sent by reliable overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), and shall be addressed as follows (or at such other address for a party as shall be specified in a notice given in accordance with this Section 11.1 ):
if to the Parent Parties:
NHT Operating Partnership, LLC
300 Crescent Court, Suite 700
Dallas, TX 75201
Attention: Brian Mitts
Email: bmitts@nexpointsecurities.com
with a copy (which shall not constitute notice) to:
Winston & Strawn LLP
2121 North Pearl Street, Suite 900
Dallas, TX 75201
Attention: Charlie Haag
Email: chaag@winston.com
if to the Stockholder:
To the address for notice set forth on the last page hereof.
Or to such other address as any party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective upon receipt.
11.2 Severability . If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
11.3 Binding Effect and Assignment . This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Company and the Operating Partnership shall be express third party beneficiaries of the agreements of the Stockholder contained in this Agreement.
11.4 Amendments and Modification . This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by the parties hereto.
11.5 Entire Agreement . This Agreement (including the exhibits, schedules, annexes and appendices hereto) constitutes the entire agreement between the parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof and thereof.
11.6 Specific Performance . The parties hereto agree that irreparable damage, for which monetary damages (even if available) would not be an adequate remedy, would occur in the event that the parties hereto do not perform the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. Accordingly, the parties acknowledge and agree that the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which they are entitled at Law or in equity. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at Law or that any award of specific performance is not an appropriate remedy for any reason at Law or in equity. Any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction.
11.7 Counterparts . This Agreement may be executed and delivered (including by facsimile or .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an Electronic Delivery )) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. No party hereto shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
11.8 Governing Law . This Agreement and all actions, proceedings or counterclaims (whether based on contract, tort or otherwise) directly or indirectly arising out of or relating to this Agreement or the actions of Parent or the Stockholder in the negotiation, administration, performance and enforcement thereof, shall be governed by, and construed in accordance with, the laws of the State of Maryland, without giving effect to any choice or conflict of Laws provision or rule (whether of the State of Maryland or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Maryland.
11.9 Consent to Jurisdiction .
(a) Each of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of the courts of the State of Maryland and to the jurisdiction of the United States District Court for the District of Maryland, for the purpose of any action, proceeding or counterclaim (whether based on contract, tort or otherwise) directly or indirectly arising out of or relating to this Agreement or the actions of the parties hereto in the negotiation, administration, performance and enforcement thereof, and each of the parties hereto hereby irrevocably agrees that all claims in respect to such action or proceeding may be heard and determined exclusively in any state or federal court located in the State of Maryland.
(b) Each of the parties hereto (i) irrevocably consents to the service of the summons and complaint and any other process in any other action or proceeding relating to the transactions contemplated by this Agreement, on behalf of itself or its property, by personal delivery of copies of such process to such party and nothing in this Section 11.9 shall affect the right of any party to serve legal process in any other manner permitted by Law, (ii) consents to submit itself to the personal jurisdiction of any United States federal court located in the State of Maryland or any Maryland state court in the event any dispute arises out of this Agreement or the transactions contemplated by this Agreement, (iii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iv) agrees that it will not bring any action relating to this Agreement or the transactions contemplated by this Agreement in any court other than any United States federal court located in the State of Maryland or any Maryland state court. Each of Parent and the Stockholder agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
11.10 WAIVER OF JURY TRIAL . EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH OF THE PARTIES HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.11 .
11.11 No Agreement Until Executed . Irrespective of negotiations among the parties or the exchanging of drafts of this Agreement, this Agreement shall not constitute or be deemed to evidence a contract, agreement, arrangement or understanding between the parties hereto unless and until (i) the Merger Agreement is executed and delivered by all parties thereto, and (ii) this Agreement is executed and delivered by all parties hereto.
11.12 Legal Representation . This Agreement was negotiated by the parties with the benefit of legal representation and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any party shall not apply to any construction or interpretation thereof.
11.13 Expenses . All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense, whether or not the Mergers are consummated.
11.14 Action in Stockholder Capacity Only . No Person executing this Agreement (or designee or Representative of such Person) who has been, is or becomes during the term of this Agreement a director, trustee, officer or fiduciary of the Company shall be deemed to make any agreement or understanding in this Agreement in such Persons capacity as a director, trustee, officer or fiduciary of the Company. The parties acknowledge and agree that this Agreement is entered into by the Stockholder solely in its capacity as the beneficial owner or record holder of Company Common Shares, Company Series E Preferred Shares or Partnership Common Units and nothing in this Agreement shall restrict, limit or affect (or require the Stockholder to attempt to restrict, limit or affect) in any respect any actions taken by the Stockholder or its designees or Representatives who are a director, trustee, officer or fiduciary of the Company in its capacity as a director, trustee, officer or fiduciary of the Company. Neither the Stockholder nor any of its designees or Representatives shall have any liability under this Agreement as a result of any action or inaction by the Stockholder or its designees or Representatives acting in its capacity as an officer, trustee, director or fiduciary of the Company, it being understood that any action taken (or failure to take action) by the Stockholder or its designees or Representatives in such capacity to approve a Change in Recommendation shall have no effect on the obligations of the Stockholder under this Agreement as the record holder or beneficial owner of Subject
Securities if this Agreement has not been validly terminated in accordance with its terms. For the avoidance of doubt, nothing in this Section 11.14 shall in any way modify, alter or amend any of the terms of the Merger Agreement.
11.15 Documentation and Information . The Stockholder consents to and authorizes the publication and disclosure by Parent and the Company of the Stockholders identity and holdings of the Company Common Shares, the Company Series E Preferred Shares and the Partnership Common Units, and the nature of the Stockholders commitments, arrangements and understandings under this Agreement, in any press release or any other disclosure document required in connection with the Mergers or any other transaction contemplated by the Merger Agreement; provided, that counsel to the Stockholder shall have a reasonable opportunity to review and provide comments on any such press release or other disclosure document (which comments Parent and the Company shall consider in good faith). As promptly as practicable, the Stockholder shall notify Parent of any required corrections with respect to any written information supplied by the Stockholder specifically for use in any such disclosure document, if and to the extent the Stockholder becomes aware that any have become false or misleading in any material respect.
11.16 Additional Agreements .
(a) Section 6(c)(vi) of the Articles Supplementary of the Company governing the Company Series E Preferred Shares provides that the Company shall not agree or commit to merge the Company without the consent of the holders of not less than 75% of the outstanding Company Series E Preferred Shares. The Stockholder acknowledges and agrees that the execution and delivery of this Agreement by the Stockholder shall be deemed consent by the Stockholder, in its capacity as holder of Company Series E Preferred Shares, to the Companys execution and delivery of the Merger Agreement pursuant to which the Company agreed and committed to merge the Company (in each case, subject to the Company Shareholder Approval).
(b) The Stockholder acknowledges and agrees that (i) pursuant to Section 5.1(b) of the Merger Agreement, the Company is restricted from paying dividends on the Subject Securities (subject to any permitted dividends under Section 7.4 of the Merger Agreement), and (ii) unless the Merger Agreement is terminated, from and after the date hereof, the Stockholder waives the right to receive the dividends contemplated under Section 4 of the Articles Supplementary governing the Company Series E Preferred Shares other than with respect to any dividends that are declared by the Company pursuant Section 7.4 of the Merger Agreement over which the Company Series E Preferred Shares will have priority of payment as contemplated by the Articles Supplementary governing the Company Series E Preferred Shares; provided, that if this Agreement is terminated, then such waiver shall be of no effect and such dividends shall have continued to accrue from the date hereof through the date of such termination.
[ Remainder of page intentionally left blank; signature page follows. ]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above.
NHT OPERATING PARTNERSHIP, LLC a Delaware limited liability company |
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By: | NHT OPERATING PARTNERSHIP GP, | |||
LLC, its manager | ||||
By: |
/s/ Neil Labatte |
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Name: | Neil Labatte | |||
Title: | Sole Member |
NHT REIT MERGER SUB, LLC, | ||
a Delaware limited liability company | ||
By: |
/s/ Brian Mitts |
|
Name: | Brian Mitts | |
Title: | Chief Financial Officer and Secretary | |
NHT OPERATING PARTNERSHIP II, LLC | ||
a Virginia limited liability company | ||
By: |
/s/ Brian Mitts |
|
Name: | Brian Mitts | |
Title: | Chief Financial Officer and Secretary |
[ Signature Page to Voting Agreement ]
REAL ESTATE INVESTMENT GROUP VII L.P. a Bermuda limited partnership |
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By: | Jiwin S.A., its General Partner | |||
By: |
/s/ Alejandro G. Casaretto |
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Name: | Alejandro G. Casaretto | |||
Title: | Authorized Signatory | |||
By: |
/s/ Daniel Sanguinetti |
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Name: | Daniel Sanguinetti | |||
Title: | Authorized Signatory | |||
Address for Notice:
Real Estate Investment Group VII L.P. Clarendon House 2, Church Street, Hamilton HM CX, Bermuda: c/o IRSA Inversiones y Representaciones Sociedad Anónima C1091AAQ, Buenos Aires Argentina Attention: Mr. Eduardo Elsztain Facsimile: +54 (11) 4323-7499 |
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[ Signature Page to Voting Agreement ]
Schedule A
Name |
Company
Common Shares |
Company
Series E Preferred Shares |
Partnership
Common Units |
Company
Restricted Shares (Unvested) |
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Real Estate Investment Group VII L.P. |
2,261,987 | * | 325,752 | 0 | 0 |
* |
Includes 2,197,023 Common Shares and 64,964 Common Shares issuable upon conversion of a promissory note held for its benefit. |
By: |
/s/ Alejandro G. Casaretto |
|
Name: | Alejandro G. Casaretto | |
Title: | Authorized Signatory | |
By: |
/s/ Daniel Sanguinetti |
|
Name: | Daniel Sanguinetti | |
Title: | Authorized Signatory |