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EXHIBIT 10.9
July 30, 1998
Developers Diversified Realty Corporation
34555 Chagrin Boulevard
Moreland Hills, Ohio
Re: Voting Agreement
Ladies and Gentlemen:
The undersigned understands that Developers Diversified Realty
Corporation, an Ohio corporation ("DDRC"), and American Industrial Properties
REIT, a Texas real estate investment trust ("AIP"), are entering into a Share
Purchase Agreement to be dated on or about the date hereof (the "Purchase
Agreement"), and, together with DDR Office Flex Corporation, a Delaware
corporation, a Merger Agreement to be dated on or about the date hereof (the
"Merger Agreement" and, together with the Purchase Agreement, the
"Agreements"), providing for, among other things, the purchase of common
shares, $.10 par value per share, of AIP by DDRC (the "Share Purchase"). Under
the rules of the New York Stock Exchange, consummation of the Share Purchase
will require the approval of the shareholders of AIP.
The undersigned is a shareholder of AIP (the "Shareholder")
and is entering into this letter agreement at your request, in exchange for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, to induce you to enter into the Agreements and to consummate the
transactions contemplated thereby.
The Shareholder confirms its agreement with you as follows:
1. The Shareholder represents and warrants that is the
beneficial owner of the shares of beneficial interest
AIP listed on Schedule I annexed hereto (the "Shares")
of which the Shareholder or any affiliate (as defined
under the Securities Exchange Act of 1934, as amended)
of the Shareholder controlled by the Shareholder (a
"Controlled Affiliate") that has the power to vote or
to make recommendations regarding voting, and that the
Shareholder and the Controlled Affiliates, or the
clients on whose behalf the Shareholder or any
Controlled Person acts as a fiduciary, are, to the
best of the Shareholder's knowledge, on the date
hereof the lawful owners of the number of Shares set
forth in Schedule I, free and clear of all liens,
charges, encumbrances, voting agreements and
commitments of any kind, except as disclosed in
Schedule I. Except for the Shares set forth in
Schedule I, neither the Shareholder nor any Controlled
Affiliate owns or holds any rights to acquire any
additional shares of beneficial interest of
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July 30, 1998
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AIP (other than pursuant to options or conversion
rights with regard to any of the Shares, in each case
as disclosed in Schedule I) or any interest therein
or any voting rights with respect to any such
additional shares.
2. Until the earliest date referred to in 12, the
Shareholder agrees that it will not, and will not
permit any Controlled Affiliate to, contract to sell,
sell or otherwise transfer or dispose of any of the
Shares or any interest therein or securities
convertible into shares of beneficial interest of AIP,
or any voting rights with respect thereto, without
your prior written consent.
3. The Shareholder agrees that, during the term of this
letter agreement, neither it nor any Controlled
Affiliate will take any action that AIP would be
prohibited from taking under Section 5.4 of the
Purchase Agreement.
4. The Shareholder agrees that during the term of this
letter agreement (a) all of the shares of beneficial
interest of AIP beneficially owned by the Shareholder
or any Controlled Affiliate, or over which the
Shareholder or any Controlled Affiliate has voting
power or control, directly or indirectly, including
any such shares acquired after the date hereof at the
record date for any meeting of shareholders of AIP
called to consider and vote on the Share Purchase and
the Agreements and the transactions contemplated
thereby or any Competing Transaction (as such term is
defined in the Purchase Agreement) will be voted by
the Shareholder or such Controlled Affiliates, or any
representative or proxy thereof, or that the
Shareholders will recommend that such Shares be voted,
as applicable, in favor of the approval of the Share
Purchase and the Agreements and the transactions
contemplated thereby and (b) neither the Shareholder
nor any Controlled Affiliate, nor any such
representative or proxy will vote any such Shares or
recommend that such Shares be voted, in favor of any
Competing Transaction, in each case except to the
extent that the Shareholder determines in its good
faith judgment, after consultation with its legal
counsel, that it is prudent to vote or recommend
otherwise in the exercise of its fiduciary
obligations.
5. The Shareholder agrees that the shares referred to in
Section 4 above, owned at the record date for any
meeting of shareholders of AIP called to consider and
vote on the election of members of the Board of Trust
Managers of the Trust (the "Board"), will be voted by
the Shareholder or any Controlled Affiliate, or any
representative or proxy
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July 30, 1998
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thereof, or that the Shareholder will recommend that
such Shares be voted, as applicable, in favor of the
approval of the election of the representatives of
DDRC to the Board for so long as DDRC has the right
to nominate members of the Board under the Purchase
Agreement, in each case except to the extent that the
Shareholder determines in its good faith judgment,
after consultation with its legal counsel, that it is
prudent to vote or recommend otherwise in the
exercise of its fiduciary obligations.
6. The Shareholder hereby appoints Marc A. Simpson to
attend the special meeting of the shareholders of AIP
held to consider and vote on the Share Purchase and to
vote the shares referred to in Section 4 above, with
all the power the Shareholder would possess if
personally present, in favor of the approval of the
Share Purchase, the Agreements and the transactions
contemplated thereby. The Shareholder agrees to
execute, and to cause each Controlled Affiliate to
execute, such proxies and other instruments, and to
take and to cause each Controlled Affiliate to take
such actions, as may be necessary to cause all of
those shares to be so voted.
7. The Shareholder has all necessary power and authority
to enter into this letter agreement. This letter
agreement is the legal, valid and binding agreement of
the Shareholder, and is enforceable against the
Shareholder in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar
laws affecting creditors' rights and remedies
generally and to general principles of equity. This
letter agreement shall inure to the benefit of the
parties hereto and the successors and assigns of DDRC.
8. The Shareholder agrees that damages are an inadequate
remedy for the breach by Shareholder of any term or
condition of this letter agreement and that you shall
be entitled to a temporary restraining order and
preliminary and permanent injunctive relief in order
to enforce our agreements herein.
9. Except to the extent that the laws of the jurisdiction
of organization of any party hereto, or any other
jurisdiction, are mandatorily applicable to matters
arising under or in connection with this letter
agreement, this letter agreement shall be governed by
the laws of the State of Ohio. All actions and
proceedings arising out of or relating to this letter
agreement shall be heard and determined in any United
States District Court sitting in the Northern District
of Ohio.
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10. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of any United States District
Court located in the Northern District of Ohio, for
the purpose of any action or proceeding arising out of
or relating to this letter agreement and each of the
parties hereto irrevocably agrees that all claims in
respect of such action or proceeding may be heard and
determined exclusively in any federal court sitting in
the Northern District of Ohio. Each of the parties
hereto 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.
Shareholder hereby irrevocably appoints A.G.C. Co., 1900 East
9th Street, Suite 3200, Cleveland, Ohio, as its lawful agent in and for the
State of Ohio, for and in its behalf, to accept and acknowledge service of, and
upon whom may be served, all necessary processes in any action, suit, or
proceeding arising under this Agreement that may be had or brought against it
in any federal court in the Northern District of Ohio, such service of process
or notice, or the acceptance thereof by said agent endorsed thereon, to have
the same force and effect as if served upon such corporation or individual.
Nothing in this Section 10 shall affect the right of any party hereto to serve
legal process in any other manner permitted by law. Shareholder hereby waives
all defenses of improper venue and forum non conveniens with respect to any
action, suit, or proceeding brought in the any United States District Court
located in the Northern District of Ohio and arising under this letter
agreement.
11. This letter agreement constitutes the entire agreement
between the parties hereto with respect to the matters
covered hereby and supersedes all prior agreements,
understandings or representations between the parties,
written or oral, with respect to the subject matter
hereof.
12. This letter agreement and the proxy granted pursuant
to Section 6 hereof shall become effective upon the
execution and delivery of the Agreements by the
respective parties thereto. Except as otherwise
provided herein, this letter agreement and the proxy
granted pursuant to Section 6 hereof shall terminate
automatically, without the need for any notice or
other action by either party upon the earliest of (i)
the date on which the Purchase Agreement and the
Merger Agreement are terminated, (ii) the Second
Closing Date, as defined in the Purchase Agreement,
and (iii) the date that is 240 days after the date
hereof.
13. Each of the parties hereto intends that AIP shall be a
third party beneficiary of this letter agreement, and
shall be entitled to the benefits hereof and shall
have the ability to exercise the rights granted to
DDRC herein as fully as if it were a signatory of this
letter agreement.
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14. Notwithstanding anything to the contrary contained
herein, neither AIP nor any representative of the
Shareholder serving on the Board of Trust Managers of
AIP shall be deemed to be a Controlled Affiliate.
Please confirm that the foregoing correctly states the
understanding between us by signing and returning to me a counterpart hereof.
LaSalle Advisors Limited Partnership
By: /s/ [Illegible]
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Name: Illegible
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Title: Illegible
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ABKB/LaSalle Securities Limited Partnership
By: /s/ [Illegible]
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Name: [Illegible]
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Title: [Illegible]
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Confirmed on the date
first above written
Developers Diversified Realty Corporation
By: /s/ Scott A. Wolstein
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Name: Scott A. Wolstein
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Title: President
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Schedule I
Ownership of Shares of Beneficial Interest
Owned Beneficially (including Options to Purchase Shares)
Total Number of Shares
Beneficiallly Owned
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LaSalle Securities 960,425
LaSalle Advisors 542,153