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EXHIBIT 10.11
July 30, 1998
Developers Diversified Realty Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxx
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 Schedule
I annexed hereto sets forth the shares of beneficial
interest of AIP 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") is the beneficial owner (the "Shares")
and that the Shareholder and the Controlled
Affiliates are 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 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
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July 30, 1998
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voting rights with respect to any such additional
shares.
2. Until the earliest date referred to in Section 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 at that
time 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, 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 in favor of any Competing
Transaction.
5. The Shareholder agrees that the shares referred to in
Section 4 above that are 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 thereof, 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.
6. The Shareholder hereby appoints Xxxx X. Xxxxxxx to
attend the special meeting of the shareholders of AIP
held to consider and vote on
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July 30, 1998
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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.
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
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July 30, 1998
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be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
The Shareholder hereby irrevocably appoints Xxxxx, Day, Xxxxxx
& Xxxxx, 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 the Shareholder, provided that any such process or notice that may
be so served shall include a conspicuous statement to the effect that is to be
forwarded immediately to USAA Real Estate Company, 0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000-0000, Attention: Legal Counsel (with a copy
to Xxxxxxxx X. Villareal, Jones, Day, Xxxxxx & Xxxxx, 0000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 75201). 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 enforce the rights granted
to DDRC herein as fully as if it were a signatory of
this letter agreement.
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.
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Please confirm that the foregoing correctly states the
understanding between us by signing and returning to me a counterpart hereof.
USAA Real Estate Company
By: /s/ T. Xxxxxxx Xxxxxx
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Name: T. Xxxxxxx Xxxxxx
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Title: SVP Operations & Finance
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Confirmed on the date
first above written
Developers Diversified Realty Corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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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)
Shares Shares
Owned of Subject to Total
Record Options Shares
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USAA Real Estate Company 1,674,086 6,000 1,680,086
