UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
( Amendment No. 2 )*
AMLI RESIDENTIAL PROPERTIES TRUST
---------------------------------
(Name of Issuer)
Common Shares of Beneficial Interest, $.01 par value per share
--------------------------------------------------------------
(Title of Class of Securities)
001735 10 9
--------------
(CUSIP Number)
John E. Allen, Amli Realty Co.,
125 South Wacker Drive, Suite 3100,
Chicago, Illinois 60606
(312) 984-2601
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
November 6, 1996
-------------------------------------------------------
(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 which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ]
Check the following box if a fee is being paid with the statement [ ]. (A
fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent
of the class of securities described in Item 1; and (2) has filed no
amendment subsequent thereto reporting beneficial ownership of five percent
or less of such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
* The remainder of this cover page shall be filled out for a
reporting person's 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).
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 2 of 32 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Amli Realty Co.
36-3101470
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC,00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
2,020,860
8 SHARED VOTING POWER
-0-
9 SOLE DISPOSITIVE POWER
2,020,860
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,020,860
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.5%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 3 of 32 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UICI
75-2044750
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC,00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
638,000
8 SHARED VOTING POWER
2,020,860
9 SOLE DISPOSITIVE POWER
638,000
10 SHARED DISPOSITIVE POWER
2,020,860
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,658,860
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.0%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP NO. 001735 10 9
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Page 4 of 32 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Ronald L. Jensen
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
PF,00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,663,664
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,663,664
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
642,804
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ X ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.0%
14 TYPE OF REPORTING PERSON
IN
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 5 of 32 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Gregory T. Mutz
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
PF,00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
81,293
8 SHARED VOTING POWER
2,063,767
9 SOLE DISPOSITIVE POWER
81,293
10 SHARED DISPOSITIVE POWER
2,063,767
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
124,200
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ X ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.8%
14 TYPE OF REPORTING PERSON
IN
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 6 of 32 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John E. Allen
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
PF,00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
6,673
8 SHARED VOTING POWER
2,020,860
9 SOLE DISPOSITIVE POWER
6,673
10 SHARED DISPOSITIVE POWER
2,020,860
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,673
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ X ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.0%
14 TYPE OF REPORTING PERSON
IN
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 7 of 32 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Baldwin & Lyons, Inc.
35-0160330
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC,00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Indiana
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
72,167
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
72,167
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
72,167
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.5%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP NO. 001735 10 9
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Page 8 of 32 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Nathan Shapiro
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
PF,00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS
IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
15,592
8 SHARED VOTING POWER
72,167
9 SOLE DISPOSITIVE POWER
15,592
10 SHARED DISPOSITIVE POWER
72,167
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
87,759
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.6%
14 TYPE OF REPORTING PERSON
IN
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 9 of 32 Pages
THIS SCHEDULE 13D IS FILED AS AMENDMENT NO. 2 TO, AND AMENDS AND RESTATES
IN ITS ENTIRETY, THE SCHEDULE 13D FILED BY AMLI REALTY CO. ON DECEMBER 23,
1994, AS AMENDED BY AMENDMENT NO. 1 THERETO FILED ON FEBRUARY 9, 1996. THE
PRIMARY PURPOSE OF THIS AMENDMENT NO. 2 TO SCHEDULE 13D IS TO REPORT THAT,
AS A RESULT OF UICI BECOMING THE OWNER OF ALL OF THE OUTSTANDING COMMON
STOCK OF AMLI REALTY CO., (I) UICI AND RONALD L. JENSEN HAVE BECOME
REPORTING PERSONS AND (II) BALDWIN & LYONS, INC. AND NATHAN SHAPIRO HAVE
CEASED TO BE REPORTING PERSONS.
ITEM 1. SECURITY AND ISSUER
Common Shares of Beneficial Interest,
$.01 par value per share ("Common Shares")
Amli Residential Properties Trust (the "Issuer")
125 South Wacker Drive
Suite 3100
Chicago, Illinois 60606
ITEM 2. IDENTITY AND BACKGROUND
Appendix A contains the information called for by Items 2-6 of
Schedule 13D for the executive officers and directors of each of Amli
Realty Co. and UICI.
AMLI REALTY CO.
---------------
a. Amli Realty Co. ("ARC"), a Delaware corporation.
b. The address of ARC's principal business and principal office is
125 South Wacker Drive, Suite 3100, Chicago, Illinois 60606.
c. The principal business of ARC is owning, managing, leasing,
acquiring and developing real estate and investing in real estate related
securities.
d. During the last five years, ARC has not been convicted in any
criminal proceeding.
SCHEDULE 13D
CUSIP NO. 001735 10 9
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Page 10 of 32 Pages
e. During the last five years, ARC has not been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction
as a result of which ARC 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 with respect to such laws.
UICI
----
a. UICI, a Delaware corporation.
b. The address of UICI's principal business and principal office
is 4001 McEwen Drive, Suite 200, Dallas, Texas 75244.
c. The principal business of UICI is financial services, with
interests in life and health insurance and related services, including the
administration and delivery of managed healthcare programs to select niche
markets.
d. During the last five years, UICI has not been convicted in any
criminal proceeding.
e. During the last five years, UICI has not been a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which UICI 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 with respect to such laws.
RONALD L. JENSEN
----------------
a. Ronald L. Jensen.
b. Mr. Jensen's business address for purposes of this Schedule 13D
is c/o UICI, 5215 North O'Connor, Suite 300, Irving, Texas 75039.
c. The principal occupation of Mr. Jensen is as Chairman of the
Board of Directors of UICI, and as Director and President of United Group
Association, Inc., Williams
SCHEDULE 13D
CUSIP NO. 001735 10 9
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Page 11 of 32 Pages
Square at Los Colinas, 5215 N. O'Connor, Suite 300, Irving,
Texas, 75039.
d. During the last five years, Mr. Jensen has not been convicted
in any criminal proceeding.
e. During the last five years, Mr. Jensen has not been a party to
a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which Mr. Jensen 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 with respect to such laws.
f. Mr. Jensen is a citizen of the United States of America.
GREGORY T. MUTZ
---------------
a. Gregory T. Mutz.
b. Mr. Mutz's business address for purposes of this Schedule 13D
is c/o Amli Realty Co., 125 South Wacker Drive, Suite 3100, Chicago,
Illinois 60606.
c. The principal occupation of Mr. Mutz is as a Director and
Chairman of the Board of Directors of ARC and a Trustee and Chairman of the
Board of Trustees of the Issuer. The principal business address of each of
ARC and the Issuer is 125 South Wacker Drive, Suite 3100, Chicago, Illinois
60606.
d. During the last five years, Mr. Mutz has not been convicted in
any criminal proceeding.
e. During the last five years, Mr. Mutz has not been a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which Mr. Mutz 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 with respect to such laws.
SCHEDULE 13D
CUSIP NO. 001735 10 9
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Page 12 of 32 Pages
f. Mr. Mutz is a citizen of the United States of America.
JOHN E. ALLEN
-------------
a. John E. Allen.
b. Mr. Allen's business address for purposes of this Schedule 13D
is c/o Amli Realty Co., 125 South Wacker Drive, Suite 3100, Chicago,
Illinois, 60606.
c. The principal occupation of Mr. Allen is as a Director and
President of ARC and a Trustee and Vice-Chairman of the Board of Trustees
of the Issuer. The principal business address of each of ARC and the
Issuer is 125 South Wacker Drive, Suite 3100, Chicago, Illinois 60606.
d. During the last five years, Mr. Allen has not been convicted in
any criminal proceeding.
e. During the last five years, Mr. Allen has not been a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which Mr. Allen 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 with respect to such laws.
f. Mr. Allen is a citizen of the United States of America.
BALDWIN & LYONS, INC.
---------------------
a. Baldwin & Lyons, Inc. ("B&L"), an Indiana corporation.
b. The address of B&L's principal business and principal office is
1099 North Meridian Street, Indianapolis, Indiana 46204.
c. The principal business of B&L is the solicitation and
underwriting of property and casualty insurance, with concentration in the
trucking industry.
d. During the last five years, B&L has not been convicted in any
criminal proceeding.
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 13 of 32 Pages
e. During the last five years, B&L has not been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction
as a result of which B&L 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 with respect to such laws.
NATHAN SHAPIRO
--------------
a. Nathan Shapiro.
b. Mr. Shapiro's business address for purposes of this Schedule
13D is c/o Baldwin & Lyons, Inc., 1099 North Meridian Street, Indianapolis,
Indiana 46204.
c. The principal occupation of Mr. Shapiro is as President of SF
Investments, Inc., 311 South Wacker Drive, Suite 4990, Chicago, Illinois
60606.
d. During the last five years, Mr. Shapiro has not been convicted
in any criminal proceeding.
e. During the last five years, Mr. Shapiro has not been a party to
a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which Mr. Shapiro 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 with respect to such laws.
f. Mr. Shapiro is a citizen of the United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
AMLI REALTY CO.
---------------
ARC acquired direct beneficial ownership of 124,759 Common Shares in
exchange for assets in connection with the formation of the Issuer. ARC
acquired direct beneficial ownership of 37,000 Common Shares, in a private
placement which occurred
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 14 of 32 Pages
concurrently with the initial public offering of Common Shares, in
exchange for cash, the source of which was ARC's working capital. ARC
subsequently acquired direct beneficial ownership of 37,100 Common Shares
in the open market in exchange for cash, the source of which was ARC's
working capital. On January 30, 1996, ARC acquired 100,000 Series A
Cumulative Convertible Preferred Shares of Beneficial Interest, $.01 par
value per share ("Series A Preferred Shares") for a price of $20.00 per
share in exchange for cash, the source of which was ARC's working capital.
Each Series A Preferred Share is convertible at any time into one Common
Share. On March 6, 1996, ARC converted all of its Series A Preferred
Shares into 100,000 Common Shares.
ARC acquired beneficial ownership, directly or indirectly, of
1,732,325 limited partnership units ("Units") in Amli Residential
Properties, L.P., a Delaware limited partnership (the "Operating
Partnership"), of which the Issuer is the general partner, in exchange for
assets and in connection with the mergers into the Operating Partnership of
certain partnerships. Such transfers of assets and mergers occurred in
connection with the formation of the Issuer. ARC subsequently acquired
direct beneficial ownership of 474 Units in exchange for cash, the source
of which was ARC's working capital. The number of Units which ARC
beneficially owns changed as a result of the December 30, 1994 distribution
of Units held by certain partnerships among equity partners of such
partnerships. Units are convertible on a one for one basis for Common
Shares.
UICI
----
Information with regard to UICI's beneficial ownership of Common
Shares and Series A Preferred Shares in this Item 3 is presented without
including Common Shares and Units which UICI may be deemed to beneficially
own by virtue of its relationships with ARC and affiliates of ARC and for
which information is presented above in this Item 3 with regard to ARC.
On November 4, 1996, UICI acquired direct beneficial ownership of
500,000 Common Shares in the open market in exchange for cash, the source
of which was working capital. On October 23, 1996, UICI acquired direct
beneficial ownership of 38,000
SCHEDULE 13D
CUSIP NO. 001735 10 9
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Page 15 of 32 Pages
Common Shares in the open market in exchange for cash, the source of
which was working capital. The 538,000 Common Shares acquired by UICI are
owned by Mega Life and Health Insurance Co., a wholly-owned subsidiary of
UICI. Part of the Common Shares may, from time to time, be sold to other
subsidiaries of UICI controlled by UICI. On January 30, 1996, UICI
acquired 100,000 Series A Preferred Shares for a price of $20.00 per share
in exchange for cash, the source of which was working capital. The 100,000
Series A Preferred Shares acquired by UICI are owned by United Group
Reinsurance, Ltd., a wholly-owned subsidiary of UICI.
RONALD L. JENSEN
----------------
Information with regard to Mr. Jensen's beneficial ownership of
Common Shares in this Item 3 is presented without including Common
Shares, Series A Preferred Shares and Units which Mr. Jensen may be deemed
to beneficially own by virtue of his relationship with UICI and his or
UICI's relationships with ARC and affiliates of ARC and for which
information is presented above in this Item 3 with regard to ARC and UICI.
Mr. Jensen acquired beneficial ownership, directly or indirectly, of
4,804 Common Shares in exchange for assets and/or in connection with the
mergers into the Operating Partnership of certain partnerships. Such
transfers of assets and mergers occurred in connection with the formation
of the Issuer.
GREGORY T. MUTZ
Information with regard to Mr. Mutz's beneficial ownership of Common
Shares and Units in this Item 3 is presented without including Common
Shares and Units which Mr. Mutz may be deemed to beneficially own by virtue
of his relationships with ARC and affiliates of ARC and for which
information is presented above in this Item 3 with regard to ARC.
Mr. Mutz acquired beneficial ownership, directly or indirectly, of
49,300 Common Shares, in a private placement which occurred concurrently
with the initial public offering of Common Shares, and 2,740 Common Shares,
in the initial public offering of Common Shares, in exchange for cash equal
to the initial public offering price of such Common Shares.
SCHEDULE 13D
CUSIP NO. 001735 10 9
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Page 16 of 32 Pages
Mr. Mutz subsequently acquired beneficial ownership, directly or
indirectly, of 43,073 Common Shares in open market transactions in exchange
for cash.
Mr. Mutz acquired beneficial ownership, directly or indirectly, of
31,925 Units in exchange for assets and/or in connection with the mergers
into the Operating Partnership of certain partnerships. Such transfers of
assets and mergers occurred in connection with the formation of the Issuer.
The number of Units which Mr. Mutz beneficially owns changed as a result of
the December 30, 1994 distribution of Units held by certain partnerships
among equity partners of such partnerships.
JOHN E. ALLEN
-------------
Information with regard to Mr. Allen's beneficial ownership of Common
Shares and Units in this Item 3 is presented without including Common
Shares and Units which Mr. Allen may be deemed to beneficially own by
virtue of his relationships with ARC and affiliates of ARC and for which
information is presented above in this Item 3 with regard to ARC.
Mr. Allen acquired direct beneficial ownership of 5,239 Common Shares
in the open market in exchange for cash. Mr. Allen acquired direct
beneficial ownership of 1,434 Units in exchange for assets and/or in
connection with the mergers into the Operating Partnership of certain
partnerships. Such transfer of assets and mergers occurred in connection
with the formation of the Issuer. The number of Units which Mr. Allen
beneficially owns changed as a result of the December 30, 1994 distribution
of Units held by certain partnerships among equity partners of such
partnerships.
BALDWIN & LYONS, INC.
---------------------
B&L acquired direct beneficial ownership of 20,900 Common Shares in
the open market in exchange for cash. B&L acquired direct beneficial
ownership of 51,267 Units in exchange for assets and/or in connection with
the mergers into the Operating Partnership of certain partnerships. Such
transfers of assets and mergers occurred in connection with the formation
of the Issuer.
SCHEDULE 13D
CUSIP NO. 001735 10 9
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Page 17 of 32 Pages
NATHAN SHAPIRO
--------------
Mr. Shapiro acquired direct beneficial ownership of 15,592 Units in
exchange for assets and/or in connection with the mergers into the
Operating Partnership of certain partnerships. Such transfers of assets
and mergers occurred in connection with the formation of the Issuer.
ITEM 4. PURPOSE OF TRANSACTION
On November 6, 1996, UICI acquired all of the outstanding shares of
the common stock of ARC. As a result of this acquisition, for purposes of
Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), UICI is deemed to have beneficial ownership of Common
Shares and Units beneficially owned by ARC. Ronald L. Jensen is the
Chairman of the Board of Directors of, and holds 18.3% of the outstanding
shares of common stock of, UICI. Therefore, for purposes of Section 13(d)
of the Exchange Act, Mr. Jensen may be deemed to beneficially own the
Common Shares, Series A Preferred Shares and Units beneficially owned by
UICI and ARC. As a result of UICI's acquisition of the common stock of
ARC, B&L and Nathan Shapiro are no longer deemed to beneficially own the
Common Shares and Units beneficially owned by ARC.
On January 30, 1996, ARC acquired 100,000 Series A Preferred Shares.
Each Series A Preferred Share is convertible at any time into one Common
Share. On March 6, 1996, ARC converted all of its Series A Preferred
Shares into 100,000 Common Shares.
On February 15, 1995, each Unit became exchangeable for one Common
Share. Therefore, for purposes of Section 13(d) of the Exchange Act,
beneficial ownership of Units is deemed to be beneficial ownership of
Common Shares.
The filing of this Schedule 13D by the reporting persons other than
ARC is attributable to the Common Shares and Units beneficially owned by
ARC, because each such reporting person may be deemed to beneficially own
such Common Shares and Units.
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 18 of 32 Pages
On February 15, 1994, ARC acquired direct beneficial ownership of
124,759 Common Shares, in exchange for assets, in connection with the
formation of the Issuer, and 37,000 Common Shares, in exchange for cash, in
a private placement. Also on February 15, 1994, ARC acquired beneficial
ownership, directly and indirectly, of 1,732,325 Units in connection with
the formation of the Issuer. Such acquisition was in exchange for assets
and in connection with the mergers into the Operating Partnership of
certain partnerships. ARC subsequently acquired 37,100 Common Shares,
100,000 Series A Preferred Shares, which were converted to 100,000 Common
Shares on March 6, 1996, and 474 Units in exchange for cash. The number of
Units which ARC beneficially owns changed as a result of the December 30,
1994 distribution of Units held by certain partnerships among equity
partners of such partnerships.
ARC acquired all of the Common Shares and Units beneficially owned by
it for investment. ARC may acquire additional Common Shares, Series A
Preferred Shares and Units and dispose of Common Shares, Series A Preferred
Shares and Units in the future if it determines such acquisitions or
dispositions to be economically advantageous. Additionally, ARC and other
persons may exchange Units for, and convert Series A Preferred Shares into,
Common Shares, purchase additional Common Shares in connection with the
Dividend Reinvestment Plan or purchase Shares and Units pursuant to options
which have been or may be granted.
Likewise, UICI, Ronald L. Jensen, Gregory T. Mutz, John E. Allen, B&L
and Nathan Shapiro each acquired all of the respective Common Shares and
Units beneficially owned by such reporting person for investment. Each
such reporting person may acquire additional Common Shares, Series A
Preferred Shares and Units and dispose of Common Shares, Series A Preferred
Shares and Units in the future if such reporting person determines such
acquisitions or dispositions to be economically advantageous.
Additionally, each such reporting person and other persons may exchange
Units for, and convert Series A Preferred Shares into, Common Shares,
purchase additional Common Shares in connection with the Dividend
Reinvestment Plan or purchase Common Shares and Units pursuant to options
which have been or may be granted.
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 19 of 32 Pages
ITEM 5. INTEREST IN SECURITIES OF ISSUER
Information in this Item 5 regarding the number and percentage of
Common Shares beneficially owned by each reporting person assumes that all
Units beneficially owned by the particular reporting person are exchanged
for, and all Series A Preferred Shares beneficially owned by the particular
reporting person are converted into, Common Shares and that no Units and
Series A Preferred Shares beneficially owned by any other persons are
exchanged for or converted into Common Shares.
AMLI REALTY CO.
---------------
a. 2,020,860 Common Shares (298,859 Common Shares and 1,722,001
Units) constituting 11.5% of the Common Shares.
b. ARC has sole power to vote or to direct the vote of and sole
power to dispose or to direct the disposition of 2,020,860 (298,859 Common
Shares and 1,722,001 Units) Common Shares. ARC has shared power to vote or
to direct the vote of and shared power to dispose or to direct the
disposition of 0 Common Shares.
c. On November 6, 1996, UICI purchased all of the outstanding
shares of the common stock of ARC.
d. ARC beneficially owns certain Common Shares and Units held by
certain entities, and such entities may have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the
sale of, such Common Shares and Units.
e. Not applicable.
UICI
----
UICI owns 100% of the common stock of ARC. UICI may be deemed to
beneficially own the Common Shares and Units beneficially owned by ARC.
As indicated in each case, information with regard to UICI's
beneficial ownership of Common Shares, Series A Preferred Shares and Units
in this Item 5 is presented either including
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 20 of 32 Pages
or excluding Common Shares and Units which UICI may be deemed to
beneficially own by virtue of its relationships with ARC and affiliates of
ARC and for which information is presented above in this Item 5 with regard
to ARC.
a. Beneficial ownership INCLUDING Common Shares and Units which
UICI may be deemed to beneficially own by virtue of its relationships with
ARC and affiliates of ARC: 2,658,860 Common Shares (836,859 Common Shares,
100,000 Series A Preferred Shares and 1,722,001 Units) constituting 4.0% of
the Common Shares.
Beneficial ownership EXCLUDING Common Shares and Units which
UICI may be deemed to beneficially own by virtue of its relationships with
ARC and affiliates of ARC: 638,000 Common Shares (538,000 Common Shares
and 100,000 Series A Preferred Shares) constituting 4.0% of the Common
Shares.
b. With regard to the 2,020,860 Common Shares (298,859 Common
Shares and 1,722,001 Units) which UICI may be deemed to beneficially own by
virtue of its relationships with ARC and affiliates of ARC, UICI may be
deemed to share the power to vote or to direct the vote of and to dispose
or to direct the disposition of such Common Shares and Units with certain
of the other reporting persons and persons listed on Appendix A to this
Schedule 13D.
With regard to the 638,000 Common Shares (538,000 Common Shares
and 100,000 Series A Preferred Shares) beneficially owned by UICI,
excluding the Common Shares and Units which UICI may be deemed to
beneficially own by virtue of its relationships with ARC and affiliates of
ARC, UICI has sole power to vote or to direct the vote of and sole power to
dispose or to direct the disposition of all such Common Shares and Series A
Preferred Shares.
c. On November 4, 1996, UICI acquired 500,000 Common Shares for
$20.50 per share on the open market. On October 23, 1996, UICI acquired
38,000 Common Shares for $21.94 per share on the open market.
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 21 of 32 Pages
d. Excluding Common Shares and Units which UICI may be deemed to
beneficially own by virtue of its relationships with ARC and affiliates of
ARC and for which information is presented above in this Item 5 with regard
to ARC, no other person, other than certain wholly-owned subsidiaries of
UICI, is known to have the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, Common Shares
and Units beneficially owned by UICI.
e. Not applicable.
RONALD L. JENSEN
----------------
Mr. Jensen is the Chairman of the Board of Directors of UICI. Mr.
Jensen beneficially owns 18.3% of the voting common stock of UICI. Mr.
Jensen may be deemed to beneficially own the Common Shares, Series A
Preferred Shares and Units beneficially owned by UICI and ARC. Mr. Jensen
disclaims beneficial ownership of the Common Shares and Units beneficially
owned by ARC.
As indicated in each case, information with regard to Mr. Jensen's
beneficial ownership of Common Shares, Series A Preferred Shares and Units
in this Item 5 is presented including or excluding Common Shares, Series A
Preferred Shares and Units which Mr. Jensen may be deemed to beneficially
own by virtue of his relationship with UICI and his or UICI's relationships
with ARC and affiliates of ARC and for which information is presented above
in this Item 5 with regard to ARC and UICI. Information in this Schedule
13D does not include 12,000 Common Shares owned by the R.L. Jensen
Foundation, as to which Mr. Jensen disclaims beneficial ownership.
a. Beneficial ownership INCLUDING Common Shares, Series A
Preferred Shares and Units which Mr. Jensen may be deemed to beneficially
own by virtue of his relationship with UICI and his or UICI's relationships
with ARC and affiliates of ARC: 2,663,664 Common Shares (841,663 Common
Shares, 100,000 Series A Preferred Shares and 1,722,001 Units) constituting
15.1% of the Common Shares.
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 22 of 32 Pages
Beneficial ownership INCLUDING Common Shares and Series A
Preferred Shares which Mr. Jensen may be deemed to beneficially own by
virtue of his relationship with UICI but EXCLUDING Common Shares and Units
which Mr. Jensen may be deemed to beneficially own by virtue of his or
UICI's relationships with ARC and affiliates of ARC: 642,804 Common Shares
(542,804 Common Shares and 100,000 Series A Preferred Shares) constituting
4.0% of the Common Shares.
Beneficial ownership EXCLUDING Common Shares, Series A
Preferred Shares and Units which Mr. Jensen may be deemed to beneficially
own by virtue of his relationship with UICI and his or UICI's relationships
with ARC and affiliates of ARC: 4,804 Common Shares (4,804 Common Shares
and 0 Units) constituting 0.0% of the Common Shares.
b. With regard to the 2,020,860 Common Shares (298,859 Common
Shares and 1,722,001 Units) which Mr. Jensen may be deemed to beneficially
own by virtue of his or UICI's relationships with ARC and affiliates of
ARC, Mr. Jensen may be deemed to share the power to vote or to direct the
vote of and to dispose or to direct the disposition of such Common Shares
and Units with certain of the other reporting persons and persons listed on
Appendix A to this Schedule 13D.
With regard to the 638,000 Common Shares (538,000 Common Shares
and 100,000 Series A Preferred Shares) which Mr. Jensen may be deemed to
beneficially own by virtue of his relationship with UICI but excluding
Common Shares and Units which Mr. Jensen may be deemed to beneficially own
by virtue of his or UICI's relationships with ARC and affiliates of ARC,
Mr. Jensen may be deemed to share the power to vote or to direct the vote
of and to dispose or to direct the disposition of such Common Shares and
Series A Preferred Shares with certain of the persons listed on Appendix A
to this Schedule 13D.
With regard to the 4,804 Common Shares (4,804 Common Shares and
0 Units) beneficially owned by Mr. Jensen, excluding the Common Shares,
Series A Preferred Shares and Units which Mr. Jensen may be deemed to
beneficially
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 23 of 32 Pages
own by virtue of his relationship with UICI and his or UICI's
relationships with ARC and affiliates of ARC, Mr. Jensen's control of such
common shares is as follows: Mr. Jensen shares the power to vote or to
direct the vote of and to dispose or to direct the disposition of 4,804
Common Shares (4,804 Common Shares and 0 Units) with Gladys Jensen, his
wife. Mrs. Jensen, is a homemaker, and for purposes of this Schedule 13D
her address is c/o Ronald L. Jensen, UICI, 5215 North O'Connor, Suite 300,
Irving, Texas 75039. During the last five years, Mrs. Jensen has not been
convicted in any criminal proceedings. During the last five years, Mrs.
Jensen has not been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which Mrs.
Jensen 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 with respect to
such laws.
c. No transactions in the Common Shares were effected in the past
60 days by Mr. Jensen.
d. Excluding Common Shares and Units which Mr. Jensen may be
deemed to beneficially own by virtue of his relationship with UICI and his
or UICI's relationships with ARC and affiliates of ARC and for which
information is presented above in this Item 5 with regard to ARC and UICI.
Mr. Jensen beneficially owns certain Common Shares held by Gladys Jensen,
his wife, and Mrs. Jensen has the right to receive or the power to direct
the receipt of dividends from, or the proceeds from the sale of, such
Common Shares.
e. Not applicable.
GREGORY T. MUTZ
---------------
Mr. Mutz is a director and the Chairman of the Board of Directors of
ARC. Mr. Mutz may be deemed to beneficially own the Common Shares and
Units beneficially owned by ARC. Mr. Mutz disclaims beneficial ownership
of the Common Shares and Units beneficially owned by ARC.
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 24 of 32 Pages
As indicated in each case, information with regard to Mr. Mutz's
beneficial ownership of Common Shares and Units in this Item 5 is presented
either including or excluding Common Shares and Units which Mr. Mutz may be
deemed to beneficially own by virtue of his relationships with ARC and
affiliates of ARC and for which information is presented above in this Item
5 with regard to ARC.
a. Beneficial ownership INCLUDING Common Shares and Units which
Mr. Mutz may be deemed to beneficially own by virtue of his relationships
with ARC and affiliates of ARC: 2,145,060 Common Shares (393,972 Common
Shares and 1,751,088 Units) constituting 12.2% of the Common Shares.
Beneficial ownership EXCLUDING Common Shares and Units which
Mr. Mutz may be deemed to beneficially own by virtue of his relationships
with ARC and affiliates of ARC: 124,200 Common Shares (95,113 Common
Shares and 29,087 Units) constituting 0.8% of the Common Shares.
b. With regard to the 2,020,860 Common Shares (298,859 Common
Shares and 1,722,001 Units) which Mr. Mutz may be deemed to beneficially
own by virtue of his relationships with ARC and affiliates of ARC, Mr. Mutz
may be deemed to share the power to vote or to direct the vote of and to
dispose or to direct the disposition of such Common Shares and Units with
certain of the other reporting persons and persons listed on Appendix A to
this Schedule 13D.
With regard to the 124,200 Common Shares (95,113 Common Shares
and 29,087 Units) beneficially owned by Mr. Mutz, excluding the Common
Shares and Units which Mr. Mutz may be deemed to beneficially own by virtue
of his relationships with ARC and affiliates of ARC, Mr. Mutz's control of
such Common Shares is as follows. Mr. Mutz has sole power to vote or to
direct the vote of and sole power to dispose or to direct the disposition
of 83,501 Common Shares (57,013 Common Shares and 24,280 Units). Mr. Mutz
shares the power to vote or to direct the vote of and to dispose or to
direct the disposition of (i) 8,600 Common Shares (8,600 Common Shares and
0 Units) with Allan J. Sweet, (ii) 8,000 Common Shares (8,000 Common Shares
and 0 Units) with Emily Mutz, his wife, and
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 25 of 32 Pages
(iii) 26,307 Common Shares (21,500 Common Shares and 4,807
Units) with his brother, Frank Mutz. Mr. Allan J. Sweet is President of
the Issuer, and for purposes of this Schedule 13D his address is c/o Amli
Residential Properties Trust, 125 South Wacker Drive, Suite 3100, Chicago,
Illinois 60606. During the last five years, Mr. Sweet has not been
convicted in any criminal proceeding. During the last five years, Mr.
Sweet has not been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which Mr.
Sweet 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 with respect to
such laws. Mrs. Emily Mutz is a homemaker, and for purposes of this
Schedule 13D her address is c/o Gregory T. Mutz, Amli Realty Co., 125 South
Wacker Drive, Suite 3100, Chicago, Illinois 60606. During the last five
years, Mrs. Mutz has not been convicted in any criminal proceeding. During
the last five years, Mrs. Mutz has not been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction as a result
of which Mrs. Mutz 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 with
respect to such laws. Mr. Frank Mutz is the President of Moncreif Unique
Indoor Comfort, Atlanta, Georgia, his address is 935 Chattahoochee N.W.,
Atlanta, Georgia 30318, and he is a citizen of the United
States of America. During the last five years, Mr. Frank Mutz
has not been convicted in any criminal proceeding. During the last five
years, Mr. Frank Mutz has not been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of
which Mr. Frank Mutz 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 with
respect to such laws.
c. No transactions in the Common Shares were effected in the past
60 days by Mr. Mutz.
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 26 of 32 Pages
d. Excluding Common Shares and Units which Mr. Mutz may be deemed
to beneficially own by virtue of his relationships with ARC and affiliates
of ARC and for which information is presented above in this Item 5 with
regard to ARC, Mr. Mutz beneficially owns certain Common Shares and Units
held by certain entities and by members of Mr. Mutz's family, and such
entities and members of Mr. Mutz's family may have the right to receive or
the power to direct the receipt of dividends from, or the proceeds from the
sale of, such Common Shares and Units.
e. Not applicable.
JOHN E. ALLEN
-------------
Mr. Allen is a director and the President of ARC. Mr. Allen may be
deemed to beneficially own the Common Shares and Units beneficially owned
by ARC. Mr. Allen disclaims beneficial ownership of the Common Shares and
Units beneficially owned by ARC.
As indicated in each case, information with regard to Mr. Allen's
beneficial ownership of Common Shares and Units in this Item 5 is presented
either including or excluding Common Shares and Units which Mr. Allen may
be deemed to beneficially own by virtue of his relationships with ARC and
affiliates of ARC and for which information is presented above in this Item
5 with regard to ARC.
a. Beneficial ownership INCLUDING Common Shares and Units which
Mr. Allen may be deemed to beneficially own by virtue of his relationships
with ARC and affiliates of ARC: 2,027,533 Common Shares (304,098 Common
Shares and 1,723,435 Units) constituting 11.5% of the Common Shares.
Beneficial ownership EXCLUDING Common Shares and Units which
Mr. Allen may be deemed to beneficially own by virtue of his relationships
with ARC and affiliates of ARC: 6,673 Common Shares (5,239 Common Shares
and 1,434 Units) constituting 0.0% of the Common Shares.
b. With regard to the 2,020,860 Common Shares (298,859 Common
Shares and 1,722,001 Units) which Mr. Allen may be deemed to beneficially
own by virtue of his relationships
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 27 of 32 Pages
with ARC and affiliates of ARC, Mr. Allen may be deemed to
share the power to vote or to direct the vote of and to dispose or to
direct the disposition of such Common Shares and Units with certain of the
other reporting persons and persons listed on Appendix A to this Schedule
13D.
With regard to the 6,673 Common Shares (5,239 Common Shares and
1,434 Units) beneficially owned by Mr. Allen, excluding the Common Shares
and Units which Mr. Allen may be deemed to beneficially own by virtue of
his relationships with ARC and affiliates of ARC, Mr. Allen has sole power
to vote or to direct the vote of and sole power to dispose or to direct the
disposition of all such Common Shares.
c. No transactions in the Common Shares were effected in the past
60 days by Mr. Allen.
d. Excluding Common Shares and Units which Mr. Allen may be deemed
to beneficially own by virtue of his relationships with ARC and affiliates
of ARC and for which information is presented above in this Item 5 with
regard to ARC, no other person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the
sale of, Common Shares and Units beneficially owned by Mr. Allen.
e. Not applicable.
BALDWIN & LYONS, INC.
---------------------
On November 6, 1996, B&L transferred all the shares of common stock
of ARC which it previously held to UICI. Therefore, B&L is no longer be
deemed to beneficially own the Common Shares and Units beneficially owned
by ARC.
a. Beneficial ownership of Common Shares and Units: 72,167 Common
Shares (20,900 Common Shares and 51,267 Units) constituting
0.5% of the Common Shares.
b. With regard to the 72,167 Common Shares (20,900 Common Shares
and 51,267 Units) beneficially owned by B&L, B&L
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 28 of 32 Pages
has sole power to vote or to direct the vote of and sole power
to dispose or to direct the disposition of all such Common Shares.
c. No transactions in the Common Shares were effected in the past
60 days by B&L.
d. No other person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the
sale of, Common Shares and Units beneficially owned by B&L.
e. On November 6, 1996, B&L transferred all the shares of common
stock of ARC which it held to UICI. As a result, B&L is no longer a
beneficial owner of more than 5.0% of the Common Shares.
NATHAN SHAPIRO
--------------
Mr. Shapiro is a director of B&L and the Chairman of the Investment
Committee of the Board of Directors of B&L. Mr. Shapiro may be deemed to
beneficially own the Common Shares and Units beneficially owned by B&L.
As indicated in each case, information with regard to Mr. Shapiro's
beneficial ownership of Common Shares and Units in this Item 5 is presented
including or excluding Common Shares and Units which Mr. Shapiro may be
deemed to beneficially own by virtue of his relationship with B&L for which
information is presented above in this Item 5 with regard to B&L.
a. Beneficial ownership INCLUDING Common Shares and Units which
Mr. Shapiro may be deemed to beneficially own by virtue of his relationship
with B&L: 87,759 Common Shares (20,900 Common Shares and 66,859 Units)
constituting 0.6% of the Common Shares.
Beneficial ownership EXCLUDING Common Shares and Units which
Mr. Shapiro may be deemed to beneficially own by virtue of his relationship
with B&L: 15,592 Common Shares (0 Common Shares and 15,592 Units)
constituting 0.1% of the Common Shares.
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 29 of 32 Pages
b. With regard to the 72,167 Common Shares (20,900 Common Shares
and 51,267 Units) which Mr. Shapiro may be deemed to beneficially own by
virtue of his relationship with B&L, Mr. Shapiro may be deemed to share the
power to vote or to direct the vote of and to dispose or to direct the
disposition of such Common Shares and Units with certain directors and
executive officers of B&L.
With regard to the 15,592 Common Shares (0 Common Shares and
15,592 Units) beneficially owned by Mr. Shapiro, excluding the Common
Shares and Units which Mr. Shapiro may be deemed to beneficially own by
virtue of his relationship with B&L, Mr. Shapiro has sole power to vote or
to direct the vote of and sole power to dispose or to direct the
disposition of all such Common Shares.
c. No transactions in the Common Shares were effected in the past
60 days by Mr. Shapiro.
d. Excluding Common Shares and Units which Mr. Shapiro may be
deemed to beneficially own by virtue of his relationship with B&L for which
information is presented above in this Item 5 with regard to B&L, no other
person is known to have the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, Common Shares
and Units beneficially owned by Mr. Shapiro.
e. On November 6, 1996, B&L transferred all the shares of common
stock of ARC which it held to UICI. As a result, Mr. Shapiro is no longer
a beneficial owner of more than 5.0% of the Common Shares.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
The Issuer has entered into a Registration Rights and Lock-Up
Agreement (the "Registration Rights and Lock-Up Agreement") filed as an
exhibit to the Schedule 13D which this Schedule 13D amends. The
Registration Rights and Lock-Up Agreement, among other things, limits
transfer of (i) Common Shares received in the private placement which
occurred concurrently with the initial public offering of Common Shares and
(ii)
SCHEDULE 13D
CUSIP NO. 001735 10 9
-----------
Page 30 of 32 Pages
Common Shares received in exchange for Units. Additionally, the
Registration Rights and Lock-Up Agreement provides certain registration
rights to the parties thereto who are holders of such Common Shares. A
copy of the Registration Rights and Lock-Up Agreement was filed as Exhibit
A to the Schedule 13D (filed December 23, 1994) which this amendment amends
and is incorporated by reference herein.
The Amended and Restated Agreement of Limited Partnership of Amli
Residential Properties, L.P. (the "Agreement of Limited Partnership") was
filed as an exhibit to the Schedule 13D which this Schedule 13D amends.
Pursuant to Section 4.2(e) of the Agreement of Limited Partnership, limited
partners may, on meeting certain conditions, exchange Units for Common
Shares at any time on or after February 15, 1995. A copy of the Agreement
of Limited Partnership was filed as Exhibit B to the Schedule 13D (filed
December 23, 1994) which this amendment amends and is incorporated by
reference herein.
The 100,000 Series A Preferred Shares acquired by ARC were acquired
for a purchase price of $20.00 per share pursuant to the Series A Preferred
Shares Purchase Agreement, dated as of January 18, 1996 (the "Purchase
Agreement"), by and between the Issuer and ARC. The Purchase Agreement
contains various provisions regarding the purchase of these Series A
Preferred Shares. A copy of the Purchase Agreement was filed as Exhibit D
to the Amendment No. 1 of Schedule 13D (filed February 9, 1996) which this
amendment amends and is incorporated by reference herein.
The Series A Preferred Shares were classified and designated by the
Issuer pursuant to Articles Supplementary, dated as of January 30, 1996
(the "Articles Supplementary"). Pursuant to Section 5 of the Articles
Supplementary, each Series A Preferred Share is convertible into one Common
Share (subject to adjustment upon events described in Section 5).
Additionally, pursuant to Section 6 of the Articles Supplementary, on and
after January 30, 2001, the Series A Preferred Shares may be redeemed for
cash or, subject to certain conditions set forth in Section 6, for Common
Shares. A copy of the Articles Supplementary was filed as Exhibit E to the
Amendment No. 1 of Schedule 13D (filed February 9, 1996) which this
amendment amends and is incorporated by reference herein.
SCHEDULE 13D
CUSIP NO. 001735 10 9
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Page 31 of 32 Pages
The 100,000 Series A Preferred Shares acquired by UICI were acquired
for a purchase price of $20.00 per share pursuant to the Series A Preferred
Shares Purchase Agreement, dated as of January 18, 1996 (the "Purchase
Agreement"), by and between the Issuer and United Group Reinsurance, Inc.,
a wholly-owned subsidiary of UICI. The Purchase Agreement contains various
provisions regarding the purchase of these Series A Preferred Shares. A
copy of the Purchase Agreement is filed as Exhibit F to this amendment to
Schedule 13D and is incorporated by reference herein.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
EXHIBIT A -- Registration Rights and Lock-Up Agreement,
dated as of February 15, 1994, by and among Amli Residential Properties
Trust and the Persons listed on Schedule A thereof (previously filed).
EXHIBIT B -- Amended and Restated Agreement of Limited
Partnership of Amli Residential Properties, L.P. (previously filed).
EXHIBIT C -- Agreement relating to filing joint Schedule
13D.
EXHIBIT D -- Series A Preferred Shares Purchase Agreement,
dated as of January 18, 1996, by and between Amli Residential Properties
Trust and Amli Realty Co. (previously filed).
EXHIBIT E -- Articles Supplementary, dated as of January
30, 1996, Classifying and designating Series A Cumulative Convertible
Preferred Shares of Beneficial Interest (previously filed).
EXHIBIT F -- Series A Preferred Shares Purchase Agreement,
dated as of January 18, 1996, by and between Amli Residential Properties
Trust and United Group Reinsurance, Inc.
SCHEDULE 13D
CUSIP NO. 001735 10 9
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Page 32 of 32 Pages
Signature
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true,
complete and correct.
This statement may be executed in multiple counterparts, each of which
shall constitute an original.
November 18, 1996
- ------------------------------
Date
AMLI REALTY CO. UICI
By: /S/ JOHN E. ALLEN By: /S/ VERNON WOELKE
-------------------- --------------------
Name: John E. Allen Name: Vernon Woelke
-------------------- --------------------
Title: President Title: Treasurer
-------------------- --------------------
/S/ GREGORY T. MUTZ /S/ RONALD L. JENSEN
- ------------------------------- -------------------------------
Gregory T. Mutz Ronald L. Jensen
/S/ JOHN E. ALLEN
- -------------------------------
John E. Allen
BALDWIN & LYONS, INC.
By: /S/ G. PATRICK CORYDON
----------------------
Name: G. Patrick Corydon
----------------------
Title: Vice President-Finance
----------------------
/S/ NATHAN SHAPIRO
- -------------------------------
Nathan Shapiro
APPENDIX A
----------
Capitalized terms used but not defined herein shall have the respective
meanings assigned such terms in the joint Schedule 13D of Amli Realty Co.
("ARC"), UICI, Ronald L. Jensen, Gregory T. Mutz, John E. Allen, Baldwin &
Lyons, Inc. ("B&L") and Nathan Shapiro to which this is attached as
Appendix A.
Information regarding the number and percentage of Common Shares
beneficially owned by any person assumes that all Units and Series A
Preferred Shares beneficially owned by such person are exchanged for or
converted into Common Shares and that no Units and Series A Preferred
Shares beneficially owned by other persons are exchanged for or converted
into Common Shares.
Beneficial ownership reported for the persons listed in this Appendix A
does not include Common Shares which any such person may be deemed to
beneficially own by virtue of such person's relationship with UICI and such
person's or UICI's relationships with ARC.
(a) EXECUTIVE OFFICERS AND DIRECTORS OF AMLI REALTY CO. Set forth below
are the name and positions held of each director and executive officer of
ARC. References to persons listed below include persons sharing beneficial
ownership of Common Shares with a director or executive officer. Unless
otherwise noted, the principal occupation or employment of each person
listed below is his or her position with ARC. The address of each person
for purposes of this Schedule 13D is c/o Amli Realty Co., 125 South Wacker
Drive, Suite 3100, Chicago, Illinois 60606.
All persons listed below are U.S. citizens. During the last five
years, to the best knowledge of ARC, none of the persons listed below has
been convicted in any criminal proceeding (excluding traffic violations or
similar misdemeanors) or has been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of
which 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 with
respect to such laws.
A-1
John E. Allen
Director and President
Mr. Allen is one of the reporting persons filing the joint
Schedule 13D to which this Appendix A is attached. Information regarding
Mr. Allen is presented in such Schedule 13D.
Gregory T. Mutz
Director and Chairman of the Board of Directors
Mr. Mutz is one of the reporting persons filing the joint
Schedule 13D to which this Appendix A is attached. Information regarding
Mr. Mutz is presented in such Schedule 13D.
Charles C. Kraft
Treasurer
Mr. Kraft beneficially owns 3,062 Common Shares (2,629
Common Shares and 433 Units) constituting 0.0% of the Common Shares. Mr.
Kraft has sole power to vote or to direct the vote of and sole power to
dispose or to direct the disposition of all of such Common Shares.
To the best knowledge of the reporting persons, none of the persons listed
above has any further information to report in response to Items 2-6 of
Schedule 13D.
(b) EXECUTIVE OFFICERS AND DIRECTORS OF UICI. Set forth below are
the name and positions held of each director and executive officer of UICI.
References to persons listed below include persons sharing beneficial
ownership of Common Shares with a director or executive officer. Unless
otherwise noted, the principal occupation or employment of each person
listed below is his or her position with UICI.
All persons listed below are U.S. citizens. During the last
five years, to the best knowledge of ARC and UICI, none of the persons
listed below has been convicted in any criminal proceeding (excluding
traffic violations or similar misdemeanors) or has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction
as a result of which such person was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or
A-2
mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Ronald L. Jensen
Chairman of the Board of Directors
Director and President of United Group Association, Inc.,
Irving, Texas.
Mr. Jensen is one of the reporting persons filing the
joint Schedule 13D to which this Appendix A is attached. Information
regarding Mr. Jensen is presented in such Schedule 13D.
W. Brian Harrigan
Director, President and CEO
Mr. Harrigan's address for purposes of this Schedule 13D
is 5215 North O'Connor, Suite 300, Irving, Texas 75039.
Richard J. Estell
Director and Executive Vice President (also Director and
Executive Officer of Insurance Subsidiaries of UICI)
Mr. Estell's address for purposes of this Schedule 13D is
4001 McEwen Drive, Suite 200, Dallas, Texas 75244.
Charles T. Prater
Director and Vice President (also Director and Executive
Officer of Insurance Subsidiaries of UICI)
Mr. Prater's address for purposes of this Schedule 13D is
501 W. 1-44 Service Road, Suite 400, Oklahoma City, Oklahoma 73118.
Vernon R. Woelke
Director, Vice President and Treasurer (also Director and
Executive Officer of Insurance Subsidiaries of UICI)
Mr. Woelke's address for purposes of this Schedule 13D is
4001 McEwen Drive, Suite 200, Dallas, Texas 75244.
A-3
Robert B. Vlach
Vice President, Secretary and General Counsel (also
Director, Executive Officer and General Counsel of Insurance Subsidiaries
of UICI)
Mr. Vlach's address for purposes of this Schedule 13D is
4001 McEwen Drive, Suite 200, Dallas, Texas 75244.
Ernest S. Auerbach
Senior Vice President
Mr. Auerbach's address for purposes of this Schedule 13D
is 5215 North O'Connor, Suite 300, Irving, Texas 75039.
Gary L. Friedman
Director
Executive Officer of Matrix Telecom, Inc., Fort Worth,
Texas, and Director and Executive Officer of United Group Association,
Inc., Irving, Texas
Mr. Friedman's address for purposes of this Schedule 13D
is 9003 Airport Freeway, Suite 340, Fort Worth,
Texas 77618. Mr. Friedman beneficially owns 100 Common
Shares (100 Common Shares and 0 Units) constituting 0.0% of the Common
Shares. The 100 Common Shares are held by a partnership in which Mr.
Friedman and his brother Dennis Friedman each own a 50% interest. Mr.
Friedman shares the power to vote or to direct the vote of and to dispose
of or direct the disposition of all such Common Shares (100 Common Shares
and 0 Units) with his brother, Dennis Friedman. Dennis Friedman is the
Controller for Annuity Division of American Express, and for purposes of
this Schedule 13D his address is 3569 Woodland Court, Eagan, Minnesota
55123. During the last five years, Dennis Friedman has not been convicted
in any criminal proceeding. During the last five years, Dennis Friedman
has not been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction as a result of which Dennis Friedman was or
is subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or states
securities laws or finding any violation with respect to such laws.
A-4
J. Michael Jaynes
Director
Attorney-at-Law with Law Offices of J. Michael Jaynes,
Irving, Texas
Mr. Jaynes's address for purposes of this Schedule 13D is
4225 Wingren Drive, Suite 200, Irving, Texas 75062. Mr. Jaynes
beneficially owns 1,000 Common Shares (1,000 Common Shares and 0 Units)
constituting 0.0% of the Common Shares. Mr Jaynes has sole power to vote
or to direct the vote of and sole power to dispose or to direct the
disposition of all such Common Shares.
Richard T. Mockler
Director
Retired, Former Partner with Ernst & Young, Dallas, Texas
Mr. Mockler's address for purposes of this Schedule 13D
is 1444 Greathouse Road, Waxahachie, Texas 75165
To the best knowledge of the reporting persons, none of the
persons listed above has any further information to report in response to
Items 2-6 of Schedule 13D.
A-5
EXHIBIT INDEX
-------------
EXHIBIT A -- Registration Rights and
Lock-Up Agreement, dated as of February 15, 1994, by and among Amli
Residential Properties Trust and the Persons listed on Schedule A thereof
(previously filed).
EXHIBIT B -- Amended and Restated
Agreement of Limited Partnership of Amli Residential Properties, L.P.
(previously filed).
EXHIBIT C -- Agreement relating to
filing joint Schedule 13D.
EXHIBIT D -- Series A Preferred Shares
Purchase Agreement, dated as of January 18, 1996, by and between Amli
Residential Properties Trust and Amli Realty Co. (previously filed).
EXHIBIT E -- Articles Supplementary,
dated as of January 30,
1996, Classifying and designating Series A Cumulative Convertible Preferred
Shares of Beneficial Interest (previously filed).
EXHIBIT F -- Series A Preferred Shares
Purchase Agreement, dated as of January 18, 1996, by and between Amli
Residential Properties Trust and United Group Reinsurance, Inc.
EXHIBIT C
---------
This Agreement is entered into by and among Amli Realty Co., a
Delaware corporation, Gregory T. Mutz, John E. Allen, Baldwin & Lyons,
Inc., an Indiana corporation, Nathan Shapiro, UICI, a Delaware corporation,
and Ronald L. Jensen.
Each of the persons named above hereby agrees that the Schedule 13D
of even date herewith and to which this Agreement is attached as an
exhibit, which is to be filed with the Securities and Exchange Commission,
is to be filed on behalf of each such person.
This Agreement may be executed in multiple counterparts, each of
which shall constitute an original.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf this 18th
day of November, 1996.
AMLI REALTY CO.
By: /S/ JOHN E. ALLEN
-----------------------
Name: John E. Allen
Title: President
/S/GREGORY T. MUTZ
-----------------------------------
Gregory T. Mutz
/S/JOHN E. ALLEN
-----------------------------------
John E. Allen
BALDWIN & LYONS, INC.
By: /S/ G. PATRICK CORYDON
-----------------------
Name: G. Patrick Corydon
Title: Vice President-Finance
/S/ NATHAN SHAPIRO
-----------------------------------
Nathan Shapiro
UICI
By: /S/ VERNON WOELKE
-----------------------
Name: Vernon Woelke
Title: Treasurer
/S/ RONALD L. JENSEN
-----------------------------------
Ronald L. Jensen
EXHIBIT F
SERIES A PREFERRED SHARES PURCHASE AGREEMENT
DATED AS OF JANUARY 18, 1996
BETWEEN
AMLI RESIDENTIAL PROPERTIES TRUST
AND
UNITED GROUP REINSURANCE, INC.
TABLE OF CONTENTS
PAGE
----
I. PURCHASE AND SALE OF SHARES.. . . . . . . . . . . . . . . . . 1
1.1 Sale and Issuance of Preferred Shares. . . . . . . . . . 1
1.2 Closing. . . . . . . . . . . . . . . . . . . . . . . . . 1
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . . . . . . 2
2.1 Organization, Good Standing and Qualification. . . . . . 2
2.2 Power, Authority and Enforceability. . . . . . . . . . . 3
2.3 Capitalization . . . . . . . . . . . . . . . . . . . . . 3
2.4 Valid Issuance of Shares . . . . . . . . . . . . . . . . 3
2.5 Compliance with Other Instruments. . . . . . . . . . . . 3
2.6 Registration Statement and Prospectus. . . . . . . . . . 4
2.7 Conformity to Securities Act; No Misstatement or
Omission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.8 Financial Statements . . . . . . . . . . . . . . . . . . 5
2.9 No Material Changes. . . . . . . . . . . . . . . . . . . 6
2.10 Litigation . . . . . . . . . . . . . . . . . . . . . . . 6
2.11 Title to Properties; Leasehold Interests . . . . . . . . 6
2.12 Environmental Compliance . . . . . . . . . . . . . . . . 7
2.13 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.14 Employees; ERISA . . . . . . . . . . . . . . . . . . . . 9
2.15 Legal Compliance . . . . . . . . . . . . . . . . . . . . 10
2.16 Regulation G; Use of Proceeds. . . . . . . . . . . . . . 10
2.17 Governmental Consent. . . . . . . . . . . . . . . . . . 11
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. . . . . . . . 11
3.1 Power, Authority and Enforceability. . . . . . . . . . . 11
3.2 Compliance with Other Instruments. . . . . . . . . . . . 11
3.3 Ownership Limitations. . . . . . . . . . . . . . . . . . 12
IV. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING . . . . . 12
4.1 Series A Preferred Articles Supplementary. . . . . . . . 12
4.2 Representations and Warranties . . . . . . . . . . . . . 12
4.3 Performance. . . . . . . . . . . . . . . . . . . . . . . 12
4.4 No Stop Order. . . . . . . . . . . . . . . . . . . . . . 12
4.5 No Material Adverse Change . . . . . . . . . . . . . . . 13
4.6 Opinion of Company Counsel . . . . . . . . . . . . . . . 13
4.7 Officer's Certificate. . . . . . . . . . . . . . . . . . 13
4.8 Proceedings. . . . . . . . . . . . . . . . . . . . . . . 13
V. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. . . . . . 13
5.1 Representations and Warranties . . . . . . . . . . . . . 13
5.2 Additional Commitments . . . . . . . . . . . . . . . . . 14
VI. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.1 Filing of Prospectus Supplement. . . . . . . . . . . . . 14
6.2 Amendments to Registration Statement . . . . . . . . . . 14
-i-
6.3 Notice of Certain Actions. . . . . . . . . . . . . . . . 14
6.4 Filing of Exchange Act Reports . . . . . . . . . . . . . 15
6.5 Stock Exchange Listing . . . . . . . . . . . . . . . . . 15
VII. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 15
7.1 Survival of Warranties . . . . . . . . . . . . . . . . . 15
7.2 Successors and Assigns . . . . . . . . . . . . . . . . . 16
7.3 Governing Law. . . . . . . . . . . . . . . . . . . . . . 16
7.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . 16
7.5 Titles and Subtitles . . . . . . . . . . . . . . . . . . 16
7.6 Notices. . . . . . . . . . . . . . . . . . . . . . . . . 16
7.7 No Finder's Fees . . . . . . . . . . . . . . . . . . . . 17
7.8 Expenses . . . . . . . . . . . . . . . . . . . . . . . . 18
7.9 Amendments and Waivers . . . . . . . . . . . . . . . . . 18
7.10 Severability . . . . . . . . . . . . . . . . . . . . . . 18
7.11 Entire Agreement . . . . . . . . . . . . . . . . . . . . 18
7.12 Limitation of Liability of Shareholders
of the Company . . . . . . . . . . . . . . . . . . . . . 18
-ii-
SCHEDULES AND EXHIBITS
----------------------
Schedule 2.1 Subsidiaries
Schedule 2.5 Compliance with Other Instruments
Schedule 3.2 Compliance with Other Instruments
Schedule 7.7 Finder's Fee
Exhibit A Series A Preferred Articles Supplementary
Exhibit B Opinion of Company Counsel
Exhibit C Prospectus
- iii -
SERIES A PREFERRED SHARES PURCHASE AGREEMENT
--------------------------------------------
This SERIES A PREFERRED SHARES PURCHASE AGREEMENT (this
"Agreement") is made as of the 18th day of January, 1996 by and between
Amli Residential Properties Trust, a Maryland real estate investment trust
(the "Company"), and United Group Reinsurance, Inc. (the "Investor").
W I T N E S S E T H
-------------------
WHEREAS, the Company wishes to issue and sell to the Investor
an aggregate of 100,000 shares of Series A Cumulative Convertible Preferred
Shares of Beneficial Interest, $.01 par value per share, of the Company
(the "Series A Preferred Shares"), the terms of which shall be as set forth
in the Series A Preferred Articles Supplementary in the form of Exhibit A
(the "Series A Preferred Articles Supplementary") in accordance with and
subject to the terms and conditions set forth herein; and
WHEREAS, the Investor wishes to purchase the Series A Preferred
Shares on the terms and subject to the conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants, agreements and warranties herein contained, the parties
hereby agree as follows:
I. PURCHASE AND SALE OF SHARES.
1.1 SALE AND ISSUANCE OF PREFERRED SHARES.
(a) The Company shall adopt and file with the State
Department of Assessments and Taxation of Maryland (the "SDAT") on or
before the Closing Date (as defined below) the Series A Preferred Articles
Supplementary.
(b) Subject to the terms and conditions of this Agreement,
the Company agrees to issue and sell to the Investor (or one or more of its
affiliates) and the Investor (either directly or through one or more of its
affiliates) agrees to purchase from the Company at the Closing (as defined
below), 100,000 Series A Preferred Shares, at a per-share price of $20.00
(the "Per-Share Price"), resulting in an aggregate purchase price of
$2,000,000 million (the "Purchase Price").
1.2 CLOSING.
The closing (the "Closing") of the purchase and sale of the
Series A Preferred Shares shall take place at the offices of Mayer, Brown &
Platt, 190 South LaSalle, Chicago, Illinois 60603 at 10:00 a.m. on January
25, 1996, or at such other location, date and time as may be agreed upon by
the Company and the Investor (such
1
date being hereinafter referred to as the "Closing Date"). At the Closing,
the Company shall issue and deliver to the Investor a stock certificate or
certificates in definitive form, registered in the name of the Investor,
representing the Series A Preferred Shares being purchased by the Investor
hereunder, and the Investor shall deliver to the Company, against delivery
of the stock certificate or certificates representing the Series A
Preferred Shares, a cashier's or certified check or wire transfer payable
to the Company's order for the Purchase Price.
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants, as of the date of this Agreement
and as of the Closing Date, that:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION.
(a) The Company has been duly organized and is validly
existing as a real estate investment trust in good standing under the laws
of the State of Maryland with full power and authority to own lease and
operate its properties and conduct its business as now being conducted, and
has been duly qualified to transact business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, except where
the failure to so qualify would not have a Material Adverse Effect.
"Material Adverse Effect" means any material adverse effect on the
operations, assets, business, affairs, properties or financial or other
condition of the Company and its subsidiaries taken as a whole.
(b) Amli Residential Properties, L.P. (the "Operating
Partnership") has been duly formed and is validly existing as a limited
partnership in good standing under the Delaware Revised Uniform Limited
Partnership Act with partnership power and authority to own, lease and
operate its properties and conduct its business as now being conducted and
has been duly qualified to transact business and is in good standing under
the laws of each jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, except where
the failure to so qualify would not have a Material Adverse Effect.
(c) The subsidiaries of the Company set forth on Schedule
2.1 (the "Subsidiaries") have each been duly organized and are validly
existing and in good standing under the laws of their respective
jurisdictions of incorporation and have full power and authority to own,
lease and operate their properties and to conduct their businesses as now
being conducted, and each Subsidiary has been duly qualified to transact
business and is in good standing under the laws of each other jurisdiction
in which it owns or
2
leases properties, or conducts any business, so as to require such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect.
2.2 POWER, AUTHORITY AND ENFORCEABILITY
(a) The Company has all requisite power and authority, and
has taken all required action necessary, to execute, deliver and perform
this Agreement and to issue and sell the Series A Preferred as herein
provided.
(b) This Agreement has been duly executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other
laws of general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies.
2.3 Capitalization.
The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and, except as set forth the Prospectus, are nonassessable.
2.4 Valid Issuance of Shares.
The Series A Preferred Shares which are being purchased by
the Investor hereunder, when issued, sold and delivered in accordance with
the terms hereof for the consideration expressed herein, will be duly and
validly issued, fully paid and, except as described in the Prospectus,
nonassessable and will be issued in compliance with all applicable federal
and state securities laws. The Common Shares (as hereinafter defined)
issuable upon the conversion of the Series A Preferred Shares issued and
sold hereunder will be duly and validly reserved for such issuance and,
when issued upon such conversion in accordance with the Series A Preferred
Articles Supplementary, will be duly and validly issued, fully paid and,
except as provided in the Prospectus, nonassessable and will be issued in
compliance with all applicable federal and state securities laws.
2.5 Compliance with Other Instruments.
Except as set forth on Schedule 2.5, the execution, delivery
and performance of this Agreement by the Company and the consummation by
the Company of the transactions contemplated hereby do not (i) result in a
violation of the Company's Declaration of
3
Trust or Bylaws or (ii) conflict with, or constitute a default (or an event
which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the
Company or any of its subsidiaries is a party, or result in a violation of
any law, rule, regulation, order, judgment or decree applicable to the
Company, any of its subsidiaries or by which any property or asset of the
Company or any of its subsidiaries is bound or affected (except for such
conflicts, defaults, terminations, amendments, accelerations, cancellations
and violations as would not, individually or in the aggregate, have a
Material Adverse Effect or materially impair the Company's ability to
perform its obligations under this Agreement).
2.6 REGISTRATION STATEMENT AND PROSPECTUS.
The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (herein called the "Securities Act")
and of Rule 415 pursuant to the Securities Act, and filed with the
Securities and Exchange Commission (herein called the "Commission") on June
6, 1995, a Registration Statement on Form S-3 (33-93120) relating to
$200,000,000 aggregate principal amount of the Company's unsecured senior
debt securities (the "Debt Securities"), preferred shares of beneficial
interest, par value $.01 per share (the "Preferred Shares"), common shares
of beneficial interest, $.01 par value per share (the "Common Shares") and
warrants to purchase any of the foregoing (the "Securities Warrants"),
under the Securities Act. Such Registration Statement was declared
effective by the Commission on July 20, 1995. No stop order suspending the
effectiveness of such Registration Statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission, and no amendment or supplement thereto or to any document
incorporated by reference therein has heretofore been filed with the
Commission. Such Registration Statement is herein called the "Registration
Statement". As used herein, the term "Registration Statement" means the
Registration Statement, including all exhibits thereto (other than the
Statement of Eligibility and Qualification under the Trust Indenture Act
(Form T-1) of the Trustee), as amended to the date of this Agreement; the
term "Basic Prospectus" means the prospectus included in the Registration
Statement in the form on file with the Commission on the date the
Registration Statement became effective; and the term "Prospectus" means
the Basic Prospectus, together with the Prospectus Supplement, dated
January 18, 1996, delivered to the Investor in connection with the purchase
of the Series A Preferred Shares, in the form to be filed with the
Commission pursuant to Rule 424(b) under the Securities Act. Any reference
herein to the Registration Statement, the Basic Prospectus or the
Prospectus shall be deemed to refer to and include the documents or
portions thereof incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the
4
Securities Exchange Act of 1934, as amended (herein called the "Exchange
Act"), on or before the date of this Agreement, or the issue date of the
Basic Prospectus or the Prospectus, as the case may be; and any reference
to any amendment or supplement to the Registration Statement, the Basic
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after such date or issue date, as the case may be, under
the Exchange Act which are incorporated or deemed to be incorporated by
reference in such amendment or supplement.
2.7 CONFORMITY TO SECURITIES ACT; NO MISSTATEMENT OR OMISSION.
As of the date hereof, as of the time the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Securities Act, at
any time prior to the Closing Date that any subsequent amendment or
supplement to the Registration Statement or the Prospectus is filed with
the Commission and at the Closing Date: (i) the Registration Statement, as
amended as of any such time and the Prospectus, as amended or supplemented
as of any such time will comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, and the
respective rules and regulations of the Commission thereunder, (ii) the
Registration Statement, as amended as of any such time, will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and (iii) the Prospectus, as amended or supplemented as of
any such time, will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
2.8 FINANCIAL STATEMENTS.
The financial statements incorporated by reference in the
Registration Statement and the Prospectus are complete and correct in all
material respects and present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as at the dates specified and
the consolidated results of their operations for the periods specified;
such financial statements were prepared in conformity with generally
accepted accounting principles applied on a consistent basis during the
periods involved, except as indicated therein or in the notes thereto; and
the supporting schedules included in the Registration Statement present
fairly the information required to be stated therein.
5
2.9 NO MATERIAL CHANGES.
Since the date as of which information is given in the
Prospectus, except as otherwise stated therein or contemplated thereby:
(i) there has been no material adverse change in the business, operations
or condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings or the ability to continue
to conduct business in the usual and ordinary course of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business; (ii) there has been no material transaction
entered into by the Company or any of its subsidiaries other than
transactions in the ordinary course of business or transactions which are
not material in relation to the Company and its subsidiaries considered as
one enterprise; and there have not been any changes in the capital stock
(other than issuances of Common Shares pursuant to employee benefit or
other similar plans described in the Prospectus) or any material increases
in the debt of the Company or any of its subsidiaries.
2.10 LITIGATION.
Except as set forth in the Prospectus, there is no action,
suit or proceeding (whether or not purportedly on behalf of the Company or
any of its subsidiaries) before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the best knowledge and belief
of the Company, threatened against or affecting the Company or any of its
subsidiaries which, either alone or in the aggregate, involve the
possibility of any material and adverse change in the business, operations,
properties, assets, financial condition or income of the Company and its
subsidiaries considered as one enterprise, the consummation of the
transactions contemplated by this Agreement or the compliance by the
Company with the terms, conditions and provisions of the Series A Preferred
Shares.
2.11 TITLE TO PROPERTIES; LEASEHOLD INTERESTS.
(a) Except as disclosed in the Prospectus, or except to the
extent that the inaccuracy of any of the following, either individually or
in the aggregate, would not have a Material Adverse Effect: (i) the
Company, through one or more subsidiaries, has good and marketable title
(or, with respect to any Communities (as hereinafter defined) located in
Texas, good and indefeasible title, or such substantially equivalent
quality of title as provided by the applicable title insurance policy) to
the land underlying each of the multi-family apartment communities
described in the Prospectus (the "Communities") and good and marketable
title (or, with respect to any Communities located in Texas, good and
indefeasible title) to the improvements thereon (in each case with title
insurance thereon in full force and effect and which is
6
adequate in accordance with industry standards) and all other assets that
are required for the effective operation of such Communities in the manner
in which they currently are operated, in each case, subject only to
Permitted Exceptions (as herein defined); (ii) all leases under which the
Company, or any of its subsidiaries leases any property is in full force
and effect, and neither the Company nor any such subsidiary is in default
in any material respect of any of the terms or provisions of any of such
leases and no claim has been asserted by anyone adverse to any such
entity's rights as lessee under any of such leases, or affecting or
questioning any such entity's right to the continued possession or use of
the properties under any such leases or asserting a default under any such
leases; and (iii) all liens, charges or encumbrances on or affecting any of
the Communities or the other property and assets of the Company and its
subsidiaries which are required to be disclosed in the Prospectus are
disclosed therein;
(b) As used in this Agreement, "Permitted Exceptions" means: (i)
real estate taxes and assessments not yet delinquent; (ii) covenants,
restrictions, easements and other similar agreements, provided that the
same are not violated by existing improvements or the current use and
operation of a Community or other property; (iii) zoning laws, ordinances
and regulations, building codes, rules and other governmental laws,
regulations, rules and orders affecting each Community or other property,
provided that the same are not violated by existing improvements or the
current use and operation of a Community or other property; (iv) any state
of facts disclosed by the surveys relating to the Communities; (v) any
imperfection of title which does not affect the current use, operation or
enjoyment of a Community or other property and does not render title to
such Community or other property unmarketable or uninsurable and does not
materially impair the value of such Community; and (iv) mortgage financing
as described in the Prospectus.
2.12 ENVIRONMENTAL COMPLIANCE.
(a) Except as specifically described in the Prospectus, the
Company and each of its subsidiaries has complied and is in compliance in
all material respects with all Environmental Statutes (as hereinafter
defined).
(b) Neither the Company nor any of its subsidiaries intends
to use the properties or assets described in the Prospectus or any other
real property owned or occupied by any such party for the purpose of
handling, burying, storing, retaining, refining, transporting, processing,
manufacturing, generating, producing, spilling, seeping, leaking, escaping,
leaching, pumping, poring, emitting, emptying, discharging, injecting,
dumping, transferring or otherwise disposing of or dealing with Hazardous
Materials, except for materials utilized in the ordinary course of business
of
7
the Communities, provided such use would not, in the ordinary course of
business, give rise to liability under any Environmental Statute.
(c) Except as would not, individually or in the aggregate,
have a material adverse effect on the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects of the
Company, neither the Company nor any of its subsidiaries is aware of any
seepage, leak, escape, leach, discharge, injection, release, emission,
spill, pumping, pouring, emptying or dumping of Hazardous Materials into
waters on or adjacent to the properties described in the Prospectus or any
other real property owned or occupied by any such party, or onto lands from
which Hazardous Materials might seep, flow or drain into such waters.
(d) The Company is not aware of any occurrence or
circumstance that, with notice or passage of time or both, would give rise
to a claim under or pursuant to any federal, state or local Environmental
Statute pertaining to Hazardous Materials on or originating from any
properties or assets described in the Prospectus or any other real property
owned or occupied by the Company or any of its Subsidiaries arising out of
the conduct of any such party, including without limitation pursuant to any
Environmental Statute.
(e) Neither the properties described in the Prospectus nor
any other land owned by the Company or any of its subsidiaries is included
or, to the knowledge of the Company, proposed for inclusion on the National
priorities List issued pursuant to CERCLA (as hereinafter defined) by the
United States Environmental Protection Agency (the "EPA") or on the
inventory of other potential "Problem" sites issued by the EPA and has not
otherwise been publicly identified by the EPA as a potential CERCLA site or
included or, to the best knowledge of the Company, proposed for inclusion
on any list or inventory issued pursuant to any other Environmental Statute
or issued by any other Governmental Authority (as hereinafter defined).
(f) As used herein, "Hazardous Material" shall include
without limitation any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, toxic substances or related
materials, asbestos or any hazardous material as defined by any federal,
state or local environmental law, ordinance, rule or regulation, including
without limitation the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Section Sec. 9601 et seq.
("CERCLA"), the Hazardous Materials Transportation Act, as amended, 49
U.S.C. Section Sec. 1801 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Section Sec. 9601 et seq., the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section Sec.
11001 et seq., the Toxic
8
Substances Control Act, 15 U.S.C. Section Sec. 2601 et seq., the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section Sec. 136 et
seq., the Clean Air Act, 42 U.S.C. Section Sec. 7401 et seq., the Clean
Water Act (Federal Water Pollution Control Act), 33 U.S.C. Section Sec.
1251 et seq., the Safe Drinking Water Act, 42 U.S.C. Section Sec. 300F to
300j-11, and the Occupational Safety and Health Act, 29 U.S.C. Section Sec.
651 et seq., as any of the above statutes may be amended from time to time,
and in the regulations adopted and publications promulgated pursuant to
each of the foregoing (individually, an "Environmental Statute") or by any
federal, state or local governmental authority having or claiming
jurisdiction over the properties and assets described in the Prospectus (a
"Governmental Authority").
2.13 TAXES.
The Company has filed all federal, state, local and other tax
returns and reports (except for foreign returns and reports the failure to
file which will not result in any material liability to the Company), and
any other material returns and reports with any governmental authorities
(federal, state or local), required to be filed by it. The Company has
paid or caused to be paid all taxes (including interest and penalties) that
are due and payable, except those which are being contested by it in good
faith by appropriate proceedings and in respect of which adequate reserves
are being maintained on its books in accordance with generally accepted
accounting principles consistently applied. The Company does not have any
material liabilities for taxes other than those incurred in the ordinary
course of business and in respect of which adequate reserves are being
maintained by it in accordance with generally accepted accounting
principles consistently applied. Federal and state income tax returns for
the Company have not been audited by the Internal Revenue Service or state
authorities. No deficiency assessment with respect to or proposed
adjustment of the Company's federal, state, local or other tax returns is
pending or, to the best of the Company's knowledge, threatened. There is
no tax lien, whether imposed by any federal, state, local or other tax
authority outstanding against the assets, properties or business of the
Company. There are no applicable taxes, fees or other governmental charges
payable by the Company in connection with the execution and delivery of
this Agreement or the issuance by the Company of the Series A Preferred
Shares or the Common Shares issuable upon conversion of the Series A
Preferred Shares, except for governmental fees paid in connection with
securities law filings.
2.14 EMPLOYEES; ERISA.
The Company has good relationships with its employees and has
not had any substantial labor problems. The Company does not have any
knowledge as to any intentions of any key employee or any group of
employees to leave the employ of the Company. Other
9
than as disclosed in the Prospectus, the Company has not established,
sponsored, maintained, made any contributions to or been obligated by law
to establish, maintain, sponsor or make any contributions to any "employee
pension benefit plan" or "employee welfare benefit plan" (as such terms are
defined in ERISA), including, without limitation, any "multi-employer
plan." The Company is in compliance with all applicable laws relating to
the employment of labor, including provisions relating to wages, hours,
equal opportunity, collective bargaining and the payment of Social Security
and other taxes, and with ERISA, except where the failure to so comply
would not have a Material Adverse Effect.
2.15 LEGAL COMPLIANCE.
(a) The Company has complied with all applicable laws,
rules, regulations, orders, licenses, judgments, writs, injunctions,
decrees or demands, except to the extent that failure to comply would not
have a Material Adverse Effect. The Company has all necessary permits,
licenses and other authorizations required to conduct its business as
currently conducted, and as proposed to be conducted, in all material
respects.
(b) There are no adverse orders, judgments, writs,
injunctions, decrees or demands of any court or administrative body,
domestic or foreign, or of any other governmental agency or
instrumentality, domestic or foreign, outstanding against the Company which
may result in a Material Adverse Effect.
(c) There is no existing law, rule, regulation or order,
and the Company is not aware of any proposed law, rule, regulation or
order, which would prohibit or materially restrict the Company from, or
otherwise materially adversely affect the Company in, conducting its
business as now being conducted and as proposed to be conducted.
2.16 REGULATION G; USE OF PROCEEDS.
The proceeds from the issue and sale of the Series A
Preferred Shares will be applied by the Company as set forth in the
Prospectus under the caption "Use of Proceeds". Neither the Company nor
any subsidiary of the Company will, directly or indirectly, use any of such
proceeds for the purpose, whether immediate, incidental or ultimate, of
buying a "margin stock" or of maintaining, reducing or retiring any
indebtedness originally incurred to purchase stock that is currently a
"margin stock", or for any other purpose which might constitute this
transaction a "purpose credit", in each case within the meaning of
Regulation G of the Board of Governors of the Federal Reserve System (12
C.F.R. 207, as amended), or otherwise take or permit to be taken any action
which would involve a violation of such Regulation G or of Regulation X (12
C.F.R. 224, as amended) or any other regulation of
10
such Board. No indebtedness being reduced or retired out of such proceeds
was incurred for the purpose of purchasing or carrying any such "margin
stock" and neither the Company nor any subsidiary of the Company owns, or
has any present intention of acquiring, any such "margin stock" in an
amount sufficient to cause more than 20% of the value of the consolidated
assets of the Company and its Subsidiaries considered as one enterprise to
be "margin stock".
2.17 GOVERNMENTAL CONSENT.
Other than such consents as have already been obtained or
made or which will be made at or prior to the Closing Date in connection
with the Registration Statement, the Prospectus and the Series A Preferred
Shares, no consent, approval or authorization of, or declaration or filing
with, any governmental authority on the part of the Company is required for
the valid execution and delivery of this Agreement or performance
thereunder or the valid offer, issue, sale and delivery of the Series A
Preferred Shares pursuant to this Agreement and the Articles Supplementary;
PROVIDED that the Company makes no representation or warranty as to any
consents, approvals, authorizations, declarations or filings required under
laws regulating insurance companies as such.
III. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
The Investor represents and warrants, as of the date of this
Agreement and as of the Closing Date, that:
3.1 POWER, AUTHORITY AND ENFORCEABILITY.
(a) The Investor has a requisite power and authority, and
has taken all required action necessary, to execute, deliver and perform
this Agreement and to purchase the Series A Preferred Shares hereunder.
(b) This Agreement has been duly executed and delivered by
the Investor and constitutes the legal, valid and binding obligation of the
Investor enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other
laws of general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies.
3.2 COMPLIANCE WITH OTHER INSTRUMENTS.
Except as set forth in Schedule 3.2, the execution delivery
and performance of this Agreement by the Investor and the consummation by
the Investor of the transactions contemplated hereby do not (i) result in a
violation of the Investor's
11
constituent documents or (ii) conflict with, or constitute a default under
(or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to
which the Investor is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree applicable to the Investor or by
which any property or asset of the Investor is bound or affected (except
for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not materially impair the Investor's
ability to perform its obligations under this Agreement).
3.3 OWNERSHIP LIMITATIONS.
The Investor has received a copy of the Company's Amended and
Restated Declaration of Trust and understands the restrictions on transfer
and ownership of the Company included therein related to the qualification
by the Company as a real estate investment trust for federal income tax
purposes pursuant to Sections 856 through 860 of the Internal Revenue Code
of 1986, as amended.
IV. CONDITIONS OF THE INVESTOR'S OBLIGATIONS AT CLOSING.
The Investor's obligations at the Closing under subsection 1.1(b) of
this Agreement are subject to the fulfillment on or before the Closing of
each of the following conditions:
4.1 SERIES A PREFERRED ARTICLES SUPPLEMENTARY.
The Series A Preferred Articles Supplementary shall have been
filed with and accepted for recording by the SDAT.
4.2 REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company contained
in Section 2 shall be true on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the
date of such Closing.
4.3 PERFORMANCE.
The Company shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
4.4 NO STOP ORDER.
12
No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings therefor
instituted or threatened by the Commission.
4.5 NO MATERIAL ADVERSE CHANGE.
After the date of this Agreement and through the Closing
Date, there shall not have occurred any material adverse change in the
business or financial condition of the Company and its subsidiaries
considered as one enterprise.
4.6 OPINION OF COMPANY COUNSEL.
The Investor shall have received from Mayer, Brown & Platt,
counsel for the Company, an opinion, dated as of the Closing, in the form
attached hereto as Exhibit B.
4.7 OFFICER'S CERTIFICATE.
The Company shall have delivered to the Investor on the
Closing Date a certificate or certificates, signed by an authorized officer
of the Company to the effect that the facts required to exist by Sections
4.1, 4.2, 4.3, 4.4 and 4.5 exist on such Closing Date.
4.8 PROCEEDINGS.
All proceedings to be taken in connection with the
transactions contemplated by this Agreement, including all filings with the
Commission, and all documents incidental thereto, shall be reasonably
satisfactory in form and substance to the Investor; and the Investor shall
have received copies of all documents which the Investor may reasonably
request in connection with said transactions and copies of the records of
all proceedings of the Company in connection therewith in form and
substance satisfactory to the Investor.
V. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING.
The obligations of the Company under subsection 1.1(b) of this
Agreement are subject to the fulfillment on or before the Closing of each
of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Investor contained
in Section 3 shall be true on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the
Closing.
13
5.2 ADDITIONAL COMMITMENTS.
The Company shall have received commitments from investors,
including the Investor, to purchase an aggregate of $20,000,000 of Series A
Preferred Shares on substantially the terms set forth in this Agreement.
VI. COVENANTS.
6.1 FILING OF PROSPECTUS SUPPLEMENT.
Promptly following the execution of this Agreement, the
Company will file with the Commission pursuant to Rule 424(b) under the
Securities Act, the Prospectus Supplement to the Basic Prospectus (setting
forth, inter alia, the amount of the Series A Preferred Shares sold
hereunder, the terms thereof, the method of distribution of the Series A
Preferred Shares sold hereunder and the price at which the Series A
Preferred Shares sold hereunder are to be purchased by the Investor) in the
form attached as Exhibit C hereto, with only such changes as shall be
approved by the Investor and the Company. The Investor hereby acknowledges
receipt of two copies of the Prospectus.
6.2 AMENDMENTS TO REGISTRATION STATEMENT.
If at any time after the date of this Agreement and through
the Closing Date any event shall have occurred or any condition shall exist
as a result of which, in the reasonable opinion of the Investor or the
Company, it shall be necessary to amend or supplement the Prospectus, as
then amended or supplemented, so that the Prospectus will not include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances then existing, not misleading, or if, in the reasonable
opinion of the Investor or the Company, it shall be necessary at any time
to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the Securities Act or the Exchange
Act or the respective rules and regulations of the Commission thereunder,
the Company shall promptly prepare and file with the Commission such
amendment or supplement, whether by filing documents pursuant to the
Exchange Act, the Securities Act or otherwise, as shall be necessary to
correct such untrue statement or omission or to effect such compliance.
6.3 NOTICE OF CERTAIN ACTIONS.
After the date of this Agreement and through the Closing
Date, the Company will notify the Investor immediately (and confirm such
notice in writing) (i) of the effectiveness of any amendment
14
to the Registration Statement, (ii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Basic Prospectus
or the Prospectus, (iii) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceedings
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if any such stop order shall be
issued, to obtain the lifting thereof at the earliest possible time. After
the date of this Agreement and through the Closing Date, the Company will
promptly, upon mailing or delivery to the Commission, provide the Investor
with copies of any amendment or supplement to the Prospectus, any amendment
to the Registration Statement or any other document to be filed with the
Commission.
6.4 FILING OF EXCHANGE ACT REPORTS.
After the date of this Agreement and through the Closing
Date, the Company will file promptly all documents required to be filed
with the Commission pursuant to Section 13 or 14 of the Exchange Act, and
so long as the Series A Preferred Shares remain issued and outstanding,
shall provide to the Investor copies of all such documents, including,
without limitation, all financial statements of the Company required to be
filed with the Commission.
6.5 STOCK EXCHANGE LISTING.
The Company will use its best efforts to obtain the listing
on the New York Stock Exchange of all Common Shares which the Investor may
acquire upon conversion of the Series A Preferred Shares issued and sold
hereunder.
VII. MISCELLANEOUS
7.1 SURVIVAL OF WARRANTIES.
The warranties, representations and covenants of the Company
and the Investor contained in or made pursuant to Sections 2.1, 2.2, 2.3
and 2.4 of this Agreement shall survive the Closing indefinitely. All
other representations and warranties contained in or made in this Agreement
shall survive the Closing for a period of three years. The representations
and warranties contained in this Agreement shall in no way be affected by
any investigation of the subject matter thereof made by or on behalf of the
Investor or the Company.
15
7.2 SUCCESSORS AND ASSIGNS.
Except as otherwise provided herein, the terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto. Nothing in this
Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
7.3 GOVERNING LAW.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without giving effect t
the conflict of law provisions thereof; PROVIDED, HOWEVER, that matters
relating to the issuance of the Series A Preferred Shares and other
internal corporate matters related to the Company shall be governed by the
laws of the State of Maryland.
7.4 COUNTERPARTS.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7.5 TITLES AND SUBTITLES.
The title and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting
this Agreement.
7.6 NOTICES.
Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed
effectively given (a) upon personal delivery to the party to be notified,
(b) on the fifth business day after deposit with the United States Post
Office, by registered or certified mail, postage prepaid, (c) on the next
business day after dispatch via nationally recognized overnight courier or
(d) upon confirmation of transmission by facsimile, all addressed to the
party to be notified at the address indicated for such party on the
signature page hereof, or at such other address as such party may designate
by ten (10) days' advance written notice to the other parties. Notices
should be provided in accordance with this Section at the following
addresses:
16
If to the Investor, to:
United Group Reinsurance, Inc.
c/o Emerald Capital Group, Ltd.
100 Chetwynd Drive, Suite 202
Rosemont, Pennsylvania 19010
Facsimile: (610) 527-0392
Attn: Patrick McLaughlin
If to the Company, to:
Amli Residential Properties Trust
125 South Wacker Drive
Suite 3100
Chicago, Illinois 60606
Facsimile: (312) 443-1986
Attn: President
with a copy to:
Edward J. Schneidman
Mayer, Brown & Platt
190 South LaSalle
Chicago, IL 60603
Facsimile: (312) 701-7711
7.7 NO FINDER'S FEES.
Except as set forth on Schedule 7.7 hereto, each party
represents that it neither is nor will be obligated for any finders' fee or
commission in connection with this transaction. The Investor agrees to
indemnify and to hold harmless the Company from any liability for any
commission or compensation in the nature of a finders' fee (and the costs
and expenses of defending against such liability or asserted-liability) for
which the Investor or any of its officers, partners, employees, or
representatives is responsible. The Company agrees to indemnify and hold
harmless the Investor from any liability for any commission or compensation
in the nature of a finders' fee (and the costs and expenses of defending
against such liability or asserted liability) for which the Company or any
of its officers, employees or representatives is responsible.
7.8 EXPENSES.
Each party shall pay all costs and expenses that it incurs
with respect to the negotiation, execution, delivery and performance of
this Agreement. If any action at law or in equity is necessary to enforce
or interpret the terms of this Agreement or the Series A Preferred Articles
Supplementary, the prevailing party
17
shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
7.9 AMENDMENTS AND WAIVERS.
Any term of this Agreement may be amended, and the observance
of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with
the written consent of the Company and the Investor. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon
each holder of any securities purchased under this Agreement at the time
outstanding (including securities into which such securities are
convertible), each future holder of all such securities, and the Company.
7.10 SEVERABILITY.
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with
its terms.
7.11 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement among the
parties and no party shall be liable or bound to any other party in any
manner by any warranties, representations or covenants except as
specifically set forth herein.
7.12 LIMITATION OF LIABILITY OF SHAREHOLDERS OF THE COMPANY.
ANY OBLIGATION OR LIABILITY WHATSOEVER OF THE COMPANY WHICH MAY ARISE
AT ANY TIME UNDER THIS AGREEMENT OR ANY OBLIGATION OR LIABILITY WHICH MAY
BE INCURRED BY IT PURSUANT TO ANY OTHER INSTRUMENT, TRANSACTION OR
UNDERTAKING CONTEMPLATED HEREBY SHALL BE SATISFIED, IF AT ALL, OUT OF THE
COMPANY'S ASSETS ONLY. NO SUCH OBLIGATION OR LIABILITY SHALL BE PERSONALLY
BINDING UPON, NOR SHALL RESORT FOR THE ENFORCEMENT THEREOF BE HAD TO, THE
PROPERTY OF ANY SHAREHOLDER, REGARDLESS OF WHETHER SUCH OBLIGATION OR
LIABILITY IS IN THE NATURE OF CONTRACT, TORT OR OTHERWISE.
18
IN WITNESS WHEREOF, the parties have executed this Agreement in
Chicago, Illinois as of the date first above written.
UNITED GROUP LIFE INSURANCE, INC. AMLI RESIDENTIAL
PROPERTIES TRUST
By: /S/ MARK HAUPTMAN By: /S/ ALLAN G. SWEET
--------------------------- ----------------------
19
