Exhibit 99.2
VOTING AGREEMENT
VOTING AGREEMENT dated as of October 23, 2005, between Prime Property Fund,
LLC, a Delaware limited liability company ("PURCHASER"), and the Persons listed
on signature pages hereof (each, a "SHAREHOLDER" and, collectively, the
"SHAREHOLDERS").
WHEREAS, each Shareholder owns the number of common shares of beneficial
interest, par value $0.01 per share, of AMLI Residential Properties Trust, a
Maryland real estate investment trust (the "COMPANY") (including any equity
interests into which such common shares may be converted or exchanged after the
date hereof, and together with any associated preferred share purchase rights,
the "COMPANY SHARES") set forth opposite such Shareholder's name on Schedule A
hereto (such Company Shares, together with any other equity interests in the
Company acquired by any Shareholder after the date hereof and during the term of
this Agreement, being collectively referred to herein as the "SUBJECT SHARES");
WHEREAS, concurrently with the execution and delivery of this Agreement,
Purchaser, Atom Acquisition LLC, a Delaware limited liability company
("PURCHASER ACQUISITION ENTITY"), Atom Acquisition Partners, L.P., a Delaware
limited partnership ("PURCHASER ACQUISITION LP" and, together with Purchaser
Acquisition Entity and Purchaser, the "PURCHASER PARTIES"), the Company and AMLI
Residential Properties, L.P., a Delaware limited partnership ("AMLI LP"), are
entering into an Agreement and Plan of Merger, dated as of the date hereof (as
amended, the "MERGER AGREEMENT"), providing for the merger of the Company with
and into Purchaser Acquisition Entity (the "MERGER"), followed by the merger of
Purchaser Acquisition LP with and into AMLI LP (the "PARTNERSHIP MERGER" and,
together with the Merger, the "MERGERS"), in each case upon the terms and
conditions set forth therein; and
WHEREAS, as an inducement to the Purchaser Parties entering into the Merger
Agreement and incurring the obligations set forth therein, Purchaser has
required that the Shareholders enter into this Agreement, and the Shareholders
desire to enter into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein and not defined shall
have the meanings specified in the Merger Agreement.
Section 2. Representations and Warranties of Each Shareholder. Each
Shareholder, severally and not jointly, represents and warrants to Purchaser as
follows:
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(a) Authority. Such Shareholder has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by such
Shareholder and constitutes a valid and binding obligation of such Shareholder
enforceable in accordance with its terms.
(b) No Conflicts. Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated hereby or compliance with the
terms hereof will violate, conflict with or result in a breach, or constitute a
default (with or without notice or lapse of time or both) under any provision
of, any trust agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise,
license, judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to such Shareholder or to such Shareholder's property or
assets.
(c) The Subject Shares. Such Shareholder is the beneficial owner of and has
good and marketable title to, the Subject Shares set forth opposite such
Shareholder's name on Schedule A hereto, free and clear of any mortgage, lien,
pledge, charge, encumbrance, security interest or other adverse claim, except as
indicated on Schedule B. Such Shareholder does not own, of record or
beneficially, any shares of beneficial interest of the Company other than the
Subject Shares set forth opposite such Shareholder's name on Schedule A hereto.
Such Shareholder has the sole right to vote, or to dispose, of such Subject
Shares, and none of such Subject Shares is subject to any agreement, arrangement
or restriction (other than with respect to restricted shares) with respect to
the voting of such Subject Shares, except as contemplated by this Agreement.
There are no agreements or arrangements of any kind, contingent or otherwise,
obligating such Shareholder to sell, transfer, assign, grant a participation
interest in, option pledge, hypothecate or otherwise dispose or encumber (each,
a "TRANSFER"), or cause to be Transferred, any of the Subject Shares. No Person
has any contractual or other right or obligation to purchase or otherwise
acquire any of the Subject Shares.
(d) Litigation. There is no action, proceeding or investigation pending or
threatened against such Shareholder that questions the validity of this
Agreement or any action taken or to be taken by such Shareholder in connection
with this Agreement.
Section 3. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to each Shareholder as follows:
(a) Authority. Purchaser has all requisite limited liability company power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Purchaser,
and the consummation of the transactions contemplated hereby, have been duly
authorized by all necessary limited liability company action on the part of
Purchaser. This Agreement has been duly executed and delivered by
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Purchaser and constitutes a valid and binding obligation of Purchaser
enforceable in accordance with its terms.
(b) No Conflicts. Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated hereby or compliance with the
terms hereof will violate, conflict with or result in a breach, or constitute a
default (with or without notice or lapse of time or both) under any provision
of, the limited liability company agreement of Purchaser, any trust agreement,
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise, license, judgment, order,
notice, decree, statute, law, ordinance, rule or regulation applicable to
Purchaser or to Purchaser's property or assets.
Section 4. Covenants of Each Shareholder. Until the termination of this
Agreement in accordance with Section 7, each Shareholder, severally and not
jointly, agrees as follows:
(a) At any meeting of shareholders of the Company called to vote upon the
Merger and the Merger Agreement or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval (including by written
consent) with respect to the Merger and the Merger Agreement is sought, each
Shareholder shall vote (or cause to be voted) its Subject Shares in favor of the
approval of the Merger and the Merger Agreement and each of the transactions
contemplated by the Merger Agreement.
(b) At any meeting of shareholders of the Company or at any adjournment
thereof or in any other circumstances upon which a vote, consent or other
approval of all or some of the shareholders of the Company is sought, each
Shareholder shall vote (or cause to be voted) its Subject Shares against (i) any
merger agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale or transfer of a material amount of assets,
reorganization, recapitalization, dissolution, liquidation or winding up of or
by the Company or any Competing Transaction, and (ii) any amendment of the
Company's Declaration of Trust or Bylaws or other proposal or transaction
involving the Company or any of its subsidiaries, which amendment or other
proposal or transaction would in any manner delay, impede, frustrate, prevent or
nullify the Mergers, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement or change in any manner the voting rights
of Company Shares. Subject to Section 5, each Shareholder further agrees not to
commit or agree to take any action inconsistent with the foregoing.
(c) Except as provided in Section 4(d), each Shareholder agrees not to,
after the date of this Agreement, directly or indirectly, (i) Transfer or enter
into any agreement, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, any Subject Shares to any Person,
other than pursuant to the Merger Agreement or (ii) grant any proxies, deposit
any Subject Shares into any voting trust or enter into any voting arrangement,
whether
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by proxy, voting agreement or otherwise, with respect to the Subject Shares,
other than pursuant to this Agreement. Subject to Section 4(d), each Shareholder
further agrees not to commit or agree to take any of the foregoing actions.
(d) Notwithstanding the foregoing, each Shareholder shall have the right to
Transfer its Subject Shares to a Permitted Transferee (as defined in this
Section 4(d)) of such Shareholder if and only if such Permitted Transferee shall
have agreed in writing, in a manner acceptable in form and substance to
Purchaser, (i) to accept such Subject Shares subject to the terms and conditions
of this Agreement and (ii) to be bound by this Agreement and to agree and
acknowledge that such Person shall constitute a Shareholder for all purposes of
this Agreement. "PERMITTED TRANSFEREE" means, with respect to any Shareholder,
(A) any other Shareholder, (B) a spouse or lineal descendant (whether natural or
adopted), sibling, parent, heir, executor, administrator, testamentary trustee,
lifetime trustee or legatee of such Shareholder, (C) any charitable organization
described in section 170(c) of the Code, (D) any trust, the trustees of which
include only the Persons named in clause (A) or (B) and the beneficiaries of
which include only the Persons named in clause (A), (B) or (C), (E) any
corporation, limited liability company or partnership, the stockholders, members
or general or limited partners of which include only the Persons named in clause
(A) or (B), or (F) if such Shareholder is a trust, the beneficiary or
beneficiaries authorized or entitled to receive distributions from such trust.
Section 5. Shareholder Capacity. No Person executing this Agreement who is
or becomes during the term hereof a director or officer of the Company or any of
its Subsidiaries shall be deemed to make any agreement or understanding in this
Agreement in such Person's capacity as such a director or officer. Each
Shareholder is entering into this Agreement solely in its capacity as the record
holder or beneficial owner of such Shareholder's Subject Shares and nothing
herein shall limit or affect any actions taken by a Shareholder in its capacity
as a director or officer of the Company or of any of its Subsidiaries to the
extent specifically permitted by the Merger Agreement or following the
termination of the Merger Agreement.
Section 6. Representative. Each Shareholder hereby designates and appoints
(and each Permitted Transferee of each such Shareholder is hereby deemed to have
so designated and appointed) Xxxxxxx X. Xxxx (the "REPRESENTATIVE"), acting
jointly or individually, as its attorneys-in-fact with full power of
substitution for each of them, to serve as the representative of such
Shareholder to perform all such acts as are required, authorized or contemplated
by this Agreement to be performed by such Shareholder (including the voting of
the Subject Shares in accordance with Sections 4(a) and 4(b)), and hereby
acknowledges that the Representative shall be authorized to take any action so
required, authorized or contemplated by this Agreement. Each such Shareholder
further acknowledges that the foregoing appointment and designation shall be
deemed to be coupled with an interest and shall survive the death or incapacity
of such Shareholder. Each such Shareholder hereby authorizes (and each such
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Permitted Transferee of such Shareholder shall be deemed to have authorized) the
other parties hereto to disregard any notices or other action taken by such
Shareholder pursuant to this Agreement, except for notices and actions taken by
the Representative. Purchaser is and will be entitled to rely on any action so
taken or any notice given by the Representative and is and will be entitled and
authorized to give notices only to the Representative for any notice
contemplated by this Agreement to be given to any such Shareholder. A successor
to the Representative may be chosen by a majority in interest of the
Shareholders; provided that notice thereof is given by the new Representative to
Purchaser.
(b) Notwithstanding the generality of Section 6(a), each Shareholder hereby
constitutes and appoints the Representative, with full power of substitution, as
the proxy pursuant to the provisions of the Maryland General Corporation Law and
attorney of such Shareholder, and hereby authorizes and empowers the
Representative, acting individually or jointly, to represent, vote and otherwise
act (by voting at any meeting of the shareholders of the Company, by written
consent in lieu thereof or otherwise) with respect to the Subject Shares owned
or held by such Shareholder regarding the matters referred to in Sections 4(a)
and 4(b) until the termination of this Agreement, to the same extent and with
the same effect as such Shareholder might or could do under applicable law,
rules and regulations. The proxy granted pursuant to the immediately preceding
sentence is coupled with an interest and shall be irrevocable. Each Shareholder
hereby revokes any and all previous proxies or powers of attorney granted with
respect to any of the Subject Shares owned or held by such Shareholder.
Section 7. Termination. This Agreement shall terminate (i) upon the earlier
of (A) the Merger Effective Time and (B) the termination of the Merger
Agreement, or (ii) at any time upon notice by Purchaser to the Representative.
No party hereto shall be relieved from any liability for breach of this
Agreement by reason of any such termination.
Section 8. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland, without regard to the
conflicts of law rules of such state.
Section 9. Jurisdiction. The parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought in any federal court located in the State of Maryland or
any Maryland state court, and each of the parties hereby irrevocably consents to
the jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of
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any such court. Without limiting the foregoing, each party agrees that service
of process on such party as provided in Section 14 shall be deemed effective
service of process on such party.
Section 10. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 11. Specific Performance. Each Shareholder acknowledges and agrees
that (i) the covenants, obligations and agreements of such Shareholder contained
in this Agreement relate to special, unique and extraordinary matters, and (ii)
a violation of any of the terms of such covenants, obligations or agreements
will cause Purchaser irreparable injury for which adequate remedies are not
available at law. Therefore, each Shareholder agrees that Purchaser shall be
entitled to an injunction, restraining order or such other equitable relief
(without the requirement to post bond) as a court of competent jurisdiction may
deem necessary or appropriate to restrain such Shareholder from committing any
violation of such covenants, obligations or agreements. These injunctive
remedies are cumulative and in addition to any other rights and remedies
Purchaser may have.
Section 12. Amendment, Waivers, Etc.. Neither this Agreement nor any term
hereof may be amended or otherwise modified other than by an instrument in
writing signed by Purchaser and the Representative. No provision of this
Agreement may be waived, discharged or terminated other than by an instrument in
writing signed by the party against whom the enforcement of such waiver,
discharge or termination is sought.
Section 13. Assignment; No Third Party Beneficiaries. This Agreement shall
not be assignable or otherwise transferable by a party without the prior consent
of the other parties, and any attempt to so assign or otherwise transfer this
Agreement without such consent shall be void and of no effect; provided that (i)
any Permitted Transferee acquiring any Subject Shares in accordance with Section
4(d) shall, upon the delivery of the documents contemplated by Section 4(d),
become a "Shareholder", and (ii) Purchaser may, in its sole discretion, assign
or transfer all or any of its rights, interests and obligations under this
Agreement to any direct or indirect Subsidiary of Purchaser. This Agreement
shall be binding upon the respective heirs, successors, legal representatives
and permitted assigns of the parties hereto. Nothing in this Agreement shall be
construed as giving any Person, other than the parties hereto and their heirs,
successors, legal representatives and permitted assigns, any right, remedy or
claim under or in respect of this Agreement or any provision hereof.
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Section 14. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission) and shall
be given,
if to Purchaser, to:
Prime Property Fund, LLC
c/x Xxxxxx Xxxxxxx Real Estate Advisor, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: President
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
if to any Shareholder, to:
AMLI Residential Properties Trust
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Facsimile No.: (000) 000-0000
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or to such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. on a Business
Day in the place of receipt. Otherwise, any such notice, request or
communication shall be deemed to have been received on the next succeeding
Business Day in the place of receipt.
Section 15. Remedies. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or
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the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 16. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated 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 a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
Section 17. Entire Agreement. This Agreement (including the Schedules
hereto), together with the Merger Agreement, constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter of this Agreement.
Section 18. Section Headings. The article and section headings of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
Section 19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PRIME PROPERTY FUND, LLC
By: Xxxxxx Xxxxxxx Real Estate Advisor,
Inc., its Manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
/s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
The undersigned hereby (i) acknowledges and accepts his appointment as a
Representative pursuant to Section 6(a) and the grant of the proxy referred to
in Section 6(b), and (ii) agrees and confirms that he will vote all Subject
Shares in accordance with Sections 4(a) and 4(b):
/s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx
SCHEDULE A
Shareholder Shares as of October 23, 2005
----------- -----------------------------
Xxxxxxx X. Xxxx 553,524
Xxxxx X. Xxxxx 408,313
Xxxxxx X. Xxxxx 458,212
Xxxxxx X. Xxxxxxx 314,018
A-1
SCHEDULE B
Shareholder Shares Pledges as of October 23, 2005
----------- -------------------------------------
Xxxxxxx X. Xxxx --
Xxxxx X. Xxxxx 124,761
Xxxxxx X. Xxxxx 106,274
Xxxxxx X. Xxxxxxx --
B-1
